Bryant v Crompton

Reasonable necessity

1. The principles concerning the meaning of "reasonable necessity" have been explained in various authorities and were not in dispute. They can be summarised as follows: 1. Reasonable necessity does not mean "absolute necessity", but more is needed than mere desirability or preferability over the alternative means: Moorebank Recyclers Pty Ltd v Tanlane Pty Ltd (2012) 16 BPR 31, 257; [2012] NSWCA 445 at [154] (Bathurst CJ, Beazley and Meagher JJA) (Moorebank). 2. The requirement of reasonable necessity can still be satisfied even in circumstances where a plaintiff's land could be effectively used without the grant of the easement sought. The use with the proposed easement must be at least substantially preferable to the use without the easement: 117 York Street Pty Ltd v Proprietors of Strata Plan No 16123 (1998) 43 NSWLR 504 at 508-509 (Hodgson CJ in Eq). 3. Regard must be given to the impact of a proposed easement on the servient tenement and the impact on the property rights of the owner of the servient tenement: Gordon v Lever (No 2) (2019) 101 NSWLR 427 at [42] (Bell P, Payne JA and Emmett AJA agreeing). The greater the burden on the servient tenement, the stronger the case must be for a finding of reasonable necessity: Moorebank at [156]-[157]. 4. The comparison of possible easements in s 88K(1) may lead to an evaluation of the advantages and disadvantages of the easements involving considerations such as costs and viability; a detailed comparative inquiry is not required by the language of s 88K(1): see, eg Debbula Pty Ltd v The Owners - Strata Plan 6954 (2003) 12 BPR 22,617; [2003] NSWSC 189 at [26] (Macready M); Fiona Burns, 'Court Imposed Easements in the Australian Torrens System: Are the Rights of Servient Owners Adequately Protected?' in Lyria Bennett Moses, Brendan Edgeworth and Cathy Sherry, Property and Security: Selected Essays (2010, Lawbook Co) at 226. 5. Past and actual use of the putative servient tenement may be considered in the assessment of "reasonable necessity": Owners Strata Plan 13635 v Ryan [2006] NSWSC 221 at [60]-[63] (Rein AJ) and the cases cited therein.
2. The issues of the comparison between Option A and Option C and the impact on the Lot 69 owners are considered below.

Comparison of Option A and Option C

1. To support the claim for Option A, Mr Bryant relied on the expert evidence of Mr Stephen McElroy, who is a civil engineer with expertise in planning and development concerning civil and structural engineering, and other engineering fields. The Lot 69 owners relied on the expert evidence of Mr Niek Van Oers, a civil engineer with expertise in matters including planning, design and construction supervision of roadworks, stormwater works, water and sewer infrastructure.
2. In his 12 April 2023 reporting letter, Mr McElroy explained the origins of Option C: From our recent discussions Mr Crompton and his solicitor have proposed additional options for access to Mr Bryant's property which require assessment to determine if any of the proposed options could provide a practical and achievable access route. The additional options to be considered are access Options B, C, D and E as depicted in the attachment to Ms Lamont's email dated 3 April 2023.
3. The email and attachment referred to were not in evidence. However, the inference is that Option C was one of the "additional options for access" suggested by the Lot 69 owners. The Lot 69 owners and Mr Van Oers did not contradict that inference. Mr Van Oers' evidence was that his report concerned the alternative access routes "proposed by the respective parties". I note for completeness that all alternative options other than Option C were abandoned, and were not the subject of submission at the hearing.
4. On the first day of the hearing, pursuant to s 53 Evidence Act 1995 (NSW), the Court conducted a view of Options A and C by vehicle and in some parts by foot. In attendance were the parties' legal representatives, the parties themselves and the parties' experts, Mr McElroy and Mr Van Oers.
5. The view commenced at Duck Creek Road and traversed up Option A. The track was observable as described by Mr McElroy in his report, and agreed by Mr Van Oers. For example: 1. the section from Duck Creek Road to about 500m south is constructed of blue basalt gravel and is 3 m wide with a 2 m wide x 200 mm deep table drain; 2. the track pavement within Lot 21 is sound but needs grading, reforming, shaping and compacting; 3. the section from the gate entering Lot 69 is scoured and the gravel surface has eroded for a distance of 30 m north; 4. the section within Lot 69 is 1,457 m long and has a solid base, but has had no maintenance since the land was purchased by Mr Crompton. Heavy rainfall has damaged the draining structures, including drainage humps, and resulted in the road pavement scouring.
6. The view reached the end of Option A at the boundary of Lot 69 and Lot 101.
7. The view then proceeded back down Option A, along Duck Creek Road, to Option C. The Option C section, commencing on Lot 42 and moving to Lot 56 and then Lot 74, was drawn over a "paper road". Mr McElroy explained these paper roads: The problem is common … where Council roads are not on their correct alignment due to geographical constrains such as rock cliff and swampy ground. Over time the user of the roads have developed a safer and more accessible path around these geographical features such that many roads in [the relevant area] are not in alignments described in the original Parish plans.
8. It was not possible to traverse the paper road exactly along Option C as drawn, because terrain made it inaccessible. Where it was necessary to cross water, routes were chosen by the vehicle drivers that were the most accessible, rather than necessarily along the paper road.
9. The last approximately 100 m of Option C on Lot 74 was not traversed, because the vegetation was too dense. The route along the boundary of Lots 101 and 69 was not traversed, because it was along the base of the cliff and is currently inaccessible. One proposed route abandoned earlier by the parties was within Lot 74 and then up that cliff face to Lot 101, which would avoid any use of Lot 69. However, the cliff face was too steep for that to be a practical solution. Therefore, the parties agreed that some traversal of Lot 69 would be necessary, whichever option was preferred.
10. In reports dated 10 February 2023, 14 April 2023 and 27 February 2024, Mr McElroy provided a detailed explanation and diagrams of Option A and Option C.
11. His evidence about Option C was: The route commences near a culvert over the Byrnes Creek on the Duck Creek Road. The culvert was recently installed by Kyogle Council and is a triple cell 1200 mm diameter culvert with concrete headwalls. During recent heavy rainfall events, this culvert has not been adequate for the stormwater flow volumes and has caused flooding within Lot 56 … This lot is the start of the route of the road reserve proposed by [the Lot 69 owners] for Option C. The route along the road reserve crosses the Byrnes Creek at two (2) locations (in Lot 42 near Duck Creek Road and in lot 74, 644 m from Duck Creek Road and three (3) un-named creeks (major gullies) one in each of Lot 56 and Lot 74. These crossings would require a 12 m span bridge over the Byrnes Creek at both locations and three (3) rock causeways across the other creeks. The proposed route passes through 320 m of swamp land within Lot 56 … and the overflow from a large farm dam creates another 100 m of wet swampy land within Lot 74… Except for periods of drought, these sections of track would not be suitable for log trucks or farm machinery without undertaking major civil constructions works. If works were undertaken to enable access over the route within the identified swampy areas, the method of construction would be to lift the road to above the nuisance flood level. This would be very expensive and would alter the flow of flood waters over the adjacent properties. At a distance of 977 m from the Duck Creek Road intersection with the Option C road reserve the route passes through 1,145 m of well-established wet Schlerophyll forest to the point in the road reserve where the track would enter Lot 69. The forest contains many habitat trees and is known to support the Glossy Black Cockatoo, Squirrel Gliders and the Swift Parrott. Micro bats have also been located within small caves and crevices within the cliff rock face. The species list is based on observations by local residents and from an environmental assessment done by the Forestry Commission of NSW leading up to the roadwork undertaken on Option A … At the end of the road reserve where Lot 69 and Lot 104 meet at the boundary, there is a sandstone cliff. To continue along the Option C route at this point it would be necessary to travel 490 m west across Lot 69 to access the existing track on Lot 101 up the precipice. NSW Fisheries approval and NSW Water approval for a controlled activity would be required for all works across the Byrnes Creek and its two (2) tributaries. The Byrnes Creek has several intermittent creeks feeding into it and so is classified as a 4th order stream under the Strahler stream order system and as a Class 2 stream under the NSW fish habitat classification system. The tributaries which run into the Byrnes Creek are a Class 4 stream. Attachment 10 to this report recommends the minimum waterway crossing structure for a selection of waterway classes which matches the types of crossings recommended for Option C. For any works on waterfront land including creek beds and land 40 m each side of a creek or river, a Controlled Activity approval must be sought through the NSW Planning Portal. The two key pieces of legislation are the Water Management Act 20000 and the Water Act 1912. The route west from the end of the road reserve across Lot 69 to the existing Option A track at the base of the cliff is heavily treed and is thick with Lantana. Further, there is obvious visible evidence of several rock falls (land slips) along the 490 m long section which will hinder the construction of a track where intended. This also raises concern over the permanency of access as rock falls will continue to occur.
12. Mr Van Oers did not disagree with the description of Option C given by Mr McElroy. I accept that it provides an accurate summary of Option C as depicted on the diagram above.
13. Nevertheless, Mr Van Oers disagreed with Mr McElroy that Option C was "unviable", because he considered Option C would have less impact on Lot 69 compared to Option A, because Option C only involved a "relatively modest incursion" into Lot 69 and is "otherwise over an existing road reserve" and for "the majority of the corridor length across the subject site, alterations to the terrain would be relatively modest".
14. However, that evidence that alterations would be "relatively modest" was inconsistent with Mr Van Oers agreeing generally with Mr McElroy's estimate of the extent and cost of civil works, including five water crossings, required to create a road over Option C. Mr Van Oers accepted Mr McElroy's conclusion that "if development approval is refused, the proposal is dead in the water and would be abandoned". Mr McElroy estimated the total cost of construction of an appropriate access track at approximately $1 million. In the joint expert report and at the hearing, Mr Van Oers did not disagree with that estimate.
15. At the hearing, it appeared that another reason why Mr Van Oers considered Option C was viable was because he subjectively thought that there was no exact route of Option C, and it was to be in the "general area" depicted by Mr McElroy's diagram. Mr McElroy's diagram of Option C clearly hugged the cliff boundary of Lots 69 and 101, and his description was consistent.
16. Mr Van Oers never precisely identified his alternative route to the Option C described and drawn by Mr McElory. Further, there is no objective evidence that Mr Van Oers' opinion about a variation to the Option C route was ever communicated to Mr McElroy or the plaintiff's lawyers. Instead, in his report, Mr Van Oers had agreed with Mr McElroy's description of Option C, including where Mr McElroy described the route as abutting the sandstone cliff and then running along the boundary with Lot 69. That was a significant reason why Mr McElroy considered Option C unviable.
17. There are an almost infinite number of possible combinations and variations of possible access tracks across large parcels of land. However, here the parties had narrowed down the most likely routes through their experts, who had carefully considered them in desk-top reports and through site visits.
18. Mr Van Oers' suggestion in cross-examination that an alternative possibility would be to run Option C further into Lot 69 and away from the cliff was raised too late for procedural fairness to be accorded to Mr Bryant. Further, there was no evidence that the Lot 69 owners had ever offered Mr Bryant that alternative route over their land.
19. Even if I ought to take into account Mr Van Oers' oral suggestion that Option C, as depicted in Mr McElroy's report, ought to be varied to a route further away from the cliff, the only concern of Mr McElroy that might be obviated by such a route would be avoiding falling rocks. The remainder of the deficiencies in Option C identified by Mr McElroy would remain. I am not persuaded that the varied Option C would mean it was appropriate to refuse the application for an easement over Option A, for the same reasons as otherwise apply to Option C, as identified by Mr McElroy, and agreed to by Mr Van Oers and considered below.

Comparative cost of Options A and C

1. The parties accepted that the cost of creating the Option C access track would be significantly more than the cost of remediating Option A.
2. While in his report, Mr Van Oers had provided detail on various standards applicable to the construction of driveways and turning circles, at the hearing he accepted that such standards were not applicable if Mr Bryant's use of Option A would be limited to the uses identified above. Both experts therefore agreed with Mr McElroy's estimate that remediation of Option A would cost about $215,207.69. As noted above, the cost of construction of an access track over Option C would cost about five times that amount.

Impact on Lot 69

1. The totality of the evidence about the negative impact on Lot 69 that would be caused by an easement in the form of Option A being granted was given by Mr Crompton: The Second Defendant and I are running the property we own as a beef production business, which includes what is known as a "paddock to plate" product, as we process our own meat. In order to deliver a "paddock to plate" product, we have to meet particular standards as to the quality and type of beef that can be used to meet market demands. As a result, bio security and the introduction of potential weeds and pests is a serious concern for the business. Practically, this means that we need to limit the real or potential risk of contamination. Use of the track to bring across our land timber forestry products and cattle pose a risk of contamination, in particular relating to the introduction of ticks. Tick outbreaks can lead to months of quarantine and the need to muster cattle for control. As a result, the Plaintiff's proposed access via this track has potential negative economic effects on our business. For this reason, we oppose the Plaintiff's application to access the track over Lot 69 to move timber and cattle.
2. This evidence does not explain the "particular standards" applicable to the business, nor the magnitude of any "risk of contamination" feared. Mr Crompton accepted that his own movement of timber and livestock across his various lots and the proximity of Lot 69 to the public road also created some risk to his business. No evidence of risk mitigation techniques was given in chief and therefore there was no debate about that matter in the evidence or submissions. Neither was there any evidence of the real meaning of "potential negative economic effects".
3. I accept that, if Mr Bryant uses Option A, there will necessarily be an increase in risk of contamination to Lot 69.
4. However, where no attempt was made to explain or quantify the risk, I do not consider there is likely to be a material impact that is determinative of the issue in dispute. The Lot 69 owners did not suggest that it would not be possible to formulate terms of an easement to reduce the impact of Mr Bryant's use, nor that compensation was impossible for the disadvantage that would arise from the imposition of the easement, for example, because there would be "substantial interference with intangible benefits": Khattar v Wiese (2005) 12 BPR 23,235; [2005] NSWSC 1014 at [49] (Brereton J).
5. There was no evidence to support a submission made that the Lot 69 owners had concerns about Option A impacting on building a dwelling on the land. Further, the Lot 69 owners have used Option A, albeit infrequently, to transport timber, and therefore do obtain some benefit from the track, particularly if maintained by others.

Consideration

1. In my view, the proposed easement over Option A is "reasonably necessary" for the purposes of s 88K(1) for the following reasons.
2. First, an easement will often be reasonably necessary where the land would otherwise be landlocked, and no practical use or development could be made of it without access: Swann v Spiropoulos [2006] NSWSC 860; ANZ Conv R 496 at [64] (Campbell J). A further factor that demonstrates reasonable necessity is the need to connect landlocked land to the main road to accommodate residents in emergencies like fire: see Pasade Holdings Pty Ltd v Council of City of Sydney [2006] NSWSC 299 at [10] (Campbell J). There is evidence that previously the Lot 69 owners have granted Mr Bryant access for fire prevention.
3. Secondly, and significantly, I do not consider Option A and Option C are equivalent.
4. Generally, in s 88K applications for a right of carriageway, the assessment of reasonable necessity involves a comparison of the proposed route, with other routes that may be accessed by a different route.
5. This case is somewhat different, in that Option C, the defendants' only proposed alternative and preferable route, largely traverses the plaintiff's property, where no easement would be necessary. In these circumstances, the relevant question is whether an easement can be said to be "reasonably necessary" in circumstances where, without it, access to the dominant tenement via the plaintiff's own property is inconvenient and expensive, but not impossible.
6. Section 88K applications are always fact specific. There are authorities where an easement for access over a defendant's land has been refused because there has been possible access over the plaintiff's own land: see, eg, Woodland v Manly Municipal Council (2003) 11 BPR 20,903; D & D Corak Investments v Yiasemides (2006) 13 BPR 24,103. Another example is Tout v Johnson [2021] NSWSC 1311, where the civil works required to enable access over the plaintiff's land were considered by Darke J to be "earthworks of a minor nature", and a required creek crossing that was described as an "inconvenience". However, there was no expert evidence about the extent of the necessary works and the cost. In contrast here, the experts agreed that the cost of creating Option C is approximately $1 million and requires the construction of various bridges and causeways over water, and after approval.
7. Equally, I accept that there are authorities where an easement for access over a defendant's land has been granted despite the existence of an alternative mode of access which traverses the plaintiff's own land: see, eg, King v Carr-Gregg [2002] NSWSC 379 (Foster AJ); Re Seaforth Land Sales Pty Ltd's Land [1976] Qd R 190 (Douglas J).
8. None of the authorities mandate that the existence of an alternative route, which traverses the plaintiff's own land, is fatal to a plaintiff's s 88K application. The assessment of reasonable necessity still requires consideration of the viability of the alternative options, regardless of whether those options traverse the plaintiff's or some other party's land.
9. Here, I do not accept that Option C is "to the same effect" as Option A: Weissflog v Community Association DP 270159 [2022] NSWSC 239; 20 BPR 42,265 (Darke J). Instead, I consider the degree of inconvenience associated with Option C weighs in favour of granting an easement over Option A because of: 1. the significant planning approvals necessary for Option C in relation to the water crossings, bridge construction, and vegetation removal; 2. the cost differential in creating Option C compared to repairing Option A, which has been used for many years and has already been upgraded and maintained by the Forestry Corporation of NSW in 2019 and again in 2020 and by Mr Bryant until 2022; and 3. the significant impediment in constructing a safe track on Option C along the base of the cliff face on the boundary of Lots 69 and 101.
10. Thirdly, the impact on the Lot 69 owners has not been proven to be significant and can be mitigated through appropriate terms of the easement limiting use, requiring Mr Bryant to bear the cost of maintenance, and the payment of appropriate compensation. I also have regard to the historic use of Option A and Mr Tierney's consent to continuing access of Lot 21 if the track continues to be maintained at Mr Bryant's cost.
11. For the above reasons, I consider Option A is "reasonably necessary" or "substantially preferable" to Option C.
12. Therefore, s 88K(1) is satisfied. No other criterion of s 88K was contested. The issue of compensation and appropriate terms of the easement have been deferred at the parties' request.
13. No submission was made by the Lot 69 owners as to why the Court's discretion to order an easement ought not be exercised in circumstances where s 88K has been satisfied. I consider it is appropriate to exercise the discretion for the reasons above.
14. I note no appearance or submission was made by the third defendant.

Orders

1. For the above reasons, the appropriate orders are: 1. Parties to confer on appropriate orders to facilitate the appointment of a joint expert valuer concerning the impact of the imposition of an easement in accordance with Option A, and further timetabling orders to have the issues of s 88K compensation, appropriate terms of the easement, and costs of the plaintiff's application determined. 2. Matter listed for further directions on 5 April 2024 in the Real Property List.

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