David Peter Buckley v David Francis Timbury & Anor

Supreme Court of NSW|2012-11-30|Before: Slattery J, Mr J

Judgment 1David and Anne Buckley and David and Susan Timbury are neighbours on two rural properties in the picturesque Maitland Vale area of the Hunter Valley. Mr and Mrs Buckley reside in a home on the dominant tenement of a right of carriageway (the easement), which traverses Mr and Mrs Timbury's servient land and gives access to a public road, Maitland Vale Road. 2Mr Buckley is the registered proprietor of the dominant tenement. He alleges as the plaintiff in these proceedings that the defendants, Mr and Mrs Timbury, the registered proprietors of the servient tenement, have obstructed the easement in four separate ways. Mr Buckley alleges that the Timburys have: (1) latched a solar powered gate across the easement; (2) blocked drains under the easement roadway with rocks thereby causing the easement to flood; (3) placed rocks, on a grassy verge area adjacent to the easement roadway, thereby preventing Mr Buckley from mowing this grassy area; and (4) erected poles in the easement roadway, which poles are said to obstruct vehicular access along the easement. 3Mr and Mrs Timbury deny some of this conduct. But they say in any event that none of their conduct in these four respects is actionable at law and that Mr Buckley's claim should be dismissed. They contend that: (1) the law entitles them to latch the solar powered gate across the easement; (2) they have not placed rocks in the drains under the easement roadway, and that in any event such rocks do not cause flooding; (3) the law entitles them, to place the rocks that they have on the grassy verge area adjacent to the easement; and (4) the poles they placed in the roadway surface have now been removed. 4These were the issues in a trial that took place over three days on 28, 29 and 30 November 2012. In his Summons Mr Buckley sought orders that Mr and Mrs Timbury: "remove forthwith all obstructions to the right of carriageway"; "be permanently restrained from causing any further interference or obstruction" to the right of carriageway; "be restrained from constructing or installing a second gate" at Maitland Vale Road. Other relief was sought, but it relates to an issue which is now resolved. Although this resolved issue creates relevant background to the present dispute. 5Looked at objectively the issues that divided these parties seemed eminently capable of consensual resolution through the application of a modest degree of mutual goodwill. But despite the Court encouraging some kind of consensual outcome, it has eluded the parties. And so the Court must determine their differences for them. 6This is unfortunate for several reasons. First, these neighbours still have to live together. And the outcome of these proceedings is unlikely to make this part of Maitland Vale a happier place for them all. Moreover, as these reasons will demonstrate, the law can provide only limited solutions to the issues that divide them. More creative and mutually satisfactory solutions for the parties may only be possible by agreement. Though the parties were bitterly divided about the matters in issue before the Court, they nevertheless all appeared to the Court to be people of reason and goodwill who could and would one day see past their present differences. 7Ms Doust of counsel appeared for Mr Buckley. Mr Hewitt of counsel appeared for Mr and Mrs Timbury. Both counsel presented cases that reduced the parties' marked differences to their bare essentials. More background is now required to explain the issues joined between these parties. Two Neighbouring Properties and an Easement 8In these reasons the parties' two properties are not described by their full title descriptions. The parties agreed that Mr Buckley's dominant tenement would be referred to by part of its full description, as "Lot 102" and that Mr and Mrs Timbury's servient tenement would similarly be referred to as "Lot 327". This assists in removal of the precise addresses of the properties, and thereby reduces the risk of identity theft from the publication of these reasons. 9The Maitland Vale district lies on the northern side of the Hunter River about 6 kilometres northwest of Maitland. Maitland Vale Road and the Hunter River run very approximately east west in this district. 10Lot 102 is landlocked, although it has a river frontage to the Hunter River on its southern side. Its northern boundary is the southern boundary of Lot 327. Mr Buckley purchased the lot in 1999, constructed a residence on the lot, and has lived there since 2000. 11On its northern side Lot 327 abuts onto Maitland Vale Road. It is a property of approximately 13 hectares with a machinery shed, horse stables, a horse shelter, storage shed and trees. Mr and Mrs Timbury purchased Lot 327 in May 2007, but they do not live there. I accept their evidence that they intend to graze and breed thoroughbred horses on Lot 327, although they have not been able to do that to date. But, from time to time since May 2007, they have grazed livestock on Lot 327. 12When Mr Buckley purchased Lot 102 the neighbouring Lot 327 was owned by the Hipwell family, who used it as part of a beef cattle enterprise. The Hipwells used to move cattle regularly between Lot 327 and nearby properties where they conducted that enterprise. 13Lot 327 is burdened with a 4 metre wide right of carriageway ("the easement") in favour of Lot 102, created by an instrument dated 31 May 1991. The easement commenced from a point where the northern boundary of Mr Buckley's property, Lot 102, meets the southern boundary of Mr and Mrs Timbury's Lot 327, and at the eastern boundary of Lot 327. The easement then traverses Lot 327 in a north to joint Maitland Vale Road on the northern boundary of Lot 327. Throughout its length, the eastern boundary of the easement coincides with the eastern boundary of Lot 327. The surface of the easement is a gravel and earthen driveway constructed with under-surface pipes to help drain the run-off from the natural slope descending Lot 327 from west to east. 14The easement is now fenced on both sides. The easement provides an access to the rest of Lot 327 through a gate in the fence that divides the easement from the balance of Lot 327. Mr and Mrs Timbury fenced the easement off from the rest of Lot 327. Before their purchase cattle used to graze along the easement without hindrance and Mr and Mrs Buckley would pass the grazing cattle as they accessed Lot 102 along the easement. The fencing on the other side of the easement divides Lot 327 from neighbouring properties. 15At the time Mr and Mrs Timbury purchased their property in 2007 the only access to their land was through the easement, which served as an entry both to Mr Buckley's property and to Mr and Mrs Timbury's property. The Timburys have since constructed a separate driveway to the west of the easement, giving direct access to their property from Maitland Vale Road. So, they no longer have to use the easement for ordinary vehicular access to Lot 327. 16The gate has a solar-powered opening and closing mechanism, supported with a backup-battery. 17The right of carriageway is created by a 1991 deposited plan. It is not in contest in the proceedings that the "right of carriageway" should be construed in accordance with Conveyancing Act 1919 s 181A(1) as if the following words (from Schedule 8, Part 1) were inserted in their place, conferring rights as follows: Full and free right for every person who is at any time entitled to an estate or interest in possession in the land herein indicated as the dominant tenement or any part thereof with which the right shall be capable of enjoyment, and every person authorised by that person, to go, pass and repass at all times and for all purposes with or without animals or vehicles or both to and from the said dominant tenement or any such part thereof. 18In 2001 Mrs Hipwell installed a vehicular gate at the Maitland Vale Road end of the easement. 19The gate may be operated using a hand held remote control device, or by pressing a button, fixed to the fence close to the gate. The opening mechanism may be switched, by use of a key, to either "motorised" or "manual" operation. In the former mode, an electric motor opens and closes the gate. In the latter mode, the person using the gate is required to move the gate open and close by hand. Mr Buckley has kept a key attached by wire near this keying mechanism since its construction. 20Each party has a very different view about the importance of different modes of use of the area of the easement by the other. According to Mr Buckley, Mr and Mrs Timbury do not need to use the easement to access their property at all. He says that he has observed them driving to the powered gate, chaining it, and then returning to their property, without entering the easement. 21The Timburys do not graze livestock on the easement. Mr Timbury alleges this is because the powered gate is so unreliable that he is concerned livestock may be stolen or may stray onto the roadway and cause damage to passing traffic or injury to motorists.

A dispute develops in Maitland Vale 22Mr Buckley and the Timburys were at peace with one another for many years. It is a remarkable feature of this case that between May 2007 when the Timburys purchased Lot 327 from the Hipwells and May 2010 when the first salvo of contentious correspondence was sent, that there is no evidence of any disharmony between these neighbours. 23Much about these proceedings can be inferred from this period of relative peace. During that period the solar gate apparently operated without problems. Mr Buckley could mow the verge of the easement without protest from the Timburys, the drainage system under the road surface appeared to work without problems for either neighbour. And Mr Timbury had not felt it necessary to add his own gates to the easement. 24But all that changed in May 2010 for reasons that are not difficult to fathom. Neighbourhood disharmony broke out because of the construction of substantial brick pillars at the boundary of Lots 102 and 327 at the southern end of the easement, where persons leave Lot 327 and enter Lot 102 to approach Mr and Mrs Buckley's home. Both parties agree that when the brick pillars were constructed an existing agricultural gate was removed from the same site. 25This separate dispute about these brick pillars was settled. So the Court did not have to look into it. But it was clearly the subject of much bitterness. Mr Buckley had erected the brick pillars on the Timburys' land. There is no issue that the brick pillars encroached upon and were a trespass on the Timburys' land. The photographs show them to be substantial and imposing structures. Within two months of Mr Buckley commenced these proceedings by Summons on 4 May 2012 seeking relief in relation to the easement. The Timburys launched a Cross Summons seeking relief under the Encroachment of Buildings Act 1922 in relation to the brick pillar structures. The Court did not hear the Cross Claim, because it settled at mediation in August 2012. 26But this encroachment led to enmity. Mr Timbury found Mr Buckley's conduct in erecting the brick pillar structures highly offensive. His correspondence makes this clear. An account of the course of the present dispute concerning the easement shows that it is essentially a derivative of another initial source of tension between these neighbours, the brick pillars. 27Why does this other dispute matter? Although the Court does not have to decide the merits of any part of the brick pillar dispute, the Court has to judge both the credibility and the reasonableness of these parties. An understanding of how their dispute arose, and what their motivations, is an important part of the fact finding process. 28The first sign of neighbourhood trouble came on 6 May 2010. On that day the Timburys' solicitor, Mr S.J. Bray of MRM Smith Dunlop Lawyers wrote to Mr Buckley complaining about the brick pillar construction which had commenced on approximately 29 April 2010. Mr Bray's complaint was "of an entrance gateway and fence on the northern boundary of your property ... being erected without any formal notification or consultation with our clients". About 80% of this 2 page letter was occupied with complaints concerning the brick pillar structure, and is not of present relevance. But then the letter left the issue of the encroachment from the brick pillars and turned to the effect of the new structure on the easement. 29Mr Bray's letter referred to a former gateway across the southern end of the easement in the following terms: We are also instructed that an existing gateway across the bottom end of the easement [the southern end] was removed at the time the gateway was erected. Our clients require the immediate replacement of that gate in a proper and workmanlike manner and they further require that the gate when replaced is to be kept properly closed and remain so at all times in the future. What the Timburys regarded as the peremptory removal of the existing gate without their being consulted, to some extent explains their later behaviour in trying to re-erect another gate in the area, a matter to which these reasons will later return. 30But as if prompted by these events at the southern end of the easement, the 6 May letter took up the issue of the solar powered gate at the northern end of the easement, in the following terms: We are further instructed that at the top end of the easement facing Maitland Vale Road there is a solar powered gate which fails to operate and close properly. Our clients require this gate to be repaired and maintained in good working order so that it also can be closed and properly secured at all times. Our clients require the gates at both ends of the easement to remain closed to prevent unauthorised access to their property and to provide protection and security for livestock and improvements on their property as well as on your own. 31Here in the very earliest correspondence through their lawyers, Mr and Mrs Timbury are raising the issue of "protection and security for livestock and improvements on their property", issues to which they have returned again and again in the evidence. Their concerns about these issues are in my view well founded, as these reasons will later explain. 32Mr Buckley replied three weeks later. His reply showed incomprehension of the issues the Timburys were raising. It dealt with the "easement" issues first in words that speak for themselves: I was surprised to receive your recent letter dated 6th May. It is a very impressive list of grievances and threatened actions, especially considering we have had little cause to think of the Timburys as anything except distant neighbours. I have used our Right of carriageway for 11 years without incident, dispute or obstruction. Your clients have fenced and locked off our carriageway from the rest of their property; consequently our use of the 400m narrow laneway has not, and is never likely to be, result in any plausible detriment to your client's security. I am fully aware of my obligations and rights in regard to my Right of carriageway. I do not propose to do anything about the content of your letter, except to address the issues of "agreement" and "encroachment". 33Then Mr Buckley's letter dealt with whether there was an agreement and whether there was an encroachment, and it concluded with two paragraphs that were indicators of a dispute that was bound to worsen: It is beyond our understanding why an incoming neighbour would want to create this toxic and uncertain situation over a few sq inches of remote boundary ground that has had no change in usage for at least 30 years. I particularly enjoyed the conditional offer of a future meeting with your clients to resolve their complaints. My wife arranged such a meeting with your clients for Sat morning 8th May, however they failed to attend and did not have the courtesy us with a revised time. Your letter removes any uncertainty about what we can expect from your clients in the future. 34Mrs Buckley gave evidence. I did not realise until she did that I know her well. She briefed me as a solicitor over many years when I was at the Bar. I acted as counsel representing the clients of her firm, WJ Enright & Son Solicitors, at Maitland. When she appeared in Court I immediately raised with the parties the fact that I knew her. Both sides said they were well aware of that fact and neither had any objection to my hearing the proceedings. And Mr Hewitt on behalf of the Timburys indicated that they raised no issue concerning Mrs Buckley's credit. Nor for that matter was there any issue about Mrs Timbury's credit: she was not cross-examined. 35There was no other correspondence in evidence between these neighbours between May 2010 and February 2011. During that period it appears that the brick pillars were completed and the parties continued to keep their distance. 36But that changed on 15 February 2011. I infer from the documentary evidence that on that day Mrs Buckley was the last person from her household to leave Lot 102 at approximately 8am, closing the gate completely behind her. She returned at approximately 5.30pm and found the gate was open. She used the key to disengage the motor, manually closed the gate, and then reengaged the motor. Mr Buckley gave an account of this in a letter he sent by facsimile to Mr Timbury on 17 February. I have little doubt that the account Mr Buckley gave of Mrs Buckley's experience with the gate on 15 February is correct. 37But that is not how Mr Timbury saw it. He put a different interpretation on the events of 15 February and maintained that Mr and Mrs Buckley had acted deliberately to lock the gate in the open position. He sent a facsimile to Mr Buckley that day, explaining his version of what happened. This was that he had found the solar gate in the "open position". He drew a rather different conclusion from the circumstances, which he explained in the following way: Upon closer inspection, not only had the gate been left open, it would appear it had been deliberately locked in the open position and the key, which operates the locking mechanism, had been removed. This denied me the ability to shut the gate without causing damage to the closing mechanism and also, had the gate been locked in the closed position, you would have denied me access to my own property. This is a very provocative action which puts at risk the good neighbourly and co-operative relationship that we have experienced in the past six months or so. This action is totally unacceptable and therefore, I require you to have the key placed back in the gate locking mechanism and left there and a copy of the key provided to me as the landowner, within 48 hours. I will call in at your pharmacy this coming Friday morning to collect this key. 38Mr Timbury concluded the gate had been deliberately locked open and the key removed. In my view, a far more likely conclusion from these events is that the gate simply malfunctioned in the open position. Mr Timbury found it open but was unable to locate the key. I do not accept that he removed the key. Nor do I accept that he would have asked for another key, when he already had one. It is not unlikely that a third party may have interfered with the operation of the gate on this occasion and removed the key leading to its malfunction and to heightened conflict between these two neighbours. 39But Mr Buckley's and Mr Timbury's existing views and suspicions made this incident a fertile source of mutual angst. Mr Buckley firmly held the view that the powered gate did not malfunction. In contrast, Mr Timbury was convinced that Mr Buckley had locked it open. But in my view they were both wrong. 40The gate was a mechanical device. Mechanical devices break down. I accept Mr Timbury's evidence that his gate had malfunctioned. And Mr Buckley did not call evidence that the powered gate could only fail in the safe closed position. Temporary mechanical failure is the likely explanation. And, why would Mr Buckley even be motivated to lock the gate in the open position? There is no suggestion he had ever tried to do that before, and I find that he did not. 41What apparently started as an accident, became a trigger for some very deliberate conduct on both sides. There is conflict about what happened on the following days, 16 and 17 February 2011. Mr Buckley, supported by his contemporaneous correspondence, says that on both those days he returned home to Lot 102 to find that Mr Timbury had, according to him "interfered with our gate closing mechanism by chaining the gate closed". Mr Buckley protested in a letter on 17 February "you are obstructing our right of way and causing damage to our gate closing motor". 42I accept that Mr Buckley was by then keeping a close eye on Mr Timbury and that Mr Timbury's conduct was indeed deliberate. Mr Buckley recorded contemporaneously what he saw on 17 February in an account that I find mostly credible, "in case you intended to deny this intrusion, at 4.35pm today we observed you drive a burgundy sedan from your gateway to ours, chain the gate, and use the 'missing key' you complained of, to disengage the gate closing motor. This behaviour must cease immediately". 43I do not accept that Mr Buckley could see at a distance the "missing key" being used by Mr Timbury. But I do accept that from 16 February 2011 onwards and until the hearing, Mr Timbury repeatedly chained up the gate, no doubt convinced that Mr Buckley was the person, who had deliberately left it open on 15 February, and because he had found it open on other days. 44Mr Buckley was infuriated at this. He took the firm view that Mr Timbury was not entitled to chain the gate and that all users of the powered gate including himself should take the chain off and leave it undone. But he overreacted. He decided to place the following provocative notice on the gate. The notice is not reproduced here in its original capital letters. But in its original 24 point type it read as follows: Before you press the button Please check gate is not chained shut - if so, release the chain first and leave undone. Malicious neighbour is doing this to obstruct access. If you are disabled, or cannot release the chain - phone the house for assistance - xxxxxx 45Mr Timbury responded to the notice. In a letter of 30 June he denied that either of them was a "malicious neighbour" or "that malicious actions had been taken". He then made the rather obvious point in his 30 June letter, "we are not neighbours of the land where this gate is located, we are the landowners". 46Mr Buckley's judgment was too hasty. Calling Mr Timbury "malicious" at that point was not well supported by the evidence. Unfortunately though Mr Timbury's conduct before October makes the description (though provocative in itself) not entirely inapt.

February to October 2011 - Tensions escalate 47Tensions between these two neighbours rapidly escalated over the next eight months. Each used different tactics. Some acts were more unreasonable than others. The escalation was principally driven by the two husbands Mr Timbury and Mr Buckley. There is not the slightest evidence that either of their wives was promoting discord. Nor was the credit of either woman in issue. The events of this next eight months explain how the three other disputes about obstruction to the easement arise. A short narrative of the events of this ensuing period explains how this came about. 48Mr Buckley first decided to take the matter to the Local Land Board. He served a Notice dated 28 February 2011 on Mr Timbury on 1 March 2011. The Notice signified Mr Buckley's intention of applying to the Local Land Board after 31 days if Mr Timbury did not agree with what were described as his "proposals". 49It is not necessary to set the Notice out in full. But the "proposals" went well beyond Mr Buckley's legal rights, as these reasons later make clear. In short, the proposals were: (1) that Mr Timbury not "latch, chain or close by any means the gate" without first "obtaining my written acknowledgement"; (2) that Mr Timbury should not touch the automatic opening mechanism on the gate unless required "for urgent stock control or protection"; (3) that Mr Timbury should not "interfere with or obstruct the use of" the easement other than for "urgent safety needs to stock"; and (4) Mr Timbury should operate the automatic opening mechanism by the press buttons or the keying device. Mr Buckley ultimately notified Mr and Mrs Timbury on 3 May that there would be a hearing at the Local Land Board although the hearing did not proceed. 50Mr Buckley began to undertake personal surveillance of Mr Timbury and the gate. He kept a log of incidents for the period between 18 February 2011 and 17 June 2012. The log records the intensity of the warfare that had broken out: the gate was chained on 179 days on 294 occasions and as many as 6 times in 1 day. Presumably if it was rechained 6 times in a day it was unchained between those times by Mr Buckley. Each man was vigorously and actively asserting his perceived legal entitlement over this period, to the point of the obsessive. 51I accept Mr Buckley's evidence about the consequences of opening a chained gate using its motorised function. This risks damage to the motor which would be driving against an immovable obstacle. The risk of damage to the mechanism in those circumstances is obvious. But the real issue is whether the Timburys had an entitlement to chain the gate, or whether Mr Buckley had an entitlement to use the motorised device unconstrained by the chain. 52A pattern then shows itself in events. Mr Timbury took three separate physical actions in relation to the easement in May, August and October. Each was deliberately provocative and was designed to test the limits of Mr and Mrs Timbury's rights as servient tenement owners in relation to the easement. They involved: blocking under-road drains (May 2011); placing rocks to impede mowing of the easement (August 2011); and installing gate posts in the easement (October 2011). 53Each of these matters is dealt with under the headings below. The August and October actions are admitted. But I infer Mr Timbury was also responsible for what happened in May. But first, it is necessary to resolve some remaining disputes about latching the gate.

(1) Latching the Gate 54Mr Timbury's evidence was that the solar powered gate regularly malfunctioned and did not close at all, or only partly closed when it operated. I accept that it did malfunction in February 2010 and jammed in the open position more than once. According to Mr Timbury, unless latched, the gate does not meet the defendants' reasonable need to contain their animals grazing in the right of way and does not prevent unauthorised or accidental access of persons to their property. I accept this as a reasonable and genuine concern on the Timbury's part in relation to their stock. 55Mr Buckley contends that latching and chaining the gate interferes with the motor mechanism of the gate and thus causes damage to its mechanism. Mr and Mrs Timbury's evidence is that: they have to latch the gate because its operating system is unreliable and it spontaneously opens, and the true reason that Mr Buckley objects to the latching of the gate is that he and Mrs Buckley have to get out of their vehicle to open and shut it. 56Mr Buckley also alleges that chaining of the motorised gate may render it impossible for visitors with limited mobility unable to open the gate using the motor function, and thus render it impossible for them to enter through the only access to Lot 102. 57Mr Buckley gave two examples of immobile visitors. He explained that his elderly father had been unable to unlatch the chain when he was looking after the plaintiff's property in Mr Buckley's absence. Mr Buckley also explained that when a friend with a severe disability visited the property and attempted to open the gate using the automatic function, the gate was chained and it jammed against the chain. He was unable to open the gate and had to telephone Mr Buckley in order to access the property. I accept Mr Buckley's evidence both of these incidents occurred. But this case was not pleaded as a claim based on the Disability Discrimination Act 1992 and the Court should apply the general law of easements to it. 58But Mr Buckley's case was in part based on the proposition that the gate could not have begun to malfunction in February 2010, because it had worked satisfactorily for nearly 10 years. But there are problems with that case which I do not accept. The mechanism was about 10 years old by 2010. There was no evidence called of its technical renewal in recent times. Indeed the only technical evidence about the gate was an expert inspection that was done to it by Automatic Gate Solutions in 2012. This inspection rather suggested that poor insulation of one of the electric cables to the gate might in fact cause it to operate intermittently. 59Mr Buckley made an open offer in Court to make such repairs to the powered gate as were necessary to ensure that it worked perfectly in the future. But that was not a substitute for evidence to the same effect. Had such evidence been available the Court would have been dealing with a stronger case from Mr Buckley's side on this issue. Moreover, an offer to the effect made, without the repairs being done, still leaves open the possibility of gate malfunction if the repairs are not as required.

(2) Blocking the Under Road Drains - May 2011 60The easement roadway has under-road pipes at eight locations. Mr Timbury says that Mr Buckley dug depressions parallel to the under-road pipes towards the fence line dividing the easement from the rest of Lot 327. Mr Buckley did this to capture the rainwater so that it would be collected more efficiently as it flowed off the Timbury's land and directed towards the under-road pipes and not flood the road. 61Mr Timbury states that this drainage system has become redundant since 2010 when he commissioned Lantry Earthmoving to construct contour drains to ensure that rainwater runoff would be diverted into the defendants' two dams. Although Lantry Earthmoving have done work in the area, I accept Mr Buckley's evidence that the pipes are necessary and that all rainwater runoff has not been diverted in this way. 62Mr Timbury's evidence is that the depressions dug by Mr Buckley have remained and have undermined his fencing, allowing wild dogs and other animals to crawl through beneath the wire netting and to cause injury to his livestock. He says that he therefore filled these depressions with rocks. But he says that all of the rocks he placed are on his land. He disputes that any rocks have been placed upon the easement, or in the entrances to the drains. 63Mr Buckley disputes that he dug any depressions alongside the newly created fence. According to Mr Buckley, Mr Timbury has placed rocks at the entrance to and blocking the drains, so the rainwater run off is diverted away from the drains and onto the road surface. This in turn causes displacement of the loose blue metal placed across the top of the road, sometimes washing large amounts of material onto Maitland Vale Road and into the neighbouring paddock. Mr Buckley says this has caused damage to the road surface and subsidence of the road surface at the large drain way closest to Maitland Vale Road. 64Mr Buckley gave evidence that, subsequent to commencement of the proceedings, the Timburys removed some of the rocks from the drains and placed them up against the wire fencing. For example, his affidavit evidence of 21 September 2012 was that the rocks had been removed from the drains and are presently in the positions depicted on Annexure C to that affidavit. 65I accept Mr Buckley's evidence that he has observed rainwater being diverted and flooding across the surface of the road since these rocks were placed in the drainways. I accept his evidence this has also displaced surface gravel and that he has had to repair significant subsidence of the roadway especially near the automatic gate. But in my view he did dig depressions under Mr Timbury's fence at the western boundary of the easement. And Mr Timbury is equally entitled to fill those depressions in on the parts of Lot 327 beyond the western fence line, not burdened by the easement. Despite the lack of survey evidence it is clear that this fence line is the boundary of the easement. 66The photographs assist the Court to infer the likely effect of these rocks on the drains. Rocks still fill up the mouths of these drains. Their probable effect in times of high water run off from Lot 327 is to impede the ingress of water to the drains. It is self evident from the fact there are eight drains along the length of the easement that Mr Buckley perceived a need for significant under-road drainage in the area. Mr Timbury says he has not observed flooding over the road in times of rain but I do not accept that evidence. 67Mr Timbury says he has not placed any rocks on the right of way or in the pipes under the right of way. But he says that he "has placed rocks in the depression in the ground, to fill gaps underneath the fence wire", which he says has not resulted in any deterioration to the right of way. 68I do not wholly accept this evidence. I do accept that Mr Timbury placed rocks under the fence line boundary of the easement to fill the depressions Mr Buckley had dug. That he was quite entitled to do. 69But the rocks in the drains are a different question. Mr Buckley was quite unlikely to place the rocks there himself. They are equally unlikely to have been placed there by a stranger. And the photographic evidence of the rocks in the drains makes it unlikely that rocks of that fairly substantial size were just washed there. In my view Mr Timbury placed rocks very near the drain openings at the same time that he placed rocks at the fence-line. Perhaps some smaller rocks that were not actually placed at the mouth of each drain were soon washed there by the natural action of flooding water from under the fence line but this in my view does not account for most of the rocks, which Mr Timbury placed there. 70And it is not difficult to infer that Mr Timbury put rocks at or close to the drain entrance. Someone who admits putting an unsightly gatepost in the easement, in part in my view just to annoy Mr Buckley, and places rocks on the grassy verge to deter Mr Buckley from mowing, is hardly likely to hesitate before placing rocks near the entrances of sub-surface drains. 71Mr Timbury says he has been on the right of way in heavy rain and there is no accumulation of water near the automatic gate. Mr Buckley has not provided photographic evidence of storm water accumulation. But I generally prefer Mr Buckley's evidence, who I accept has been there in heavy rain and is sensitive to and observant of this problem.

(3) Stones on the grassy verge - August 2011 72Mr Buckley has mown the grass along the edges of the roadway on the easement since he purchased his property in 1999. I accept that he has done this in part to minimise the chance of grass fire near the road, and in part for neatness. 73Mr Timbury said that he and his wife also regularly maintain the grassy area beside the easement, spraying weeds, removing branches and debris around fencing, and generally keeping the place tidy. But according to Mr Timbury he has deliberately left the grass long, so that his horses would have grass on the easement on which to feed. 74But in August 2011 Mr Timbury placed some larger stones at intervals along the grass strip alongside the easement. Mr Timbury acknowledges he did this to discourage Mr Buckley from mowing the area. Mr Timbury acknowledges that he deliberately placed these stones at intervals along the grass strip alongside the right of carriageway. 75His purpose was not just to annoy Mr Buckley. He breeds Welsh ponies and he wants to graze them in the easement area. He says he cannot do this because there is no feed left after Mr Buckley's mowing. Mr Buckley counters by saying that Mr Timbury is not grazing Welsh ponies in the easement anyway. Mr Timbury in turn counters this by saying that he cannot safely allow his Welsh ponies to graze on the easement whilst the Maitland Vale Road gate can be left open allowing the ponies to escape. 76Strangely, I accept the correctness of both sides of this particular debate. Mr Timbury does genuinely want to graze his ponies on the easement but the risk of their escape or theft because of the gate problem is deterring him from doing so. So he has not been using the easement for their grazing recently. If the parties could see it, they of course, have a simple common interest in solving this problem: a secure fail safe (possibly electronic) gate would allow Mr Timbury to graze his ponies and Mr Buckley to keep the grass down and save himself the effort of mowing 77Mr Buckley's case is not to be criticised because he has not called expert evidence about the prospect of grass fires causing damage to persons or vehicles using the right of way. This is a case where both parties fortunately showed restraint in their engagement of experts. The risk of grass fire in the Australian countryside in hot dry summers needs no elaboration. 78But mowing the easement is said to reduce the defendants' available pasture. It is at this point that the dominant tenement owner's need for a fire safety buffer to protect his passageway conflicts to a degree with the servient tenement owner's desire to use the area as pasture. 79This particular conflict shows that neither Mr Buckley nor Mr Timbury seem prepared to appreciate the risks and hazards associated with the other's use of the easement area. I accept as quite genuine Mr Buckley's concern that the easement be mowed so it did not present a fire hazard to persons using it. Mr Buckley was also motivated to beautify the easement. But that was a subsidiary purpose. Yet Mr Timbury would not recognise this was a risk at all. And in that he was wrong. 80But aspect of the dispute represents a mirror image of another aspect of the dispute in which Mr Buckley took an equally unreasonable view. One of Mr Timbury's concerns about ensuring the gate was latched is to prevent either the escape of stock or prevent the intrusion into his property of persons who might be invited in there by an open gate. But Mr Buckley did not seem to recognise this as a risk, or certainly not one sufficient to latch the gate. 81It seems to me that both Mr Buckley and Mr Timbury were wrong to fail to recognise the risks associated with the use of the easement and the use of Lot 327 by the other as the reasoning below shows. I have decided these two parts of the case (about mowing the verge and about the gate) on the basis that the fears expressed by each party should have been recognised and allowed for by the other.

(4) Posts in the Easement Roadway - October 2011 82On about 8 October 2011 Mr Timbury placed two gateposts near but outside the easement: one just outside the powered gate at the Maitland Vale Road entrance to Lot 327 and the other at the southern end of the easement at the entrance to Lot 102. Both of these gateposts were unsightly and would have looked out of place, given that there were already gates in the vicinity of each. 83Mr Timbury explained that the gatepost at the entrance to Lot 102 ("the southern gatepost") was put there in case it was necessary for him to erect a gate there in the future. This seems odd because Mr Buckley had already placed a gate between the brick pillars, which had not been his original intention when constructing those pillars. Mr Timbury's view was that it was difficult to use that gate between the brick pillars, so he says he had to erect his own. Whether that is right or not it is difficult to judge. But in final submissions Mr Buckley offered for Mr and Mrs Timbury to be able go onto Lot 102 to allow the gates attached to the existing brick pillars to be closed, so that the Timbury's may have protection against their stock straying. This was one welcome conciliatory sign from Mr Buckley in this contest. 84Mr Timbury ultimately never put up a gate at the point of the southern gatepost. Instead he removed the gatepost during the weekend at the end of the trial. Certainly, that was foreshadowed for Mr and Mrs Timbury in the course of final submissions and the Court has not been notified otherwise since. This post removal was another welcome conciliatory sign in this contest, this time from the Timburys. But that gatepost was certainly there between 8 October 2011 and about 28 November 2012. The photographs of it show its general unsightliness. 85The gate post at Maitland Vale Road ("the northern gatepost") was not there for long. It was never photographed in situ. On 17 October 2011, a few days after it was installed, Mr Buckley's solicitor objected and asked Mr and Mrs Timbury not to erect a full gate. On 22 October Mr Timbury removed the northern gate post. 86There is a dispute as to whether Mr Buckley actually asked Mr and Mrs Timbury to remove the southern gatepost at entrance to Lot 102, in the letter of 17 October 2011. Mr and Mrs Timbury say they simply voluntarily indicated that the gatepost could be removed. But in my view it is sufficiently implicit in the terms of the 17 October letter that removal was really being requested, although the request was not made formally the letter. Harris and Co, Mr Buckley's solicitors, seemed sensibly in the 17 October letter to try and avoid escalating hostilities with too many formal demands. In a case like this, Mr Behringer of Harris and Co should not be criticised for his diplomacy. 87Ultimately neither of these gateposts remains an issue in the proceedings. In final submissions there was discussion as to how relief might be granted in respect of gateposts that were outside the easement before gates were added to them, but that debate did not have to be continued because of the plan to remove them at the end of the proceedings. Relief is not now sought in respect of either of them. It is difficult to see how the gatepost issue would have costs consequences for or against either party in these circumstances.

Applicable Legal Principles 88The applicable legal principles in respect of all the situations that have arisen here may be shortly stated, starting with the gate. 89Gates across easements. A real and substantial interference with the enjoyment of a right of way 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 particular case. Contests about gates across easements often appear in the books. From them clear principles have developed. 90The first of these, Petty v Parsons concerned the right of a servient owner to erect a gate and keep it open at certain times and closed at other times. In the leading judgment Lord Cozens-Hardy MR stated the applicable law (at 662) as follows: It must not be forgotten that this is not a highway; it is a private road. It must not be forgotten that the rights of interference with a right of way are by no means the same in the case of a public highway as in the case of a private road. In a public highway any obstruction is a wrong if it is appreciable. That I think is the recognised distinction. Any appreciable obstruction in a highway can be prevented by indictment or otherwise, but in the case of a private right of way the obstruction is not actionable unless it is substantial. There must be a real substantial interference with the enjoyment of the right of way. It is contended by the defendant that any gate which interferes with the full and absolute enjoyment of any and every inch of way is per se and necessarily an obstruction in respect of which he was justified in pulling down, as he did, this gate. On the other hand the plaintiff alleges that she is absolutely entitled to put up and maintain a gate at the east end of the blue road. ......... 91Swinfen Eady LJ held that the erection of the gate, and keeping it open during non-working hours, was not a substantial interference. His Lordship stated the principle in the following way (at 665): The law is that when an easement has been granted the grantor cannot derogate from his grant, that is to say he cannot substantially interfere with the easement as granted. The question we have to consider is whether the erection of the gate will be a substantial interference with the easement as granted. 92Pickford LJ agreed and said that, in relation to a right of way over private land, "... so long as there is reasonable access to the land, and a reasonable opportunity of exercising the right of way, there is not any obstruction to it, and there is no derogation from the grant". 93The Australian cases generally distinguish between gates on urban and on rural land. Prima facie, leaving a gate open on rural land is not an injury - there must be actual damage consequent upon the gate being left open: Hender v Gohl & Anor [1928] SASR 325. And the plaintiffs are not entitled to complain of any interference with their use and enjoyment of the servient land, if the interference is merely incidental to any reasonable exercise of the defendants' right: Gohl v Hender [1930] SASR 158 at 163 per Napier J, reaffirming views he expressed in the Full Court hearing: Hender v Gohl [1928] SASR 325. 94In Hender v Gohl [1928] SASR 325 the plaintiffs, the owners of the servient tenement, used the tenement for grazing. In order to prevent their stock from straying, they erected a swing gate. The plaintiffs alleged that the defendants had persistently neglected and refused to close the gate after passing through. As a consequence, the plaintiffs claimed they had to maintain constant watch and to employ someone to close the gate. In the absence of the plaintiffs showing that they had suffered loss due to the actions of the defendant, the South Australian Full Court held that the defendants were not obliged to close the gate after passing through. 95The Full Court in Hender v Gohl [1928] SASR 325 approved the statement of the law in Pettey v Parsons and Murray CJ said (at 329): A duty such as that [i.e., to close the gate after passing through - my interpolation] .... can only arise from contract, Statute or the common law. No contract or Statute binding the defendant to close the gate after using it was referred to, and, in my opinion, there is no principle of the common law that goes to the extent required. All that the common law says is, Sic utere tuo ut alienum non laedas. Accordingly, the owner of the land subject to a right of way may erect a gate, provided it does not substantially obstruct the right of way, and the owner of the right of way may open the gate for the purpose of passage, provided he does not substantially injure the owner of the land. To merely leave the gate open is not an injury. There must be actual damage consequent upon the gate being left open. This appears to me to be in accordance with the ordinary law as to a private nuisance arising from the use of property. ... It was not shewn that the plaintiffs had suffered any loss due to the conduct of the defendant or any person for whom she was responsible. 96The Chief Justice was of the opinion that the result of the case should follow from the absence of any evidence of damage. Napier J agreed and said inter alia (at 330): Assuming that the plaintiff was entitled to maintain his gate, I agree with the Chief Justice that every omission to close it is not necessarily a breach of duty, giving a right of action; but I think with him that it might be an unreasonable use or exercise of the rights of way to open the gate and leave it open, and if actual loss or damage resulted I think that this would be an unreasonable, and therefore an unauthorised, interference with the plaintiff's use and enjoyment of the servient land. If this is the position, the rights of the parties should be capable of adjustment upon the ordinary 'rule of give and take, live and let live', between neighbours. 97His Honour then held that in order to give a right of action it would be necessary for the plaintiff to prove that the gate was left open upon some particular occasion or occasions by the defendant etc, under circumstances which amounted to an unreasonable use or exercise of the right of way, and that actual loss or damage had resulted. 98In a later action between the same parties, Gohl v Hender [1930] SASR 158, arising out of the same basic facts, Napier J found in favour of the plaintiff as it was, or may be necessary to keep in the stock depastured on the land. 99Napier J found that in the previous Full Court case (where he was also a member of the bench that heard the Full Court case) there had been no evidence of damage to the plaintiff. He then dealt with the question of whether the plaintiffs' right to maintain the gate implied an obligation on the part of the defendants to close it after use. He said (at 163 and following): ... [I]n the ordinary course of things I think that any person who is entitled to open the gate in the exercise of the right, and thereby to interfere with the plaintiffs' property for the purpose of passing through it, acts unreasonably if, having opened the gate, he leaves it open when he knows, or ought to know, that it is, or may be, necessary to keep in the stock depastured on the land." 100Justice Napier held the plaintiffs were "entitled to maintain an unlocked gate for the purpose of preventing stock depastured on the land from escaping therefrom so long as the same is not a substantial interference with the easement of the defendant, and that so long as the plaintiffs are entitled to maintain the said gate the defendants and the servants and agents of the defendant are under a duty or obligation to close the same when they or any of them have opened it in the exercise of the rights conferred by the easement, unless the circumstances of the particular occasion afford some sufficient reason or excuse for leaving it open". Napier J granted an injunction to restrain the defendants from any unreasonable use of the right of way by leaving the gate open in breach of the duty or obligation aforesaid. 101In 1986 Neasey J approved and applied Gohl v Hender (1930) SASR 158 in Stewart v Cooper [1986] TASSC 3; [1986] ANZ ConvR 631. He considered it obvious that one of the primary needs of those using rural land for stock grazing is to prevent their stock straying: 21 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. 102Neasey J in Stewart v Cooper [1986] TASSC 3 at [17] summarised the guiding principles as follow: (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. 103More recently Young J, as his Honour then was, considered the authorities dealing with whether gates should be considered to be a substantial interference with a right of way Denton v Phillpot (1990) NSW ConvR 55-543 ("Denton v Phillpot"). In addition to the authorities already cited, his Honour considered and applied the following statements of principle: Denton v Phillpot at 590,029. 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. Even 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: Jackson on the Law of Easements and Profits at p155. But 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: Denton v Phillpot at 590,030. 104Blocking the drains. The argument about the effect of blocked drains interfering with the surface of the road was in substance an argument about Mr Buckley's ancillary right to do "whatever is reasonably necessary to make the grant effective": Burke v Frasers Lorne Pty Ltd (2008) NSWSC 988 at [21] per Brereton J. Ancillary rights can extend to remaking road surfaces, building bridges and making the way passable. The question is always whether the particular 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. The question here is whether Mr Timbury's deliberate blocking of the drains interfered with Mr Buckley's ancillary rights to preserve a smooth road surface over the easement. 105Rocks on the grassy verge. The dominant tenement owner has an ancillary right to undertake works in respect of the easement, which are reasonably necessary for the effective and reasonable exercise and enjoyment of the easement. Mowing the lawn is an ancillary act to protect the easement from the danger of fire. That is not a risk which the dominant tenement owner should ordinarily be required to bear in a rural area where the road is the only vehicular access to a house. The removal of native brush and undergrowth to clear obstructions and allow passage through the easement is well established: Treweeke v 36 Wolseley Road Pty Ltd (1973) 128 CLR 274 per McTiernan J at 280. That has been extended to dominant tenement owners to keep a track along the easement open and clear of native vegetation: Mantec Thoroughbreds Pty Ltd v Batur: [2009] VSC 351. Safe passage is an important feature of passage. Construction of bridges to ensure safe passage is a well recognised right of a dominant tenement owner: Burke v Frasers Lorne Pty Ltd (2008) 14 BPR 26,111. Removal of fire hazard may also be permitted. Although much may ultimately depend on the general probability of fire. Mowing or removal in summer may be more readily supported.

Discussion and conclusions 106The application of these principles to the Court's findings of fact lead to clear conclusions in the three areas of the latching of the gate, rocks in the drains and the stones on the grassy verge. 107The Court will not require Mr Timbury to unlatch the gate. A servient tenement owner's right to latch a gate to prevent his stock escaping or to prevent persons entering his property to interfere with his stock is well established on the authorities discussed above. Mr Timbury latching the gate is not unreasonable here. 108The fact that gate is an electronic one makes no difference, especially because I accept Mr Timbury's evidence that the electronic gate did malfunction from time to time and did so more than once in mid-February 2011. And an expert inspection that was done to the gate by Automatic Gate Solutions in 2012 tended to suggest that poor insulation of one of the electric cables to this 10-year-old gate might cause it to operate intermittently. Mr Timbury could not rely on it always shutting. Mr Buckley could not prove it always shut itself. In those circumstances latching a gate was not unreasonable, and is not unreasonable, provided the latch itself is not locked. 109The result might have been different if Mr Buckley could satisfy the Court that money had been invested in a gate, which could only fail in the closed position or had a number of features that made it clear that it could not jam in the open position. But that was not the evidence. The possibility of such a gate being installed does yet provide hope that these parties may one day be able to resolve their differences by agreement. 110Mr Timbury will be restrained from placing rocks in or near the subsoil drains under the roadway on the easement or in a position where they are likely to wash into the drains during times of rain. There is no evidence that Mrs Timbury has been involved in any such activity and the Court sees no basis to grant an injunction against her on this ground. The precise form of this injunction may need crafting and the parties may wish to bring in short minutes of order to give effect to it in light of the Court's findings. The principle reasons for the grant of this injunction is that the blocked drains are causing erosion in the surface of the road and a smooth road surface is "reasonably necessary for the effective and reasonable exercise and enjoinment of the rights expressly granted". 111The Court will not grant an injunction requiring the removal of the stones from the grassy verge. There is no evidence the stones prevent Mr Buckley from using a small mower to mow around them. It may be inconvenient to him not to be able to use a ride on mower over the whole surface of the grassy verge. But he is still able to mow despite the stones being there. And he can do this within his rights as dominant tenement owner sufficiently to reduce any fire hazard within the 4 metre wide easement by mowing around any larger stones that are on the easement. I have accepted his evidence that reduction of fire hazard is his main reason for mowing this area. Although the risk of fire is low at most times, mowing is a reasonable avoidance measure to inhibit the effects of fire on this rural easement. I am especially of that view in the circumstances of this case because this is the only vehicular access to and from Mr and Mrs Buckley's property during a bushfire. And mowing the easement is unlikely to be a realistic option during a bushfire. 112So in a sense the stones do not achieve the purpose for which Mr Timbury placed them. But Mr Buckley cannot require their removal either. And I would add that nothing in the terms of the easement would allow Mr Buckley to mow off the easement on any part of the Timbury's land not burdened by the easement.

Orders and Directions 113In the result therefore the plaintiff, Mr Buckley, has succeeded on one of his complaints, the blocking of drains, but failed on the other two, preventing the latching of the gate and removing the stones from the grassy verge. I will grant an injunction restraining the first defendant, Mr Timbury, from placing rocks in or near the subsoil drains under the roadway on the easement or in a position where they are likely to wash into the drains during times of rain. But I will otherwise dismiss the summons. 114This result may lead to argument about costs. The costs result that rather suggests itself in this case of partial success on both sides and findings of aggravating conduct against both parties leading to the litigation, is that each party should bear his or their own costs of these proceedings. But unless the parties agree about costs, I will direct them to put on written submission about the issue by Friday 23 August 2013. At the same time the parties may wish to forward to the Court agreed short minutes of order to give effect to these reasons. 115A discussion about costs between these parties may become an opportunity to see if they can further resolve their wider differences so they can live together in a more neighbourly way in the future. There were at the end of the proceedings some encouraging conciliatory signs from each side. 116I direct the parties to put on any written submissions about issues of costs by 5pm on 23 August 2013. 117At the same time I direct the parties to forward to the Court short minutes of order to give effect to these reasons. 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: 01 August 2013

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