Crawley v Baxter

Background facts and summary of evidence

1. The following factual matters are based on the evidence, the parties' Statement of Agreed Facts and observations from the site view which was undertaken on the first day of the hearing.

Overview of evidence

1. The evidence comprises affidavit and oral evidence from the parties and other lay and expert witnesses as well as a range of documents, including historical title searches, survey plans, topographical maps and correspondence with authorities, and footage taken from a video camera mounted on the dashboard of Mr Baxter's vehicle (dashcam footage), all of which is contained in the Court Book (CB) and various exhibits. It also includes affidavit evidence which Mr Baxter and Mr Crawley were granted leave to rely on following an application by Mr Baxter for leave to re-open his case after judgment was reserved (Crawley v Baxter [2022] NSWSC 1493), and a letter dated 27 February 2023 which Mr Baxter was granted leave to adduce as evidence in the main proceedings during the course of an interlocutory application between the parties. In addition, the Court has been assisted by the parties' written submissions that were supplemented by oral submissions at the hearing and further written submissions received as part of the application for leave to re-open.
2. In support of his application, Mr Crawley relies on his affidavits dated 18 December 2020 and 27 July 2021 and affidavits from: Alexander Munro, Mr Crawley's solicitor, dated 21 December 2020, 18 March 2021, 19 April 2021, 20 August 2021, 15 March 2022, 7 April 2022 and 12 October 2022 (with the latter being filed pursuant to leave granted on 2 November 2022 and which should be taken as read); Scott Chapman, a property manager employed by the New South Wales Government Telecommunications Authority (NSW Telco), dated 22 January 2021 and 5 April 2022; Brian Kilby, the managing director at Barrington Outdoor Education, dated 16 November 2020; and Bernard Finlay, a retired explosives expert and heavy machinery operator, dated 10 October 2022 (which was filed pursuant to leave granted on 2 November 2022 and should be taken as read).
3. Mr Crawley also relies on expert evidence from: Phillip Bowden, a land surveyor, who prepared a survey plan dated 10 August 2021 (2021 CalCo Survey), a report dated 19 August 2021 and a supplementary report dated 26 August 2021; and Andrew Hood, a registered valuer, who prepared a report dated 1 April 2022 regarding the value impact on Mr Baxter's land from the creation of the easement.
4. Mr Baxter's case relies on his affidavit dated 21 May 2021 and affidavits from: David Baxter, Mr Baxter's brother, dated 17 May 2021; Craig Battams, Mr Baxter's neighbour, dated 14 May 2021; Scott Woodbury, Mr Baxter's friend, dated 14 May 2021; Mervyn Smith, Mr Baxter's friend, dated 14 May 2021; and Damien O'Brien, Mr Baxter's solicitor, dated 9 September 2022 (which was filed pursuant to leave granted on 2 November 2022 and should be taken as read). Large parts of Mr Battams, Mr Woodbury and Mr Smith's affidavits were not read.
5. Mr Baxter also relies on expert evidence from Graeme Ferguson, a registered land surveyor, who prepared a report and survey plan dated 22 June 2021 (Ferguson Survey; reproduced at Annexure B to these reasons).
6. Mr Crawley, Mr Munro, Mr Chapman and Mr Bowden were each cross-examined as were Mr Baxter and Mr Ferguson. I set out the key aspects of their evidence and my findings later in these reasons. As will appear, there is a conflict in the evidence of Mr Crawley and Mr Baxter about the circumstances in which a new track on Mr Baxter's land was constructed by Mr Crawley in 2016. In coming to my views on their evidence, I have had regard to my notes taken during the hearing in addition to the transcript and submissions of the parties. In view of the frailty of human memory and the parties' self-interest, I have placed more weight on the objective surrounding facts, the inherent probabilities and improbabilities of events, and the contemporaneous documents to the extent they are available: Watson v Foxman (1995) 49 NSWLR 315 at 319; Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 at [28]-[31].

The relevant land

1. Annexure C to these reasons is an Agreed Map that depicts the location of Mr Crawley's land, Mr Baxter's land, the surrounding land and a number of tracks and trails, including those that Mr Baxter contends are options for providing access between Mr Crawley's land and Scone Road (Agreed Map). I refer to aspects of the relevant parcels of land and other points of interest by reference to the letters and descriptors on the Agreed Map.
2. Mr Crawley is the sole registered proprietor of two lots, being Lots 89 and 99 in Deposited Plan 753147 (Crawley Land). The Crawley Land is zoned "RU1 Primary Production" in accordance with the provisions of the Gloucester Local Environment Plan 2010 (NSW).
3. The Crawley Land is approximately 197 acres in size and lies to the east of Mr Baxter's land. Its boundaries are marked on the Agreed Map by a thick green line except for the western boundary (being the common boundary with Mr Baxter's land) which is marked by a thin grey line and an arrow labelled "Boundary fence".
4. Mr Crawley and his late wife, Marion Crawley (who died on 18 February 2021), acquired their interest in the Crawley Land by way of purchase and inheritance from Mrs Crawley's family. It is agreed that the Crawley family acquired the Crawley Land in 1945. In 1964, the ownership of Lots 89 and 99 was registered in the name of Jessie Boyd, Mrs Crawley's mother. On 2 April 1996, the Crawley Land passed to Mrs Crawley and her sister, Jessie Burley, as tenants in common in equal shares by way of transmission. On 10 August 2001, Ms Burley transferred her half share in Lots 89 and 99 to Mr Crawley, and he and Mrs Crawley became the registered proprietors of the Crawley Land as tenants in common in equal shares. Mr Crawley became the sole registered proprietor of the Crawley Land upon the death of his wife.
5. The Crawley Land comprises land that was applied for under s 90 of the Crown Lands Act 1884 (NSW) (Crown Lands Act) and was approved and registered in Plans of Portion 89 and 99 on 14 February 1913 and 24 August 1914 respectively.
6. Mr Crawley's family also owned Mr Baxter's land from 1946 to 1992. During that period, the Crawley Land together with what is now Mr Baxter's land was used by the Crawley and Boyd families for timber milling and farming operations.
7. Mr Crawley, who was 83 years of age at the hearing, currently uses the Crawley Land for beef cattle farming operations. He grazes cattle, makes hay and silage, and needs access to the public road system to transport the cattle and related products to and from his land. He also uses the Crawley Land as a camping site for children's outdoor education camps and for the installation of radio and telecommunications facilities that are owned and operated by third parties.

Surrounding land and roads

1. The Crawley Land and most of the Baxter Land is surrounded by the Copeland Tops State Forest which is part of the Copeland Tops State Conservation Area. That land is owned by the government of New South Wales, reserved as a state conservation area under the National Park Estate (Reservations) Act 2003 (NSW) and is subject to the National Parks and Wildlife Act 1974 (NSW) (NPW Act) and National Parks and Wildlife Regulations 2019 (NSW).
2. To the north of the Crawley Land, within the Copeland Tops State Conservation Area, is a trigonometric station (labelled "Trig Station" on the Agreed Map).
3. A number of trails and tracks are located within the Copeland Tops State Conservation Area, the Crawley Land and the Baxter Land. Relevant to these proceedings are the following: 1. the Copeland Trig Trail which traverses the Baxter Land, the Crawley Land and the Copeland Tops State Conservation Area. It runs from the western boundary of the Baxter Land close to Scone Road (at A) in a southerly direction (to M), then in a north-easterly direction to the Crawley Land (to G), over the Crawley Land and up to the Trig Station, and it is marked by an orange dashed line on the Agreed Map. The Copeland Trig Trail largely follows the route of the Crown Road within the Baxter Land from the western boundary of the Baxter Land (at M) but deviates where the Crown Road travels north and forms an inverted triangle (at D; labelled "Upper Triangle" on the Agreed Map) and runs in an easterly direction from that point to the boundary of the Crawley Land (just below G); 2. the Craddocks Creek Trail and Crawley's Trail, which traverse land within the Copeland Tops State Conservation Area. The Craddocks Creek Trail runs from the west of the southern boundary of the Baxter Land at Scone Road (at X) in a north-easterly direction and joins Crawley's Trail, which runs in a north-westerly direction to the boundary of the Crawley Land (at L). At the boundary of the Crawley Land, the trail continues as the "Huts Trail" which joins the Copeland Trig Trail at a locked gate within the Crawley Land. The Craddocks Creek Trail and the Crawley Trail are designated as "Non-Public Access Roads Management Trails" and the Craddocks Creek Trail is classed as a "Cat.9" fire trail which does not allow for public access. The Craddocks Creek Trail and the Crawley's Trail comprise the Craddocks Creek Route that Mr Baxter submits is a viable alternative access route between Scone Road and the Crawley Land; and 3. a trail referred to by the parties as the Copeland Commons Track (labelled "Paper Road" on the Agreed Map), which runs in an easterly direction from the eastern boundary of the Crawley Land (at K) through the Copeland Tops State Conservation Area and is, in part, identified on other maps as the "Common Track" (see, for example, CB3257). The Copeland Commons Track extends some four kilometres, passes through other private land and eventually connects with Scone Road to the east of the Crawley Land.

Existing access to the Crawley Land

1. Historically, there have been two routes used by Mr Crawley and his invitees for vehicle access between Scone Road and the Crawley Land, both of which involve traversing the Baxter Land.
2. The first route, which was in use until around August 2016, is along a graded track that starts from the shared public entrance at the western boundary of the Baxter Land, runs along the path of the Copeland Trig Trail (at A to M to just below G) and follows, in part, the path of the Crown Road (at M to D) (Pre-2016 Route).
3. Mr Crawley gives evidence, which I accept, that he, his family and their invitees have used the Pre-2016 Route for vehicle access to the Crawley Land for as long as he can remember, and that he and his family have never used the Upper Triangle part of the Crown Road. Based on Mr Crawley's evidence and the matters referred to at [33] above, I reject Mr Baxter's evidence that Mr Crawley and his family created the "deviation at the northern end" of the Crown Road (CB2405-6), which I understand to be a contention that Mr Crawley created the graded track along that part of the Copeland Trig Trail (at D to G) as a diversion from the existing "Upper Triangle" path of the Crown Road.
4. The second route, which has been in use by Mr Crawley and his invitees since around August 2016, is along a new section of graded track that runs from the shared public entrance at the western boundary of the Baxter Land (at A) in an easterly direction to meet at the junction of the Crown Road and the Copeland Trig Trail (at C) (New Track) together with that part of the Pre-2016 Route that follows the Copeland Trig Trail and parts of the Crown Road to the boundary of the Crawley Land (at D to just below G) (New Track Route).

2016: Construction of New Track and initial attempt to obtain easement

1. Mr Crawley constructed the New Track between 13 and 16 August 2016 with the assistance of his late brother, Jeff Crawley. The works involved installing drainage pipes under the road and grading and shaping the New Track to form a level access path which is approximately 350 metres long and four metres wide. Prior to constructing the New Track, there was a rough track in that area described by the parties as the "old log dump" track.
2. In late August or early September 2016, Mr Crawley installed a post and rail wooden fence and a 14 foot gate within the line of the existing boundary fence (at A) which replaced the wire and picket section of the boundary fence on the Baxter Land at the start of the New Track.
3. There is a factual dispute as to the circumstances in which the New Track and gate were installed. Mr Crawley says that he constructed the New Track at the request of Mr Baxter. Mr Baxter denies this and says that the New Track and a gate were installed without notice and his permission. I deal with this evidence at [154]-[178] below. At this point, I simply note that I prefer Mr Crawley's evidence to that of Mr Baxter and have found that the New Track was not constructed without notice or permission from Mr Baxter.
4. On 14 September 2016, Mr Crawley obtained a survey from CalCo Surveyors Pty Ltd which is described as a "plan of proposed right of carriageway over track in use within Lot 1 DP 1182854" (CalCo Survey; reproduced at Annexure A to these reasons). The CalCo Survey identifies the two sections of track on the Baxter Land that are the subject of Mr Crawley's easement application. The CalCo Survey was obtained after Mr and Mrs Crawley approached Turner Freeman Lawyers seeking advice regarding formalisation of legal access to their property.
5. On 29 September 2016, Narelle Bignell of Turner Freeman Lawyers spoke to Mr Baxter about a Transfer Granting Easement that Turner Freeman Lawyers had prepared which provided for an easement over two sections of track on the Baxter Land (including the New Track) to the benefit of the Crawley Land. Ms Bignell's file note records: Mr Baxter asked Ms Bignall to email (not post) the Transfer Granting Easement to him; he said he would discuss the terms with Mr Crawley; he said he would be "up at [the] weekend" (from which I infer that Mr Baxter expected to be at the Baxter Land the following weekend); and he asked if terms could be included in the Transfer Granting Easement such that it would cease upon Mr and Mrs Crawley or their family not owning the Crawley Land and new terms for access would need to be negotiated by any new owners. In cross-examination, Mr Baxter could not recall this conversation but did not deny its occurrence (T163.47).

2018: NSW Telco licence and attempts by Mr Crawley to obtain easement

1. On 21 March 2018, Turner Freeman Lawyers sent a letter to Mr Baxter via email and post enclosing a draft form of the Transfer Granting Easement for a right of carriageway over the Baxter Land subject to conditions that all gates are closed and securely fastened, the surface of the carriageway is at all times maintained in good order and repair, in a clean and tidy condition and free from rubbish, and at all times the carriageway is kept free of any obstruction. That form was submitted under cover of a letter from Turner Freeman Lawyers which states as follows: "To formalise the access over your land, and to address your concerns regarding the proper use of the carriage way, we enclose proposed transfer granting easement for your review and execution. The transfer, in effect, provides a legal right to access lots 89 and 99 in DP 753147 over your land from the Scone Road via the existing track used by the Crawleys. We trust the conditions in annexure B meet with your approval and alleviate your concerns about gates being left open etc. You may seek independent legal advice regarding the document if you consider it necessary. We look forward to receiving the signed transfer by return so that we may finalise this matter without further cost and delay."
2. No response was received to that letter or to a follow-up email sent to Mr Baxter on 13 April 2018.
3. On 23 April 2018, NSW Telco entered into heads of agreement with Mr and Mrs Crawley to lease part of the Crawley Land to install new radiocommunications facilities for the "Government Radio Network" for a term of 20 years, at rent of $6,500 per annum, with the lease beginning on the commencement of NSW Telco's works on the site and subject to NSW Telco negotiating access over the adjoining Baxter Land.
4. Prior to entry into the heads of agreement, in early 2018, NSW Telco had determined that the existing infrastructure installed on the Crawley Land was no longer suitable or sufficient to support the PSN infrastructure proposal for the Copeland Tops region. NSW Telco determined that a new single structure, being a lattice tower 20 metres above ground level, was the most suitable pathway forward and that the telecommunications for the SES, New South Wales Ambulance and RFS were to be migrated to the upgraded facility and redundant existing infrastructure would be removed.

2019 - 2020: Further attempts by NSW Telco and the Crawleys to obtain an easement over the Baxter Land

1. On 9 January 2019, on behalf of Mr Baxter, Baker Love Lawyers sent a letter to Turner Freeman Lawyers advising that they were seeking instructions and required copies of prior correspondence.
2. On 10 January 2019, on behalf of NSW Telco, Visionstream sent a letter to Mr Baxter requesting he contact them regarding the access sought over the Copeland Trig Trail and noting that NSW Telco was willing to contribute to his legal costs to formalise the access. Mr Baxter did not respond to this letter.
3. On 8 February 2019, Turner Freeman Lawyers sent a letter to Baker Love Lawyers attaching copies of its prior correspondence with Mr Baxter and setting out its reasons as to why the easement over the Baxter Land ought to be granted to the benefit of the Crawley Land.
4. On 7 March 2019, Mr Chapman, a representative of NSW Telco, attended a meeting with representatives of Visionstream and Mr Baxter on the Baxter Land, during which there was a discussion to the following effect: Chapman: [NSW Telco] would like to formalise their access over the track which cuts through your property by entering into an access licence agreement with you. [NSW Telco] will compensate you for their use of the track which cuts through your property. Baxter: I reject your request. I do not want third parties traversing my property. I purchased this property for privacy."
5. On 27 March and 10 April 2019, Turner Freeman Lawyers sent follow up letters to Baker Love Lawyers seeking a response to their letter dated 8 February 2019 and confirmation as to whether they held instructions to accept service on behalf of Mr Baxter.
6. On 10 April 2019, Baker Love Lawyers responded to Turner Freeman Lawyers' letter dated 8 February 2019 denying that the proposed easement was reasonably necessary. The letter states as follows: "1. The creation of the easement is not reasonably necessary for your clients to have legal access to the land as they have access to their land pursuant to an existing easement. As your client is aware, the reference to the "track that has been used for generations" is not accurate in respect of that part of the proposed easement which travels west from the "road" to Scone Road. That part of the proposed easement was created in opposition to our client's wishes and has only been created a relatively short time. … 3. We are instructed that the gates referred to were not installed at our client's insistence. 4. As indicated above, that part of the proposed easement referred to in item 1 above has not been in use for generations. Notwithstanding your client's views, there are considerable issues regarding loss of amenity, including privacy, in respect of our client's residential areas on our client's land. …. Our client has never consented to the creation of that part of the easement referred to in item 1 above and, as indicated, that part of the easement referred to in item 1 above has not been "used for generations". As your client is well aware, your client has legal access to their land. To enable your client to utilise that legal access, it would be necessary for your client to carry out clearing to enable that access to be used. However, we are instructed that the clearing is not significant and that as your client has a legal access to their property using the existing "road" that it is not reasonable that your client seeks to impose a further access over our client's property where such access will impact significantly on our client's use and enjoyment of their property and which is not access which is "reasonably necessary" but is simply more convenient for your client."

2021: Commencement of proceedings, clearing of Z to M Track and further attempts by NSW Telco to gain access to the Baxter Land

1. Mr Crawley commenced these proceedings by Summons filed on 22 March 2021. The summons and affidavits in support were personally served on Mr Baxter on 23 March 2021.
2. On 30 March 2021, Mr Baxter wrote to Turner Freeman Lawyers complaining that the site visit on 9 November 2020 constituted a "blatant trespass" on his land. Turner Freeman Lawyers denied this in an email sent to Mr Baxter later that day.
3. In late March or early April 2021, works were undertaken to clear a track from the juncture of Scone Road (at Z) to the boundary of the Baxter Land close to the commencement of the Crown Road (at M), namely, works were undertaken to clear the Z to M Track. Mr Baxter accepted in cross-examination that he undertook those works (24 June T34.5). It is common ground that Mr Baxter did not have approval from NSW National Parks and Wildlife Service (NPWS) or consent under s 138 of the Roads Act 1993 (NSW) (Roads Act) to undertake those works.
4. The Z to M Track is approximately 665 metres long (from the gate near M to Scone Road), approximately three metres wide in areas and had been widened by Mr Baxter's works at one point by almost 10 metres on the north‑eastern side and four or five metres on the north‑western side (T10.22-5). It is mostly located within the Copeland Tops State Conservation Area and encroaches on a small part of the Baxter Land by about five metres for a distance of 50 metres (2021 CalCo Survey). It is marked by an orange dashed line on the 2021 CalCo Survey and is labelled as the "Orange Track" on the Ferguson Survey.
5. Mr Baxter deposes that the "Crown road runs all the way from Scone Road to [Mr Crawley's] property" and the access point from Scone Road to the Crown Road is a track that has been in use since he purchased the Baxter Land although it had, until recently, some small growth over it (referring to the Z to M Track). He deposes that, since his ownership, a bulldozer was put over part of the track by RMS contractors to improve access to the gravel quarry on the track. He also deposes that this track would offer good access to the Crawley Land as it would support access by Mr Crawley, NSW Telco and other invitees.
6. In cross-examination, Mr Baxter gave evidence that he did not put the track in and "that track was always there" (24 June T30.8-11), that he used an excavator to clear the track and that he did so to make it serviceable after he had received the documents in this case (24 June T32.11-41; 24 June T33.46-50; 24 June T34.5). He accepted that the Crown Road was not marked as extending from the western boundary of the Baxter Land to Scone Road (along the Z to M Track) on the Ferguson Survey or the 2021 CalCo Survey but maintained that the Crown Road was along the track and that he had seen it marked on other maps over the years (24 June T29.11-28). Mr Baxter also said that the Z to M Track might have been pushed through by a logging company when Scone Road did not exist, suggested that Council then took it over, described the track as the only right of way into the property, that if Council say the track is unsafe then he believed it should be back to the Council to make it safe and that Mr Crawley used to use the Z to M Track (24 June T52.14-21).

April 2022: The view, removal and reinstatement of soil blockage across the Z to M Track, and clearing of another track

1. On 6 April 2022, the first day of the hearing, the Court conducted a view of the relevant lands and tracks in issue in these proceedings. During the view, Mr Munro took photographs which are Annexures A, E and F to his affidavit dated 7 April 2022 (Munro Photographs).
2. The view commenced at the entrance to the Craddocks Creek Trail from Scone Road (at about X on the Agreed Map) where I observed a padlocked gate and the sign described at [94] above. According to the Conservation Map, this is a "NPWS Gate"; Mr Crawley does not have a key.
3. This part of the view was carried out on foot; we walked along Craddocks Creek Trail to about 200 metres east of Y. The track was not graded or even. It was a "two-track track" that had dense forest on the sides, grass and vegetation on the hump in the middle of the two tracks, and the tracks were deeply rutted in places (Munro Photographs at Annexure A). There were steep hills and declines at the sides of some parts of the track.
4. At one point, a small boulder was identified on the track (which does not appear in the parties' photographic or video evidence) that would likely have interfered with the path of a vehicle driving along the track. It was accepted by Mr Baxter's Counsel that there was "always going to be a risk that rocks could fall from higher positions and find their way onto a track" (T8.2-4).
5. The view was conducted after recent heavy rains and the conditions on the track were muddy and underwater in places. I observed some areas where the track was underwater for approximately 1.5 to two meters long and four inches deep.
6. I also observed a log bridge along the track (at about Y), noting the moss-covered logs on the southern side of the bridge.
7. The next part of the view started at Scone Road, at the entrance of the track that had been cleared by Mr Baxter (at Z).
8. A large deposit of earth had been moved to the northern side of the track, making it appear that the track was accessible by vehicle from Scone Road (Munro Photographs at Annexure E). Mr Baxter accepted in cross-examination that he removed the mounds of soil that had been jointly placed by MidCoast Council and NPWS as a soil blockage at the start of the Z to M Track (as described at [98]-[102] above) before the view (24 June T46.15).

September - October 2022: Upgrade works to Craddocks Creek Trail and enquiries with NPWS

1. The following is a summary of the evidence adduced by the parties pursuant to leave granted on 2 November 2022.
2. On about 17 August 2022, Mr Baxter became aware that works had been undertaken by NPWS to the Craddocks Creek Trail. It appears from photographs he took that day that parts of the Craddocks Creek Trail were upgraded to form a compacted and smooth access path, in contrast to the two-wheel-drive track observed at the view. Mr Baxter says he was advised by a contractor for NPWS that the upgrade was undertaken so that fire trucks could access the Craddocks Creek Trail. He contends that it now appears that the upgrades provide for the possibility for vehicles to use and access the Craddocks Creek Route safely and says it is trafficable.
3. On 12 September 2022, Mr Baxter walked the Craddocks Creek Route and observed fresh tyre tracks coming from the direction of the Crawley Land and travelling down to the log bridge crossing. A photograph depicting those tracks is in evidence.
4. On 24 September 2022, Bernard Finlay, who has assisted Mr Crawley on his farm for over 15 years, walked along the Craddocks Creek Route. Mr Finlay deposes that repair works had been undertaken to sections of the Craddocks Creek Trail, which he described as earthworks, the laying of gravel to resurface eroded sections of the track and the installation of netting and earth-fill where the track had been washed and slipped away. Mr Finlay estimates that approximately 30% of the length of the Craddocks Creek Route, which is of an approximate total length of 2.9 kilometres, was the subject of recent track repairs. Photographs taken by Mr Finlay on 24 September 2022 of the upgrade works are also in evidence.
5. Mr Finlay deposes that he recognised the tyre tracks depicted in the photograph as being caused by a side-by-side all-terrain vehicle (ATV) and says that he has seen NPWS staff driving through the Crawley Land towards the Trig Station in such a vehicle. Mr Crawley owns an unregistered side-by-side ATV but says that the tracks were not made by him nor any other person driving his vehicle. Based on this evidence, I accept that the tracks were not made by Mr Crawley or by any other person driving his side-by-side ATV on his behalf.
6. On 27 September 2022, Mr Munro sent an email to Ms De Angelis, Anthony Signor, an area manager for the Barrington Tops Area NPWS, and Peter Katsamangos, a ranger of the Barrington Tops Area NPWS, requesting information about the upgrade works and the possibility of public vehicle access along the Craddocks Creek Trail.

Use of Crawley Land for camping

1. Brian Kilby is the managing director of Barrington Outdoor Education which is the educational arm of Barrington Outdoor Adventure Centre (BOAC). BOAC provides camps and excursions for school children throughout New South Wales.
2. Mr Kilby gives evidence that BOAC has been using the Crawley Land for camping trips for over 15 years and refers to the area used as "Crawley's Camp".
3. Mr Kilby deposes that BOAC offers a two day programme to schools during which, on the first day, the children walk from the Copeland Commons Track to Crawley's Camp and, on the second day, they walk down the steps in Barrington. He describes the terrain as very steep and challenging.
4. Mr Kilby also gives evidence that one or two four-wheel-drive vehicles, and sometimes one or two 21-seater buses, are used to deliver supplies to or collect children from Crawley's Camp. He deposes that two access tracks have been used for those vehicles which he describes as Crawley's Trail and the Craddocks Creek Trail.
5. Mr Kilby describes Crawley's Trail as rough, with water crossings, difficult to navigate, only accessible to capable four-wheel-drive vehicles and not always passable in wet weather in any vehicle. He says that he holds specific permission from NPWS to use Crawley's Trail with a four-wheel-drive vehicle. He says that BOAC do not permit inexperienced staff to drive on Crawley's Trail and the track is not accessible by bus.
6. Mr Kilby describes Craddocks Creek Trail as the road that passes over the Baxter Land and the preferred means of access to Crawley's Camp as it is accessible in all weather conditions to their buses and other two-wheel-drive vehicles and is much easier to navigate.
7. Mr Baxter submits that the evidence of Mr Kilby is wholly irrelevant as his evidence that the Craddocks Creek Trail passes over the Baxter Land is incorrect as the trail does not cross over that property. I am not persuaded by that submission. Based on Mr Kilby's descriptions of the navigability of Crawley's Trail and the Craddocks Creek Trail, his assertion that one of the trails passes over the Baxter Land, the photographs and dashcash footage in evidence, my own observations at the view and Mr Crawley's evidence in cross-examination to the effect that Mr Kilby had used the tracks across the Baxter Land to access the Crawley Land for years (T131.22-132.32), I consider it likely that Mr Kilby mistakenly referred to the Copeland Trig Trail as the Craddocks Creek Trail and have read his evidence on that basis.

Assessment of Mr Crawley's and Mr Baxter's evidence

1. The main factual dispute raised by the evidence of Mr Crawley and Mr Baxter is whether Mr Baxter requested Mr Crawley to construct the New Track.
2. Mr Crawley gives evidence that, in around early 2016, Mr Baxter asked him not to use the part of the Pre-2016 Route which ran past his cottage (from A to M on the Agreed Map).
3. Mr Crawley deposes as follows: "Mr Baxter said to me, in words to the effect of, "I don't want you using this track anymore because I am going to rent my cottage out". Mr Baxter was not aggressive or upset and we had a good neighbourly relationship at that time. It was not uncommon for us to talk when we saw each other in the paddock. I said to Mr Baxter, in words to the effect of, "Well if you don't want me driving on this track anymore, where do you want me to go?". Mr Baxter led me down to an old log dump approximately 200m from his cottage. He kicked the ground and said to me, "Just here, but you might find it hard to get through it". The ground he was kicking was gravel and blue metal stone. There was a track that led in to the log dump from the front gate that was partially over grown. Mr Baxter pointed in an Easterly direction and said, "You should get a level straight through there around to the quarry". I knew what Mr Baxter was referring to as I had seen where Mr Baxter had been digging gravel out of a small quarry on the other side of the hill, East of the main gate and close to the Copeland Trig Trail. Mr Baxter said, "I could put it in at my leisure, but my tractor is broken". I said, "No worries, Jeff will soon do that". Mr Crawley was referring to his brother, Jeffery Crawley, who worked making roads through the Barrington Tops for the Forestry Commission for about 25 years and was an experienced bulldozer operator."
4. Mr Crawley says that the route Mr Baxter pointed to is the path of the New Track.
5. Mr Crawley deposes that he and Mr Baxter did not discuss the specifics of how and when the track would be installed because, in the past, he and Mr Baxter had come to similar neighbourly agreements which had been honoured. By way of example, Mr Crawley says he cleared and levelled the site upon which Mr Baxter's cottage was constructed at no cost to Mr Baxter and using Mr Crawley's machinery; this occurred approximately 12 months before the conversation about the New Track took place.

Expert survey evidence

1. As noted above, Mr Crawley and Mr Baxter each led expert survey evidence. Mr Bowden (retained by Mr Crawley) and Mr Ferguson (retained by Mr Baxter) gave oral evidence at the hearing concurrently.
2. Mr Bowden, a consulting land surveyor at CalCo Surveyors Pty Ltd, prepared an initial report dated 19 August 2021, which attaches the 2021 CalCo Survey. He also prepared a supplementary report dated 26 August 2021 in response to matters raised in Mr Ferguson's report dated 22 June 2021 and the Ferguson Survey.
3. Mr Bowden was instructed to survey the road frontage boundary of Lot 1 of the Baxter Land and the adjacent track which Mr Baxter requested Mr Crawley use as access (the Z to M Track), and to provide an opinion on the suitability of the Z to M Track for vehicle access. The survey was carried out on 6 August 2021.
4. The 2021 CalCo Survey prepared by Mr Bowden marks the Z to M Track with an orange dashed line and identifies the following: the length of the Z to M Track is approximately 665 metres long (from the gate to Scone Road); the gradient of the Z to M Track ranges from 2.5% to 22%, with the first 90 metres from Scone Road being 22%, the next 115 metres being 18%, the next 110 metres being 12.5%, the next 60 meters being 8% and the final 125 meters being 2.5%; and the Z to M Track encroaches upon the Baxter Land for about five meters for a distance of about 50 metres.
5. Mr Bowden opines that the Z to M Track is unsuitable for either ingress or egress of vehicles as an all-weather access for the following reasons: 1. the track requires considerable expense to upgrade the surface of the road and to alleviate the drainage issues adjacent to Scone Road; 2. it encroaches on the Baxter Land, which would need to be rectified if the track were to be upgraded; 3. the gradients are quite steep in sections and access for firefighting vehicles, cattle trucks and other two-wheel drive vehicles would prove difficult especially in wet weather. In forming this opinion, Mr Bowden had regard to the RFS recommendations for access tracks which state, amongst other things, that maximum grades for sealed roads should not exceed 15 degrees and an average grade should not exceed 10 degrees, and property access roads should be two-wheel drive, all-weather roads; 4. once a vehicle enters the Baxter Land (at M) it would be much more visible from the Baxter residence compared to the New Track, which has gradients that are much more conducive to vehicular traffic; and 5. as far as Mr Bowden was aware, neither the MidCoast Council or the road authorities had granted approval for the Z to M Track to be connected to Scone Road and therefore it could not be recognised as legal access to the Baxter Land.

The easement application

1. The power of the Court to make an order for an easement and the matters of which the Court must be satisfied are set out in s 88K of the Conveyancing Act, which provides as follows: (1) The Court may make an order imposing an easement over land if the easement is reasonably necessary for the effective use or development of other land that will have the benefit of the easement. (2) Such an order may be made only if the Court is satisfied that - (a) use of the land having the benefit of the easement will not be inconsistent with the public interest, and (b) the owner of the land to be burdened by the easement and each other person having an estate or interest in that land that is evidenced by an instrument registered in the General Register of Deeds or the Register kept under the Real Property Act 1900 can be adequately compensated for any loss or other disadvantage that will arise from imposition of the easement, and (c) all reasonable attempts have been made by the applicant for the order to obtain the easement or an easement having the same effect but have been unsuccessful. (3) The Court is to specify in the order the nature and terms of the easement and such of the particulars referred to in section 88(1)(a)-(d) as are appropriate and is to identify its site by reference to a plan that is, or is capable of being, registered or recorded under Division 3 of Part 23. The terms may limit the times at which the easement applies. (4) The Court is to provide in the order for payment by the applicant to specified persons of such compensation as the Court considers appropriate, unless the Court determines that compensation is not payable because of the special circumstances of the case. (5) The costs of the proceedings are payable by the applicant, subject to any order of the Court to the contrary. (6) Such an easement may be - (a) released by the owner of the land having the benefit of it, or (b) modified by a deed made between the owner of the land having the benefit of it and the persons for the time being having the burden of it or (in the case of land under the provisions of the Real Property Act 1900) by a dealing in the form approved under that Act giving effect to the modification. (7) An easement imposed under this section, a release of such an easement or any modification of such an easement by a deed or dealing takes effect - (a) if the land burdened is under the Real Property Act 1900, when the Registrar-General registers a dealing in the form approved under that Act setting out particulars of the easement, or of the release or modification, by making such recordings in the Register kept under that Act as the Registrar-General considers appropriate, or (b) in any other case, when a minute of the order imposing the easement or the deed of release or modification is registered in the General Register of Deeds. (8) An easement imposed under this section has effect (for the purposes of this Act and the Real Property Act 1900) as if it was contained in a deed. (9) Nothing in this section prevents such an easement from being extinguished or modified under section 89 by the Court."

Is the easement reasonably necessary for the effective use or development of the Crawley Land: s 88K(1)?

1. The principal concept under s 88K of the Conveyancing Act is whether the easement sought to be imposed over the Baxter Land is reasonably necessary for the effective use or development of the Crawley Land.
2. The requirement for the easement to be reasonably necessary means something more than mere desirability or preferability over the alternative means available but does not mean absolute necessity. Nor does it mean that the easement must be reasonably necessary for the best and highest use of the land: Moorebank Recyclers Pty Ltd v Tanlane Pty Ltd (2012) 16 BPR 31,257; [2012] NSWCA 445 (Moorebank Recyclers v Tanlane) at [154]-[155]; and Rainbowforce Pty Ltd v Skyton Holdings Pty Ltd (2010) 171 LGERA 286; [2010] NSWLEC 2 at [76] (Rainbowforce v Skyton).
3. The requirement of reasonable necessity may be satisfied even if the Crawley Land could be effectively used or developed without the easement. The proposed easement must be reasonably necessary either for all reasonable uses or developments of the land, or else for one or more proposed uses or developments which are at least reasonable as compared with the possible alternatives. In order for an easement to be reasonably necessary for a use, the use with the easement must be at least substantially preferable to the use without the easement: 117 York Street Pty Ltd v Proprietors of Strata Plan 16123 (1998) 43 NSWLR 504 (117 York Street) at 508, per Hodgson CJ in Eq, cited with approval in Moorebank Recyclers v Tanlane at [154] and Arcidiacono v The Owners - Strata Plan No 17719; Arcidiacono v The Owners - Strata Plan No 61233 (2020) 104 NSWLR 199; [2020] NSWCA 269 at [61].
4. The concept of reasonable necessity requires consideration of the effect of the grant of the easement on the Baxter Land. The greater the burden on the Baxter Land, the stronger the case required to find that the easement is reasonably necessary. A strong case of reasonable necessity is required if the effect of the imposition of the easement would be to effectively preclude a reasonably available development or use of the Baxter Land: Moorebank Recyclers v Tanlane at [156]-[157]; and Weissflog v Community Association DP 270159 (2022) 20 BPR 42,265; [2022] NSWSC 239 (Weissflog) at [45].
5. In ING Bank (Aust) Ltd v O'Shea (2010) 14 BPR 27,317; [2010] NSWCA 71 (ING Bank v O'Shea) at [48]-[49], Giles JA (with whom Campbell JA agreed) stated as follows: "Reasonably necessary is a composite phrase, in which the necessity is qualified so that it must be a reasonable necessity. Necessity is quite an absolute concept. The qualification is not of the use or development, so that it must be reasonable, although no doubt reasonableness of the use or development comes into reasonable necessity for that use or development. It is of the necessity. A qualification which did no more than reduce the necessity to a less absolute level is unlikely, and if that were intended some other word could have been used such as "convenient". Qualification whereby the necessity must be reasonable is apt to, and in my opinion does, permit regard to matters beyond the relatively absolute necessity for the effective use or development of the dominant tenement. It calls for an assessment of that necessity having regard to all relevant matters, according to the criterion of reasonableness. The impact of the easement on the servient tenement, and the fact that ordering an easement detracts from the property rights of the owner of the servient tenement, are matters readily to be taken into account in that assessment. It is difficult to see how reasonable necessity for an easement for the use or development of a dominant tenement, as distinct from necessity, can be arrived at without regard to the effect on the enjoyment of the servient tenement and on the property rights of the owner of the servient tenement."

Is the use of the Crawley Land inconsistent with the public interest: s 88K(2)(a)?

1. The focus of s 88K(2)(a) of the Conveyancing Act is the use of the Crawley Land, being the land having the benefit of the proposed easement. The Court must be satisfied that the use of that land will not be inconsistent with the public interest: City of Canterbury v Saad (2013) 195 LGERA 329; [2013] NSWCA 251 at [48], cited with approval in Weissflog at [74].
2. Mr Baxter does not contend that the use of the Crawley Land will be inconsistent with the public interest (24 June T71.13-21; T256.32-5).
3. In my view, there is no evidence that suggests that the use of the Crawley Land with the easement would be contrary to the public interest. The easement forms part of a solution that is required for reliable and effective access to the public road system and it enables the Crawley Land to continue to be used for the farming purposes it has been used in the past. The public interest is also served by the Crawley Land being used for purposes relating to the installation and maintenance of emergency services telecommunications infrastructure and camping expeditions. I am satisfied that the requirement of s 88K(2)(a) of the Conveyancing Act has been met.

Can Mr Baxter be adequately compensated: s 88K(2)(b)?

1. The question of whether Mr Baxter can be adequately compensated requires the Court to focus on whether he will suffer any loss or other disadvantage from the imposition of the proposed easement. If he will, and he cannot be compensated, then no easement can be granted: Moorebank Recyclers v Tanlane at [233].
2. Mr Baxter does not dispute that he can be adequately compensated for any loss or other disadvantage that will arise from the imposition of the easement (24 June T71.12-3; T256.37-45).
3. Based on the valuation evidence from Mr Hood, I am satisfied that Mr Baxter can be adequately compensated for any loss or disadvantage that will arise from the imposition of the easement. Mr Hood identifies the monetary compensation that could be provided for the loss, blot of title, disturbance and inconvenience. I deal with the quantum of compensation that should be paid later in these reasons.

Have all reasonable attempts been made: s 88K(2)(c)?

1. The principles applicable to s 88K(2)(c) of the Conveyancing Act are summarised in Rainbowforce v Skyton by Preston CJ of the NSW Land and Environment Court at [128]-[131]: "The easement referred to in s 88K(2)(c) is the easement the applicant has applied to the court to impose. An easement having the same effect as that easement can be in respect of the same land but is not limited to that land; it can also be an easement over other land having the same effect as the easement over the land the subject of the application. Reasonableness is a matter of degree and the relative disadvantages, convenience and costs of the alternative easements are relevant considerations. … In order for an applicant for an order to make all reasonable attempts to obtain an easement: (a) the applicant for the order must make an initial attempt to obtain the easement by negotiation with the person affected and some monetary offer should be made; (b) the applicant for the order should sufficiently inform the person affected of what is being sought and provide for the person affected an opportunity to consider his or her position and requirements in relation thereto (c) the applicant for the order is not required to continue to negotiate with a person affected by making more and more concessions until consensus is reached to the satisfaction of the person affected; and (d) the whole of the circumstances are to be considered from an objective point of view; once it appears from an objective point of view that it is extremely unlikely that further negotiations will produce a consensus within the reasonably foreseeable future, it may be concluded that all reasonable attempts have been made to obtain the easement." [citations omitted]
2. The assessment of all reasonable attempts is to be made at the time the Court is considering the application: Studholme v Rawson [2020] NSWCA 76 at [83] (Studholme v Rawson); and The Owners - Strata Plan 85044 v Murrell; Murrell v The Owners - Strata Plan 85044 (2020) 19 BPR 40,575; [2020] NSWSC 20 at [478].
3. Mr Baxter accepts that Mr Crawley has made all reasonable attempts to secure the easement on the Baxter Land (T256.5-16). I am also satisfied of that matter.
4. The correspondence from Turner Freeman Lawyers to Mr Baxter in 2016, 2018 and 2019 demonstrates that Mr Crawley made various attempts to obtain the easement over the New Track Route over the Baxter Land prior to commencing these proceedings, including making a without prejudice offer to pay Mr Baxter money for the grant of the easement (see, for example, CB3222-4) and attending a mediation (which was refused), and that his attempts to obtain that easement were unsuccessful.

Should the Court exercise its discretion to grant the easement?

1. Where, as in this case, Mr Crawley has established reasonable necessity and the other factors in s 88K(2) of the Conveyancing Act, the Court retains a discretion as to whether it should grant the easement sought: Weissflog at [49]; and Community Association DP270447 v ATB Morton Pty Ltd (2019) 19 BPR 39277; [2019] NSWCA 83 at [147].
2. The approach to the exercise of the Court's discretion was explained in Rainbowforce v Skyton at [134] as follows: "The discretion is to be exercised having regard to the purpose of the section, which Brereton J in Khattar v Wiese at [60] summarised as "facilitating the reasonable development of land whilst ensuring that just compensation be paid for any erosion of private property rights", referring to the Second Reading Speech, Legislative Council, 4 December 1995: see also Property Partnerships Pacific Pty Ltd v The Owners of Strata Plan 58482 at [58], [59]."
3. Like the assessment of reasonable necessity, the discretion to grant an easement needs to be considered having regard to the circumstances which existed at the time of the hearing: Moorebank Recyclers v Tanlane at [96].
4. As a discretionary factor that weights against the grant of the easement, Mr Baxter submits that the Court should take into account the fact that Mr Crawley was involved in the transfer of the Baxter Land to Mr Baxter and must have been aware that no provision was made for a right of carriageway over the Baxter Land to Scone Road to the benefit of the Crawley Land. Mr Baxter submits that Mr Crawley "now seeks to reverse to his benefit what he, himself, agreed under contract in December 1992".
5. Mr Baxter's submissions also relied on the principle, expounded by Young J (as his Honour then was) in Hanny v Lewis (1998) 9 BPR 16,205 at 16,209-10; [1998] NSWSC 385 (Hanny v Lewis), as follows: "However, the section does not exist for people to build right up to the boundary of their property or to build without adequate access and then expect other to make their land available for access."
6. While acknowledging that the case does not concern "build[ing]", Mr Baxter submits that the principle expounded by his Honour stands as s 88K of the Conveyancing Act does not exist for a person who engages in a contract to sell their land which does not provide adequate access to then later expect the other party to make their land available for access.

What amount of compensation should Mr Crawley pay to Mr Baxter for the loss or other disadvantage that will arise from the imposition of the easement: s 88(4)?

1. The assessment of the quantum of compensation to be paid is to be determined by reference to the loss or other disadvantage incurred by Mr Baxter as a result of the easement rather than the benefit obtained to Mr Crawley: 117 York Street at 515-7.
2. The amount of compensation will ordinarily be comprised of the diminished market value of the Baxter Land (including what is sometimes called the "hope value", being the potential use to which the Baxter Land could have been put), the associated costs caused to Mr Baxter and an amount for insecurity and loss of amenities less any compensating advantages (if any): Moorebank Recyclers v Tanlane at [234]-[235]; Lonergan v Lewis [2011] NSWSC 1133 at [52]; and Khattar v Wiese at [66].
3. Mr Crawley adduced evidence in the form of a report from Mr Hood, a registered valuer, who was not cross-examined.
4. Mr Hood's assessment adopts a "piecemeal" approach to valuation by reference to the area of the sections of the Baxter Land comprised by the easement, being 2,720 metres squared. He ascribes a value of $0.30 per metre squared based on an underlying land value of $816 and allows a diminution in value due to the presence of the easement of 50%, coming to a figure of $408. Mr Hood considers that the easement will have a beneficial effect on the current use of the property by virtue of the improved road corridor through the Baxter Land but recognises that the easement will be a "blot on title" and provides for a nominal amount of $3,000 for that head of loss.
5. Overall, Mr Hood assesses the total amount to be $3,500 (exclusive of GST; rounding up from $3,408).
6. Mr Baxter did not lead any valuation evidence and made no submissions directed to that issue. Based on Mr Hood's evidence, I am satisfied that $3,500 (exclusive of GST) would be an appropriate amount to be paid to Mr Baxter for the loss or disadvantage that will arise from the imposition of the easement.

Conclusion and orders

1. For the above reasons, I will grant Mr Crawley's application for the easement over the Baxter Land under s 88K of the Conveyancing Act.
2. Mr Crawley's Amended Summons seeks an easement for a right of carriageway over the portions of the Baxter Land described in the Amended Summons, as set out at [191] above, on the terms specified in Part 1 of Schedule 8 of the Conveyancing Act. I am satisfied that those terms are appropriate and am prepared to make an order to that effect.
3. I will also make an order that Mr Crawley pay compensation to Mr Baxter pursuant to s 88K(4) of the Conveyancing Act in the amount of $3,500, in accordance with my findings at [272] above.
4. Mr Crawley's Amended Summons seeks an order that Mr Baxter execute and deliver to Mr Crawley a dealing in the form approved under the Real Property Act 1900 (NSW) setting out particulars of the easement imposed by the Court under s 88K(1) of the Conveyancing Act in favour of Mr Crawley over the Baxter Land. It is not clear why Mr Baxter should be ordered to execute and deliver to Mr Crawley a dealing. Mr Crawley should be able to prepare the necessary documents and forms in relation to registration of the easement by the Registrar General (for example, the "Request" (Form 11R)) with an order from the Court and may not require execution by Mr Baxter (Menassa v Shi (No 2) [2023] NSWSC 168 at [27]-[38]). Mr Crawley should, in my view, be ordered to pay the costs of doing so. I will also direct Mr Baxter to execute any dealing or form, if required, to enable the easement to be registered.
5. As the parties wished to be heard on the question of costs, I have deferred determination of that issue. I note, however, that the cases indicate that generally Mr Crawley would be ordered to pay Mr Baxter's costs of the application in accordance with s 88K(5) of the Conveyancing Act. Merely putting Mr Crawley to proof in respect of the various elements contained in s 88K of the Conveyancing Act does not, of itself, provide any basis for an adverse costs order against Mr Baxter. It also appears that the better view is that rejection of an offer made under Uniform Civil Procedure Rules 2005 (NSW), r 20.26, and in accordance with the Calderbank principles is unlikely to operate without qualification in proceedings under s 88K of the Conveyancing Act: Shi v Abi-K at [98]; Studholme v Rawson at [175]-[176] and [186]-[187].

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 16 June 2023