Condran v Collis

Condran v Collis - [2024] NSWSC 1574 - NSWSC 2023 case summary — Zoe

Judgment

About 10 kilometres south-west of the town of Wingham, in the picturesque district of Bootawa, the Manning River meanders sharply, fashioning a narrow finger of land pointing north and surrounded on three sides by the river. Moores Road, Bootawa traverses this finger of land from South to North. The parties to these proceedings are adjoining neighbours of property on the eastern side of Moores Road.
The plaintiffs, Mr Robert and Mrs Shirley Condran are the registered proprietors of Lot 95 in DP 753152 (Lot 95), a parcel of land which adjoins the land of the defendant, Mr Garry Collis, Lot 96 in the same DP753152 (Lot 96). The Condrans' Lot 95 has no immediate frontage to Moores Road and lies to the east of Mr Collis' Lot 96. But it has an address in Moores Road and Lot 95 abuts the easternmost boundary of Lot 96, which has a substantial frontage to Moores Road.
A subsequent deposited plan, DP1222732, registered in August 2016, granted Lot 95 a right of access to Moores Road over Lot 96 that is 8 metres wide closest to Moores Road and 20 metres wide closest to Lot 95. This right of access is described in DP1222732 as "right of access A" and is referred to in this way in these reasons or sometimes more simply as "the easement". Lot 95 is conventionally known as 58 Moores Road, Bootawa and Lot 96 as 60 Moores Road, Bootawa.
The Condrans allege Mr Collis has obstructed their right of access and interfered with their enjoyment of the rights conferred on the owners of Lot 95 over Lot 96. In their Summons commencing these proceedings, the Condrans claim declaratory, and consequential relief including damages for the alleged obstructive conduct of Mr Collis, which they claim constitutes a private nuisance at common law.
Mr Collis defends the Condrans' claim contesting many of the allegations of obstructive conduct. He also brings a Cross-Summons alleging that the Condrans have unreasonably used their right of access by causing excessive damage to Lot 96 while constructing a trafficable road over it, thereby causing damage to his land and occasioning a trespass to Lot 96 at common law. Mr Collis also seeks consequential relief including damages. The Condrans contest his contentions.
The proceedings were conducted over the period 13, 14, 15, 16 & 17 November 2023, and 31 January 2024 when a view took place at the site of Lots 95 and 96. Some supplementary evidence and final submissions were received up to 6 February 2024. Mr C. Ireland of counsel, instructed by Mr G. Hayek of Harrington Lawyers, appeared for the plaintiffs.
Mr Collis, the defendant represented himself at the hearing. Shortly before the hearing commenced, Mr Collis and his solicitors had a difference of opinion about the continuation of their retainer. The issue between Mr Collis and his solicitors was referred to Parker J who dealt with it expeditiously before the trial. As a matter of courtesy, those solicitors appeared briefly on the first day of the hearing. They then withdrew and thereafter Mr Collis conducted his own case.
These reasons will shortly undertake a narrative of findings of the many contested issues of fact in these proceedings. That narrative depends in part upon the Court's assessment of the credibility of the parties. It is appropriate at the outset of that narrative to make some general observations about their credibility. The Court makes more detailed observations about the credibility of the parties at relevant places throughout these reasons.

[4]

Credibility of the Parties

The plaintiffs both gave evidence, as did the defendant. The only other witnesses were the experts, whose credibility was not in issue. Two preliminary matters should be observed.
First, the Court was assisted in making findings by the existence of extensive photographic and video evidence, mainly generated by the Condrans on mobile telephones and put into evidence through their affidavits. But the video evidence did not contain a complete video record of the interactions between the parties. In relation to many of the contested incidents, it was necessary for the Court to decide which version of events it preferred, based partly upon the credibility of the parties and partly on the available video evidence.
Secondly, Mr Collis' cross-examination of the Condrans failed to confront many of the differences between his and their versions of events. This made fact-finding more difficult, but the Court did the best it could with such testing of these differences that Mr Collis undertook. From time to time, the Court asked its own questions of the Condrans and Mr Collis to try and elucidate the facts and to resolve the differences between competing versions of events.
Mr Robert Condran. Mr Condran is a plumber and a farmer. Under cross-examination Mr Condran generally answered questions directly and attempted genuinely to deal with his questioner, Mr Collis. No real damage was done to his credibility as result of the cross-examination by Mr Collis. Regrettably, most of Mr Condran's cross-examination was on issues of minor or peripheral of significance.
Mrs Shirley Condran. Mrs Condran is a paediatric nurse. She gave evidence patiently dealing with difficult questions and managing to stay calm throughout. She faced considerable provocation in questioning from Mr Collis. She took an objective view of the circumstances as far as she possibly could. She was upset after the January 2020 incident but could be tough-minded as well. Although the Court tried to prevent this as much as possible, Mr Collis tended to interject further questions into Mrs Condran's evidence to try and cut her answers off, particularly if he did not like the evidence that she was giving.
The credibility of the evidence of the Condrans was bolstered by the detail with which it was recorded and recounted. They had clearly kept contemporaneous notes of their dealings with Mr Collis. When using right of access A, they were on the alert for encountering Mr Collis and had their mobile phones at the ready to make video records of some of their interactions with him. Substantial numbers of these video recordings are referred to in their evidence and these video recordings are generally consistent with the Condrans' account of the events in question. The existence of these videos, the Condrans' habit of taking notes, and the congruence between the videos and their testimony, all generally supported their overall credibility, as did their mostly objective approach to their interactions with their neighbour.
Mr Garry Collis. Mr Collis is retired from active employment. The Court was able to assess Mr Collis both in the witness box under oath and as a litigant in person presenting his own case. The Court made its judgments about his personality and disposition from all its contact with him both as his own advocate and as a witness. His approach to conflict with the Condrans became very clear from the Court's contact with him.
Mr Collis had a single-minded objective to ask questions on the issues about the Condrans that he regarded as important to him. Unfortunately, the issues that he identified did not always coincide with the true issues in the case raised by the Summons and the Cross-Summons. When this was pointed out to him, he often ignored the Court's admonitions to keep his case close to the relevant.
When Mr Collis was dealing with the Condrans as an advocate and cross-examiner, he constantly interrupted the witness and made comments about the answers the Condrans were giving to him. He did this during the answers as they were given and during his own subsequent questions, despite being warned by the Court not to do this. The Court inferred from this that Mr Collis felt compelled to pursue a course of action based upon his own interpretation of history and his rights.
Although often appearing to be conciliatory, Mr Collis at times also has an overbearing style in dealing with the people around him. He often sprayed vulgar abuse at witnesses when he was questioning them. When admonished about this, he frequently argued with the Court and sought to excuse his conduct or even just repeated it.
Mr Collis does not readily tolerate open disagreement with his point of view. For example, he regards the area of his Lot 96 over which the owners of Lot 95 have a right of access, as his property to do with as he wishes. He has little regard for the rights conferred upon Mr and Mrs Condran under DP1222732.
Beneath Mr Collis' approach to the presentation of his case is an abiding sense that he has been unfairly treated by the law and by the Condrans. This colours his perspective of events, making them appear more advantageous to him than they are when examined objectively. For example, he tended to downplay the incident in which he drove a large agricultural vehicle almost directly at the Condrans on the right of access. The Court has found in the narrative of facts below that this was terrifying for them. In contrast, Mr Collis rseemed dismissive of the event as minor.
Incidents with the Condrans in some of Mr Collis' version was accepted, but in others it was not. The Court approached his evidence cautiously.

[5]

The Narrative of Events

A narrative of the relevant history follows below. This narrative represents the Court's findings on the matters covered, except to the extent that the context indicates that only the parties' allegations are being recorded in these reasons. For reasons of economy, this narrative does not always include reference to versions of the facts that have been rejected.
The evidence adduced by the parties in these proceedings, particularly in the Condrans' case was very detailed. It is not possible to cover and assess all that evidence in a judgment as well as meeting the objective of identifying and deciding the real questions in dispute at reasonable and approachable length.
Mr Condrans' principal affidavit of 28 September 2022, for example, is 322 paragraphs long and covers some 55 pages of text and Mrs Condran's principal affidavit of the same date is 57 pages long and comprises 317 paragraphs. Mr Collis' main reply affidavit is also very lengthy. Many of the conversations concern examples of alleged abusive verbal and physical behaviour by Mr Collis towards the Condrans and incidents recounted in detail. Some of the behaviour alleged against Mr Collis is already covered in proceedings for the taking out of an Apprehended Violence Order by the Condrans against Mr Collis. There are many findings in these reasons about Mr Collis' conduct. Not every example of that conduct needs to be dealt with and not every detail is important for the Court's fact-finding.
The narrative of the Courts' findings is also informed by the Courts' view of Lot 96 that took place on 31 January 2024 at Bootawa. The Court is entitled to draw reasonable inferences from what it saw on the view: Evidence Act 1996 (NSW), s 54. The Court found the view helpful to inform itself of the relative layout of various features of Lot 96 and right of access A.
Before commencing the history of interactions between these parties, it is necessary to examine the relative positions of Lot 95 and Lot 96 and the nature of the rights the owners of Lot 95 have over Lot 96. It is also necessary to identify some features of another nearby lot, Lot 94.

[6]

Moores Road, Lot 94, Lot 95, Lot 96, and DP 1222732

The plaintiff's right of access over Lot 96 was created pursuant to a Conveyancing Act 1919 (NSW), s 88B instrument (the s 88B instrument) which was registered together with DP 1222732. The s 88B instrument creates several easements over Lot 96 for the benefit of Lot 95 and Lot 94. Another parcel of land comprising Lot 94 lies to the east of Lot 96 and to the north of Lot 95. The westernmost boundary of lot 94 abuts the easternmost boundary of lot 96. The relative positions of these parcels of land are evident from the extract from DP 1222732 set out below in Figure 1.
Right of access A, which is in contest in these proceedings, appears in Figure 1 and is marked "A" on DP 1222732. Right of access A lies at the southernmost end of Lot 96, abutting the southern boundary of Lot 96, where it is closest to Moores Road. This is evident from Figure 1. Not evident from Figure 1 but important for the issues in these proceedings is that the southeastern corner of Lot 96 gives the owner of Lot 96 access to Manning Creek, a tributary of the Manning River for the watering of stock.
Prominently shown on Figure 1 running in a south-east to north-west direction is easement "P", an easement for overhead power lines 20 metres wide. This easement appears to have been created to supply power to a residence on Lot 95. Easement P plays no part in the dispute between the parties these proceedings nor do easements "B", "C", and "D".
Something omitted from Figure 1 should be noted. Moores Road bisects Lot 96 in a north-south direction. Part of Lot 96 also lies to the west of Moores Road, although the focus of these reasons is the part to the east of Moores Road. In very limited respects is it necessary in these reasons to refer to the part of Lot 96 to the west of Moores Road, so is not depicted on Figure 1.
To achieve precision in identifying the location of disputed events and relevant ground features in these proceedings, the parties and the Court adopted a conventional system of referring to points and places along right of access A. This system was based on metric measurements taken eastwards from a reference point, where right of access A abuts the easternmost side of Moores Road. All measurements are in metres east of that point, expressed as a "chainage" point from Moores Road on right of access A. Thus, a point that is 120 metres along right of access A away from Moores Road is referred to in these reasons as being at chainage 120 (abbreviated to "CH 120"). The westernmost part of right of access A where it abuts Moores Road is CH 0.
At a constant width of 8 metres, right of access A traverses Lot 96 in a due easterly direction from the eastern side of Moores Road from CH 0 up to approximately CH 180. At about CH 180, right of access A expands to a width of 20 metres and changes direction to a north-easterly path, until it terminates at the easternmost boundary of Lot 95 at CH 318, where the western boundary of Lot 96 commences.
The agricultural land of Lot 96 over which a right of access A is granted is almost level between Moores Road and about CH 100, where a copse of trees shade the right of access. The land of Lot 96 bearing right of access A commences to fall away ever more steeply to the north-east between CH 100 through to CH 180. It continues to descend at approximately the same gradient from CH 180 through to CH 318. Quite different contests preoccupied the parties in each of these two sections of right of access A: 1. the upper or westernmost section closest to Moores Road up to CH 180, and 2. the lower or easternmost section from CH 180 to CH 318. For convenience, these two sections of right of access A are sometimes referred to in these reasons as "the upper section" and "the lower section", respectively.
More detail concerning the upper section and the lower section of right of access A are provided later in these reasons. But in general terms the Condrans constructed a gravel driveway all along right of access A over an existing track. Between CH 100 and CH 180 in the upper section, the road descends in the same direction as the landform. But from CH 180 to CH 318 in the lower section, the landfall is at right angles to the road and has required much heavier cut to fill excavation and drainage works to construct a trafficable gravel road.
Many of the plaintiffs' complaints in their Summons in these proceedings relate to alleged interference by Mr Collis to their use of right of access A in various parts of the upper section. Many of Mr Collis' complaints in his Cross-Summons relate to the alleged way the Condrans' contractors excavated Lot 96 when making the road in the lower section.
Another source of friction in the lower section of right of access A comes from a triangular segment of Lot 96, situated in its south-eastern corner. The three sides of the triangle are respectively the: 1. southernmost boundary of Lot 96, 2. easternmost boundary of Lot 96, and 3. the hypotenuse of the triangle is the south-eastern boundary of the 20-metre-wide lower section of right of access A between CH 180 and CH 318. This triangle of land is referred to in these reasons from time to time as "the south-eastern triangle". Mr Collis complains that the Condrans' excavation of the gravel road in the lower section of right of access A has effectively cut the south-eastern triangle off from the rest of Lot 96 and sterilised it from productive use by denying him access to a principal water source on Lot 96 to water his stock, Manning Creek.
In reply, the Condrans' case is that Mr Collis' stock are damaging the cuttings and embankments supporting the gravel road in the lower section. They also invoke regulations made under the Water Management Act 2000 (NSW) to contend that much of the south-eastern triangle occupies a riparian corridor surrounding and bordering Manning Creek, which Mr Collis cannot legitimately use for watering his stock.
Regulations made under the Water Management Act control what vegetation and animal husbandry may be undertaken within a riparian corridor. But this Court on this application has not undertaken the task of verifying whether Mr Collis has complied with the Water Management Act. There was no expert evidence before the Court resolving, clearly beyond dispute, how the south-eastern triangle could be used by Mr Collis' stock either for grazing or for water supply under the Water Management Act.
The Court approaches this matter on the basis that Mr Collis wishes to and may make maximum use of any advantages available to him from the south-eastern triangle to benefit and support the agricultural and pastoral activity he chooses to conduct on Lot 96. Access to the south-eastern triangle, because of the attractive proximity to the water in Manning Creek is clearly one such advantage. This does not mean that the cattle would necessarily drink directly from Manning Creek, but he may be able to take advantage of troughs or other structures supplied from the creek within legally permissible limits. To maximise his use of the south-eastern triangle, Mr Collis may have to make application to the authorities administering the Water Management Act for any necessary authorities or permits. This can be done separately from these proceedings, which are concerned with the parties' respective rights arising out of right of access A.
The Condrans tended to conduct their case on the basis that their interpretation of the restrictions applicable to him under the Water Management Act meant that Mr Collis' had few rights to the south-eastern triangle of Lot 96. In contrast, to that submission the Court has approached this matter on the basis that Mr Collis is entitled to benefit from the fullest permissible use of all of Lot 96, consistent with the Condrans' rights.
The terms of right of access A are created under the s 88B instrument by adopting in full, the standard terms of Conveyancing Act, Schedule 8, Part 14 - Right of access. Part 14 of Schedule 8 provides the following standard terms for a right of access: "Part 14 Right of access 1 The owner of the lot benefited may-- (a) by any reasonable means pass across each lot burdened, but only within the site of this easement, to get to or from the lot benefited, and (b) do anything reasonably necessary for that purpose, including-- • entering the lot burdened, and • taking anything on to the lot burdened, and • carrying out work within the site of this easement, such as constructing, placing, repairing or maintaining trafficable surfaces, driveways or structures. 2 In exercising those powers, the owner of the lot benefited must-- (a) ensure all work is done properly, and (b) cause as little inconvenience as is practicable to the owner and any occupier of the lot burdened, and (c) cause as little damage as is practicable to the lot burdened and any improvement on it, and (d) restore the lot burdened as nearly as is practicable to its former condition, and (e) make good any collateral damage."
There was controversy between the parties about the legal effect of Conveyancing Act, Schedule 8 Part 14, which is dealt with in the legal analysis below. Conveyancing Act, Schedule 8 Part 14 - Right of access has not often been construed. One recent extensive analysis of its terms in the context of an inclinator is Clough v Breen (No.4) [2023] NSWSC 1155 at [180] - [204]. Conveyancing Act, s 181A(3) allows the operation of the Part 14 - Right of Access in Schedule 8 to be varied by the terms of a s 88B instrument. But there is nothing in the s 88B instrument here that would modify those standard terms.
The Condrans claim that their Lot 95 is landlocked. Mr Collis disputes this. This dispute triggered an unnecessary side issue in the proceedings. The Court concludes that for practical purposes Lot 95 is landlocked although the Condrans have from time to time been able to secure alternative exits from Lot 95 by relying upon the goodwill of their neighbours other than Mr Collis. But whether or not Lot 95 is landlocked is irrelevant to the issues to be decided in these proceedings. The issues for trial here relate to the actions of the Condrans and Mr Collis on and about right of access A and the meaning and effect of the s 88B instrument incorporating the terms of Conveyancing Act, Schedule 8 Part 14.

[8]

The Condrans Purchase and Occupy Lot 95 - An Overview

Before this narrative deals with the contested facts raised by the prayers for relief in the Summons, this section provides an overview of the Condrans' purchase and occupation of Lot 95.
In March 2017, the Condrans were introduced to Lot 95 by a real estate agent who was marketing the property for sale on behalf of the then registered proprietor, Ms Julie Florent. The day following that inspection Mr Condran met Mr Collis and exchanged contact details with him. The Condrans both met Mr Collis together in April 2017. He gave them a tour of some other properties along Moores Road. Mr Collis offered to move a public gate (Public Gate 241) which at that time crossed Moores Road in line with the southern boundary Lot 96.
This earliest contact augured well. But it soon soured. On 14 August 2017, the Condrans exchanged contracts to buy Lot 95 from Ms Florent and they settled on 11 September 2017.
By May 2017, relations between Mr Collis and the Condrans had already deteriorated. In mid-May, Mr Collis complained to the Condrans in a telephone conversation about Mr Florent, the husband of the then registered proprietor, doing earthworks on Lot 96 and about problems that had arisen in his dealings with Mr Florent. The tone of the conversation on Mr Collis' side was aggressive. The call from Mr Collis somewhat mystified the Condrans because they had not yet exchanged contracts for the purchase of Lot 95.
This conversation was ominous, as it foreshadowed events that were to come. Among other things Mr Collis said to the Condrans words to the effect "I am going to make your life fucking hell! I know people. I won't let you access your land." In response, the Condrans said, "[w]hy are you abusing us? We don't even own the block yet". After they continued to protest, Mr Collis said "I'm going to put six gates across the access".
At the time that the Condrans purchased Lot 95, two gates stood at the entrance to right of access A, where it first leaves Moores Road and enters Lot 96 (at CH 0). These two gates could be opened so that a vehicle or person could enter at any point along the whole 8 metres width of right of access A. One of the points of contention between the parties is that Mr Collis later removed these gates and replaced them with a single 4.8 metres entrance gate, and the remaining 3.2 metres (8 metres - 4.8 metres) of the width of right of access A was fenced in steel and could no longer be opened. This issue is dealt with in more detail in relation to prayer for relief 2(e) below. Mr Collis initially represented to the Condrans that they could use the two gates opening across the whole of the 8 metres at CH 0. He later went back on this.
Between October and December 2017, apart from the Condrans settling their contract for purchase of Lot 95, a series of encounters between the Condrans and Mr Collis put relations between the neighbours on a sharp downward trajectory. Many of these encounters are covered in more detail later in these reasons under the individual prayers for relief of the Summons. They included harsh words from Mr Collis, Mr Collis blocking the right of access A with concrete blocks, the Condrans' contractors being inconvenienced and denied access to Lot 95, Mr Collis issuing threats of trespass, Mrs Condran issuing an AVO against Mr Collis and later Mr Collis issuing an AVO against the Condrans.
After their purchase of Lot 95 settled, the Condrans sold their house in Harrington. On 15 January 2018, they moved into Lot 95 and commenced residing in a newly built shed on that property.
From 21 February 2018, using contractors, the Condrans commenced roadworks to upgrade right of access A from a grassy track to make a trafficable for vehicles, including heavy vehicles. The roadworks changed the landform with substantial cut to fill civil engineering works around the new road in the lower section. These excavations which significantly escalated tensions between these neighbours. Mr Collis engaged in a variety of retaliatory conduct to protest the major excavation which was occurring. One example of this was that in August 2018 Mr Collis parked a large pantechnicon trailer at CH 0 obscuring vision onto Moores Road for persons using right of access A to enter Moores Road. The consequences of this action are dealt with later in these reasons. Mr Collis engaged in other actions detailed and considered later in these reasons which caused obstruction to the right of access A.

[9]

2(a) Foul, Abusive or Threatening Language - October 2017 to October 2018

Prayer for relief 2(a) relates to the Condrans' contention that on occasions that Mr Collis used foul, abusive or threatening language in a manner which was either designed to or had the effect of deterring the Condrans from exercising their rights to use right of access A.
The Condrans' evidence contains many examples of Mr Collis using such language and behaving aggressively towards them. Mr Collis' conduct of his case shows that he is well capable of spontaneously using offensive language even in the formal environment of the courtroom. The Court has little doubt that he would have no hesitation using similar language to the Condrans, who he has viewed and treated with open hostility since they moved into Lot 95 in early 2018.
It is only necessary for the Court to make sufficient findings of such language in relation to this prayer for relief to decide whether an injunction should be granted, and whether damages should be awarded for this conduct. These reasons therefore do not cover every alleged instance of Mr Collis using such language.
Even before the Condrans moved into Lot 95, Mr Collis was spraying them with foul and abusive language. The Court accepts, as indicated above, that on 16 May 2017 during a short telephone conversation Mr Collis said to them "I can be a real fucking cunt. I'm going to make your life fucking hell! I know people. I won't let you access your land." Mr Collis said similar things on 13, 17 and 18 October 2017, including "I can be the worst fucking neighbour God put breath into" and "I am going to make your life fucking unbearable". Much of Mr Collis' deliberate actions towards the Condrans as found in these reasons following the statements, is consistent with the prediction made in the statements. This tends to support the likelihood that the statements were made.
On 27 November 2017, Mr and Mrs Condran were leaving Lot 95 along the easement in separate vehicles. Mr Collis drove his tractor across the paddock straight towards Mrs Collis with the front forks of the tractor raised the car door height. He was driving at speed towards Mrs Condran and she became fearful for her safety, not knowing how quickly it could stop. His action was reckless in relation to her safety. She was stationary on the easement. He stopped close to her with the forklifts raised and asserted it was his land while she maintained her rights to traverse right of access A.
Other significant incidents occurred on 9 October 2018 and 16 March 2022. The Condrans' evidence about each of these incidents is accepted. In the 9 October 2018 incident, whilst the Condrans were planting grass, Mr Collis came over and told them to "stay off my fucking land" and then made a gesture as though he were shooting a gun in their direction. In the 16 March 2022 incident, Mr Collis drove up to the Condrans on his quad bike whilst Mr Condran was trying to close the entrance gate to Moores Road. Mrs Condran got out assisted him and Mr Collis shouted vulgar abuse in her direction.
One of the most severe incidents deserves detailed description. It caused immense damage to Mrs Condran's confidence in using the easement, particularly at night. On 23 January 2020, close to 8 PM, as the Condrans drove together along Moores Road towards the Moores Road entrance gate at CH 0. Mr Condran was driving a tractor and Mrs Condran a motor vehicle. Mrs Condran got out of her car to open the gate just as Mr Collis was driving his tractor down along Moores Road. He then drove the tractor through the entrance gate stopped near the gate and then reversed the tractor at high speed up to the entrance gate straight towards Mrs Condran with the front forks on the tractor raised and pointing towards her. This is confirmed by the video evidence of the incident taken by her on a mobile phone as the incident unfolded. Mr Collis stopped the vehicle only metres from Mrs Condran. This caused Mrs Condran to have a panic attack and become extremely distressed. Mr Condran assessed that an ambulance should be called. Mrs Condran was taken by ambulance to Manning Base Hospital for observation.
The Court accepts that this incident would have been terrifying to any reasonable person in Mrs Condran's position on the ground facing an oncoming vehicle with forklifts raised in a gesture of overt hostility. Mr Collis either denied or dismissed this incident. His oral evidence on this issue was plainly untruthful to the extent that he disputed Mrs Condran's version. Perhaps worse was his apparent lack of any demonstrable appreciation of how this incident would have affected her and the absence of any regret in any part of his evidence about what he had done to her on this occasion. This conduct was grossly aggressive and was designed to deter the Condrans from exercising their legal rights to use right of access A. It has been partly successful in that objective. In the Court's view, this incident deserves close consideration for a possible award of damages, an issue which will be dealt with in the relief hearing.
As a result of this kind of conduct being repeated in different forms, at different times and with different intensities, Mrs Condran has been fearful of leaving Lot 95, especially at night. Mrs Condran does shift nursing work which often finishes either late at night or in the early hours of the morning. And she was also routinely on-call at all hours of the night. As result of his conduct, Mrs Condran has suffered great stress and anxiety. From late May 2022 Mrs Condran received medical certificates excusing her from work. At the time of swearing her principal affidavit of September 2022, she was still off work, and unable to provide her specialist nursing experience to her regional hospital. When she gave evidence in November 2023, she was still unable to work as a nurse because of her fear of coming home at night and her inability to leave the property without her husband's escort.
Mr Condran is also fearful of using right of access A for similar reasons. He suffers from stress and anxiety because of his various encounters with Mr Collis. Both the Condrans have taken to wearing video cameras whenever they traverse the easement and have a dashcam capable of recording video mounted on their cars for similar defensive and deterrent purposes. The fact they must arm themselves in this way to use the easement is a further basis to infer that Mr Collis's conduct imposed a cost upon their free exercise of their easement rights over Lot 96.

[10]

2(b) Erecting CCTV Video Cameras - October 2019

Prayer for relief 2(b) relates to the Condrans' contention that in October 2019 Mr Collis erected a CCTV video camera or audio surveillance device to spy on the Condrans and film their use of right of access A. The evidence in relation to this issue is of limited scope.
Mr Condran says, and the Court accepts, that on 23 October 2019 he and Mrs Condran saw Mr Collis installing what appeared to then to be a large camera at the top of a new steel pole about 4 metres in height on Mr Collis' property. The tower installation is located across Moores Road about 40 metres from the entrance gate at CH 0 and on the part of Lot 96 owned by Mr Collis that lies on the western side of Moores Road. The tower and box at the top are clearly visible from Moores Road. It is difficult to tell whether the box at the top of the tower actually contains an operational camera.
Both the Condrans say that they are "extremely concerned" that Mr Collis might use camera on top of this installation to harass them. It adds to their sense of being intimidated that he might be conducting surveillance on them.
Mr Collis concedes in his affidavit filed in January 2023 in response to the Condrans affidavits that he did install a camera on his property at this location. But he says it was installed for his own safety and security and not for the purposes of conducting surveillance on the Condrans. The Court does not accept that this is a complete explanation for the installation. A concern on Mr Collis' part to be able to observe who comes on off his property at the gate to Moores Road at CH 0, is perhaps justifiable on security grounds. Installation would operate as something of a deterrent to stop thieves. But the camera is also located to view almost directly along right of access A. He conceded in cross-examination that pointing along the easement was "the idea" of the camera.
But under cross-examination he also said that the camera inside the tower was "fake". This contradicts what he said in primary affidavit. He explained that the camera "doesn't work but it's been one hell of a good deterrent". It is unclear what to believe of his inconsistent evidence on this subject. On the balance of probabilities, the camera might not be a "fake" but it is probably not operational because it has no electricity supply and is not supported by solar panels or any other power source, as Mr Collis explained. But whether the camera is real or not is not decisive as will be explained in the legal analysis below.

[11]

2(c) Dumping Tyres/Waste on Right of Access A - June to August 2021

Prayer for relief 2(c) relates to the Condrans' contention that in the upper section of the right of access on two occasions in June and August 2021, Mr Collis dumped a pile of old tyres on right of access A and at various different times dragged an old car wreck, an old aluminium ladder, pieces of steel, pieces of large pipe and other unidentified machinery, along the easement.
Commencing in June 2021 and continuing through until November 2021 incidents occurred with Mr Collis placing various objects, large and small, on or adjacent to right of access A. This conduct then ceased, although some of the material was left on or adjacent to the easement.
These incidents commenced with Mr Collis dumping a large pile of rubber tyres on right of access A on 12 June 2021 close to CH 60 in the upper section. They reduced the width of right of access A by about 3 metres. Their placement seemed preliminary to Mr Collis using the tyres as surrounds for the planting a line of small trees on right of access A, close to the southern boundary of Lot 96. Indeed, in the following days Mr Collis planted a line of about 70 trees of different heights a number which were inside these tyres. These 70 trees line the entire southern boundary of the flattest part of the 8-metre-wide upper section of right of access A.
As to the planting of these 70 trees, the Court's view is that they do not cause a substantial interference with the Condrans enjoyment of right of access A. They are sufficiently distant from the trafficable road surface not to interfere with ordinary traffic using that part of the easement. Mr Collis is entitled to try and beautify his property, and this seems to have been at least one motivation for the planting of these trees. The same cannot be said for some of the other items he brought onto or near right of access A.
By 27 August 2021, Mr Collis had placed many more items alongside right of access A. These included an old aluminium ladder, bits of steel, pieces of large pipes, unidentifiable machinery parts, a rusted trailer containing pipes, hazardous loose sheets of corrugated iron, garden waste and assorted rubbish, and some other unidentifiable items. The photographic evidence shows the unsightly nature of this material. The Court infers from Mr Collis' overall conduct, the timing of the placement of this material, and the lack of any clearly articulated or convincing explanation for why it was being placed here on his large property, Lot 96, that this placement occurred to aggravate the Condrans. Discussion of the legal effect of distributing such unsightly material occurs in relation to prayer for relief 2(i) below.
Similar conduct occurred soon afterwards. On 28 July 2021, near CH 60, Mr Collis placed two large and unsightly rusted fuel tanks near the gate adjacent to right of access A at that point. Given his past behaviour towards her, Mrs Condran has a well-founded fear that items such as these may be used as hiding place for Mr Collis to come out and harass her as she is attempting to use right of access A in her vehicle or on foot. On 20 August 2021, near CH 60, an equally unsightly yellow car wreck was placed near the gate adjacent to the easement at that point.
Finally, between 25 and 27 August 2021 Mr Collis dragged another old car wreck, this one coloured blue, which was left lying on its side on the upper section of right of access A. This car wreck had been dragged about 50 metres along right of access A, causing damage to the surface of the road. A servient tenement owner deliberately damaging a road surface created over a right-of-way, may constitute a private nuisance actionable by the dominant tenement owner. But the extent to which the road damage to the easement from the car wreck has caused any longer term or additional loss or damage to the Condrans is obscure.
Mr Collis has no satisfactory explanation for leaving unsightly material in this part of Lot 96 other than to aggravate the Condrans. Should Mr Collis in the future damage the surface of the roadway which the Condrans have caused to be formed over right of access A, thereby increasing costs to the Condrans to regrade and repair the road, he may be liable to compensate them for those increased costs.

[12]

2(d) Padlocking, Modifying and Chaining Gates - June 2018 and October 2019

Prayer for relief 2(d) relates to the Condrans' contention that on multiple occasions between July 2018 and March 2022, Mr Collis excessively tightened the gate chain or took other steps to inhibit their use of the entrance gate at Moores Road.
The claims made under this prayer for relief overlap with those under prayer for relief 2(g) to the extent that the Condrans contend that Mr Collis has attempted to erect gates along right of access A. None of the allegations of that character are dealt with here. The main issues dealt with under this prayer for relief, 2(d), are allegations that Mr Collis has chained or padlocked, or otherwise dealt with existing gates to impede the Condrans' reasonable user of right of access A.
The Condrans rely upon several incidents of gate-based obstruction that are said to have occurred between July 2018 and March 2022. The Condrans have given detailed evidence of these incidents. Mr Collis has ridiculed or denied many of these allegations but the Court finds that he did engage in the conduct alleged against him under this prayer for relief. Some of the allegations are supported by video evidence. It is not necessary to detail the dates of every one of these incidents for the Court to make sufficient findings to ground relief.
From about July 2018, the Condrans began to notice that the chain on the gate at Moores Road (CH 0) had been tightened, and shortened by being twisted, which made it very difficult to release the spring-loaded latch on the gate. This for example prevented Mrs Condran opening the gate on her own. On occasions, Mr Condran needed to climb over the wire fence to access the entrance gate from the other side and use bolt cutters to cut the chain so he could open the spring-loaded gate latch. The Court accepts this evidence and infers that, despite Mr Collis' denial, that he deliberately tightened the chain to make it more difficult for the Condrans to open the gates. His conduct in this respect is consistent with his other conduct in creating additional aggravations to the Condrans to penalise them for using right of access A.
A similar incident occurred on 16 July 2018 except on that occasion the chain was so tight that Mr Condran was not able to release the spring-loaded latch by standing on the gate. He had to cut some of the wire off the gate to loosen the chain. Such tight chains are contrary to normal, expected, and reasonable usage of rural gates on a right of way. Mr Collis seems to have made a complaint to the police about Mr Condran cutting the wire of the gate in this incident. The Court finds that he created this situation by excessively tightening the chain on the gate and that the Condrans undertook reasonable efforts to counteract his artificial tightening of the chain on the gate.
Similar incidents showing the same pattern of conduct on the part of Mr Collis in tightening gate chains occurred on 21 October 2018, 29 December 2018, 29 January 2019 17 April 2019, and 9, 17 & 18 March 2022. The last of these is confirmed by video evidence which shows a very tight chain holding the CH 0 entrance gate. It is not necessary to detail these incidents further, except to say that the Court finds they occurred and that Mr Collis was responsible for the tightening of the gate chains to make it difficult for the Condrans to use right of access A. Mr Collis was generally dismissive of this claim but the Court does not accept his denial of responsibility for deliberately making the gates across right of access A difficult to use.
A related issue should be mentioned at this point. The Condrans complain that Mr Collis should just leave the gates open and not require them to get out and open gates at all. In this respect the Condrans' evidence seeks to identify Mr Collis' treatment of the Condrans as being in contrast with his treatment of other neighbours with whom he is friendlier than with the Condrans, the Browns. The Browns have an easement across Lot 96 allowing them access to Moores Road. The Condrans say that Mr Collis is prepared to allow the Browns to leave the gate open on their easement at Moores Road, in contrast to his requirement that the Condrans always close the gate at CH 0.
This case is not to be judged by what happens on the Browns' easement, where the circumstances may be different. The law does not require Mr Collis to treat the Condrans no less favourably than the Browns, provided he does not obstruct the Condrans' enjoyment of their use of right of access A.

[13]

2(e) Installing a 4.8 metre gate at Moores Road - October 2019

Prayer for relief 2(e) relates to the Condrans' contention that Mr Collis installed a single gate of around 4.8 metres in width and other structures including fencing at the junction of right of access A and Moores Road (at CH 0) instead of the two previously installed gates, one of which was 4.8 metres and the other 3.6 metres.
There is no dispute that Mr Collis installed a single 4.8 metre entrance gate at CH 0 replacing the previous two gates which the Condrans had installed under Council supervision. The occasion of the change in October 2019 was a matter of heightened conflict between Collis and the Condrans. The Court accepts the Condrans' evidence that on or about 17 October 2019, when they were exiting onto Moores Road at CH 0, they noticed Mr Collis working with two men. Later that night, upon their return they noticed that the two gates that they had regarded as being in good working order and condition had been taken down. Instead, there was now a steel panel fixed into the ground on the southern side of the entrance with a single 4.8 metre gate attached to it. The old 3.6 metre gate was being used as another temporary panel. The new entrance gate was wired shut, so the Condrans had tried to cut the wires to open it and get back into their property. The street number "58" for Lot 96 was no longer visible, as it had been attached to the old 3.6 metre gate.
But it was dark at this time. What followed was frightening for the Condrans. In the darkness and by the headlights of his motor vehicle, Mr Condran sought to untie the wires binding the gate together, so he could enter right of access A. The Court accepts the Condrans' evidence that while they were standing at the entrance Mr Collis drove up and stopped approximately 1 metre away from them. He then reversed directly across Moores Road so that his lights were facing them. His lights were on high beam and his engine was being revved. This was an act of intimidation as it gave them the impression, as might reasonably be expected, that Mr Collis' vehicle might suddenly move forward and harm them.
The Condrans rang the emergency number, 000. Immediately afterwards, Mr Collis and two companions drove away, presumably to Mr Collis' house.
The police were called by either Mr Collis or persons associated with him. They were told that the Condrans had said something to the effect "people get shot over easements". The Court accepts the Condrans evidence that they did not say this to Mr Collis or to anyone else that evening. Neither of them appeared to the Court to be likely to make such a threat to Mr Collis.
The next morning, 18 October 2019, the Condrans sought to dismantle the newly built entrance gate assembly and to restore it back to its original specifications, with the assistance of friends. They also hired security guards to protect them while they did this. Their engaging security guards was a contemporaneous indication that feared for their safety from the events of the night before.
While this work was being done, Mr Collis returned to the scene and behaved angrily. Mr Collis perceived the Condrans as maliciously damaging his property. He tried to approach them several times. But the security guards turned him away physically and with verbal warnings. Mr Collis was aggressive towards the guards, coming up and confronting them and speaking in a hostile fashion to them and visiting personal insults upon them. This is an example of Mr Collis' incapacity at times to control his own behaviour.
To protect the Condrans rights over the easement, they placed a written notice explaining why the gate assembly had been restored to its original configuration. When doing so, they were being watched by unknown persons, who made vague threats that the gate Mr Collis' wanted erected would be put up the following week. Indeed, the next day when the Condrans visited the site the gate assembly, they had built the previous day had been taken down. Some of the materials that the Condrans had used to build it were missing from the site.
From his behaviour and submissions in these proceedings, the Court infers that Mr Collis supported the idea of removing the temporary gate assembly which had been put in place by the Condrans on this occasion and replacing it with a construction of his choice. The Court infers that he was behind all the actions by the persons who reconstructed the 4.8 metre gate which is there now. This involved him going back on the original arrangement he had made with the Condrans, to allow gates to open over the whole 8 metres.
Mr Collis was extensively cross-examined about this incident. His answers were unsatisfactory. He refused to answer questions at times. He denied encouraging the Condrans to put in gates across the whole 8 metres of the easement, when he had done so. When pressed about this and shown photographs of the Condrans' original Council approved gates, he avoided the issue by criticising the quality of the Condrans' work on the gates, making comments such as "if I did it I would have done a much neater job than that" and "that's like a dog's breakfast" that".
Mr Collis also refers to the police being called during this incident. He says that they supported his position. They did not require him to pull the gate down. When pressed about why he had gone back on his original arrangement with the Condrans to leave in place the two gates opening across the whole 8 metres of the easement, Mr Collis gave an answer that illuminated his outlook on his neighbours and his motivations: "That was probably when things were on an even keel, I'd said that to them. But then they started being nasty, rude and I change my opinion. And I stand by that today while I sit here. I'm very easy to get along with these people are polite. Like I've said to the judge, the way he talks to me I'm perfect with. But when you're trying to twist the truth and manipulate me your box me into a corner I won't come out punching, but I will come out an object to it and I dig my heels in."
Mr Collis's conduct throughout this incident was intentional and calculated to intimidate the Condrans from making lawful use of right of access A. Although these events only occurred over a few days, they had a very substantial effect upon the well-being of the Condrans and made them ever more cautious about using right of access A thereafter.
But Mr Collis' poor conduct during this incident must be distinguished from the long-term consequences of his installing the 4.8 metre gate. Mr Condran says for example, that since Mr Collis changed the gate at CH 0 to the single 4.8 metre gate, on a number of occasions he observed larger vehicles such as trucks with trailers attached to them were not able to enter right of access A and were often required to reverse through the entrance gate and that some trucks and trailers were not able to enter at all and had to unload their deliveries onto Moores Road for the Condrans to come and collect them there.
It has been difficult for the Court to work out whether the present 4.8 metre gate needs to be changed back to two gates. The difficulty for the Condrans' case on this issue is that prima facie Mr Collis is entitled to put gates across right of access A, provided the gates do not unreasonably impede the Condrans' use of right of access A.
The cases later in these reasons show that the Condrans bear the onus of proving that the single 4.8 metre gate at CH 0 unreasonably interferes with the Condrans' use of right of access A. Pastoralists such as Mr Collis are entitled to erect gates across rural rights-of-way provided the gate does not cause a substantial interference with the enjoyment of the right-of-way.
Just because Mr Collis behaved peremptorily and reprehensibly in dealing with the Condrans in removing the original gate, does not mean that the Condrans are automatically entitled to the restoration of the pre-existing gate. The gate that is there now must be assessed as to whether it causes a substantial interference with their enjoyment of right of access A.
The Condrans have established their case on many issues but on this issue it is doubtful, without expert evidence and without better evidence than the current general observations about difficulties and trucks turning.
The Court can take judicial notice of the fact that the standard lane within Australian roads is 3.5 metres although the width can vary in depending on local factors. A common motor vehicle such as a Holden Commodore is 1.9 metres wide. The maximum width for a semitrailer in Australia is 2.5 metres. A gate 4.8 metres wide erected perpendicular to the usual direction of travel should be able to accommodate most vehicles travelling along a road through the gate.
The remaining separate question on this issue is whether a wider gate, or gates, at CH 0 are now needed to accommodate an articulated vehicle turning into the easement. The Condrans' evidence on the subject first looked to the original Council approval of 24 November 2017 for the construction of the driveway and the erection of gates across the whole 8 metre entrance. The configuration of the gates and the associated turning area in the MidCoast Council approval are only one part of a wider approval. The Condrans' application to MidCoast Council and the subsequent approval of that application, does not impair Mr Collis' rights to install gates of his choice on his property, Lot 96.
The early indications that Mr Collis gave to the Condrans about them being able to use gates opening over the whole 8 metres was not legally binding. It was just an informal consensus. Before the application was submitted to the Council, Mr Collis was advised of it by the solicitors for the Condrans in the following terms. This advice did not refer to any pre-existing agreement between the Condrans and Mr Collis: "We further advise that in order to obtain adequate access to the right of access from Moores Road, it is our client's intention to provide a wider gate than currently located. At this point the work will be undertaken at the expense of our clients."
Mr Collis was given notice of this application to MidCoast Council, which has not given notice to Mr Collis to remove the gate he has erected at CH 0.
The Condrans' evidence explained difficulties that some vehicles have had in turning in this area to go into right of access A. Their evidence about some of these difficulties related to a time when there was also a public gate across Moores Road close to where the southern boundary of Lot 96 meets Moores Road. But it is unclear to the Court based on the evidence which the Condrans have advanced, whether this turning issue is an intractable problem for all or most single bodied heavy vehicles, or all or most articulated vehicles, or only some of these various types of vehicles when they are attempting to enter the easement. Possibly only expert evidence could answer that question.
One related issue that may need to be resolved by further measurement and evidence at a relief hearing is the Condrans' evidence that in June 2018 they saw Mr Collis installing a new thick steel railing fence directly across the Moores Road reserve f on the western side of Moores Road. The new steel railing fence was located directly opposite the entrance gate at CH 0. The correspondence complains that this fence reduces the turning circle, because it reduces the width of the Moores Road reserve from 9.1 metres to 8.3 metres. This has resulted in correspondence between the Condrans and MidCoast Council.
Mr Collis' building of these fences appears to be an encroachment on the Moores Road reserve. DP 1222732 shows that the Moores Road reserve is 20.115 metres wide. But the turning area allowed by Mr Collis' fencing is said to be less than half of that distance. The disparity needs close attention. Mr Collis may have to show cause as to why he should not remove his fences to allow the full turning circle on Moores Road to be used. He is amenable to the making of such an order if his actions are inconsistent with the rights conferred under right of access A.
Before an assessment could made about whether what Mr Collis had done in installing a single 4.8 metre gate at CH 0 was unreasonable a range of factors would need to be considered. These include the following: 1. Frequency of use. The long-term frequency with which heavy vehicles would be required to enter right of access A is an important consideration. It can be accepted that when building work is proceeding on Lot 95 that heavy vehicles might be frequently found on right of access A. Whether that likely in the long-term is an open question that is not clear on the evidence. 2. The available turning circle. The realistically available turning circle presently available for heavy vehicles on Moores Road is uncertain. The photographic evidence and the Court's own view of the site show that not all the reserved area of Moores Road has in fact been utilised to form the driveable road surface of Moores Road. With appropriate grading there may be a wider area than the present road surface of Moores Road available to allow heavy vehicles to turn to enter the 4.2 metre gate. Indeed, the available evidence suggests that this is a possibility. As is indicated above, Figure 1 clearly shows that Moores Road is 20.115 metres wide at CH 0. Provided the area near the 4.8 metre gate was appropriately graded into an expanded road surface this width may be a sufficient turning circle for most heavy vehicles seeking to enter right of access A. It is unlikely that the turning circle for a prime mover and semitrailer would be much more than 20 metres. If Mr Collis has done anything to restrict the available trafficable area for turning on Moores Road, that can be addressed in a relief hearing. 3. The degree of actual inconvenience. The degree of actual inconvenience encountered by drivers of heavy vehicles using the realistically available turning circle is another factor to be considered. Can a driver using the realistically available turning circle be able to get into right of access A in 50% of cases without backing and turning, or 80% of cases without backing and turning, or some other percentage? How many times realistically would a driver have to back and turn to be able to use right of access A? 4. The nature of the vehicles. Even accepting that some vehicles might have difficulty in turning in this area there may be differences between the turning difficulties encountered by the driver of a larger single bodied truck and driver of an articulated vehicle at this site. It may ultimately be that only a small percentage of trucks have any significant turning problems at this site and the inconveniences thereby occasioned may be tolerable.
These are matters upon which the Condrans' evidence says little other than offering their generalised lay opinions about problems that have been observed with some heavy vehicles entering the easement at CH 0. Their evidence also cites the General Rural Fire Service guidelines the need for access for emergency vehicles to rural properties in case of emergency. This evidence is not sufficient for the Court to find that Mr Collis was unreasonable in replacing the two gates with the single 4.8 metre gate, particularly where several other solutions to the turning circle problem may be available. Looking at these other possible solutions during a relief hearing is discussed further below.
Even if Mr Collis erected the single 4.8 metre gate at CH 0 to aggravate the Condrans, the question of whether an order should be made for the present gate to be removed is still an objective one and is not measured solely by his intent. The test is whether assessed objectively the erection of the single 4.8 metre gate caused a substantial interference with the Condrans' use of right of access A.
Some balancing considerations do favour the steps that Mr Collis has taken in installing a 4.8 metre gate in place of the two gates over the whole 8 metre entrance. Mr Collis conducts pastoral activity on Lot 96 including running stock. The authorities are well-established that he is entitled take measures to limit stock straying or being stolen from Lot 96 by placing gates on right of access A. The narrower gate to Moores Road provides him with slightly more protection against those risks.
Moreover, it should be recognised that the gate in question is the gate from Mr Collis' property, Lot 96, facing out onto a public road. It is not just an internal gate. How it looks and presents to the public is a matter in which he has at least as much legitimate interest as the Condrans. The Condrans are entitled to put identification on the gate with their address and pointing the way to their property. But Mr Collis has a justifiable concern about how his gate presents. Indeed, he has placed a small hardy garden in front of the gate surround. Objectively speaking his construction seems to be sturdier than the Council approved gates previously erected by the Condrans.

[14]

2(f) Planting Trees on Right of Access A - June 2021

Prayer for relief 2(f) relates to the Condrans' contention that Mr Collis planted trees in tyres and placed on the 8 metre upper section of right of access A.
The Condrans complained that the measured 8 metre width of the upper section of right of access A is restricted by the planting of trees (often in tyre surrounds) within the easement in straight lines close to either the northern or the southern boundary of the upper section of the easement between CH 0 and CH 180. The Condrans have counted 70 trees lining the entire southern boundary of the easement and 32 trees on the northern boundary. The photographic evidence shows these trees and the Court's view confirms many of them were still in place at the time of the hearing although some have died. The Condrans have calculated that the two lines of trees together reduce the total width of access of right of access A in its upper section from 8 metres down to 6 metres. The Condrans' evidence in this respect confirms that the trees are planted approximately 1 metre inside right of access A.
The Condrans compare Mr Collis' method in these plantings on right of access A with his method for planting similar trees on another right-of-way over Lot 96 for the benefit of different neighbours, the Browns, with whom he is more friendly than the Condrans. They point out that Mr Collis has planted trees outside the easement with the Browns, his friendly neighbour, but inside the easement with the Condrans.
Evidence of how Mr Collis treats the Browns is not irrelevant. It may for example be used to assess the genuineness of his evidence as to whether he really does need to plant trees inside right of access A. But the question here is whether the planting of the trees causes a substantial interference with the Condrans' enjoyment of right of access A. The law of easements does not prevent Mr Collis treating the Browns more favourably than the Condrans, provided in doing so, he does not substantially interfere with the Condrans' enjoyment of right of access A.
Mr Collis explained the history of the trees planted with rubber surrounds. He said that he originally planted trees along the easement and the Condrans destroyed them by mowing them down with his mulcher. Mr Collis explained that encouraged by Landcare he was trying to create a corridor with trees that was suitable for koalas. But he says that the trees were destroyed at their bases by the Condrans' mulcher, so next time he planted, he used the old tyres as protective surrounds to prevent that happening again. Mr Condran denied deliberately mowing these young trees down or poisoning them and that can be accepted. But it is likely that there was some accidental damage to some of these trees during the Condrans' routine maintenance of the upper section of right of access A.
Mr Collis' decision to put tyres around trees was a practical one to give notice of their position specially when they are young. The Condrans contend that the tyres are not authorised by the MidCoast Council as surrounds for the young saplings. If correct, that is a matter to be worked out with the Council.
This contest reduced somewhat, when Mr Collis indicated in an exchange with the Court that he was prepared to plant trees in the future that were no more than 600mm inside right of access A. Indeed, he said he may be able to move the trees that are presently located within right of access A at the southern boundary of Lot 96 to no more than 600mm from that southern boundary - the 600mm figure came from Mr Collis.
But the Court does not see that where all the trees are presently planted, though inside right of access A, causes a substantial interference with the Condrans' enjoyment of right of access A. The trees do not the prevent free passage of vehicles up and down the upper section of right of access A. If a truck can enter the 4.8 metre gate it should have little difficulty in negotiating an easement which in practical terms is slightly less than that distance in some places. The Court sees little need for the Condrans to always have available for use the full width of 8 metres for the passage of persons and vehicles, given that the trafficable road service is only about 4 metres wide. No evidence was advanced by the Condrans of them encountering any special difficulty in vehicular access along right of access A because of these trees.
Right of access A does not entrench upon Mr Collis' undoubted right to use Lot 96 as he pleases, including by planting the trees of his choice, provided he does not substantially interfere with the rights of the Condrans to the easement. Given the Condrans' access rights, any trees he does plant will need to be no more than a defined distance from the southern boundary of right of access A.
The Condrans cited the well-known passages from Treweeke v 36 Wolseley Road Pty Ltd (1972) 128 CLR 274 at 280, that establish that a dominant tenement owner may remove native brush and undergrowth to clear obstructions and allow a passage through an easement. But here it is not necessary to remove undergrowth to allow passage. The trees are well outside the graded traffic level road surface.
At one point during his evidence at the hearing, it emerged that Mr Collis was perhaps planning to plant another 2,500 trees on his property. Mr Condran pointed out that as a preliminary, more tyres had been dumped on right of access A.
Given history of hostility between these parties some mutual injunctive relief is appropriate in relation to this subject matter, based upon the evidence that has been given. This is discussed later in these reasons.

[15]

2(g) Installing Gates along the Easement - October 2019 to January 2022

Prayer for relief 2(g) relates to various alleged attempts made by Mr Collis to erect gates at different locations along the upper section of right of access A between CH 0 and CH 180. Mr Collis has installed one gate near the copse of trees at about CH 60, sometimes referred to by the parties as "the second gate". Mr Collis says that this installed gate is at CH 80. Whether it is at CH 60 or CH 80 does not have to be resolved. At the Court's view, on 31 January 2024, it seemed more likely that the installed gate was at CH 80 but the difference is immaterial. Many of the submissions referred to the second gate being at CH 60, and without deciding the question the Court will adopt that chainage as a point of conventional reference for this gate.
The Condrans do not take issue with that gate at CH 60. The gate at CH 60 is connected to fences that divide the pasture on Lot 96 into at least two paddocks. Such a gate would be necessary to keep stock separated onto each of those two paddocks. The law is clear that a servient tenement owner can erect gates across an easement for reasonable purposes. The Court does not have to consider removal of this gate.
Mr Collis has also marked out the space for potentially installing gates at other positions around CH 180 at different times between October 2019 and January 2022. So far, apart from erecting some posts, Mr Collis has not acted on these markings to erect any gate other than the one at CH 60. Mr Collis variously marked out these other potential gates by writing the word "gate" on white fence posts. But Mr Collis did not articulate any agricultural purpose or logic for erecting gates in these other positions. It is not obvious that there is any such purpose.
The Court will nevertheless craft a notice-based remedy which will protect the parties from unnecessary conflict about the possible erection of new gates. This will require Mr Collis to give a period of notice before attempting to erect any additional gate across right of access A, to reduce the possibility of conflict flaring up suddenly.

[17]

2(i) A Pantechnicon Truck Near the Right of Access - August 2018 to March 2021

Prayer for relief 2(i) relates to the Condrans' contention that Mr Collis parked a large pantechnicon truck near CH 0 with the intent of and having the effect of creating an obstruction to the vision from the easement of traffic coming along Moores Road, and vice versa, thereby inhibiting safe exit from the easement.
The Condrans have advanced compelling evidence clearly a large pantechnicon truck trailer was parked very close to CH 0 on the northern side of right of access A and that it was placed there by Mr Collis.
On 22 August 2018, Mr Collis parked a large, ugly, and dilapidated pantechnicon trailer body at this site. It had the immediate effect of preventing anyone driving west on right of access seeing traffic coming on their right, as they pulled out of right of access A onto Moores Road. The trailer body was a safety hazard for persons using right of access A. Apart from that problem, Mr Condran was concerned that the trailer body might become a cover for Mr Collis suddenly to initiate harassing conduct against the Condrans and their guests using right of access A.
As well as presenting a safety hazard to motorists of the public as well as users of right of access A, this abandoned trailer body was a calculated gesture thrusting the ugliness of an industrial wasteland into the rural beauty of Bootawa. Its placement can have had no other meaning than as an insult to the Condrans. The trailer body towers above the entrance to right of access A and would be grossly unsightly to any reasonable person, even one with undemanding standards of aesthetics. The photographs show this trailer body parked incongruously in Bootawa rather than its proper niche in a logistics depot.
In addition, the trailer body contained a coded message. Hand-painted on its side under the faded words "Abigroup" were the curious words "NAMDLO DAM GREYHOUNDS". A Google search of "NAMDLO DAM" turns up no business organisation or location of that name in Australia, or indeed elsewhere in the world. But as the Condrans point out, NAMDLO DAM is MAD OLDMAN spelt backwards. Mr Collis placed this trailer body in the location that it was. It is reasonable to infer that he is also responsible for the wording on the side. Whether he is making a comment about his own psychological equilibrium or that of Mr Condran is left unclear. But the trailer is one example of Mr Collis placing on or near right of access A objects or signs, which convey his florid personal contempt for the Condrans.
This is the natural inference to draw from Mr Collis' general conduct in these proceedings. Mr Collis frequently sought to diminish Mr Condran during his evidence in the courtroom. Mr Collis finds irresistible any opportunity to cast insults in the direction of the Condrans. At one point in Mr Collis' evidence, after he had just revealed that the camera on the western side of Moores Road, as he claimed. was a fake, Mr Condran left the courtroom to go outside and talk to Mrs Condran. As he left Mr Collis, though in the middle of cross-examination, interrupted his evidence and called out from the witness box to the departing Mr Condran across the courtroom, "[h]ow's that Rob?", as if to emphasise to Mr Condran the surprising and discomforting revelation of his evidence. The Court strongly rebuked Mr Collis for this departure from proper standards of courtesy and decorum. That Mr Collis would say such a thing in the courtroom is a strong indication that he would do the same and more when unsupervised.
The trailer body was abandoned in this unsafe position for a long time. After being placed there on 22 August 2018 it remained there for over 30 months until 11 March 2021. This made every departure during that period from right of access A onto Moores Road potentially unsafe from traffic approaching on the driver's right-hand side.
Mr Collis cannot have believed his own evasive evidence about this trailer body. He agreed that he towed the trailer body into this position, but he emphasised that it was on his property and not on right of access A. He admitted he towed and left it there "deliberately". When asked by the Court why he put the trailer body in that location Mr Collis gave the following answer: "Why did I put it there? Because Bundy said to me "can you put a sign up that when Gary comes up (that's his mate that was going to build the greyhound kennels and that) He said, "can you put it up there so that he doesn't come up to your house and have to turn the truck around and so he knows where to turn?" Laughing and joking, I said "Yep, I'll write a great big sign on a trailer and I'll tow it down there, he can't miss it" because he is as dumb as dogshit, he is. You could put a sign up and a flag up and he'd drive straight past it."
Mr Collis explained that "Bundy…was a mate of mine". Mr Collis explained "Bundy were a bit like his greyhounds, he weren't real quick." He was truing to make out that the trailer body was there as a sign post to his friend, Bundy.
None of this is credible. Mr Collis subsequently admitted during cross-examination the real reason for the trailer body being there. When giving evidence in relation to a conversation that he had with a local police officer, Detective Senior Constable Lachlan Tancred. Mr Collis explained: "I think I moved it because we had some conversations with Lachlan Tancred after … Several months and he said, "you know, come on Gaz, how about you show them that you are a bit bigger than this and move it away?" And that's what I did. Lachlan Tancred sorted it out."
When it was pointed out by counsel to Mr Collis that this was nearly 3 years after he had placed the trailer there. Mr Collis went on: "Lachlan said you know "why is all that shit down there?" And I said "Lachlan, every time they annoy me, I put a piece of shit down there. Is there anything you can do about it?" And as I said to him "within six months that paddock will be full, because they keep annoying me, I keep putting shit there".
This candidly admits what Mr Collis was really doing. He would dump the trailer and other wreckage near right of access A when he thought that the Condrans had annoyed him. This was done to penalise them. The Court comfortably infers from the objective facts that this trailer body was placed in this location principally to harass and intimidate the Condrans.

[18]

2(j) Concrete Blocks on the Right of Access - November 2017 to 2 December

Prayer for relief 2(j) relates to the Condrans' contention that Mr Collis had deliberately placed concrete blocks on right of access A to prevent the Condrans from using it. All the alleged conduct in relation to this allegation is said to have taken place at Moores Road around CH 0.
Shortly, after the Condrans settled the purchase of Lot 95, they encountered problems with Mr Collis placing large and heavy concrete blocks on right of access A. On several days commencing on 17 November 2017, the Condrans found that the use of right of access A obstructed by these objects making the easement impassable.
The first of these incidents was typical of the others. As the Condrans were leaving Lot 95 at about 6:30 PM on that day, they found the entrance gate at Moores Road sealed with three concrete blocks that blocked the exit. Each block measured 900 mm x 900 mm x 600 mm and weighed about 1.1 tonnes. The Condrans observed that two of the blocks were immediately behind the gate on right of access A itself. The third block was in front of the gate on the Moores Road reserve. Photographic evidence supports the Condrans' oral evidence to this effect.
The Condrans were unable to exit their property. They stopped in their vehicle near CH 0 when they saw Mr Collis driving a forklift truck away from the entrance gate northwards along Moores Road. It is obvious from the weight of these objects that Mr Collis had planned and executed their placement using mobile hoisting equipment at his disposal.
The Condrans decided to call the police. By then darkness was falling. Whilst they were waiting the Condrans observed an unidentified person using a torch within Lot 96 pointed in their direction and causing them some anxiety. After a time, the police arrived and helped the Condrans to move one of the concrete blocks far enough to allow the entrance gate to be opened.
The next evening, 18 November 2017, when the Condrans tried to use right of access A again, they found it had been sealed once more. This time it was sealed with five concrete blocks of the same type. Two of the blocks were immediately behind the gate on right of access A. Three blocks were immediately in front of the gate on the Moores Road reserve. The placement of these additional blocks, confirmed by contemporaneous photographic evidence, meant that this time it was even more difficult to open the gate at CH 0. This caused considerable inconvenience to the Condrans, as it was plainly intended to do. They were unable to inspect building work recently completed on Lot 95. At that time, they were still living in Harrington, a hamlet at the mouth of the Manning River and commuting from there to inspect the building works occurring on Lot 95. They planned to move into Lot 95 once the building work was complete.
The Condrans complained to the MidCoast Council about Mr Collis' conduct in placing these blocks on the easement. The Council gave notice to Mr Collis to remove the blocks within seven days.
But the inconvenience continued. The concrete blocks were still in place on 21 November 2017, when the Condrans had to cancel their scheduled appointment for an excavator contractor to do work on Lot 95. By this time, the Condrans had quite enough of their new neighbour and were fearful of what else he might do. The same day, 21 November 2017, they lodged an application for an Apprehended Personal Violence Order (AVO) at the Taree Local Court.
The Condrans suffered further inconvenience on 25 November 2017. They had arranged to have a delivery of sand made to Lot 95 that day. They stood at the entrance to right of access A to meet the sand delivery. But the concrete blocks were still in place. The Condrans unsuccessfully tried to remove some of the blocks with their Land Cruiser utility vehicle. The delivery truck was ultimately able to execute a difficult turn to gain access. The Condrans' testimony concerning this event is supported by video evidence.
Further obstruction took place on 28 November 2017. That day the Condrans returned to Lot 95 to supervise deliveries to the property and to attend meetings. This time they found that the five concrete blocks had been placed in a line directly behind the gate at CH 0. To overcome the problem the Condrans made arrangements with a neighbour for the deliveries to be made to Lot 95 through a neighbour's property, adjoining Lot 95. The same day the Condrans had to cancel to other planned appointments at Lot 95 because of these obstructions.
On 29 November 2017, Mr Condran travelled from Harrington to Lot 95 to supervise the installation of a water tank. The concrete blocks were still obstructing right of access A. Mr Condran again made arrangements with an adjoining neighbour to gain access to Lot 95 for the water tank installer.
The obstruction continued throughout 2 December and 6 December 2017 preventing the Condrans undertaking scheduled appointments with concretors, engaged to undertake work on Lot 95. This caused inconvenience both to the Condrans and to the concreters.
The concrete blocks were finally removed from their obstructive position, on 12 December 2017. The Condrans found that day they had been moved off right of access A and were placed next to it, although still present.
Mr Collis agreed that he moved these concrete blocks into position on right of access A. He proffered an explanation for doing so as being his alleged concern that the Condrans had left gates open along the easement, which allowed his cattle to stray. This is a common problem with rural rights-of-way and is the subject of some of the case law examined below.
Mr Collis was cross-examined about his moving the concrete blocks onto right of access A. His answers tried to deflect the thrust of the cross-examination, avoiding engaging with the cross-examiner. Mr Ireland: "It's true, though isn't it, that the purpose of you placing those concrete blocks against the gates was to directly prevent the use of the easement and the whole of the easement by my clients? You say you had a concern with the gates being left open. Your solution was to completely block my client's access to the easement. Mr Collis: "They weren't completely blocked. You could still open them and walk through. There was also other gates at the top of the paddock which you could go through..." Mr Ireland: "So you could say - Mr Collis: "- and there was no, no restriction from them going through Norm's place, or I don't think Norm had brought it back then, but going through that way either. So they had, they could get in and out of their property." Mr Ireland: "By walking?" Mr Collis: "Well, they could drive too, they could drive up to -" Mr Ireland: "Not along the easement or not through the easement gate." Mr Collis: "That's right."
Mr Collis' objective was to block completely all access along the easement. His qualification that the Condrans could access Lot 95 through neighbouring properties, is not an answer to the question put to him, but a deflection of what he intended to happen on the easement.
Mr Collis was responsible for placing these concrete blocks in positions that would prevent the Condrans from making use of right of access A. He designed the placement of the concrete blocks to prevent use of right of access A and the placement had that result. This was a gross and deliberate obstruction of the easement. Mr Collis was successful in what the Court infers to have been his objective: namely, causing major inconvenience to the Condrans' use of right of access A between 17 November and 12 December 2017.

[19]

2(k) Damage to the Right of Access A's Surface - December 2017 to August 2021

Prayer for relief 2(k) relates to the Condrans' contention that (a) that Mr Collis damaged the road surface within right of access A, which had the effect of inhibiting travel upon it, and (b) their contention that he allowed damage to the batter slopes beside the lower section of right of access A from the action of cattle.
This claim consisted of a series of incidents occurring between December 2017 and August 2021. Most of the incidents are identified by date in the evidence. Those that are not identified by date are more difficult to assess and for any reply from Mr Collis to be considered fairly. But the Court has still been able to draw some inferences about this undated evidence.
On 20 December 2017, the Condrans say they saw Angus cattle grazing and wandering over right of access A, including the battered areas in the lower section and causing damage to the batter. The main road construction had not occurred by this time. Such damage as then occurred to the batter would probably have been covered by the 2018 earthworks.
After those 2018 earthworks, some damage to the batter by reason of cattle wandering onto it has undoubtedly occurred. The experts agree such damage has occurred. But the extent to which damage to the batter was caused by the cattle rather than the way the batter was designed and constructed is controversial and is dealt with by the expert evidence.
On 24 July and 23 September 2018, Mr Condran installed a safety fence and then a plain wire fence within the lower section around the batter to protect the batter from the ingress of and damage by cattle. But the cattle appeared to break through these barriers, which do not appear to have been sufficiently sturdy to be stock proof.
Mr Collis says that one of his concerns about the work that was done in mid-2018 to construct the road surface in the lower section was that the batters were not properly fenced off. As will be seen, when the expert evidence is examined in the context of the Cross-Summons, this contention is valid. The question is who bears responsibility for protecting the batter.
On 13 December 2018, the Condrans noticed that cattle in the lower section were walking around and destabilising the batter and Mr Collis made no attempt to remove them. These primary observations can be accepted as correct. The real question is what could Mr Collis have done? Unless he completely abandons all attempts to turn this part of his pasture to profitable account and takes stock off it altogether, the question of who is responsible for keeping stock off the batter must be addressed. In the absence of adequate fencing to keep cattle off, there is little point in Mr Collis trying to keep them off. They would only return.
Who bears responsibility to erect fencing to protect the batters is the central question. The Court has concluded later in these reasons that primary responsibility for protecting the batter lies with the Condrans who entitled to erect fencing on limited parts of right of access A to protect the batter.
On 26 March 2020, Mrs Condran says she saw Mr Collis digging up the batter with a shovel. Mr Collis denies damaging the batter on this occasion. Whatever happened on this day it was minor and can be ignored.
On 17 August 2021, the Condrans again observed from a distance cattle loose on the batter and destabilising it. As the batter was unfenced or inadequately fenced throughout the years between 2018 and 2021, it is likely that cattle grazed on the batter and caused damage to it intermittently throughout those years. Mr Condran has given evidence of observing other undated occasions where this occurred between 2018 and 2021 and the Court accepts that evidence is accurate.
On 25 August 2021, Mr Condran also observed that Mr Collis had dragged a blue car wreck along right of access A. He also noticed that the dragging of the wreck along the easement had caused some damage to the road surface in the upper section, bringing loose rock to the surface.
It is not clear that the damage caused by the dragging of this vehicle along the road surface of right of access A has caused any long-term damage to that surface, such as that would require further expense to repair in addition to periodic grading of the surface for maintenance purposes.

[22]

Applicable legal principles

The applicable legal principles may be shortly stated. As to the Condrans' claim in private nuisance on their Summons, the wrongful interference with an easement including the obstruction of a dominant tenement owner's use of a right-of-way is actionable in nuisance: Colls v Home and Colonial Stores Ltd [1904] AC 179; McDowall v Reynolds [2004] QCA 245. The core of an actionable nuisance for interference with an easement is its adverse effect upon the owner's enjoyment of a right in property: Jones v Chappell (1875) LR 20 Eq 539 at 543.
Trespass to land is not a remedy available to dominant tenement owners because they do not have possession of the servient land: Moreland Timber Co v Reid [1946] VLR 237.
Not every interference with an easement is an actionable wrong. Among other reasons, this must be so because affirmative easements, such as a right-of-way or a right of access never give a right to exclusive enjoyment of the servient tenement: Holywell Union and Halkyn Parish v Halkyn Drainage Co [1895] AC 117; Southport Corporation V Ormskirk Union Assessment Committee [1894] 1 QB 196, at 201. It is well established that whether an obstruction to a right-of-way is actionable or not is a question of degree, to be decided in light of the circumstances of each case in which it arises. In the case of a private right-of-way or similar easement, the obstruction is not actionable unless it is a real and substantial interference: Powell v Langdon (1944) 45 SR (NSW) 136, at 139. There is not a real and substantial interference to a right-of-way, if according to its nature the right-of-way can be practically and substantially exercised as conveniently after the obstruction as it was before the obstruction occurred: Hutton v Hamboro (1860) 2 F & F 218 at 219; Clifford v Hoare (1874) LR 9 CP 362.
The erection and use of gates on rights of way has received ample judicial attention both in England and Australia. The question is always whether the erection and use of the gate leads to a real and substantial interference with the enjoyment of the right of way, and if it does, it is actionable: Pettey v Parsons [1914] 2 Ch 653 at 662. The question of substantial interference from a gate is one of fact to be determined upon the circumstances of the case.
Many of the Australian cases concern the use of gates in a rural context. One of the earliest reported comprehensive statements of applicable principle is Gohl v Hender (1930) SASR 158. In 1986 Neasey J approved and applied Gohl v Hender in Stewart v Cooper [1986] TASSC 3; [1986] ANZ ConvR 631. Neasey J considered (at [21]) it obvious that one of the primary needs of those using rural land for stock grazing is to prevent their stock straying: "In the case of the plaintiff's land, a reasonably necessary way to prevent straying of stock is to erect gates at both ends of the right of way. That such a purpose on the part of the plaintiff is reasonable has been recognised by the defendant, as is shown by the erection of a gate on the northern boundary by agreement after the defendant purchased from the plaintiff's brother. A principal purpose of this gate obviously was, I infer, to prevent stock straying from either property into the other. Furthermore, in order to effectuate the purpose of erecting that gate, the defendant made it a condition of the tenancy of his house that the tenant should keep the gate closed; and that was done. The present tenant, Mr. Stokes, who gave evidence for the defendant, said in effect that it would be a great nuisance for him to have to open and shut the gate at each time of passage, and that if he was obliged to do it he would probably have to leave the property. I do not accept that evidence at face value. Mr. Stokes is in an advantageous position as tenant in relation to alternative accommodation which he might be able to obtain and afford, and I discount his evidence that he would feel obliged to leave if he had to open and close the gates."
In Stewart v Cooper, Neasey J (at [17]) summarised the applicable guiding principles as follows: "(1) in the case of a right of way over private land, the owner of the dominant tenement does not have a right of access to and use of the right of way wholly unobstructed by any limitation placed upon such use by the owner of the servient tenement; (2) only a "substantial" interference with the right of way is actionable - that is, one which is "a real substantial interference with the enjoyment of the right of way"; and (3) that as long as the owner of the dominant tenement is given reasonable access to and use of the right of way, there is no substantial interference with the enjoyment of it."
More recently in Denton v Phillpot (1990) NSW ConvR 55-543 ("Denton"). Young J (as his Honour then was) considered the authorities dealing with whether gates were a substantial interference with a right of way. Young J in Denton (at 590,030) considered and applied the following relevant statements of principle: 1. It is not unreasonable that the person entitled to use the right of way should be subjected to the slight inconvenience which the maintenance of protected gates imposes on his user: Siple v Blow (1904) 8 OLR 547 at 554. 2. The locking of a gate is not necessarily a substantial interference, but the Courts will easily find that locked gates do amount to actionable disturbance of rights of way, especially of the key is not provided to the dominant tenement owner: Jackson on the Law of Easements and Profits at p 155. 3. If there is a good reason for having a gate, such as the interests of security, and the dominant owner is given a key to the gate, then Courts have not been over anxious to find that there has been a substantial interference by reason of the gate.
To be substantial interference, it is not necessary that the interference be physical interference. But any acts or circumstances which create danger, or in any way offer an impediment to the freedom of decision to exercise and to continue to exercise the right of the dominant tenement owner, or impose a risk or cost in doing so, can fall for consideration as substantial interference with the exercise of the right: Prospect County Council v Cross (1990) 21 NSWLR 601, at 610 per Bryson J.
The wrongful interference with an easement may be remedied either by abatement or by action in Court. To abate a nuisance, the dominant owner may enter the servient tenement and remove the obstruction, and such entry is not actionable by the servient owner: Campbell Davys v Lloyd [1901] 2 Ch 518 and Baten's Case (1610) 9 Co. Rep 53b. But in abating the nuisance the dominant owner must act reasonably: Lane v Capsey [1891] 3 Ch 411. If the abatement of the nuisance cannot be made without entering the servient land, except in cases of urgency, notice should be given of the intention to remove the nuisance if entry is likely to lead to a breach of the peace: Davies v Williams (1851) 16 QB 546 and Lane v Capsey [1891] 3 Ch 411. In the modern era, courts discourage attempts at abatement that risk future breaches of the peace.

[23]

Consideration of the Parties' Submissions on the Condrans' Claim

As to prayer for relief 2(a), the findings in the factual narrative in relation to this prayer for relief show that Mr Collis' vulgar abuse and aggressive conduct has at times amounted to a gross interference with the Condrans' enjoyment of the rights conferred on them by right of access A. The question of any damages for this conduct will be considered at the relief hearing. But the Court is immediately prepared to place a restriction on Mr Collis approaching the Condrans when they are using the easement. A draft order is set out below for submissions by the parties. Consideration will need to be given in the crafting of the final form of this order to ensure that it is consistent with any existing AVO.
As to prayer for relief 2(b), CCTV surveillance, the Condrans have not established that any surveillance is actively taking place. The Court presently accepts Mr Collis' evidence that any camera that is on the tower erected on the western side of Moores Road opposite CH 0 is non-operational.
Mr Ireland submits on behalf the Condrans that the Court should require removal of any camera in this location and possibly it might be inferred the removal of the tower itself, "because it's only function is to harass and intimidate" the Condrans.
But this has little point. Even if it were operational, in the circumstances the Court does not regard such a camera as a substantial interference with the Condrans' use of right of access A. It does arguably serve a legitimate and identifiable security purpose. The Condrans themselves frequently and defensively carry recording devices with them to film Mr Collis. They seek to corroborate through those videos much of their evidence about Mr Collis as the registered proprietor of the servient tenement potentially committing trespass or nuisance. They are not to be criticised for that.
There is already substantial mutual hostility between these parties. The Court does not regard the placement of even an operative fixed CCTV camera in the position of this one as a substantial interference with the Condrans' enjoyment of right of access A. This is especially so once the relief granted elsewhere as result of these reasons is perfected. The grant of such other relief will prevent Mr Collis from using obstacles by the side of right of access A to ambush the Condrans. A CCTV camera in this position will not advantage Mr Collis much other than to give him a record of the use of the easement.
The placement of digital cameras along easements is quite a common feature in modern rights-of-way and there is no presumption that they are intrusive. If the Condrans wish to place a fixed camera on part of the easement for the sole purpose of assisting them to avoid Mr Collis, then the Court will give consideration to that as an incidental part of moulding relief at the relief hearing in this case.
As to prayer for relief 2(c), dumping old tyre wrecks and other waste near the easement, the Court concludes that this conduct represents an impediment to the Condrans' freedom to exercise their rights as dominant tenement owners. The implicit rebuke to them in the placement of this wreckage and other industrial detritus next to right of access A is that they would be better off selling Lot 95, moving away and not using their right of access. Alternatively, the situation can be analysed as Mr Collis imposing a cost upon them of exercising their rights, namely their enduring a compulsory close-up review of Mr Collis' handpicked industrial garbage.
At a relief hearing the Court will order the removal of all this rubbish away from the vicinity of right of access A. In the first instance, the Court will order Mr Collis to remove his industrial garbage from the area. He has the option of taking it somewhere else on his property out of sight from the Condrans or removing it entirely. If he does not do that by 28 February 2025, gives him three months to plan and effect the removal, then the Court will order the engagement of contractors to undertake the removal under the supervision of a Court expert appointed pursuant to Uniform Civil Procedure Rules, r 31.46 at the cost of Mr Collis.
The mechanics of this can be dealt with at the relief hearing. Prior to then, it is most important that each item of what must be removed is clearly identified, so there is no argument later about whether there has been compliance with the Court's orders. Sometimes this is achieved in litigation of this type by the items to be removed having brightly coloured spray-paint applied to a prominently visible spot on their surface, to distinguish them from smaller items that do not have to be removed.
At a relief hearing the Court will order the removal of the material identified with respect to prayer for relief 2(c), except with respect to tyres that are on right of access A near the southern boundary of Lot 96 and protecting growing bushes or trees. This needs to be done in an orderly way. Mr Collis claims that some of this material is not "junk". He is free to move that unsightly material elsewhere on his property out-of-sight of the easement.
On a related subject, the Court has noted that from time to time the evidence discloses instances of signs being placed on the easement which appear to disparage or criticise the Condrans. Like the wrecks discussed in this section of these reasons, such signage imposes a cost upon the Condrans in having their reputations disparaged merely for exercising their legal rights. By way of incidental relief, during the relief hearing the Court is open to consider mandatory relief removing such signage should it still exist. The Court may approve what signs will be allowed on the easement.
As to prayer for relief 2(d), locking and padlocking gates, the Condrans have established that Mr Collis regularly tightened the chains on the gates across right of access A to obstruct the Condrans' reasonable use of the easement. The conduct has occurred over a sufficiently long time and sufficiently often that it should now be restrained by injunction. To avoid further argument about what chaining of these gates is required, if the parties cannot sensibly agree on a length of chain to be used for each gate, at the relief hearing, the Court is prepared to authorise a Court expert measure an appropriate length of chain to be used on each gate and for that to be defined in orders of the Court as the chain that must be used on that gate.
As to prayer for relief 2(e), installing a gate at CH 0, the point made in the factual narrative is that a distinction should be drawn between on the one hand Mr Collis's conduct throughout this incident and on the other hand the change of gate.
As to Mr Collis's conduct on about 17 to 19 October 2019 set out in the findings above, that conduct on his part was intentional and calculated to intimidate the Condrans from making lawful use of right of access A. Although these events only occurred over a few days, they had a substantial effect upon the well-being of the Condrans and made them ever more cautious about using right of access A thereafter, as is evidenced by their need to retain security guards on the day following the first incident.
In the Court's opinion, this conduct of Mr Collis was sufficiently substantial and reprehensible that it reaches the necessary threshold to constitute an actionable nuisance. The conduct was deliberately designed to deter them from exercising their rights to use the right of access A. The Condrans will be permitted to argue for an award of damages against Mr Collis in respect of his conduct during this incident at a subsequent relief and damages hearing.
As to the outcome of Mr Collis' installation of the gate at CH 0, the Court is not satisfied on the evidence presented by the Condrans that the Court should presently order removal of the existing gate. But in a relief hearing, the Court will consider any additional evidence made available by the parties concerning that issue including exploring the options raised by the Court concerning the clearing of an adequate turning circle for heavy vehicles on Moores Road. To the extent that the MidCoast Council or other third parties may assist in the provision of information to enable that option to be explored further, the parties can utilise the Court's authority to produce evidence from those parties during the relief hearing. Once that evidence is available and that option is either confirmed or eliminated and the precise nature of future heavy vehicle usage is profiled, the matter may be further addressed in the relief hearing.
A relief hearing can resolve whether Mr Collis or anyone else has done anything to restrict the permissible trafficable area for turning on Moores Road. The full 20 metre public area of Moores Road should be available for turning unless MidCoast Council has some other restrictions that need to be considered. DP 1222732 shows Moores Road to be clear of any obstructions for a width of 20 metres at CH 0. It is difficult to understand why the Condrans should not have the full benefit of what is shown on DP 1222732 at that point. At the relief hearing Mr Collis will be required to show cause why he should not remove all fencing within the Moores Road reserve in the vicinity of the entrance gate at CH 0.
As to prayer for relief 2(f), planting trees on right of access A, to reduce future conflict between these parties, an order should be made preventing Mr Collis from planting any trees on right of access A closer than 600 mm from the southern boundary of Lot 96. The Court will not require him to move the existing trees he has planted on the upper section of right of access A close to the southern boundary of Lot 96, provided they are in no case more than 1 metre inside boundaries of right of access A, and provided at that point there is no other obstruction to the right-of-way.
This is an appropriately moulded and reasonable remedy for the southern boundary for several reasons. If he wishes to plant trees near the southern boundary of Lot 96, Mr Collis has no choice but to plant them on the southern boundary of Lot 96 inside the easement because the easement abuts the southern boundary. The maximum number of trees planted in the upper section are planted on the southern boundary according to the Condrans' evidence is about 70. It would be burdensome now for Mr Collis to have to move these within 600 mm unless he willingly wishes to do so. So, the Court will only require him to move those that are now more than 1 metre from the southern boundary.
But Mr Collis has a choice about where to plant trees near the northern boundary of the upper section of right of access A. He can, without cost or disadvantage to him, plant them on Lot 96 just outside the easement. This will reduce the likelihood of these trees, combined with the trees at the southern boundary of Lot 96 interfering in the future with the trafficable surface of right of access A, for example through branches and roots. There were only about 30 trees planted inside the easement at this point. Some are now dead. They should not be burdensome for Mr Collis to move. It is therefore appropriate to minimise the future risk to require Mr Collis to move these trees just outside right of access A and to require him to place future plantings outside right of access A.
Once any trees are planted or left on right of access A, Mr Collis' rights to nurture them for the benefit of koalas and other native fauna on the edge of the easement should be protected from generating further conflict. The Condrans will also be restrained from removing or interfering with existing trees within 1 metre inside the southern boundary of Lot 96 on right of access A, or to be planted in the future within 600 mm of that boundary. The Court grants this relief on the basis that there has been accidental damage to the young trees planted by Mr Collis in the course of the Condrans routine maintenance in this area.
As to prayer for relief 2(g), installing gates on right of access A, to reduce tension about Mr Collis erecting new gates along right of access A, the Court will restrain Mr Collis from erecting any more gates along right of access A without first giving 21 days' notice to the Condrans. That notice must include a concise explanation of the claimed agricultural purpose for the proposed erection of the additional gate. Any fence posts on right of access A that are preliminary to the erection of additional gates should be removed by Mr Collis, unless he can demonstrate they serve some identified reasonable purpose.
As to prayer for relief 2(h), damaging the batter slopes supporting the driveway, this is dealt with analysis of the Cross-Claim below.
As to prayer for relief 2(i), placing a pantechnicon truck at CH 0, Mr Collis clarified his position in final submissions. In discussion with the Court concerning this conduct, Mr Collis offered to undertake to the Court that he would never again place either a pantechnicon truck or any other obstruction, such as concrete blocks, where he had placed them before, on or near right of access A.
This was an advance, as his conduct is worthy of restraint. Although the trailer body had been removed approximately two years before the hearing started, the Court is minded to impose a restraint on the placing of such objects on or near right of access A, which the Court can fashion, and integrate with other related restraints.
Mr Collis can react suddenly to conduct of the Condrans. The length of time that has passed since the removal of these items does not give the Court confidence that Mr Collis will not engage in such conduct again in the medium term if he perceives a provocation warranting it in his mind. In the end, Mr Collis' offer to give an undertaking demonstrates acceptance on his part that some such order is necessary. And the order is set out in draft below. That order covers both large objects such as trailer bodies and smaller heavier items such as concrete blocks, which are dealt with in the next section.
As to prayer for relief 2(j), placing concrete blocks on right of access A, Mr Collis' gross and deliberate obstruction of right of access A over a period of almost 4 weeks between 17 November and 12 December 2017 caused substantial inconvenience to the Condrans enjoyment of their rights of use of the easement.
Moreover, this conduct extended over a time after the Condrans had made a limited attempt to move the concrete blocks, demonstrating to Mr Collis that his conduct was causing inconvenience. His response to seeing the Condrans struggling with this situation, was to double down and increase the number of concrete blocks to make the inconvenience to them even worse.
Such deliberate provocative conduct causing major inconvenience meets the threshold for substantial interference with the Condrans' enjoyment of their access rights over Lot 96 as owners of Lot 95 and is an actionable nuisance. The inference that the interference was substantial is strengthened by the observation that should someone have an accident or get into a life-threatening situation on Lot 95, Mr Collis' obstructive conduct would also limit access to medical and emergency services.
The Court will hear submissions at the relief hearing about any award of damages for this conduct. Moreover, the Court will grant injunctive relief against Mr Collis restraining him from placing objects on right of access A.
As to prayer for relief 2(k), damaging the road surface and batter slopes of right of access A, this issue is dealt with in the Cross-Summons. No claim for damages against Mr Collis arises out of his actions in relation to this prayer for relief.
As to prayer for relief 2(l), damaging the Council approved driveway at CH 0, nothing presently needs to be done. This issue can be examined again as an incidental matter at the relief hearing, if after examining all the options the turning circle on Moores Road outside CH 0, proves to be inadequate, some modification to the 4.8 metre gate maybe required.
In conclusion, a general comment should also be made about the orders the Court will put in place at the relief hearing so the parties can prepare themselves appropriately. The Court has already foreshadowed that in this case it may make orders like those made in Clough v Breen [2022] NSWSC 1026 ("Clough"), a case involving a dispute between two neighbours with an easement dispute concerning access to, the maintenance of, and the use of an inclinator. In Clough, the Court made extensive orders providing a regime for the maintenance of the inclinator and for access to the plaintiff or at times.
Here, the parties may profit from the Court making orders covering the following matters to be operative independently of any injunctive relief and of any work occasioned by Mr Collis' Cross-Summons: 1. At what limited intervals should maintenance (such as regrading and the like) of the road surface on right of access A is to take place; 2. How and on what notice to Mr Collis, are the Condrans able to obtain approvals for any further roadworks on right of access A to be obtained from MidCoast Council; 3. How and on what notice to the Condrans is Mr Collis able to change any gates across right of access A; and 4. A dispute resolution mechanism which will avoid the parties going to the Supreme Court with all their future disputes concerning right of access A.
Were both parties are legally represented, the Court would direct them to exchange draft short minutes of order and the Court would consider the drafting differences. Here, the Condrans may wish to serve a draft set of orders on Mr Collis and the Court, in relation to the matters raised in the previous paragraph of these reasons.
In their Summons, (prayer for relief 3) the Condrans also seek a declaration that they are entitled to fence right of access A. The Court will not grant a declaration in those broad terms, if what is requested, is to fence off the whole of the easement, even with gates allowing Mr Collis access to the fenced area. That would effectively allow the Condrans near exclusive use of right of access A and would go a long way towards sterilising the south-eastern triangle of Lot 96. That would effectively give the Condrans dominant control of the part of Lot 96 South such a fence. That is not consistent with the limited rights conferred upon the Condrans by the s 88B instrument.
But as is explained in relation to the Cross-Claim, the Court will permit the Condrans to fence off part of the batter above the lower section of right of access A to protect the batter from cattle ingress and consequent damage. Issues may arise as to whether this fencing could be permitted in limited areas outside right of access A. The law does not permit that to occur. The batter will have to be wholly constructed within the easement and the fence placed on the northern boundary of right of access A.
Apart from these specific factual contests, Mr Collis put overarching arguments designed to restrict the Condrans use of the easement. He first contended for a narrow construction of Conveyancing Act, Schedule 8 Part 14, to the effect that the words "the owner of the lot benefited" should be construed literally to mean that only the registered proprietor of the lot benefited could use the easement.
This construction of Conveyancing Act, Schedule 8 Part 14 is not persuasive for several reasons. First, it would lead to absurd and potentially dangerous results. If accepted, this construction would have the effect that the Condrans would not be permitted to use right of access A to receive family members, tradesmen and other visitors invite visitors to Lot 45. Nor would the Condrans be able to call a doctor or nurse to visit them if they were unwell. Government authorities would have to prove right to enter premises to be able to use right of access A. And corporate registered proprietors of a dominant tenement would not be permitted to have anyone use such a right of access.
Secondly, the words of Conveyancing Act, Schedule 8 Part 14 imply more than the registered proprietor may make use of a right of access. For a registered proprietor to pass across each lot burdened "by any reasonable means" would include being driven by other family members. And the words also imply that specialist tradesmen, other than the registered proprietor, may have to do work on the site.
Thirdly, Conveyancing Act s181A(3)(b) specifically extends the expression "an owner of the lot benefited" in Schedule 8 to include "any person authorised" by a person in possession of the lot benefited.
Mr Collis' second overarching argument is that the Condran cannot use motor vehicles on right of access A because motor vehicle are not expressly mentioned in Schedule 8 Part 14, in contrast to the Right of carriageway conferred by Schedule 8 Part 1. But the s 88B instrument is not construed by reference to Schedule 8 Part 1, but by its own terms and features. There is nothing inconsistent with the use of vehicles in Schedule 8 Part 14 and the 20 metre width of this easement is inconsistent with mere pedestrian use.
If any other prayer for relief claimed in the Summons has not been addressed in these reasons, the Condrans can raise it at the relief hearing.

[24]

Narrative of Findings for Mr Collis' Cross-Claim

This section deals with Mr Collis' Cross-Claim commencing with a narrative of relevant findings. Mr Collis' Cross-Claim cover the Condrans' roadworks on Lot 96 in the lower section and the consequences of that construction. The narrative mainly arises out of the expert evidence.
This section deals with Mr Collis' Cross-Claim commencing with a narrative of relevant findings and followed by a legal analysis of the rights of the parties.
This section deals with Mr Collis' cross-claim commencing with a narrative of relevant findings and followed by a legal analysis of the rights of the parties.
The Cross Summons takes up Conveyancing Act Schedule 8, Part 14 - Right of access (2) and seeks declarations in general terms that the Cross defendants, the Condran have "failed, refused or neglected" to 1. ensure all work done on the right of access is done properly, 2. cause as little inconveniences practicable to the owner and any occupier of the lot burdened, 3. cause as little damage as is practicable to the lot burdened and any improvement on it, 4. restore the lot burdened as nearly as practicable to its former condition, and 5. make good collateral damage to the lot burdened.
It is difficult to understand the case to be maintained on such a generally expressed Cross-Claim. The case was not pleaded on either side. The Summons provided reasonably detailed sub- paragraphs to prayer for relief 2 that defined the Condrans' case together with written submissions.
The Cross-Summons does not provide the same level of detail as the Summons. Mr Collis was representing himself and did not file written submissions in support of his Cross-Summons. But the nature of the case that is made on the Cross Summons and the contests concerning that case can be identified from the expert evidence.
In short, Mr Collis says that when the Condrans undertook roadworks on the lower section of right of access A, the work was not done properly, caused avoidable inconvenience to him, and did more than "as little damage as is practicable" to the servient tenement, Lot 96. Mr Collis' case is that to the extent possible Lot 96 should be restored to its former condition and collateral damage done during the roadworks should be made good.
To understand Mr Collis's case it is necessary to appreciate the configuration of the roadworks and earthworks that the Condrans undertook in the lower section of right of access A to build the road in 2018. This is best seen from Figure 2, which shows a detailed cross-section of the lower section of right of access A, with the contours of the batters and surrounding terrain, the positioning of the trafficable road surface of the gravel road within the easement, the road drainage features, and the relationship of the road to the surrounding geographical features.
Figure 2 is not marked with the conventional chainages used elsewhere in these reasons, but it depicts right of access A from about CH 180 to about CH 318. Figure 2 shows the features of the RFS passing bay at about CH 200, a V drain extending along the northern side of the gravel driveway, a drainage grate and pipe culvert at approximately CH 240, the fencing wire around the southern boundary easement, and the approximate relationship between the easement and Manning Creek.
Mr Collis and the Condrans both called expert evidence in relation to alleged problems which have become evident arising from the construction of the gravel road on this lower section of right of access A. Mr Collis called Mr Michael Francombe, a certified professional in erosion and sediment control, land stabilisation, rehabilitation, road and track construction and maintenance. The Condrans called evidence from Dr Peter Bacon, an expert in soil water and land management, including sediment and erosion control. Both experts have lengthy experience in the field. Their respective expertise was not challenged.
Mr Frankcombe's report was provided in January 2023. Dr Bacon's report was provided in March 2023. They gave conjoint evidence in an expert session. Each of these experts identified similar problems with the construction of the road, although Dr Bacon defended the design of the road more than Mr Frankcombe, who was critical of aspects of its architecture, which he said was responsible for the erosion and deterioration in the road surface. It is convenient to deal with their analysis by reference to the following subject matters.
Analysis of the expert evidence relating to the construction of the lower section of the gravel road first requires a description of the main features of the road between CH 180 and CH 318. This part of the road can be divided into two parts for more convenient analysis of damage and remediation issues.
Mr Collis was sceptical that the expert witnesses could obtain an adequate picture of the gravel road with their single visit to the site. However, the experts were confident that they had grasped all its relevant features, and the Court shares their confidence.
Mr Collis has sought to adduce evidence from another expert, Mr Alan Taylor. But the late service of that report resulted in Peden J refusing Mr Collis the opportunity relying upon that report at the hearing, except perhaps at a later relief and damages hearing. The Court continued to apply that ruling and did not allow Mr Taylor to give evidence, even though Mr Collis asked him to come to the joint expert session between Mr Frankcombe and Dr Bacon. Mr Taylor was told that he may be able to give evidence later in relation to any remaining disputes about the form of remediation to take place. The use of Mr Taylor's report and the evidence of another witness, Mr Walsh, can be the subject of further application by Mr Collis at the time of the relief hearing.

[25]

Description of the Features of the Lower Section Gravel Road.

The parts of the roadway between CH 0 and CH 180 can be ignored for present purposes. This upper section of the road was not a major source of contest between the parties about either cattle damage or remediation. The contested lower section of the gravel road can be divided into two parts: from CH 180 to CH 250, and from CH 250 to CH 318. Along the whole of this lower section from CH 180 to CH 318 the gravel road is constructed with a rock lined table drain, or swale, down its northern side and the road has infall drainage to the north, directing run-off towards the cut batter where the table drain lies.
The first part of the lower section of the gravel road for consideration runs from about CH 180 through to about CH 250. The experts measure the commencement of this section from about CH 174. But the small difference between CH 180 and CH 174 is immaterial for present purposes. An important feature of the road at CH 180 is a mitre drain. A mitre drain is a diversionary drain, designed to take water away from a table drain at the side of the road surface and onto surrounding terrain. This mitre drain takes a course to the north of the gravel road. It is designed to divert water in a northerly direction away from the surface of the gravel road. Over time this table drain has become filled with sediment. The experts discussed the cause of this sedimentation and the mitre drain's overall efficiency.
Travelling further west towards Lot 95, the northern side of the gravel road is cut into the hillside and the southern side of the road is supported by fill. Close to the area from about CH 180 to CH 200, the RFS passing bay area, which extends the width of the gravel road, is constructed on the southern side of the road. At the foot of the cut batter and on the northern edge of the gravel road, the table drain, or rock filled swale, is constructed. The gravel road is designed with a fall to divert water from the crown of the road into the table drain.
Travelling west the next important feature of the gravel road is a pipe culvert, which occurs at about CH 250. This pipe culvert takes water from the northern side table drain under the gravel road to a pipe outlet on the southern side, which directs water further south to drain down to Manning Creek. A grated inlet drain situated at about CH 250 within the table drain draws water into the pipe culvert.
The second part of the lower section of the gravel road for consideration runs further west from the pipe culvert at CH 250 and ends at CH 318 on the boundary with Lot 95. This part of the gravel road continues with steeper cut batter on the northern side and fill batter on the southern side.
Both expert witnesses were complimentary of the overall standard of the road work in the construction of the gravel road and concluded that the track surface of the road was well constructed. The road was a considerable improvement from the previous track which became an un-trafficable in periods of wet weather before the 2018 reconstruction.
Before the 2018 reconstruction work, the track was poorly constructed with erosion being evident in the embankment and in wet weather water ran in significant quantities across the track. The constant erosion of the old track meant that rilling of the track resulted in a bumpy surface because of the creation of V-shaped channels across the track. Such wear and tear generally requires gravel roads to be graded every few years.
Erosion of the track surface has occurred over the whole lower section from CH 180 to CH 318 over the years since the 2018 reconstruction which the experts agree now requires regrading.
The accumulation of sediment in the table drain since 2018 comes partly from sediment washed from further up the road and from erosion of the cut batter. The sediment has accumulated in the table drain both above the pipe culvert at CH 250 and below the pipe culvert. Sediment from upstream, which is not caused by cattle damage, is loose material washed off the gravel road surface.
The experts did not see any erosion issues on the fill batter on the lower side of the gravel road either above or below the pipe culvert. But they agreed that the pipe culvert itself needs more rock to armour it against the erosive effects of high water volumes.

[26]

From the Mitre Drain at CH 174 to the Pipe Culvert at CH 250.

The Court accepts Mr Frankcombe's evidence that notwithstanding the generally sound design of the gravel road, a design defect in the mitre drain contributes to the present sedimentation. The mitre drain does not efficiently carry water far enough away from the gravel road to the north and as a result the water ends up back in the table drain, contributing to an excess volume of water in the table drain.
Both experts believed that the water diverted from the mitre drain ultimately would find its way back into the table drain on the northern side of the gravel road, bringing soil and sediment with it, silting up the table drain making it less efficient over time.
Mr Frankcombe suggested the sedimentation in the table drain could be avoided by diverting run-off to the south rather than via the mitre drain to the north, so that diversion operated to take water completely away from the table drain. An efficiently operating mitre drain would have the added benefit that none of the sediment from upstream on the road (from whatever source) would have ended up in the table drain.
The expert witnesses agreed that a "rollover bar" along the road (which would present as something like a speed hump), at about a 30° angle, would be a better mechanism to divert water from the mitre drain across the road and down into the grass paddock south of the gravel road. Another solution may have been to put a barrier between the toe of the cut batter and the table drain. This could be achieved in the form of a concrete slate or a concrete block, to provide additional stability and reduce further slumping.
The original road designer in 2018 was concerned to protect the fill batter because of the RFS passing bay to the south. But the current experts are confident that the water can be diverted to the south without endangering the stability of the RFS passing bay.
Both experts believe that the road will need regular civil engineering maintenance over time. The amount of maintenance required will be a function of the traffic on the road.

[27]

From the Pipe Culvert at CH 250 to the Boundary with Lot 95 at CH 318

Beyond the pipe culvert down to CH 318 the gravel road surface suffers minor erosion, partly due to sediment deposition in the table drain. But as Mr Frankcombe points out, from CH 250 to CH 318 this sedimentation is fundamentally due to the slumping of the cut batter below the pipe culvert. The slipping of material from the batter on the northern side of the road in that area has deposited a large volume of sediment that has completely blocked the table drain and diverted the table drain water onto the road surface. The centre of this embankment slump is about 30 to 40 metres west of the boundary at CH 318 and is at about CH 280 although it tails off at either end from its centre.
The Court accepts Mr Frankcombe's evidence that this is not solely caused by the action of cattle. Mr Frankcombe says, and the Court accepts, that the primary cause of geotechnical failure in this area was the way the slope was designed and constructed. Mr Frankcombe points out that the land on this part of the northern side of the road was cut almost vertically and then loose material was placed back against the vertical cut for support and to achieve the overall final slope. This near vertical cut feature led to a very high chance that the embankment would fail, notwithstanding the supporting material. And failure occurred. The slumping failure largely occurred at the point where the vertical cut and transitioned into the support fill.
Mr Frankcombe concedes that some cattle damage in the area has also been a contributing factor. Dr Bacon points out that the ingress of cattle made the design feature worse by causing disturbance to the soil at the time that the cut batter was least stable soon after it was created. To the extent that cattle did contribute to the destabilisation of this cut batter, it was in this early phase.
Mr Frankcombe was also critical of the original design of the cut batter on the northern side of the gravel road in that it only required coverage by jute mesh, which may provide temporary erosion protection but no geotechnical support. In Mr Frankcombe's opinion, which the Court accepts, a better design would have involved both erosion protection and geotechnical support, a matter with which Dr Bacon substantially agrees.

[29]

Analysis of Mr Collis' Cross-Claim

This section of these reasons first sets out the legal principles relevant to Mr Collis' Cross-Summons followed by the application of those principles to the facts found in the Court's narrative of findings related to the Cross-Claim.
As to Mr Collis' Cross-Summons, the applicable legal principles may be shortly stated. A dominant tenement owner who makes excessive use of a servient tenement in purported exercise of a right-of-way commits a trespass: Milner's Safe Co Ltd v Great Northern and City Rail Co (1907) 1 Ch. 208 at 229.
At common law, a dominant tenement owner has a right to enter land to make the ground effective, including by constructing a roadway suitable for supporting the ordinary traffic permitted by the right-of-way. But the grantee may only construct a way which is suitable to the right granted: Bidder v North Staffordshire Rail Co. (1878) 4 QBD 412. Necessary works to construct a trafficable way must be executed in a reasonable manner and with ordinary skill and prudence: Abson v Fenton (1823) 1 B& C 195.
A central question on the Cross-Summons is whether Mr Collis or the Condrans are responsible for protecting the batters from the ingress of cattle and which of them is responsible for rectifying the past damage caused to the batters from cattle grazing from time to time on Lot 96. The Condrans' case is that cattle damage is the responsibility Mr Collis. He rejects the conclusion he has any responsibility for damage caused by these cattle and contends that most of the damage to the batters was not caused by cattle but was caused by the bad design of the road constructed in 2018. So, it is necessary to resolve first question of who bears responsibility to protecting the batters from damage from the ingress of cattle.
The answer to this question requires reference to the fundamental rights and duties of the parties as dominant and servient tenement owners conferred under Conveyancing Act, Schedule 8 Part 14 and at common law.
The plenary language of Conveyancing Act, Schedule 8 Part 14 - Right of access provides rights to the owners benefited by the right of access A, the Condrans, to take steps to maintain the integrity of the road surface and the upslope and downslope batters of the lower section of the right of access. Schedule 8, Part 14 1(b) authorises them to "do anything reasonably necessary" to support the primary purpose of the right identified in 1(a), which is to "pass across each lot burdened… within the site of this easement… to get to or from the lot benefited". The 1(b) things "reasonably necessary" include the dominant tenement owner "carrying out work within the site of this easement such as constructing, placing, repairing or maintaining trafficable surfaces, driveways or structures". Thus, dominant tenement owners such as the Condrans are empowered to construct or place a range of "structures" within the easement. Without straining the language of Schedule 8, Part 14, such structures could include a fence, provided its construction or placement could be characterised as "reasonably necessary" for the primary 1(a) purpose.
But is erecting a fence to protect the batters "reasonably necessary" for the primary 1(a) purpose? The answer must be in the affirmative. The evidence is clear that without stock proof fence restraining them, any stock grazing on Lot 96 will wander across and damage the batters. Such cattle damage in turn causes silting up of the drainage system of the gravel road on the right of access, which in turn contributes to deterioration in the surface of the road. It is theoretically possible to allow cattle to damage the batters and to repair the road surface more often, but it would be reasonable to avoid that damage by erecting fencing to keep cattle out of the batter areas.
The experts both support this inference. They both say there is no point in seeking to stabilise the batters without fencing them from cattle on Lot 96. The experts agree that to maintain batter stability stock proof fencing is necessary. The construction of the stock proof fencing must therefore fall within the Schedule 8 Part 14 qualification of "anything reasonably necessary" for the primary purpose of passing across the lot burdened. Without operative stock proof fencing the batter will be damaged by cattle and the road surface will deteriorate and be less passible.
But if the dominant tenement owner does not fence the batters and damage to the batters occurs, who is responsible for the cost of its rectification? The Condrans' case assumes that Mr Collis is responsible for any damage caused to the batters from cattle grazing on Lot 96. But this assumption does not reflect the law. Ancient torts of cattle trespass and nuisance by cattle ingress have long been recognised at common law: Rylands v Fletcher (1866) LR 1 Ex 265 at 280. But all personal liability for damage caused by animals, either by trespass or nuisance, has now been abolished in New South Wales: Animals Act 1977 (NSW), s 7. Moreover, as the Condrans do not have exclusive possession of the easement, they therefore cannot bring an action in trespass for damage to it.
Mr Collis has the power to construct a fence on the batters. But he does not have a duty to fence the easement to prevent cattle escaping onto the batters. It is difficult to identify any source for such an alleged duty. The law leans strongly against imposing any positive obligations upon a servient tenement owner to act or to spend money, as a true easement "requires no more than sufferance on the part of the occupier of the servient tenement": Jones v Price [1965] 2 QB 618, at 631 and Spear v Rowlett (1924) 43 NZLR 801, at 803. If the servient tenement owner here had an obligation to prevent cattle foraging over the batter, the servient tenement owner would have the difficult choice of either bearing the cost of fencing the easement on the servient land, or not running cattle on pasture adjacent to the easement. Both these options could be costly to the servient tenement owner.
Moreover, the dominant tenement owner not only has rights to erect fences under Schedule 8 Part 14 but has a wider "duty" to repair by keeping such fences secure. This is not a duty enforceable by action of the servient owner but the practical obligation to repair nevertheless lies on the dominant owner: The Conveyancer - Contributions to the Repair of Easements (1935) Vol 9 ALJ 143. The owner of the dominant tenement may be liable to the owner of the servient tenement for damages due to any want to repair: Jones v Pritchard [1908] 1 Ch 630. Here for example should any cattle grazing on Lot 96 become injured due to instability and lack of repair in the batters constructed by the dominant owner, then the dominant owner may be liable for damage to the cattle. The dominant owner may be able to protect from such liability by taking measures such as repairing the batter, or by erecting fences to keep cattle out.
Finally, the right to erect fences may be implied from the ancillary right at common law for a dominant tenement owner to do "whatever is reasonably necessary to make the grant effective": Burke v Frasers Lorne Pty Ltd (2008) NSWSC 988 at [21]. Ancillary rights can extend to remaking road surfaces, building bridges, and making the way passable. The question is always whether the activity or action concerned is "reasonably necessary for the effective and reasonable exercise and enjoyment of the rights expressly granted": Butler v Muddle (1995) 6 BPR 13,984 and Sertari Pty Ltd v Nirimba Developments Pty Ltd [2007] NSWCA 324. Such ancillary rights can be extensive, vary in nature, and their categories are not closed: Bland v Levi (2000) 9 BPR 17,517 and Owners of Strata Plan 48754 v PD Anderson Holdings Pty Ltd [1999] NSWSC 580. In the Court's view, fencing to protect batter from damage is such an ancillary right because it helps protect the integrity of the road surface.
The situation would be otherwise if the s88B instrument contained an easement for batter of the kind provided for in Conveyancing Act, Schedule 8, Part 6 - Easement for batter, which (in clause 3) allows the dominant owner to serve notice on the servient owner requiring repairs to any damage to the batter caused by the servient owner. But no easement of this kind was included in the s88B instrument.
The effect of this reasoning is that Mr Collis bears no responsibility to fence the batters and is not liable either to contribute to the cost of preparing the batters, or to fencing them, to prevent future cattle ingress upon them. This means that the Condrans will have to bear the costs of the repairs that have been recommended by the experts, whether those repairs were occasioned by foraging cattle or by faulty design.
But the Court's findings above show that the construction of the gravel road in 2018 was fundamentally sound in design although several of its features, identified by Mr Frankcombe were deficient. The Cross Summons will succeed only with respect to the features Mr Frankcombe said, and the Court has found, were deficient. Those features have been identified in the narrative above. There will probably be no financial consequences to Mr Collis of those deficiencies because the Condrans bear responsibility for remediation to the road.
Although this resolves the question of financial responsibility for the repairs, a major dispute still exists between these parties as to what rectification work should now be undertaken on right of access A (a) to minimise damage to the batters, and (b) to maximise Mr Collis' use of Lot 96, especially the south-eastern triangle.
The short answer to this is that with general redesign principles from the Court, the competent experts already engaged by the parties in these proceedings should be able to work out a solution, or a range of possible solutions, from which the parties or the Court can choose. If required they can be appointed as Court experts under Uniform Civil Procedure Rules, r 46.31 for that purpose, although that may not be necessary.
Two objectives must be met in any redesign: (a) minimising future damage to the batters, and (b) maximising future Mr Collis' free use of Lot 96 for running stock, especially the south-eastern triangle. Some further observations should be made about pursuing these objectives.
Minimising future damage to the batters requires the design and configuration of durable stock proof fencing or other obstacles around the batter in a way that minimises the extent of pasture removed from productive use by the owner of Lot 96. The stock proof fencing need not totally enclose the batters. It may be possible to use cattle grids or similar obstacles to prevent cattle access via the gravel road into the batters. The stock proof fencing should be constructed only within the 20-metre width of the lower section of right of access A.
Mr Frankcombe suggests that it may be possible to stock proof a remediated gravel road for several years until the batter stabilises through developing undergrowth and then remove the fences. If that is to be done, a strict regime would need to be put in place in which the fences could only be removed after a joint inspection of experts accepted that the cut batter was sufficiently stable to support the passage of cattle.
Maximising Mr Collis' free use of Lot 96 means creating a stock crossing over right of access A, from Lot 96 down into the south-eastern triangle. The road and batters at the place of this stock crossing must be constructed to be sturdy enough not to suffer damage through the passage of cattle across it. To the extent possible this stock crossing should be constructed in a manner that avoids additional gates being placed either across right of access A or between Lot 96 and the south-eastern triangle. If an access is going to be allowed down to the river near the area of the RFS passing bay, then the experts are agreed that the RFS passing bay can be flattened somewhat.
If no option is possible other than one which involves the erection a further gate, the Court will consider and decide where it should go. And planning a stock crossing anywhere into the south-eastern triangle may need to consider the requirements of the Natural Resources Access Regulator and the Water Management Act in respect of those parts of the design which approach within 40 metres of Manning Creek.
If any other prayer for relief claimed in the Summons has not been addressed in these reasons, the Condrans can raise it at the relief hearing.

[30]

Conclusions and Orders

The Court makes the following ORDERS and NOTATIONS: 1. ORDERS subject to ORDER (2) that these proceedings be fixed for further argument on 12 December 2024 at 9:30 am for the Court to receive oral submissions about: 1. whether or not the orders proposed in the next paragraph of these orders should be made on a final basis; and 2. what direction should be made in relation to the holding of a relief hearing which will address issues of damages on the Summons and the Cross-Summons (in relation to the claims and subjects with the Court has allowed damages to be claimed) any other additional relief; 1. DIRECTS that the parties exchange and provide to the Court concise written submissions on or before 11 December 2024 at 4 PM in relation to the orders to be sought on 12 December 2024; 2. GRANTS liberty to the parties to consult with the chambers of Slattery J with a view to fixing a date for the Court to receive oral submissions about any appropriate further relief if the date provided for in (2) is not convenient; and
NOTES that subject to hearing further submissions from the parties Court proposes to make the following orders, notations, and directions at the further hearing on 12 December 2024: 1. NOTES that for the purposes of these orders the following expressions will have the following meanings: 1. "Lot 95" means Lot 95 in DP 753152, 2. "Lot 96" means Lot 96 in DP 753152; 3. "the easement" refers to right of access A created by DP1222732 and the associated s 88B instrument for the benefit of Lot 95 over Lot 96; 4. "CH" is a distance measured from West to East along the easement in metres; 5. "upper section" is the part of the easement between CH 0 and CH 180; 6. "lower section" is the part of the easement between CH 180 and CH 318; 7. "the experts" refers to Mr Michael Francombe and Dr Peter Bacon; 8. "the relief hearing" is reference to a future hearing to take place in 2025 to assess damages on the summons and the Cross-Summons and if necessary to modify any injunctive relief perfected in December 2024; 9. "the mutual ownership period" any time that lot 95 is owned by the plaintiffs and Lot 96 is owned by the defendant; 10. "the northern easement boundary" is the northern boundary line of the easement. The Summons 1. ORDERS that the defendant and the defendant by his servants and agents is restrained for a period of five years or the mutual ownership period, whichever is the earlier, from: 1. approaching within 50 metres of the plaintiffs, 2. concealing himself behind or within objects on or near the easement with a view to him encountering the plaintiffs, 3. using any insulting or threatening language directed at the plaintiffs, 4. placing any concrete block or other heavy object, or any discarded metallic item on any part of the easement or damaging the road surface of the easement or the batter slopes of the easement with any object or instrument, 5. placing any truck or vehicle body or other large object on Lot 96 in the vicinity of Moores Road in a manner that may impair the safe exit of persons using the easement onto Moores Road either by motor vehicle or on foot, 6. erecting, painting or using any sign, placard or object which is visible from the easement, and which would be regarded as offensive to a reasonable person in the position of the plaintiffs; 1. ORDERS that the plaintiffs and the plaintiffs by their servants and agents are restrained for a period of five years or the mutual ownership period, whichever is the earlier, from filming the defendant except in circumstances where they believe on reasonable grounds that the defendant is contravening or about to contravene these orders; 2. ORDERS the defendant and the defendant by his servants and agents shall on or before 31 March 2025 remove at his own expense from lot 96 in the vicinity of the easement the two wrecked car bodies, the disused tanks, the rusted machinery, and other disused items which will be identified and marked under the supervision of a person to be appointed as a court expert for the purpose (unless identified by agreement); 3. ORDERS that the defendant and the defendant by his servants and agents is restrained for a period of five years or the mutual ownership period, whichever is the earlier, from placing any industrial or unsightly rubbish within 250 metres of the easement; 4. ORDERS that the plaintiffs and the plaintiffs by their servants and agents are restrained for a period of five years or the mutual ownership period, whichever is the earlier, from leaving open any gate on the easement unless they find it open; 5. ORDERS that the defendant and the defendant by his servants and agents is restrained for a period of five years or the mutual ownership period, whichever is the earlier, from chaining, padlocking, securing, or fixing any gate across the easement which would have the effect of preventing, delaying or inhibiting a reasonable person opening the gate to pass through, with or without vehicles; 6. ORDERS that the defendant and the defendant by his servants and agents is restrained for a period of five years or the mutual ownership period, whichever is the earlier, from erecting any additional gate or gates on the easement without first giving 21 days' notice to the plaintiffs of his proposal to erect the additional gate or gates together with a clear and concise statement of the agricultural or other purpose of the additional gate or gates; 7. ORDERS that the defendant and the defendant by his servants and agents is restrained for a period of five years or the mutual ownership period, whichever is the earlier, from planting any tree or bush on the easement more than 600 mm north of the southern boundary of Lot 96; 8. ORDERS that the defendant and the defendant by his servants and agents shall by 31 March 2025 1. move any tree or bush that is presently located more than 1 metre from the southern boundary of Lot 96 to a position that is within 600 mm north of the southern boundary of Lot 96; 2. relocate any tree or bush in the vicinity of the northern easement boundary so that is planted north of the northern easement boundary; 1. ORDERS that the plaintiffs and the plaintiffs by their servants and agents are restrained for a period of five years or the mutual ownership period, whichever is the earlier, from removing or harming any plant or tree that is permitted to grow on the easement under these orders; 2. ORDERS that the defendant and the defendant by his servants and agents is restrained for a period of five years or the mutual ownership period, whichever is the earlier, from 3. ORDERS that the plaintiffs and the plaintiffs by their servants and agents and defendant and the defendant by his servants and agents when corresponding by any means with the MidCoast Council or with any other public authority in relation to the easement, the undertaking of any remedial work on the easement, or the application for any approval for any object or work on the easement, shall simultaneously copy the other party or their agent into that correspondence; 4. ORDERS that if the defendant proposes to change the configuration of any part of the gate structures at CH 0 or at CH 80, the defendant shall give 21 days' clear notice to the plaintiffs with a concise written description of the of the proposed change and the reasons for the proposed change; 5. RESERVES the costs of the Summons for argument at the relief hearing; The Cross-Summons 1. ORDERS that Mr Michael Francombe and Dr Peter Bacon (the experts) are appointed as joint experts under Uniform Civil Procedure Rules r 31.46 to provide on or before 31 March 2025 or by such later date as the Court may allow, all further necessary detail for the execution of remedial works in relation to the road surface of the easement in accordance with their joint experts report dated 28 April 2023; 2. ORDERS that the experts should have regard to the Court's reasons for decision in providing the necessary additional detail of the works, whilst ensuring in that detail that 1. the lower section of the easement is reasonably protected by fencing all other means from the ingress of stock; and 2. reasonable means are provided in the design of the works for the defendant's cattle to be able to access Manning Creek without causing damage to the trafficable road surface of the lower section of the easement; 1. NOTES that the Court will determine at the relief hearing what proportion of the costs of the remedial works to be undertaken pursuant to these orders will be borne by the plaintiffs and what proportion will be borne by the defendant, based upon the Court's findings and the detail of the remedial works provided by the experts; 2. ORDERS that each party will do all things necessary to cooperate with, give access to, and provide all necessary information to, the experts to assist their execution of their task ordered by the Court; 3. ORDERS that upon the completion of the remedial works, 1. the plaintiffs and the plaintiffs by their servants and agents are restrained for a period of five years or the mutual ownership period, whichever is the earlier, from preventing or taking any steps to inhibit any stock being grazed on Lot 96 from having reasonable access to drinking water in Manning Creek, and 2. the defendant and the defendant by his servants and agents is restrained for a period of five years or the mutual ownership period, whichever is the earlier from allowing his stock to enter any fenced off area around the upside or downside batter in the lower section of the easement; 1. NOTES that there is little utility in making general declarations in relation to fencing and the access of cattle to water and the like but the Court will consider what fencing the experts recommend in the lower section of the easement to protect the road batter from grazing by cattle and to allow cattle safe and reasonable means to access Manning Creek for drinking water; 2. ORDERS that whilst Lot 95 is owned by the plaintiffs and Lot 96 is owned by the defendant, the plaintiffs will every five years from the date of these orders jointly engage an expert to consider what remedial maintenance works are required to ensure that the road surface remains trafficable and meets the industry standards applicable to roads of that class; 3. RESERVES the costs of the Cross-Summons for argument at the relief hearing; and 4. GRANTS liberty to apply.

At a glance

Court

Decision date

Before

Source

Judgment (31 paragraphs)

Parties

Legislation Cited (5)

Cases Cited (8)