Mansfield v Binder[2025] QSC 215

SUPREME COURT OF QUEENSLAND

1. [1]
   The Mansfields acquired a rural residential lot in 2005 in lush countryside at Pin Gin Hill south-west of Innisfail.  They planned to eventually construct their retirement home upon it. 
2. [2]
   To the east of their lot, which is numbered 3, is a lot of land numbered 2 and then a lot of land numbered 1.^[1]  Lots 1 and 2 are owned by Mr Binder.
3. [3]
   The three lots all slope to varying degrees downwards, south towards the main local road, Henderson Drive.  However, MSF Sugar’s cane train line runs within a rail corridor parallel to the road, between it and the base of the lots.  Additionally, there is a road reserve running in a strip along the base of lot 2, between it and the rail corridor.
4. [4]
   Lot 3 is landlocked.  This did not present immediate difficulties for the Mansfields’ access to their property.  They drove without objection over a track which ran, in part, over the rail corridor and may, to some extent, have also run along the lower edge of lot 1, as well as through the road reserve at the base of lot 2 between lot 1 and lot 3.  However, various disputes developed between Mr Binder and the Mansfields, including the destruction of the works of one by the other.  Hence the present application for the Court to solve the Mansfields’ lack of legal access by granting an easement.  The application is brought by Mrs Mansfield as the present owner of lot 3.
5. [5]
   The statutory test conferring a discretion on the Court to impose an easement, that is, ‘a statutory right of user’, is contained in s 180 Property Law Act (Qld).  That test per s 180(1), subject to some qualifications in s 180(3), is whether the imposition is ‘reasonably necessary in the interests of effective use in any reasonable manner’ of the applicant’s land. 
6. [6]
   Lot 3 is landlocked. Land access is required to build a home there and reside there. I accordingly find the imposition of a statutory right of user is reasonably necessary for lot 3’s effective use. 
7. [7]
   Argument at the hearing focussed upon the prospective form of relief.  It was not disputed that an easement is the appropriate form of statutory right of user.  Rather, the dispute was over what property and in what form the easement should be imposed.

What are the options?

8. [8]
   The hearing of the application focussed upon four easement options as potential solutions, namely:

1. the new rail crossing option;
2. the high road option;
3. the low road option;
4. the in-between option.

The new rail crossing option

9. [9]
   Access to the lots has in the past been via a gravel surface which exits from Henderson Drive and traverses the cane rails in front of the lower boundary of lot 1.  For the Mansfields to use this rail crossing to get to their property, it is necessary to cross the rail line, turn left in a westerly direction and either drive along the rail corridor or along the base of lot 1.  When this route reaches level with the land at the southern edge of lot 2 they may potentially either drive further along the rail corridor or over the road reserve in order to finally get to lot 3.
10. [10]
    The need to traverse near or onto the lower side of lot 1 could be avoided if a new rail crossing entry were allowed to be created further to the west.  That would allow a crossing leading over the rail corridor directly to the road reserve.  That is ‘the new rail crossing option’.

The high road option

11. [11]
    The ‘high road option’ would involve an easement over the MSF Sugar owned area of the rail crossing proceeding directly to lot 1 and then arcing left and becoming an easement running over the southern end of lot 1 until reaching where lot 1 abuts the road reserve at the base of lot 2.  The Mansfields’ driveway would then cross the road reserve to lot 3.

The low road option

12. [12]
    The ‘low road option’ would also involve an easement over the existing rail crossing, but which would then arc left more acutely.  It would run within the rail corridor, hugging the southern edge of lot 1, but not running any closer than three metres from the nearest cane train rail.  MSF Sugar consents to such an easement, indeed it consents to the easement continuing along the rail corridor all the way through to lot 3, without traversing the road reserve at the base of Mr Binder’s lot 2. 
13. [13]
    The low road option easement, particularly as it runs under lot 1, would run along a thin balcony of land, which traverses laterally along the side of the slope down from lot 1 to the rail lines.  The sides of the balcony in parts abut a battered bank running down from the southern edge of lot 1 and, on the other side, abut a steep battered bank running down to an earth drain next to the rail lines.  As the balcony proceeds westwards below lot 1, there is an area where the banks become more pronounced and the width between lot 1’s boundary and the rail line narrows.  This area is referred to hereafter as the narrow neck. 
14. [14]
    According to exhibit 1, as one travels west along the balcony into the narrow neck, the width between the southern boundary of lot 1 and the rail line at one point decreases to 7.84m.

The in-between option

15. [15]
    The ‘in-between option’ crystallised as obvious during a view held on the morning of day 2 of the hearing.  It would involve an easement over MSF Sugar’s rail crossing area turning west along the rail corridor.  Then, prior to the narrow neck area, it would ascend diagonally up from the rail corridor onto the base of lot 1, straddling both the rail corridor and lot 1 for some distance, until entirely on lot 1.  It would thereafter run along the southern edge of lot 1, for a much shorter distance than in the high road option, until reaching the road reserve. 

Choosing the form of the easement

16. [16]
    Where it is apparent that some form of easement is reasonably necessary and there are competing options as to the form the easement should take, s 180(1) requires consideration of which form is the most reasonable solution for the necessity.  This requirement is sometimes referred to as requiring that the form of easement is substantially preferable to other forms.^[2]
17. [17]
    Before weighing the advantages and suitability of each it is necessary to first reach some conclusions as to the desirable width of the easement.

Appropriate easement width of the easement

18. [18]
    In respect of the high road option, the applicant proposed that the easement would be 12 metres wide.  No persuasive reason has been advanced as to why it ought to be that wide.  The easement is to provide an access driveway to a rural property, not a two way suburban street.  The applicant’s counsel later posited a reasonable width may be 7 metres.
19. [19]
    Bearing in mind the easement is being imposed upon the property of another or others it should not be any wider than is reasonably necessary to meet its purpose.
20. [20]
    Motor cars, trucks and towed loads generally range from about 2 to 2.5 m in width, so a driving surface of 3m width would be adequate.  Buffering allowance in the overall easement width would be required for road shoulders to the side to provide for some flexibility of vehicle movement and space for driveway construction installations such as shoulders, drains, banks, walls or protective fences.   An adequate allowance for those needs when the easement is running on or under lot 1 would be an additional total width of 2.5m, giving rise to a total easement width of 5.5 metres. 
21. [21]
    In making that allowance I do not intend to stipulate where, within the easement the usual driving surface will run.  In some instances, the road surface could appropriately be closer to one side of the easement edge than the other, for instance because of the fall of the ground or the presence of a bank on the other. 
22. [22]
    I qualify the application of that allowance to where the easement is running on or under lot 1 because that is the zone of highest competing demand for space.  Once the driveway progresses west beyond lot 1 those demands are less pressing so that were the driveway to thereafter be on an easement it may be appropriate for the easement to further widen in parts, for instance to provide a vehicle turning or layby area.  As will be seen, there is no need for me to reach a concluded view about that here.

The new rail crossing option is not viable

23. [23]
    The new rail crossing option was not seriously pursued during argument by any of the parties.  The Department of Main Roads is disinterested in allowing such an exit from the road unless MSF Sugar is content with such an option.  MSF Sugar does not support such an option because of safety concerns arising from the new rail crossing being so close to an S bend in the rail line that there would not be an adequate line of sight along the rail line to ensure safe crossings. 
24. [24]
    That problem may, in part, be avoided were there to be regular land clearing either side of the rail line to avoid growth of vegetation obstructing the view. But even the Mansfields’ counsel conceded that was an unrealistic course.  None of the parties seriously contended for the new rail crossing option.  I regard it as excluded based on the available evidence.  This leaves the other three options.

What are the advantages and disadvantages of the high road option?

25. [25]
    The obvious advantage of the high road option derives from the relatively gentle sloping contours of the land over which the driveway would run.  The installation of the driveway would involve little additional engineering works beyond those required for installing a driveway on an approximately level surface.  To the extent that there may need to be excavation in some places to reduce the slope across the width of the road, such excavation would be very minor.  It would be unlikely to result in substantial drops in height, as between the normal lay of the land and the driveway surface, that may make it hazardous to drive farm machinery, such as cane harvesters, on lot 1 nearby to the driveway edge. 
26. [26]
    If the easement were to run along the bottom edge of lot 1, abutting the edge of the rail corridor, one segment of that property line is not wholly on the gentle sloping surface spoken of above and, rather, the surface drops away to an embankment leading down to the balcony discussed in the low road option below.  The result is that the construction of the road along the high road option, were it based on an easement hugging the property line, may involve the need for some modest engineering works extending the existing lot 1 surface by the further filling and packing of the existing battered slope. That minor extension of the existing surface towards the rail corridor might be avoided if the easements 5.5m width allowed sufficient other space within it for the effective use of the easement in that area.
27. [27]
    The obvious disadvantage of the high road option to Mr Binder is its reduction of the area of available productive land in lot 1.  It is to be appreciated that there is a need for turning space beyond cane headlands within paddocks in which sugar cane is grown.  While the high road option is unlikely to involve an easement over much, if any, land on which cane is typically grown, it does represent an encroachment upon the area within which farm machinery would travel and turn. 
28. [28]
    While the owner of lot 1 might conveniently drive along a driveway easement over lot 1’s property, it would not be realistic to traverse laterally over it with heavy farm machinery conducting reversing and turning manoeuvres at the end of a cane headland.  Manoeuvring of that kind would likely damage at least part of the built road, most obviously its shoulders. 
29. [29]
    That leads to the inevitable conclusion that any turning would have to occur further into lot 1 than has previously been necessary, with the likely result that there will be a commensurate decrease in the area available to grow cane on.
30. [30]
    Mr Binder contends such an intervention with his proprietary rights is not reasonably necessary, pointing to the existence of the low road option to which these reasons will soon turn.
31. [31]
    A further disadvantage of the high road option was said by Mr Binder’s counsel to be that it assumes the owner of the road reserve will permit the construction of a driveway across it to the Mansfields’ property.  There has been past tension between Mr Binder and the Mansfields because of Mr Binder’s perception of his entitlement to grow cane on the road reserve.  There is no evidence he has any legally enforceable right to do so.  The high point is there appears to have been witting or unwitting acquiescence to that practice on the part of the owner of the road reserve, apparently the Crown. 
32. [32]
    It is unknown whether the Crown would agree to Mr Binder’s future use of the road reserve for the growing of cane. Mr Binder’s counsel emphasised it is also unknown whether the Crown would consent to the Mansfields’ future use of the road reserve to install a driveway upon.  However, it is, after all, a ‘road reserve’.  It may reasonably be expected that a representative of the Crown, considering the issues in a balanced way, would consent to the use of part of its road reserve for the Mansfields’ driveway.  That would sensibly be a driveway running on the side of the road reserve closest to the rail corridor.  This would preserve the availability of the higher section of the road reserve for other permitted uses, for example the growing of sugar cane.
33. [33]
    It is likely such consent would include conditions to ensure there was not a material interference with the configuration of the land.  There is a gentle downhill slope to the road reserve so that, as with the traversing of the high road option over lot 1, there may be a need in installing the driveway across the road reserve for some modest earthworks to make the driveway somewhat more level than the rest of the surface.  However, that deviation from the normal surface of the land would be so relatively minor that the Crown would likely regard the degree of interference as not materially impacting the reserve and thus not an obstacle to its consent.
34. [34]
    If, in the result, the Court concludes it is reasonably necessary for there to be an easement over lot 1 leading to its edge with the road reserve, I would not refuse such relief on the basis that there is no evidence the Crown would permit a driveway to be constructed across the road reserve.  On the other hand, there is no point in the Court allowing an easement which could turn out to provide a driveway to nowhere.  The appropriate course, if the Court otherwise concludes there should be an easement granted over lot 1 leading to the road reserve, is to require the Mansfields to file evidence of the consent of the Crown to the construction and use of a driveway by the Mansfields from the south-west corner of lot 1 across the road reserve to their property.

What are the advantages and disadvantages of the low road option?

35. [35]
    The obvious advantage of the low road option is that it avoids the need for the imposition of an easement to any extent over lot 1.  Moreover, MSF Sugar, over whose property the easement would run, seeks no compensation in connection with the imposition of the easement.
36. [36]
    Another advantage of the low road option, of more dubious weight, is that after the prospective easement path passes level with lot 1, MSF Sugar is content for it to continue along the road corridor through to the boundary with the Mansfields’ lot.  The advantage that would carry is that there would be no need for a driveway over any of lot 1 or the road reserve, thus leaving Mr Binder’s lot 1 unaffected and leaving the road reserve land available, if the Crown consents, for Mr Binder to grow cane on, as has occurred in the past.
37. [37]
    These reasons have already discussed the probability that the Crown would be likely to permit the Mansfields to construct their driveway over some of the road reserve.  That likelihood derives from the probability that, in the responsible performance of its role, the Crown would recognise the Mansfields’ inherent need to gain access to their property.  It would likely rate that need higher than the advantage Mr Binder would derive from the Crown’s acquiescing to him using all of the road reserve for his own purposes.
38. [38]
    For these reasons, the disadvantage that Mr Binder may not be able to grow cane on at least part of the road reserve occupied by the driveway and some distance beyond it, bearing in mind the turning area problem discussed earlier in these reasons, amounts to nothing more than the loss of a chance to use some Crown land without consent rather than the loss of a legally enforceable right.  I would not rate the prospective loss of the chance to grow cane on part of the road reserve as a weighty consideration. 
39. [39]
    One disadvantage of the low road option flows from the configuration of the battered slopes on either side of the balcony along which the low road option would run as it travels west under lot 1.  This is not a concerning feature at the area near the rail crossing, for the terrain is gently sloped.  But more substantial slopes gradually develop on either side of the emerging balcony between them travelling to the west.  The relative height differentials in the drop from level with the base of lot 1 down to the balcony, followed by the further drop from what would be the edge of the low road down to the drain below the rail lines, are significant.  They become more significant as one travels from the rail crossing to the west along the base of lot 1, through the narrow neck, before diminishing along the base of the road reserve.  The extent of the relative differences in height was not clear to me from viewing the exhibits in the proceeding. 
40. [40]
    Another disadvantage of the low road option is the width of the narrow neck area.  On viewing the lay of the land, I immediately became concerned at the extent of the problems likely to flow from the narrowness of the low road option as it traverses the balcony in the narrow neck under lot 1.  As explained above, the narrowest point, between lot 1’s boundary and the rail track is only 7.84 metres.  Much less than that would be available for the easement, bearing in mind the need for a protective distance from the rail lines to be preserved. 
41. [41]
    The consequence in that area would be that the useable width of the easement would probably be so narrow as to only allow the passage of the width of a car, with very little road shoulder space on the sides.
42. [42]
    The greater the attempts to increase that available space, the more extensive the engineering works would become.  For example, instead of there being a sloping batter between lot 1 down to the balcony, more usable flat land could be acquired on the balcony area by building a vertical wall rather than a sloped batter.  That comes with obviously substantially increased costs. 
43. [43]
    There would still remain the dilemma that the edge of the proposed low road option closest to the rail line would necessarily require some increase and thus further encroachment of the newly filled and battered slope towards the rail line.  Doing so would also necessitate a raising of the drain area and likely the need for some underlying drainage to be installed, which would involve yet further expense.
44. [44]
    That might potentially be avoided also by building a vertical wall with the even higher associated engineering costs that would involve.  But that heralds another issue - whether it be a vertical wall or a steeply sloped batter, it would involve a material drop downwards in the event that a vehicle, traversing the narrow neck, veered even slightly off course.
45. [45]
    Over and above those safety consequences for the user, there are also safety consequences for the operations of the cane railway.  Workplace Health and Safety Queensland’s Cane Rail Code of Practice 2024 identifies a space three metres either side of the rail line beside any rail line to be a ‘danger zone’.  As the configuration in figure 3 on page 21 of that Code demonstrates, it is contemplated there should be ‘safe space’ walkways running outside the three-metre danger zone so that railway workers can stand and walk in that space to preserve safety, particularly during shunting activities.  Adoption of the low road option would remove the option of such a configuration down by the rail side in the area of the narrow neck. 
46. [46]
    A solution to this safety issue, suggested by MSF Sugar’s solicitor at the hearing, is that the road created by the low road option would serve as the safe space and one or two sets of stairs could be installed to allow workers to take refuge by going up to that safe space.  Alternatively, some sort of refuge cave might be dug into the side of the wall or slope so that workers could take cover in it.  Obviously even further expense would be involved with these options.  Further, they are not practicable options for ensuring the safety of rail workers in that they would only be available in sporadic locations.
47. [47]
    Adoption of the in-between option would mean the easement was not close to the rail line for the same length as for the low road option, making the need for substantial safe space additional to the already protective width of the 3m danger zone less necessary. 
48. [48]
    The narrow neck area of the low road option would involve substantially more significant and expensive engineering works than an easement traversing above it over the base of lot 1.  It would likely give rise to an impractically narrow easement for the purposes of a driveway.  It would carry material safety risks, both to vehicle occupants and cane rail workers, of a nature substantially exceeding any safety risks associated with the high road option or the in-between option.  These considerations exclude the low road option as a realistic option.
49. [49]
    To remove doubt, in reaching that conclusion I do not give any determinative weight to a concern raised in Mr Mansfield’s evidence to the effect that the risk of injury to users of the low road option would include the risk of injury by reason of farm machinery being operated at the lower end of lot 1 above it.  To the extent that anyone traversing in general proximity to farm machinery in use may be at risk of injury, it is not apparent that risk would be any higher because of a differential in the relative heights of the vehicle and the machinery, with one exception.  That exception is the risk of machinery getting out of control and sliding down the embankment onto the low road area.  In any event, that risk is not as significant as the risk of a vehicle, travelling along the low road option through the narrow neck, veering off course and down the bank or wall towards the rail line.
50. [50]
    Finally, it is to be appreciated that the problems associated with the narrow neck area may continue for some distance as the balcony proceeds past level with lot 1 under the eastern end of the road reserve.  I mention this because the relatively high cost of the low road option would not necessarily be confined to the rail corridor under lot 1 and might extend, for some distance, along the rail corridor under the road reserve.  That consideration is another reason why the Crown may conclude it is reasonable to consent to the use of its road reserve for the Mansfields’ driveway access.

What are the advantages and disadvantages of the in-between option?

51. [51]
    It became obvious in the course of the view that the problems posed by the narrow neck of the low road option could be avoided if, following the path of a vehicle coming from the crossing, before arriving at the narrow neck, the easement angled gradually up the embankment towards and onto lot 1, before then proceeding along the base of lot 1 to the area where it abuts the road reserve. 
52. [52]
    That option, travelling to the west, would involve a mixture of two easements; upon MSF Sugar’s rail crossing and part of its ensuing rail corridor and upon a smaller proportion of lot 1 than would be the case for the high road option.  The easements would abut as they progress diagonally upwards in a collective width of 5.5m, so their combination would straddle each property to allow the intended driveway to proceed gradually up from the rail corridor to lot 1.
53. [53]
    After the in-between option easement crosses the rail line and turns left, it would remain wholly on the rail corridor for some distance, as long as its nearest edge remained at least 3m from the nearest rail line.  Shortly before the point, heading west, at which there becomes inadequate space for that 3m space plus 5.5 m easement width (i.e. 8.5m) for the easement to remain wholly within the rail corridor, the easement on lot 1 would gradually commence.  Then, continuing to the west, there would progress adjoining easements giving a combined width of 5.5m, gradually diminishing in occupation of the rail corridor and gradually increasing in occupation of lot until consisting solely of an easement wholly within lot 1. 
54. [54]
    The in-between option would involve some engineering works.  Those works would likely involve some earthmoving and battering of possibly some minor walled support, to create a flat driveway cutting gradually upwards, across the embankment, to the more level section running over the southern section of lot 1. 
55. [55]
    The embankment did not appear at the view to ascend so abruptly or high as to present a demanding installation exercise.  The earthworks and any engineering works associated with building the driveway to traverse upwards across the embankment would be materially less than the cost of the engineering works which would be associated with the narrow neck of the low road option.  They would likely be somewhat more expensive than any roadworks and engineering works associated with installing the driveway along lot 1 under the high road option.  On the other hand, the in-between option significantly minimises the extent of interference with lot 1 that would be involved in the high road option.
56. [56]
    Further, the in-between option involves a substantially smaller easement surface area being imposed on lot 1 than the high road option, thus reducing inconvenience and loss of useable land to an owner and user of lot 1.
57. [57]
    The area of lot 1 which would be traversed by the easement in the in-between option is pocketed towards where the corner of where lot 1 meets the road reserve.  That corner is closer to a 45-degree angle than a 90-degree angle.  The resulting triangular configuration towards the corner of lot 1 invariably makes that corner less useful because of the reduced turning space for farm machinery arising from the triangular effect of the boundary.  It must be acknowledged that there is presently no fence line along those boundaries, so that a turning vehicle in the corner of that triangular area would not be confined by the space of the triangle and could drive onto the road reserve.  While that diminishes the weight to be given to the point just made about the impairing effect of the triangular corner upon the ability of machinery to move in that area, the point remains a relevant consideration.  That is because, as already discussed, Mr Binder does not have an existing lawfully enforceable right to use the road reserve for farming.
58. [58]
    In any event, even if I were to ignore the confining effect of the triangular configuration discussed above, and to proceed on the basis that there could be easy turning for farm machinery all the way up to the borderline of lot 1 with the road reserve, the other considerations I have mentioned mean that the in-between option is far and away the best option.

The in-between option best meets the requirement of s 180 Property Law Act

59. [59]
    For the above reasons it is reasonably necessary that the Mansfields have an easement over MSF Sugar’s rail corridor and the Binder’s lot 1, taking the form of the in-between option.  Weighing the interests of all the parties that form of easement is substantially preferable to the form of any other apparent easement options.

The requirements of s 180(3) are met

60. [60]
    Section 180(3) provides:

3. An order of the kind referred to in subsection (1) shall not be made unless the court is satisfied that—

1. it is consistent with the public interest that the dominant land should be used in the manner proposed; and

2. the owner of the servient land can be adequately recompensed in money for any loss or disadvantage which the owner may suffer from the imposition of the obligation; and

3. either—

1. the owner of the servient land has refused to agree to accept the imposition of such obligation and the owner’s refusal is in all the circumstances unreasonable; or

2. no person can be found who possesses the necessary capacity to agree to accept the imposition of such obligation.

61. [61]
    The parties did not contend there was some situation specific public interest of relevance here. The Mansfields do not have access to their land.  There have been disputes between them and the Mr Binder because of the problem.  In an orderly society it is obviously in the public interest that the problem is solved by providing the Mansfields with lawful access to their property.  It is likewise in the public interest that other landowners are not inconvenienced to any greater extent than is reasonably necessary in achieving that solution.  The imposition of an easement on the form of the in-between option is consistent with both such public interests.
62. [62]
    The practical consequence of the in-between option is the loss of farmable use of a section of lot 1 at its periphery.  There is no evidence to suggest it is in such a location or likely form as to materially impair the use of the rest of the land.  The evidence of turning space at the end of headlands does not alter that equation.  The degree of loss of farmable land is not made proportionately greater by the need for that turning space to encroach somewhat further north into lot 1, for there always needed to be turning space.  The relative size of the lost part of usable land is so minor that it will not materially impact the ongoing commercial viability of lot 1 as farmland.  The loss is of a small amount of farmland, the monetary value of which is readily calculated. It can be adequately compensated by the payment of money.
63. [63]
    Finally, the evidence shows there were unsuccessful attempts by the Mansfields to secure Mr Binder’s agreement to an easement.  Mr Binder has been unco-operative with the Mansfields’ attempts to solve their access problem.  His refusal to engage with attempts to secure their consent to an easement, for which they doubtless have personal reasons, was objectively unreasonable. 
64. [64]
    It is unnecessary to consider s 180(3) in respect of MSF Sugar given their consent to an easement over their land without compensation. 

What compensation is ‘just’ for the in-between option?

65. [65]
    Section 180(4)(a) requires than an order under the section:

1. shall, except in special circumstances, include provision for payment by the applicant to such person or persons as may be specified in the order of such amount by way of compensation or consideration as in the circumstances appears to the court to be just …

66. [66]
    MSF Sugar requires no compensation. 
67. [67]
    As to Mr Binder, the only evidence of valuation pertaining to the prospective loss of lot 1 land to an easement is a valuation from valuer Craig Myers conducted in anticipation of the easement contemplated by the high road option.  That option involved a valuation assuming the easement would traverse an area of approximately 600 square metres.  Mr Myers’ valuation for the purpose of compensation, assessed by reference to the general market value of farmland per square metre, was $12,500 for such an area, reflecting a rate of $20.83 per square metre.
68. [68]
    It is conceivable that the reduced amount of usable land under the in-between option might attract a proportionately lesser valuation per square metre.  Indeed, its market value as such a small piece of impracticably located land would likely be much lower because of it being unlikely to attract market interest.  That dynamic points to deploying the value per square metre of the larger area of farmland which it is part of as identifying a just compensation amount. 
69. [69]
    There could be cases in which assessing just compensation by means other than reference to the market value of land, may be appropriate.^[3]  However, the market value approach presents as the obvious and just approach here.

Conclusion

70. [70]
    I conclude that the in-between option should be adopted by my orders in imposing an easement over part of the rail corridor and part of lot 1.  That conclusion remains subject to the assumption I have made that the Crown will likely consent to the Mansfields building and using a driveway over the road reserve.  The orders I make should be qualified in such a way as to be conditional upon that consent being forthcoming.
71. [71]
    If such consent is not forthcoming it will be necessary to hear further argument from the parties.  
72. [72]
    Another consideration which necessarily impairs my ability to make a properly detailed final order is that I do not have the benefit of a survey plan or set of measurements adequately describing the path of the in-between easement option.  That detail would include the detail of the graduated path the easements would take at an angle up the slope from the rail corridor preceding the narrow neck, up to lot 1.
73. [73]
    Further, s 180 contemplates that the conditions of my final orders may:

• condition the easement as exercisable by particular persons in particular numbers (s 180(2)(a));
• include other conditions as may be just (s 180(4)(b);
• direct the conduct of a survey and preparation of a survey plan (s 180(5)(a);
• direct persons to execute and produce documents (s 180(5)(b)(c).

74. [74]
    In the circumstances, the prudent course is to make an order in general terms to the effect that the application is granted in part and afford the parties an opportunity to be further heard as to the final form of orders once a survey is completed.  Adequate time should be allowed for the necessary survey measuring and planning so as to allow the specificity required in the order in respect of the easement’s location and dimensions.
75. [75]
    In the meantime, the parties should give consideration to the conditions they contend should be imposed upon the easement, including as to who may use it, whether fencing should be required and what excavation, works and installations are permitted.
76. [76]
    It will in due course be necessary to hear the parties as to costs but not until the completion of the aforementioned process and the case has reached the point when final orders are ready to be made.

Orders

77. [77]
    My orders are:

1. The application is granted in part, to the extent that the court is satisfied easements should be imposed upon the first respondent’s lot 1 and the second respondent’s rail corridor, in the form described in my reasons as the ‘in-between option’.
2. The applicants will prepare, file and serve a survey plan of an easement meeting the qualities of the form of easement referred to in order 1.
3. The respondent will permit the entry and movement of the surveyor, the applicant and their agents upon lot 1 for the purposes of the surveyor preparing, under instruction, the survey plan referred to in order 2.
4. The survey plan will include the total square metre measurement of that part of lot 1 occupied by the surveyed easement.
5. The compensation payable by the applicant to the first respondent, as the owner of lot 1, on the imposition of the easement referred to in order 1, will be the number of square metres referred to in order 4 multiplied by $20.83.
6. The applicant is to file and serve evidence that Mrs Mansfield has obtained the Crown’s consent to her constructing and using a driveway across the road reserve from its boundary with lot 1, near lot 1’s south-western corner, through to its boundary with lot 3.
7. On the completion of the aforementioned requirements or in the event a material obstacle to their completion arises, the applicant will request the Registry to relist the application for continued hearing. 
8. In relisting the application, the Registry will first consult the parties to ascertain their estimate of the continued hearing’s likely duration and allocate and notify a listing accordingly .
9. Liberty to apply on the giving of two business days’ notice in writing.
10. Costs reserved.