Fenwick v Wambo Coal Pty Ltd

Supreme Court of NSW|2011-07-29|Before: White J

Pacific National (ACT) Limited v Queensland Rail [2006] FCA 91 Hoath v Connect Internet Services Pty Ltd [2006] NSWSC 158; (2006) 229 ALR 566 EK Nominees Pty Ltd v Woolworths Limited [2006] NSWSC 1172 Fenwick v Wambo Coal Pty Ltd [2011] NSWSC 176 Texts Cited: Peter Butt, Land Law, 6th ed (2010) Law Book Co Peter W Young, Clyde Croft and Megan Smith, On Equity (2009) Lawbook Co Category: Principal judgment Parties: Ronald Wayne Fenwick (Plaintiff) Wambo Coal Pty Ltd (formerly known as Wambo Mining Corporation Pty Ltd) (Defendant) Representation: M J Heath (Plaintiff) A R Spencer with C O Gleeson (Defendant) Sneddon & Partners (Plaintiff) Maddocks Lawyers (Defendant) File Number(s): 2009/291521

Judgment 1HIS HONOUR : These proceedings concern a right of way over the defendant's land. The defendant, Wambo Coal Pty Ltd ("Wambo"), owns and operates a mine in the Hunter Valley. The plaintiff, Mr Ronald Wayne Fenwick ("Mr Fenwick"), owns a farm adjacent to and south of Wambo's mine. Mr Fenwick claims to be entitled to the use of two rights of way over Wambo's land called in these proceedings " the northern right of way " and " the southern right of way ". On 13 December 2002 Mr Robin Hopps, then the environmental liaison project manager of the defendant wrote to Mr Fenwick and said: " To confirm our recent discussions I would like to confirm that your right of way has been relocated away from open cut activities to an alignment closer to Wollombi Brook, as per the attached plan. " A copy of the attached plan is Annexure A to these reasons. 2Mr Fenwick's property is shown as FP178612 lying immediately to the south west of the pink line described as " Existing Right of Way FP110084 2-2 ". 3The plaintiff does not have a registered easement described in the attached plan as " Right of Way Extension to Warkworth " coloured blue. Mr Fenwick contends that Wambo is contractually bound to grant a registered easement to provide that right of way, or is estopped from denying that he and his successors in title are entitled to that right of way. Wambo denies that Mr Fenwick is so entitled, but in final submissions made an open offer to give Mr Fenwick (but not his successors in title) a licence to use the route described in the plan as " Right of Way Extension to Warkworth " whilst reserving the right to vary that route to provide access to Warkworth. 4By a letter dated 23 October 2008 Wambo denied that Mr Fenwick was entitled to cross lot 83 on DP 548749 and claimed that that lot was not encumbered by a right of way. That is to say, it denied that Mr Fenwick was entitled to the northern right of way over lot 83. 5Wambo has denied Mr Fenwick access to the northern right of way at the crossing of South Wambo Creek (called Wambo Creek on the plan in Annexure A). 6It was only on the second day of the hearing that Wamo belatedly admitted that Mr Fenwick was entitled to the northern right of way. It still contends he is not entitled to a right of way (as distinct from offering Mr Fenwick a licence) that extends beyond lot 83. 7The plan in annexure A shows the northern right of way crossing two creeks. The crossing of the southern creek (South Wambo Creek, but called Wambo Creek on the plan) is presently impassable by vehicle. It is also impassable by foot as Wambo has built fences to block passage. Mr Fenwick claims that Wambo is obliged to reinstate the crossing of South Wambo Creek. 8Wambo contends that the only persons entitled to use the right of way are Mr Fenwick and his agents, servants and workmen. It denies that tradesmen or visitors are entitled to use the right of way. The logical consequence of its argument would be that Mr Fenwick's wife or family could not use the right of way. 9The principal issues are: (a) who is entitled to use the right of way; (b) whether Wambo is obliged to grant Mr Fenwick a right of carriageway along the route described on the plan as " Right of Way Extension to Warkworth "; (c) if so, what are the terms of the easement, in particular, does Wambo have the right to vary the route; (d) whether Wambo is obliged to reinstate the crossing of South Wambo Creek; and (e) whether Wambo is liable to pay damages for interfering with the right of carriageway, and, if so, in what amount.

Background facts: creation of the rights of way 10The northern and southern rights of way were granted to Mr Fenwick's predecessor in title, Mr Reginald Allen, on 13 January 1915. Prior to 13 January 1915, Mr Allen and Mr Frank McDonald were entitled as tenants-in-common to lots 8-14, 16, 17, and 19-22 of DP 3030. On 13 January 1915 they partitioned their holding. Mr McDonald became the sole registered proprietor of the northern lots in DP 3030, namely lots 8, 9, 21 and 22, and Mr Allen became the sole registered proprietor of the southern lots, namely lots 10, 12, 14 and 20, and parts of lots 11, 13, 16 and 19 of DP 3030. Annexure B to these reasons is a copy of the plan of lots 1, 2, 3, 7-14, and 16-23 in DP 3030 made on 4 September 1893. 11The northern and southern rights of way were created on 13 January 1915 in favour of Mr Allen on the partitioning of the land owned by him and Mr McDonald. Of present significance is that the northern lots subject to the northern right of way were lots 8 and 9 of DP 3030. The rights of way granted to Mr Allen on 13 January 1915 by Memorandum of Transfer A154688 were in the following terms: "... the transferors [Messrs McDonald and Allen] HEREBY GRANT to the transferee [Mr Allen] as owner for the time being of the land hereby transferred or any part thereof a right of way for himself his agents servants and workmen in common with the Transferors their agents servants and workmen on foot horseback or in vehicles over Lots 8 and 9 on Deposited Plan 3030 to the road leading from Bulga to Warkworth and also a similar right of way to the said road over the residue of Lots 11 and 13 and over Lot 17 of Deposited Plan by the nearest practical route from the south eastern boundary of the part of Lot 11 hereby transferred: Such respective rights of way to continue only until proper roads of access to the before mentioned road from Bulga to Warkworth shall be formed and dedicated and to be in such position or positions as the owners for the time being of the lands through which the same are reserved shall reasonably determine Provided that in the event of any dispute arising as to the reasonableness of the position of such rights of way or roads of access or any of them such dispute shall be settled by arbitration in accordance with the provisions of the Arbitration Act of 1902. " 12In 1925 Mr Allen transferred to Mr Archie Frost the land of which Mr Fenwick is now the registered proprietor. That property is called Farm 3 and is shown on the plan in annexure B. The Memorandum of Transfer to Mr Frost included the following reservation and grant: " This is the annexure marked 'B' mentioned and referred to in the Memorandum of Transfer made between Reginald Charles Allen and Archie Gordon Frost dated the twenty first day of October 1925. RESERVING thereout to the Transferror [sic] and all persons authorised by him an easement of right of way as appurtenant to Farm 4 being the residue of the land comprised in the said Certificate of Title to the South or South West or West of the land hereby transferred and every and any part or parts thereof for the Transferror and the owners and occupiers for the time being of the said Farm 4 and every and any part or parts thereof and his and their servants and workmen and all persons authorised by him and them in common with the Transferree [sic] with or without labourers carts carriages and other conveyances laden or unladen horses or other animals at all times over and upon a strip of land not exceeding half a chain wide following the course of the existing track from the said Farm 4 leading through Farms 2 and 1 (being the residue of the land comprised in the said Certificate of Title lying to the North, North East and East of the land hereby transferred) to the rights of way granted by Instrument No. A. 154688 TOGETHER with by way of grant and not reservation an easement of right of way as appurtenant to the land hereinbefore transferred and in common with the Transferror and the owners and occupiers for the time being of the balance of the lands comprised in the said Certificate of Title and every and any part or parts thereof and all persons authorised by him and them or any of them and any other persons to whom similar rights have been or may be hereafter granted for the Transferree and the owners and occupiers for the time being of the lands hereinbefore transferred and every or any part thereof and his and their servants and workmen and all other persons authorised by him or them with or without carts carriages and other conveyances laden or unladen horses and other animals at all times in over and upon the strips of land not exceeding half a chain wide following the course of the existing tracks running through the adjoining lands known as Farms 2 and 1 and leading to the rights of way created by the said Instrument No. A. 154688 and TOGETHER ALSO with the benefit in common with the Transferror and others as aforesaid the rights of way granted by such Instrument No. A. 154688. Such rights of way being a means of access to and from the land hereinbefore transferred and the road from Bulga to Warkworth. " 13The property called Farm 4 is also shown on the plan which is Annexure B to these reasons. On 8 December 1948 a Mr Cecil Brosi became the registered proprietor of Farm 4. That property was also subdivided. The current registered proprietors are descendants of Mr Brosi and a Ms McLaughlin. The certificate of title to Farm 4 records that it is entitled to the right of way over Farm 3 created by memorandum of transfer B278943 dated 21 October 1925 and is also entitled to the right of way over lots 8 and 9 in DP 3030 created by transfer A154688. 14The owners of Farm 4 have been given notice of these proceedings, but have not appeared.

Omission of northern right of way on Wambo's subdivision 15On 16 October 1970 the then registered proprietors of lots 8, 9, 21 and 22 in DP 3030 and of Farm 1 entered into a contract for the sale of that land to Wambo. Wambo became the registered proprietor of that land on 17 February 1971. On 28 January 1971 Wambo prepared a plan of subdivision for lots 8,9, 21 and 22 of DP 3030. The subdivision created lots 82 and 83 of DP 548749 and created a right of carriageway over lot 83 in favour of lot 82. The plan of subdivision omitted reference to the existing rights of way. On 17 September 1971 new certificates of title were issued for lots 82 and 83. The certificates of title for those lots failed to record that the lots were burdened by the right of way created in 1915.

Obliteration of road leading to Warkworth from the northern boundary of lot 83 16The Bulga to Warkworth Road referred to in memorandum of transfer A154688 appears (for part of its length) on DP 3030 running from a point west of Wollombi Brook in the vicinity of Bulga (that is about due east from what is now Mr Fenwick's property), and then travelling in a north-easterly direction crossing the brook and then continues in a northerly direction along the boundary of lot 21, thence northwest to Wollombi Brook, thence from west of Wollombi Brook in a north-westerly direction separating lots 7 and 8 to the northern boundary of lot 8. From there, there were council and Crown roads leading to Warkworth. Mr Hopps deposed that the north-westerly section of that road which separated lot 8 from lot 7 was closed in 1971. A handwritten notation on a document produced on subpoena from the Department of Lands also shows that part of the road as having been closed. Mr Hopps also deposed that the northern right of way had never been defined to a fixed location or route, but tracks had been used and changed over time according to changes in the mining operations conducted by Wambo and improvements to the tracks. Those tracks led to the northern boundary of what was lot 8 of DP 3030 (and which became lot 83) where it connected to Crown and council roads that led to the village of Warkworth. That road leading to Warkworth became known as the Wambo Mine Road, as it provided access to the Wambo Mine from Warkworth. 17The road leading from the northern boundary of lot 8 to Warkworth were lots 5 and 6 in DP720705. They are not shown on the plan of DP 3030 (although the map does refer to the road to Warkworth without delineating it). In 1987 Wambo applied for the closure of the road. Mr Fenwick objected on the basis that closure of the road would terminate his access along the right of way to Warkworth. By a letter to the Lands Office dated 20 October 1987, Wambo asserted that Mr Fenwick had no right of way through that part of Wambo's property. It gave no reason for that assertion. It did not maintain it at the hearing. Eventually, on 4 September 1989, Wambo's application to close the roads, being lots 5 and 6 of DP 720705, was refused. 18Hale's crossing, which appears on the map that is Annexure A, was built in the early 1990s to provide an alternative access to Warkworth. From at least 1998, when travelling north over Wambo's land to obtain access to Warkworth, Mr Fenwick used the road leading to and across Hale's crossing. This passed over lot 7 in DP 3030 and lot 10 in DP 113343. He had no right of way over those lots, but Wambo made no complaint about his using that route. 19Although the council and Crown roads, being lots 5 and 6 of DP720705, had not been closed, they ceased to be passable by at least 1997 because Wambo constructed a washery area and extended the mine in that area. Mr Hopps said that all traffic came through Hale's crossing, and it would not have been possible to use the council roads along lots 5 and 6 (T216). This was so notwithstanding that Wambo had previously applied for closure of those roads, but its application had been refused. 20On 13 December 2000 Mr Hopps advised the Department of Lands that the site of the Crown road in lots 5 and 6 of DP 702705 had been covered by slurry ponds, overburden disposal areas, and coal stockpile areas for a considerable number of years. A small portion of the road had been replaced by a mine access road to Warkworth village, but it had been closed by a locked gate for security reasons for some years (2/368).

South Wambo Creek Crossing 21Immediately to the north of Mr Fenwick's property is a property now owned by Wambo known as Farm 2. It was formerly owned by a Mr Harris who sold it to South Wambo Pastoral Co Pty Limited in 1978. The property was acquired by Wambo on 10 March 1992. Between about 1995 and 2003 Mr Bryan Atkins leased the homestead on the farm. He was employed as a geologist at the Wambo coal mine. An access road was built in about 1991 connecting Mr Fenwick's property to the South Wambo Road (also called Wambo Road). This was the southern right of way. 22Prior to 1998 there was no built road travelling north. Mr Fenwick gave evidence that there was a number of crossings of South Wambo Creek on what he called the Harris property. At different times he gave evidence of there being between four or five, or between seven and eight crossings. Prior to the construction of a made road over South Wambo Creek in 1998, Mr Fenwick predominantly used one of two crossings which were about 30 metres apart, near where a culvert bridge was ultimately installed. Mr Fenwick gave evidence, which I accept, that both crossings were partial gullies that went down and met the creek, that work was done from time to time in grading the crossings, and some gravel was put in to assist the crossing either by Mr Harris or by Mr Fenwick's stepfather. 23Before a culvert bridge was erected over South Wambo Creek, Mr Fenwick crossed the creek in a four-wheel-drive vehicle. He said it was possible, depending on the competency of the driver and the condition of the creek at the time, to cross South Wambo Creek safely in a two-wheel drive vehicle. He negotiated the crossing in an Austin 1800 motor vehicle which had been improved to be in rally condition. 24In the 1950s South Wambo Creek was a continually flowing stream that would only dry up in some areas for short periods of extreme drought. When asked about the condition of the creek in the 1990s, Mr Fenwick said that about two or three times a year, for some years, it flowed to a depth of about 24 feet. It rarely dried up completely. It was usually a continual flowing stream, but passable except after a flood. 25Mr Atkins deposed that the South Wambo crossing was not easy as the approach to the creek and the crossing itself were not graded, nor filled and contained no gravel. He said that some ballast may have been used to provide traction for the crossing immediately prior to 1998, although he did not believe that to be the case. He said that the South Wambo crossing consisted of a shallow embankment on the south side that became steeper on the north side. The north bank of the crossing was about three to four metres above the creek and the incline was very steep. He said that the crossing was always boggy and he needed a four-wheel-drive vehicle to cross the creek. In his affidavit he said that he used the route north of the access road irregularly either to get to work if he had time, or to access drilling sites in the southern area of the Wambo mine. Prior to a road being constructed across the South Wambo Creek Mr Atkins crossed the creek to go to the Wambo mine about once or twice a week. The rest of the time he went to the mine using Wambo Road and the road from Bulga. 26The effect of this evidence was that the creek could be crossed in a four-wheel drive vehicle, except when the creek was in flood. Crossing in a two-wheel drive was problematic, and depended on the competency of the driver, the level of the creek and the type of vehicle. 27In 1997 Wambo applied to Singleton Council for development approval for the drilling of bore holes south of South Wambo Creek to its underground mine to fill the underground workings with a concrete mix. The proposed development also required the construction of a concrete batching plant. After approval was obtained this plant was constructed on the southern side of Wambo Creek. The filling of the underground workings was expected to take place over a period of about 40 days. To proceed with this work Wambo also sought and obtained council approval for the construction of a crossing at South Wambo Creek that allowed the passage of heavy trucks. It constructed a haul road across the creek leading north to the mine. Concrete box culverts were installed in the creek bed and the road ran over the culverts. Development consent was obtained on 10 March 1998. It was a condition of the consent that " The private right of way giving access to properties further up the South Wambo Creek shall be maintained in its current condition. Any damage to the right of way shall be reinstated immediately and the road kept in a safe and trafficable condition ". The crossing and the haul road were duly constructed. The work for which the crossing and road were built was completed in 1998.

Negotiations for the grant of a new right of way 28On 20 December 2000 Mr Atkins, then environmental co-ordinator with Wambo, advised Mr Fenwick that it would be closing its mining and ancillary operations between 22 December 2000 and 2 January 2001, and that during that time all entry points to the mine's site would be closed and locked. He asked Mr Fenwick to use the public road system if he wished to access Warkworth or the Jerry's Plains Road. 29Mr Fenwick objected. He asserted his entitlement to use the right of way. On 9 February 2001 Mr Fenwick met with Mr Hopps to discuss the right of way. Mr Hopps told Mr Fenwick that if Mr Fenwick were entitled to a right of way then arrangements needed to be formalised in relation to his having access over Hale's crossing. He also said that it was Wambo's intention to remove the culvert bridge at South Wambo Creek to effect repairs to the creek. He said that the bridge would not be reinstated. Mr Fenwick said that he expected the crossing to be as trafficable as it was before. Mr Hopps understood Mr Fenwick to be saying that before the culvert bridge was erected, there was a gravelled crossing, and the crossing should be restored to that condition. It was Mr Fenwick's recollection that at all times he had asserted that Wambo was required to retain the culvert bridge crossing. 30On 12 February 2001 Mr Fenwick asserted to Wambo that the culvert bridge should be retained. 31Mr Hopps obtained a report from a surveyor, a Mr Cant, in relation to the right of way. In 2001 he forwarded a letter to Mr Fenwick dated 7 March 2001. It is probable that the letter was not sent until after 23 July 2001. The letter attached a plan of a proposed route for a right of way. That route was as shown on the later plan sent on 13 December 2002 which is Annexure A to these reasons, save that it followed what on that plan was described as " old northern right of way ", rather than the route described as " new right of way ". The letter of 7 March 2001 stated as follows: "Dear Ron We have completed our research into the right of way issue and have come to a position on this matter. The facts appear to be as follows: You have two rights of way across Wambo property - one to connect with the Wambo Road (to the south) and another to the north as far as old Lot 8, DP3030 which used to provide access to Warkworth via crown or council roads. The position of the right of way across old Lots 8, 9 and 10 has never been defined and maps and aerial photographs over time show a variety of tracks have been used. The Bulga to Warkworth road, which the right of way accessed, was closed through Lot 8 in 1971 and the crown and council roads to Warkworth were rendered impassable some years ago. The land title to those roads also indicates that they were not practically trafficable. Wambo wishes to resolve the above issues and proposes the following: As the landowners we propose that the existing track shown on the attached map in red is to be the right of way through Lots 8, 9 and 10. The southern right of way is as per the existing track, shown in green through our land. In order to facilitate your access to Warkworth we propose that you use the current mine access road through Lot 7 DP3030 across the Hales Bridge and then across Lot 10 DP113343 to connect with a Council-owned road which connects to the Golden Highway - this is shown in blue on the attached plan. Assuming you are agreeable to this then we would propose to close and then purchase the lands occupied by the old crown and council roads which are no longer trafficable. With regard to the section of our proposed route which occupies the recently (1998) built mine service road, which is now no longer required, it will be necessary to remove the crossing over South Wambo Creek to effect further creek repairs. It is proposed at this time not to replace the culverts but it is our intention to retain a creek crossing in this area which will be more trafficable than the former crossing which you indicate was used for access prior to the construction of the mine service road. With regard to future requirements it may be necessary sometime in the future to relocate this proposed route of the right of way to enable mining operations in the area. In that case it would be our intention to provide an agreeable alternative to the standards of the right of way prior to the installation of the mine's service road as required by the Development Consent for the Underground Fill Project. In regard to access along these routes, some of which comprise part of the operating mine, for safety reasons you are informed that in general, NSW road rules apply with an additional provision that you must give way to mine site vehicles (that is unregistered equipment not normally allowed access to state roadways) which have poorer lines of sight and braking distances than registered vehicles. This paragraph is based on your use of the right of way for the purpose of accessing the Golden Highway at Warkworth. As discussed with R Hopps recently, should you have a need for others to use the forementioned route through the mine site (indicated in purple) it would be necessary, for safety reasons, for you to inform others of the requirements and advisable for you to contact the mine. In addition we will inform you if we become aware of any abnormal hazards to be avoided along this section of the router we propose for your use. We trust the above is satisfactory in formalising the right of way across our property as the current situation of the location of the right of way not being formally documented is unsatisfactory." 32Mr Hopps had received legal advice on the draft of the letter to Mr Fenwick. Wambo's then solicitor advised that if Mr Fenwick agreed to the proposal, formal land title documents should be prepared to remove existing easements noted on the titles that were not relevant, to create the proposed new easements, and to have uncertainty in relation to the terms of the easements clarified. That sensible advice was not followed in the letter sent to Mr Fenwick. Instead, Wambo proposed that the terms of the letter should be satisfactory in formalising the right of way. 33Mr Fenwick gave only partial assent to the proposals in Mr Hopps' letter of 7 March 2001. His reply to the letter is undated. After asserting his entitlement to the two right of ways and complaining about attempts by Wambo in 1998 to deny that entitlement, Mr Fenwick said: " As previously advised, we have held agreed rights of way through the mine site since before the mine existed. From time to time these tracks have been altered as needed. Changes to fences, creek crossings and mining operations have induced change over the years. The road closure you refer to in 1971 appears to have happened without us knowing of it, but that would not have affected our accesses as we would have needed to divert around the workings and would have connected using tracks that later became access for workers at the mine. This situation varied again with the closing of the road and diversion through Hales crossing. On most occasions it only took simple communication between management and us. We did appeal against closure of a section of road because it appeared to be happening outside normal means with implications detrimental to us. We have not needed written agreement on this matter prior to times of which you are aware. Regards your suggested positioning of the rights of way, which are in fact the actual routes in use: To Bulga accessing Wambo Road as varied and used since approximately 1975 and To Warkworth accessing the Golden Highway as varied and used since 1998. I find no objection to the routes suggested. I do not agree with the latter comments regarding the removal of the culverts at some future time. They form what is the current ROW and should be at the least retained. If at a later time they need to be removed for remedial creek work, there will be need to keep the right of way functional to traffic as available now, during the works period with reinstatement to no lesser standard than at present. If the time comes for this to occur, then reasonable notice and discussion will be required. I am available for further negotiations on the rights of way if the needs arise. " 34Mr Fenwick did not respond to Mr Hopps' advice that Wambo proposed to close and then purchase lands occupied by the old Crown and council roads if Mr Fenwick were agreeable to the proposal that he obtain access to Warkworth using the current mine access road through lot 7, across the Hale's bridge and then across lot 10. Nor did he comment on Mr Hopps' reservation of a right to relocate the proposed route of the right of way in the future to enable mining operations in the area of the proposed route. Nor did he comment on the stated requirement that the mine would need to be informed if persons other than Mr Fenwick proposed to use the right of way. He rejected Wambo's claim that it could remove the culverts at South Wambo Creek. 35Mr Hopps gave evidence that he believed that when he wrote the letter of 7 March 2001 he expected that Wambo would have to remove the culvert crossing in order to effect repairs to the creek, but that its preferred option was to repair the creek without removal of the crossing. It was his recollection that the crossing did not have to be removed (T208-209). It was Mr Fenwick's recollection that the culverts were removed, but were subsequently reinstalled. The approaches to the crossing were also graded so that the road became or remained trafficable. Hence, the issue in relation to the removal of the culvert crossing raised in Mr Hopps' letter of 7 March 2001 ceased to be an issue. 36On 16 July 2002 Wambo wrote to Mr Fenwick as follows: " Wambo Mining Pty Ltd is applying to both the Singleton Shire Council and the Department of Land and Water Conservation to close the roads under their control shown on the attached plans. The roads we are seeking approval to close are described as Lot 5, Lot 6 DP 72070, Watt Street and Parmeter Street. Lot 5 and 6 have not been passable for many years and cross through an operational area of the mine. Watt Street forms a small section of the mine access road, while Parmeter Street is surrounded by Wambo land and will be land isolated by the closure of Watt Street. Wambo made a previous attempt to close these roads in 1987 at which time you lodged an objection on the grounds that these roads formed part of your right of way to Warkworth Village. As previously discussed in our letter of 7 March 2001, an alternate access has been offered via the current mine access road through Lot 7 DP3030 across the Hales Crossing Bridge and then across Lot 10 DP113343 to Watt Street, which connects to the Golden Highway. ... " 37The roads proposed to be closed were the Crown and council roads which formed Wambo Mine Road leading north-east from the northern boundary of lot 83, and Watt Street and Parmeter Street, which were council roads on the eastern side of Wollombi Brook. These were the same Crown and council roads as were referred to in Mr Hopps' letter of 7 March 2001. Mr Fenwick did not respond to the letter. Wambo did not proceed with its application to close the roads until March the following year. 38Mr Fenwick pleads that during the course of 2002 Wambo proposed and he accepted a variation of the right of way in the form of a relocation and extension of a portion of the right of way. Particulars of that alleged agreement are as follows: " The proposal and confirmation of its acceptance by the plaintiff was set out in a letter dated 13 December 2002 from Mr Robin Hopps, Environmental Liaison Project manager, to the plaintiff. The letter attached a drawing being drawing number ROW291102 which contained inter alia a designation for the right of way and the proposed relocation of the right of way ('the relocated right of way') and a proposed extension to the right of way. ('the extension to the right of way'). " 39The consideration for the agreement is pleaded as being the forbearance by Mr Fenwick of an entitlement to enforce the terms of the right of way for so long as Wambo continued to provide for the use of the relocated right of way and its extension. 40Mr Hopps sent Mr Fenwick a letter dated 13 December 2002 which stated as follows: "To confirm our recent discussions I would like to confirm that your right of way has been relocated away from open cut activities to an alignment closer to Wollombi Brook, as per the attached plan. The description of lots crossed by the Right of Way remains as per my previous letter. Two locked gates have been provided, as well as the right of way to restrict unauthorised entry by others. I can confirm that the new right of way can be relocated easily to retain an access way on the Wollombi Brook side of the open cut working shown in the December 1991 Wambo Expansion project plans prepared for the 'Planning Focus' process. ... " The attached plan is the plan which is Annexure A to these reasons. 41Neither Mr Hopps nor Mr Fenwick gave evidence of the content of the discussions said to have been confirmed by the letter of 13 December 2002. That is not surprising given the lapse of time. It could not be expected that either man would have a genuine recollection of words spoken in 2002. 42It was not until October 2008 that Wambo resiled from the position it took in the letter of 13 December 2002. It then denied that Mr Fenwick was entitled to a northern right of way. 43Mr Fenwick's evidence, read without objection, was as follows: " 86. The culmination of my various meetings and discussions with Mr. Hopps was when I received a letter from Wambo Coal dated 7 March 2001. Doc 26 is a true copy of that letter. I do not know precisely when I received this letter. I do not know why the drawing attached to the letter was dated 7 June 2001. 87. I recall I responded to Doc 26 , my response was forwarded promptly after receipt of Doc 26 . I do not [now] recall why no date is indicated on my response. Doc 27 is a true copy of my letter of response. ... 90. In 2002 Wambo further discussions took place between myself and Mr. Hopps from Wambo Coal relating to the Right of Way. The [culmination] of those discussions was a letter that I received from Wambo Coal. Doc 30 is a true copy of a letter I received from Wambo Coal dated 13 December 2002 with enclosure. 91. I accepted the terms of Doc 30 in so far as it varied Doc 26 . Provided that that part of the Right of Way was to be relocated as set out in Doc 30 attached to the letter of 13 December 2002 I was prepared [to] abide by the proposed relocation ('the relocated right of way'). ... 93. Following receipt of the letter of 13 December 2002 and the plan attached Doc 30 I was prepared to allow the future possible open cut activities of the mine to go ahead without taking particular steps to enforce the Right of Way to the extent that the open cut activities would have interrupted or inhibited the use of the Right of Way. 94. I did not take any enforcement steps because I accepted the relocated right of way as I believed it to be the agreement reached from the negotiations to which I referred to earlier leading to initially Doc 26 and then Doc 30 . I was and I am still willing to abide by the terms of the relocation of the Right of Way as set out in Doc 26 and Doc 30 . 95. At no time either during the negotiations with Wambo Coal representatives or after the letter of 13 December 2002 did I understand from anything said or done by them, that Wambo Coal might wish to change or reserve to itself the opportunity to further relocate or deny me access to the relocated right of way without further negotiation with me. Had I had any such an indication I would not have agreed to the proposed relocation and I would have sought to enforce the Right of Way if I had had such an indication from Wambo Coal. " 44Mr Hopps did not take issue with Mr Fenwick's assertion that he accepted the terms of the letter of 13 December 2002, insofar as it varied the terms of the letter of 7 March 2001. In cross-examination Mr Hopps was asked about the discussions referred to in the letter of 13 December 2002. He gave the following evidence: " Q. And those discussions related to coming to a final position with Mr Fenwick about the definition of the right of way? A. Yes. It was confirming discussions about where it should now be and that reflected the use of all the tracks that were in existence. Q. But not only where it should be but that was where he was confined to using it? A. Yes, that's correct. Q. Whatever Wambo's view was about what the right of way actually was, it was now to be located in the position set out in the diagram attached to this letter? A. That's correct. Q. As far as you were concerned at the conclusion of those discussions, the matter had been resolved between you and he? A. With regards to the relocation to that new position or the relocated piece of road, yes. " 45Mr Hopps did not accept that all matters between Wambo and Mr Fenwick had been resolved, as the letter of 7 March 2001 proposed that Wambo would have to close the council roads and that had not happened. He accepted that there was an agreement with Mr Fenwick that the route of the right of way was defined and that it was agreed that Mr Fenwick would be confined to that route. Mr Hopps also said that the final part of the right of way shown in the attached plan did not belong to Wambo and Wambo could not give him access to that unless Mr Fenwick agreed to the closure of the road. Mr Hopps was referring to council roads to the east of Wollombi Brook, but accepted that if that road were not closed, it was a public road which Mr Fenwick would in any event be entitled to use (T211-212).

Mr Fenwick's denial of any binding agreement 46Wambo sought access to Mr Fenwick's property to undertake noise and water monitoring tests. On 15 December 2003 Mr Fenwick advised Wambo that he would not permit access to Wambo's staff to his land until Wambo was prepared to undertake the monitoring in accordance with what Mr Fenwick said were the procedures required by current consent conditions. He listed a number of matters of apparent dispute between him and the company and observed that little agreement had been reached during the preceding year in relation to the matters on the list. One of the items listed was " Right of Way ". In response to that letter Wambo wrote to Mr Fenwick on 24 December 2003 disagreeing with his assertion that the list of outstanding matters had not been substantially reduced. Wambo said that it had worked with Mr Fenwick in the previous 12 months to resolve numerous issues. It provided a response to each of the issues listed by Mr Fenwick. In relation to the issue of " Right of Way " Wambo responded as follows: " The situation on the right of way is as per letter sent to you in 2002. " 47Mr Fenwick agreed that this was a reference to the letter Mr Hopps had sent him in December 2002 (T165). Mr Fenwick responded on 29 December 2003 as follows: " 6 Right of way Your response ' The situation on the right of way is as per letter sent to you in 2002. ' is indicative of the dictatorial attitude of [Wambo] . This is ridiculous. It is our right of way, as it has been since the property was purchased by my grandfather. The only changes that have been made regard location of the ROW. I would expect that the issue of the ROW is resolved suitably in the very near future. " 48Mr Fenwick was unable to explain why he accused Wambo of having a dictatorial attitude when it stated that the situation on the right of way was as per its letter of December 2002. Clearly he did not consider that the parties had reached an agreement on all issues concerning the right of way. Nonetheless he accepted that changes had been made concerning its location. Wambo submits that Mr Fenwick's correspondence indicates that he did not consider that there was a binding agreement in relation to the definition or extension of the right of way.

Objections to Wambo's attempt to close Wambo Mine Road 49Wambo applied to close the Wambo Mine Road on 6 March 2003. 50On 13 August 2003 Singleton Council sent to Mr Fenwick a copy of a plan of the proposed road closures and invited him to make a written submission. The proposed road closures included the Wambo Mine Road (lots 5 and 6 of DP 720705). By a letter received by Singleton Council on 18 August 2003 Mr Fenwick objected to the proposed road closures. He said that the sections of the road proposed to be closed appeared to form part of the road system to which he had a right of way. He said: " I totally object to any planned closure of the roads on the ground that my access to Warkworth would be jeopardised ... I will not approve the closures until Wambo have provided me with suitably guaranteed assurances that my right of way will be maintained ". 51On 1 June 2004 the Department of Lands gave notice to Mr Fenwick that the Minister Assisting the Minister for Natural Resources (Lands) proposed to consider the closing of the same roads that had been the subject of notice from the council the previous year. On 7 June 2004 Mr Fenwick replied to the Department objecting to any attempt to close those roads. In his letter to the Department Mr Fenwick said: " ... In 2003 both of these sections of roads were being applied for closure by Council, my objections to this were sent to your office and Council and were based on the objections in 1987. To date neither the Mine nor Council have attempted to bring this pending closure to my notice nor have they attempted to negotiate an alternative path to us. Our rights of way have always been agreed rather than dedicated despite several attempts made to have these dedicated. Advantages of this arrangement are rationally derived and more suitable than changing to dedicated. Wambo have yet to have any discussion simply direct their intent [sic]. It is only recently that Wambo were aware of our rights of way and to date have made three attempts to bluff us out of our rights and several attempts to lock us out. I was aware in February this year that their legal representatives were looking into our right of way claim again, possible to find a stealth approach to denying our access, such as close the roads, move the administration building, provide access to the new administration building without suitable links for our present right of way. Any link provided would be 'satisfactory' to their and their contractors opinions [sic] , similar to the condition of the current track. Wambo Mining and Singleton Council have on two previous occasions attempted to close these roads knowing that these roads are of specific interest to us and our access rights through rights of way as stated within our deeds of transfer from the original purchase of our property by my grandfather, Mr A G Frost. On these occasions Wambo have attempted to close these roads without discussions with us. What is called Wambo mine road is actually part of what was the road from Warkworth to Bulga, shown and discussed on our deeds. Our access to Singleton was initially via Warkworth, with this being substantiated from old records of residents and voting records, over the right of way to Warkworth. At times where passage was difficult through creek levels, access would be via the Bulga portion of the road. During the late 1950's road upgrading to Bulga was achieved by the transfer of roads within the Pike property. This improved road was to be the more travelled road to Singleton, Bulga, Broke and Sydney, with the other road being mostly used for Warkworth links and what is now the Golden Highway. Wambo Mining are aware that if our right of way is to be changed, there needs to be mutual agreement to the new location. To close of [sic] the end link to the Golden Highway will require locating a new link. Wambo has not shown any intent to a mutual solution rather what appears to be a stealth means to take away our rightful means of access to Warkworth with the assistance of the council. Until the company have negotiated a reasonable alternative to us to our current situation with the right of way as it stands I cannot approve of the closure of the roads. If the situation arises to the contrary I will notify you of any such arrangement. I would advise you to ignore any assurances from either Council or Wambo that we have reached agreements. " 52Wambo relies upon this correspondence as also showing that Mr Fenwick did not believe that he had reached any concluded agreement with Wambo in relation to the right of way. It does not dispute that as a result of its mining operations having made access impossible along the roads it sought to have closed, the only means for Mr Fenwick to obtain access to Warkworth using the northern right of way is currently along the route specified in Mr Hopps' letter of 13 December 2002, including the extension over land that was not subject to the right of way when created in 1915. 53It does not appear that approval was ever given to the closure of the roads in question. There was no evidence that the Minister had approved the closure of the roads. Nonetheless, Wambo's mining operations have had the practical effect of closing the roads to any traffic. 54Years later, on 3 September 2008, Singleton Council forwarded correspondence to the Department of Lands, including copies of Wambo's letters of 7 March 2001 and 16 July 2002 which it described as " confirming the Right of Way and providing a safe trafficable access through their properties ". The council officer concerned told the Department of Lands that " Council forwards this documentation to the Department confirming Wambo Coal's acknowledgment and provision of the Right Of Way through their property ." Mr Fenwick obtained a copy of the letter from Singleton Council after he received information in December 2008 about a proposed road closure.

Closure of crossing over South Wambo Creek 55The next significant event was a flood in June 2007. This washed away the approaches to the causeway that crossed South Wambo Creek over the culverts. After the flood Wambo fenced off the road leading to the approaches to the culvert bridge both to the north and south. Both by reason of the fences and the effect of flooding, the crossing became impassable. V-notch shaped weirs had been installed in the creek. These had also suffered significant damage from the flood. The banks of the creek had been eroded and there was a large amount of concrete lying in and around the creek bed. Work to repair the creek or to reinstate the crossing required approval under Pt 3 of Ch 3 of the Water Management Act 2000 (NSW). Prior to a site visit on 19 November 2007, Mr Bragg of Wambo met with Dr Philippa from the Department of Water and Energy regarding the proposed application under the Water Management Act . During the meeting, Dr Philippa criticised the construction plan of the box culvert river crossing and advised that if Wambo was simply to repair the current structure it was probable that the crossing would be destroyed in a future flood. He advised that he would support a box culvert design provided it include specified design features, but said the Department would prefer to see a bed level crossing, or a bridge. At the site visit on 19 November 2007 Dr Phillipa confirmed that the culvert bridge needed to be removed and the creek rehabilitated. 56On 11 January 2008 there was an internal meeting of employees of Wambo including the then general manager, Mr Sullivan, and a Ms Sarah Bailey. Ms Bailey had been appointed in October 2007 to the position of Environment Specialist. They decided not to reinstate a crossing at South Wambo Creek because of the cost. The minutes of the meeting record that the crossing was a shorter route for members of the community travelling to their properties compared to Wallaby Scrub Road, but apart from convenience there was no substantial argument for reinstating the crossing. Wallaby Scrub Road was accessible through the southern right of way. 57Ms Bailey subsequently concealed this decision from Mr Fenwick and misled him as to Wambo's intentions. Wambo subsequently denied that Mr Fenwick was entitled to the northern right of way, without any plausible legal basis. I infer from these later events that Wambo's management then perceived this to be an opportunity to deny Mr Fenwick access along the right of way. 58On or about 13 February 2008 Wambo applied to the Department of Water and Energy for a controlled activity approval under Pt 3 of Ch 3 of the Water Management Act . The proposed works included: " Using an excavator to remove the two existing concrete culverts. The excavated creek bed material will be set aside during the removal of each concrete culvert and replaced back into each void. The profile of the creek will be shaped back to pre-existing creek bed profile. It is not anticipated that additional clean fill material will be required. ... An excavator will be used to undertake minor re-shaping works to re-profile the creek banks. Once the final grade of the banks has been achieved, approximately 150-200mm of topsoil material will be spread across the bank batters, and hand seeded with grass species local to the area for stabilisation. The entire re-shaping works will be surveyed controlled to achieve the correct final grade of the banks. " 59Wambo is required to hold regular meetings with members of the community. These are called Wambo Community Consultative Committee meetings. A meeting was held on 25 February 2008. At the meeting Mr Fenwick asked what was happening with respect to the South Wambo Creek crossing. Ms Bailey said: " There are other items with higher priority. I will have to follow up on it at a later date. I don't believe it will be reinstated in the short term due to other more pressing items. " She did not tell Mr Fenwick that Wambo's management had decided not to reinstate the creek crossing. 60Mr Fenwick was concerned about the delay in effecting repairs to the crossing. He sent an email to Ms Bailey on 14 March 2008 from which it appears that Mr Fenwick thought the delay in making repairs to the crossing was linked to Wambo's having further thoughts as to whether he was entitled to a northern right of way. He wrote: " As per our recent discussions regarding the company's withdrawal from the repairs to the ROW crossing damaged during the flooding of June last year, the attached two pages should be sufficient to show the company should be aware of the existence and status of the ROW. The previous letter mentioned referred to the relocation from the original position which was from Warkworth to the Homestead (known as Wambo Road) and from the homestead to the northern right of way as shown. It is important to note that neither change was in accordance with the legal guidelines related to right of way but were company dictation. The title deeds of our land indicate these two rights of way exist until the proper build and dedication of two specific roads are in existence. The land titles held by the company would also have these indicated. We have had to prove this on at least three occasions to managers and legal advisors. These documents and others should be within company files but are regularly 'lost' to waste our time in effecting what is rightfully our entitlements. The crossing was installed and became portion of our right-of-way during the 9, 9A longwall applications, was removed for 'sealing' of the creek and re-instated afterwards. Each of these took little time as usage was also required by the mine and mine staff. There were similar documents related to fences and road/tracks including the portion sealed in front of the harris house. Hope this assists in ensuring the crossing is restored as was assured in June last year and we see the roads repaired to a suitable standard soon. We have been denied access via this ROW for longer than is considered reasonable considering the directions recently shown by the company to other projects. " 61On 1 May 2008 Mr Fenwick sent a further email to Ms Bailey complaining about the delay and restoring the crossing. He said: "ROW: There are two major problems. The first is the failure/delays in restoring the crossing that was damaged during June last year, despite assurances made as to the urgent priority and need to have it done properly. We have seen all sorts of excuses ranging from Permit requirements to whether or not we have this ROW. The first excuse has no credibility considering the speed in which the Brosi crossing and Dam with clearing were approved. The second was simply a time wasting exercise as the company deeds show these ROWs and the legal side prefer to do nothing to find this. Fortunately my deeds actually show them clearly. " 62Mr Fenwick's concerns and complaints were justified. 63The Department of Water and Energy approved Wambo's application to carry out rehabilitation work to the South Wambo Creek on 1 May 2008. The minutes of a further meeting of the Wambo Coal Community Consultative Committee held on 23 June 2008 record the following: " South Wambo Creek Crossing RF: How far are we with this? SB: The permit has been received, we need to organise contractors to complete the rehabilitation works, I will give you an update when contractors are available." 64Ms Bailey did not disclose that the permit received was not for a crossing of the creek, but for rehabilitation work to the creek and that no permit to repair the crossing or to install a new crossing had been sought.

Wambo's denial that northern right of way existed 65On 23 October 2008 Wambo wrote to Mr Fenwick denying that he had a right of way over lot 83 in DP 548749. It forbad Mr Fenwick from entering that lot and said that " in these circumstances " Wambo did not intend to repair the South Wambo Creek crossing. The letter was in the following terms: " Claim to right of way across Wambo Coal Pty Ltd ('Wambo Coal') land Wambo Coal acknowledges receipt of your email dated 14 March 2008 regarding the right of way you are claiming over Wambo Coal land. Wambo Coal has reviewed the right of way position and formed the view: (a) There is a registered right of way across Lot 1 in DP 110084 and Lot 2 on DP 110084. This is depicted as the 'Existing R.O.W.' on the attached plan. This is the right of way you use to access and egress your land, and Wambo Coal will continue to observe to this right of way. (b) In relation to the right of way you have claimed to cross Lot 83 on DP 548749, depicted as the 'R.O.W. in Question' on the plan, Wambo Coal understands that Lot 83 is not encumbered with the right of way you are claiming. A copy of the relevant title is attached. The only right of way registered over Lot 83 is in relation to Lot 82, which is also owned by Wambo Coal. Wambo Coal has also considered the following: You have free and unrestricted access to and from your land using the 'Existing R.O.W.'; Lot 83 forms part of the Wambo Coal mining operations; Wambo Coal has strict obligations to ensure the safety of all employees and other persons it permits to enter onto its mining land; and Under the relevant safety laws and company policy, Wambo Coal must control access to its mining operations for safety reasons. It would appear that you do not have a legal right of way across Lot 83. Therefore Wambo Coal cannot allow you to enter Lot 83 and you must not do so. In these circumstances, Wambo Coal does not intend to repair the South Wambo Creek crossing. " 66There was no proper basis for Wambo to deny that Mr Fenwick was entitled to a right of way over lot 83. The fact that that right of way had been omitted in 1971 when Wambo lodged the plan of subdivision of lots 8 and 9 of DP 3030 and new lots 82 and 83 in DP 548749 were created, does not mean that the right of way was extinguished. An omission of a validly created right of way is an exception to indefeasibility under s 42 of the Real Property Act 1900. Wambo had legal advice. It must have known this. Nonetheless, Wambo maintained this position up to the second day of the hearing, although it did not present any argument to seek to justify the position taken in its letter of 23 October 2008.

Who is entitled to use the right of way? 67Counsel for Wambo submitted that as the 1915 grant of the easement was to the " owner for the time being of the land hereby transferred or any part thereof ... for himself his agents servants and workmen ... " it did not extend to Mr Fenwick's invitees. Counsel submitted that the right of way was confined to those persons able to effectuate the commercial or trading purposes of the landowner. In oral submissions counsel for Wambo was constrained to admit that the grant would extend to Mr Fenwick's wife because any other construction would be absurd. However, she would not be so entitled if the only persons entitled to the benefit of the right of way were the registered proprietor and his agents, servants and workmen. 68In Peter Butt, Land Law , 6 th ed (2010) Law Book Co. at [16 97] Professor Butt states that: " Words in the grant or reservation of an easement mentioning persons entitled to use the easement are generally regarded as illustrative only, not restrictive. " 69This is illustrated by Baxendale v North Lambeth Liberal and Radical Club Ltd [1902] 2 Ch 427. There the right of way was expressed to be for the benefit of the grantee " his executors, administrators and assigns, undertenants and servants ". The right of way was granted under a long-term lease of which the assignee was a club. Swinfen Eady J held that the right of way could be used by all licensees of the club, that is, by all persons lawfully going to and from the club including members, associates, tradespeople and servants. His Lordship said (at 429): " ... in the ordinary case of a grant of a right of way to a house and premises which may only be used as a private dwelling-house, the right would extend not only to the grantee, but to members of his family, servants, visitors, guests, and tradespeople, even though none of these persons be expressly mentioned in the grant. " 70Counsel submitted that the grant should be strictly construed and benefited only those classes of persons specifically mentioned. I do not agree. The same description of the persons for whose benefit the right of way was given applies to both the northern and southern rights of way. On Wambo's argument, only the registered proprietor, his agents, servants and workmen could obtain access to Mr Fenwick's farm. Neither spouse nor immediate family, friends nor relatives, tradespeople nor other visitors, could get access to the farm. This would be absurd. In this case, as is generally the case, the description of persons entitled to the benefit of the easement is illustrative and not restrictive.

No contract for grant of extended easement 71Mr Fenwick pleads that he and Wambo agreed in 2002 to the relocation and extension of the right of way (see para [38] above). As noted at para [39] above, the consideration for the agreement is said to be Mr Fenwick's forbearance from enforcing the terms of the right of way for so long as Wambo continued to provide for the use of the relocated right of way and the extension of the right of way. 72Mr Hopps' letter dated 7 March 2001 and Mr Fenwick's response to it provide the context for the alleged agreement made in 2002 that the right of way be relocated and extended. As noted at [33] above, Mr Fenwick gave only partial assent to the proposals made by Mr Hopps in his letter of 7 March 2001. Whilst Mr Fenwick said he had " no objection " to the routes that Wambo proposed to provide him with access to Warkworth, he made no promise not to object to Wambo's proposal to apply for the closure and purchase of the roads its operations had made no longer trafficable. He rejected Wambo's position in relation to the crossing of South Wambo Creek. 73In his letter of 13 December 2002 Mr Hopps did not confirm that an agreement had been made with Mr Fenwick that the right of way would be or had been relocated and extended in accordance with the attached plan. Nor did the letter deal with the other issues raised in the letter of 7 March 2001. As counsel for Wambo submitted, the letter of 13 December 2002 formally documented an existing arrangement, but not a contract. Insofar as the arrangement related to the location of the right of way over the land that was formerly in lots 8 and 9 of DP 3030 (now lots 82 and 83 of DP 548749), Wambo was exercising its right under the 1915 memorandum of transfer to determine the location of the right of way. 74Mr Fenwick did not respond to the letter of 13 December 2002 in any way that suggested that he understood that he had made a contract with Wambo. To the contrary, his letter of 29 December 2003 (referred to at paras [47] and [48] above) accused Wambo of adopting a dictatorial attitude when it stated that " the situation on the right of way is as per letter sent to you in 2002 ". That indicates that Mr Fenwick did not believe that the letter of 13 December 2002 recorded a binding contractual agreement between the parties. 75In cross-examination Mr Fenwick said that he did not believe he could trust " future company members " to adhere to the matters stated in Mr Hopps' correspondence. Mr Fenwick did not consider that he had made any promise not to object to Wambo's proposal to attempt to close the roads which its operations had made no longer trafficable. In his letter of 7 June 2004 (quoted at para [51] above) Mr Fenwick objected to the closure of the roads and said that Wambo " has not shown any intent to a mutual solution ". 76There was neither an offer and acceptance leading to a contract for the relocation and extension of the right of way, nor another objective basis by which the parties' dealings manifested a concluded bargain ( Brambles Holdings Limited v Bathurst City Council [2001] NSWCA 61; (2001) 53 NSWLR 153 at 179). 77Mr Fenwick did not provide consideration for a variation of the right of way. The pleaded consideration was his forbearance from enforcing the terms of the existing right of way for so long as Wambo continued to provide for his use of a relocated and extended right of way. Whilst it is true that Mr Fenwick did forbear from enforcing all of the rights he could have exercised against Wambo in not instituting proceedings to compel Wambo to make good the road to Warkworth to which the right of way gave him access but which Wambo had rendered impassable by its mining operations, that forbearance was not the consideration for any promise. 78Consequently, it cannot be said that the correspondence between Mr Fenwick and Wambo in 2001 and 2002 gave rise to a contract between the parties for the relocation and extension of the right of way.

Entitlement to use the relocated right of way by estoppel 79Mr Fenwick also makes a claim based on the principles of equitable estoppel. Equitable estoppel can be a source of rights. Mr Fenwick assumed that he would be entitled to use the existing and new rights of way as shown on the plan attached to Mr Hopps' letter of 13 December 2002. This included his having a new right of way over other land owned by Wambo to give access to Warkworth over Hale's crossing. 80I infer that from at least the time Mr Hopps wrote his letters dated 7 March 2001 and 13 December 2002, until 2008, Wambo also assumed that Mr Fenwick was entitled to use that route to obtain access to the public road leading to Warkworth. Until the 2007 flood prevented Mr Fenwick's having access along the northern right of way, Wambo had no objection to his using that route, even though he had no legal documentation (other than Mr Hopps' letters of 7 March 2001 and 13 December 2002) giving him legal access over land beyond lot 83. 81Wambo had had no objection to Mr Fenwick's using that route prior to 2001 or 2002. He took that route when using the right of way to go to Warkworth after the Wambo Mine Road was made impassable by Wambo's mining operations. 82The purpose of the right of way is expressly stated to be to provide access to a Bulga-Warkworth Road. Prior to the Wambo Mine Road being made impassable, public roads provided access from the northern boundary of lot 83 to Warkworth. Wambo's contention is that although it now belatedly accepts that Mr Fenwick is entitled to a northern right of way over lot 83, and although it has made the only access from lot 83 to Warkworth (other than through Hale's crossing) impassable, it is not obliged to give Mr Fenwick access to Warkworth via Hale's Crossing through other land owned by it. 83It would be an implied obligation under the right of way that Wambo not prevent the owner of the dominant tenement from obtaining access to Warkworth via a public or Crown road from the northern boundary of lot 83. Such an implication would be necessary to give the dominant tenement the benefit of the right of way. Had Wambo not permitted Mr Fenwick to use the road over Hale's Crossing to go to Warkworth, he could have brought proceedings against Wambo to restrain it from destroying the roads or requiring it to reinstate the council or Crown roads that it destroyed. Although Mr Fenwick objected to Wambo's application to the council and to the Department of Lands to close the roads, he did not take any step to restrain Wambo from making Wambo Mine Road impassable, nor take any action to require it to reinstate the road. No such litigation would have been feasible as he was not prejudiced by Wambo's conduct for so long as it allowed him to use the road to Hale's crossing. But Mr Fenwick would suffer substantial detriment if Wambo were permitted to resile from the assumption it induced Mr Fenwick to adopt. 84All the necessary elements of an equitable estoppel are satisfied for Mr Fenwick to have acquired a right of way over other land of Wambo as shown on the plan annexed to Wambo's letter of 13 December 2002, being the land subject to the " Right of Way Extension to Warkworth " ( Waltons Stores (Interstate) Limited v Maher [1988] HCA 7; (1988) 164 CLR 387 at 428-429; Greek Macedonian Club Limited v Pan Macedonian Greek Brotherhood NSW Limited [2007] NSWSC 92 at [49]-[50]; Peter W Young, Clyde Croft and Megan Smith, On Equity (2009) Lawbook Co, at 817 and 825-826). 85First, Mr Fenwick assumed or expected that he would have, or would acquire, a right of way over Wambo's land leading to Hale's Crossing and thence to a public road to give access to Warkworth. I accept Mr Fenwick's evidence that he accepted the terms of the letter of 13 December 2002 insofar as it varied the terms of the letter of 7 March 2001 in relation to the relocation of the right of way. Although there was no acceptance of an offer that gave rise to a binding contract, Mr Fenwick, in believing that he had accepted that part of the proposal, assumed that he was entitled to use what was described as the new right of way. Moreover, his assumption was that he was entitled to use the new route as a right of way. It was not to his mind a mere revocable licence from which Wambo could resile. 86Secondly, Wambo induced Mr Fenwick to adopt that assumption or that expectation. Wambo did this by its correspondence of 7 March 2001 and 13 December 2002 and then by allowing Mr Fenwick to use the new right of way without complaint until his access to the right of way was blocked by the flooding of South Wambo Creek in 2007. 87Counsel for Wambo submitted that the letters and conduct of Wambo were insufficiently clear and were too equivocal to found an estoppel ( Legione v Hateley [1983] HCA 11; (1983) 152 CLR 406 at 436-437). I do not agree. There was nothing unequivocal about the proposal that Mr Fenwick should be able to make use of an extended right of way along the route described in the plan attached to the letter of 13 December 2002. The fact that Wambo had made clear in its letter of 7 March 2001 that it reserved the right to relocate the proposed right of way if it were necessary to do so to enable mining operations to be conducted in the area the subject of the new right of way does not make the proposal equivocal. Wambo would be required to provide an alternative route and would be required to act reasonably in redefining the route. Acting reasonably would require it to redefine the route such that it still provided Mr Fenwick with access to Warkworth. That is consistent with its current obligations under the 1915 right of way. 88Thirdly, Mr Fenwick acted, and abstained from acting, in reliance on his assumption or expectation that he was entitled to use the new right of way. He acted on the assumption that he was entitled to use the right of way by using it. He also abstained from acting by taking no step to seek to injunct Wambo from obliterating the former road that led from the northern boundary of lot 8 to Warkworth or to require it to reinstate the road. That road was the only access to Warkworth other than the new route that was proffered. Wambo contended that this was not part of the case that it had to face. I do not agree. In opening, counsel for Mr Fenwick did disclaim as an element of detriment that Mr Fenwick did not object to the proposed road closures. That was a different point. Mr Fenwick did in fact object to Wambo's application to close the roads. It was that to which counsel for Mr Fenwick was referring when he disclaimed non-objection to road closures as an element of detriment. Mr Fenwick pleaded that on the basis of the assumptions and expectations he adopted, he " did not take any steps to enforce the right of way save for asserting to the defendant the existence of his right of way when it took steps that affected or potentially affected [his] use and enjoyment of the right of way ". He deposed that: " I did not take any enforcement steps because I accepted the relocated right of way as I believed it to be the agreement reached for the negotiations to which I referred to earlier ... " 89Counsel for Wambo also submitted that Mr Fenwick had not relied upon any representation or conduct by Wambo. I do not agree. Whilst Mr Fenwick did make it clear that he did not trust Wambo to adhere to the terms of Mr Hopps' correspondence, he nonetheless acted on that correspondence and on Wambo's allowing him to use the new route for the right of way. The fact that he persisted in his objections to the closure of the roads does not demonstrate that he did not act in reliance on the correspondence and Wambo's conduct of permitting him to use the new route as outlined in that correspondence without objection. 90I have no doubt that had Wambo not allowed Mr Fenwick to obtain access to Warkworth along the new route over Hale's Crossing, he would have taken steps to enforce his entitlement to use the northern right of way to obtain access to Warkworth. Those steps could have included seeking an injunction to restrain Wambo from making the only other road to Warkworth impassable or to require it to reinstate that road. Mr Fenwick's repeated insistence on his rights and his institution of this litigation when Wambo denied his entitlement to the northern right of way shows that had Wambo not allowed him to use the road over Hale's Crossing, he would have taken steps to enforce his entitlement to use the northern right of way to obtain access to a road leading to Warkworth. 91Fourthly, Wambo knew and intended that Mr Fenwick act or abstain from acting in reliance on the assumption or expectation. Wambo knew and intended that Mr Fenwick should believe that he would be entitled to use the new right of way, and knew and intended that he should not take steps to prevent it from destroying the old road. 92Fifthly, Mr Fenwick's action and inaction will occasion detriment if the assumption or expectation is not fulfilled. In Grundt v Great Boulder Proprietary Gold Mines Limited [1937] HCA 58; (1937) 59 CLR 641, Dixon J said (at 674-675): " That purpose [of the doctrine of estoppel] is to avoid or prevent a detriment to the party asserting the estoppel by compelling the opposite party to adhere to the assumption upon which the former acted or abstained from acting. This means that the real detriment or harm from which the law seeks to give protection is that which would flow from the change of position if the assumption were deserted that led to it. So long as the assumption is adhered to, the party who altered his situation upon the faith of it cannot complain. His complaint is that when afterwards the other party makes a different state of affairs the basis of an assertion of right against him then, if it is allowed, his own original change of position will operate as a detriment. His action or inaction must be such that, if the assumption upon which he proceeded were shown to be wrong and an inconsistent state of affairs were accepted as the foundation of the rights and duties of himself and the opposite party, the consequence would be to make his original act or failure to act a source of prejudice. " 93It is clear that real detriment or harm would be suffered by Mr Fenwick if Wambo were permitted to depart from the assumption he was induced to adopt. He would be entitled to exercise his right of way over lots 82 and 83, but it would lead nowhere because the old Bulga to Warkworth road to the north of what is now lot 83 has been made impassable. Any claim by Mr Fenwick to compel Wambo to reinstate the road would probably be barred by the Limitation Act 1969 and in any event, it appears that reinstatement would be impossible. 94Finally, there is no difficulty in Wambo's lawfully satisfying the assumption and expectation under which Mr Fenwick has acted by granting the right of way it offered in December 2002.

Terms of the new right of way 95Little was said in correspondence about the terms of the new right of way. Mr Hopps stated in his letter of 7 March 2001 that Wambo should have the right to relocate the proposed right of way in the future if it were necessary to do so to enable mining operations to take place in the area, in which case it intended to provide " an agreeable alternative to the standards of the right of way prior to the installation of the mine's service road ... ". 96It is not a requirement before an interest can arise in equity on the principles of proprietary or promissory estoppel that the interest be defined in terms sufficiently certain to be enforceable as a contract ( Pacific National (ACT) Limited v Queensland Rail [2006] FCA 91 at [668]; Greek Macedonian Club Limited v Pan Macedonian Greek Brotherhood NSW Limited at [52] and cases there cited; Hoath v Connect Internet Services Pty Ltd [2006] NSWSC 158; (2006) 229 ALR 566 at [200]). If need be the terms of the easement can be settled by the court ( EK Nominees Pty Ltd v Woolworths Limited [2006] NSWSC 1172 at [269]-[275]). The terms of the easement to be granted over the new route shown as " Right of Way Extension to Warkworth " should follow the terms of the 1915 transfer, thereby incorporating Wambo's right reasonably to redefine the route, provided that in doing so access is provided to a road leading to Warkworth. 97The right of way over lots 82 and 83 of DP 548749 is for the benefit not only of the registered proprietor of Mr Fenwick's property, Farm 3, but also for the benefit of the proprietors of Farm 4. At an earlier stage of the proceedings Wambo had foreshadowed a defence that the proceedings were deficient for want of parties ( Fenwick v Wambo Coal Pty Ltd [2011] NSWSC 176 at [35]). That argument was not advanced at the hearing. Nor does it arise. There is no reason that Mr Fenwick may not acquire rights by contract or estoppel that would not enure to the benefit of the owners of Farm 4. The evidence in this case is that only Mr Fenwick has acquired rights by estoppel over other Wambo land. Those rights run with his land, but do not enure for the benefit of the proprietors of Farm 4.

Reinstatement of crossing at South Wambo Creek 98Prior to Wambo's constructing a haul road over South Wambo Creek in 1998, the creek was passable, except in times of flood, by at least four-wheel-drive vehicles. The common places for crossing the creek were at the point at which the culvert bridge was installed by Wambo and at a point about 30 metres to the west. Mr Fenwick's stepfather or Mr Harris had put gravel in the creek to assist in the crossing and the crossings had been graded from time to time. 99Wambo had no obligation prior to 1998 to install or maintain a crossing over the creek. For its own purposes it installed a culvert bridge crossing in 1998 and constructed a road over the crossing. By its letter of 13 December 2002 Wambo designated that crossing as part of the route of the northern right of way. It has not changed that designation. 100After the 2007 flood Wambo determined that it would not replace the crossing. In its application for approval under Part 3 of Chapter 3 of the Water Management Act , Wambo stated that its proposed works included using an excavator to remove the existing concrete culverts and shaping the profile of the creek back to the pre-existing creek bed profile. It also stated that an excavator would be used to undertake " minor re-shaping works to re-profile the creek banks. Once the final grade of the banks has been achieved, approximately 150-200mm of topsoil material will be spread across the bank batters, and hand-seeded with grass species local to the area for stabilisation. " 101Wambo constructed fences that block Mr Fenwick's access to the crossing. Mr Fenwick deposed that: " The crossing has been removed, the bed and banks contoured by excavator in such a manner that it is impossible to cross without a 4WD let alone a normal vehicle. " 102Mr Fenwick has not been able to attempt the crossing with a 4WD vehicle because his access has been blocked. 103There was no evidence as to whether the creek at the former crossing was in materially the same condition (relevant to its ability to be crossed by a vehicle) as it had been in prior to Wambo's carrying out its works in 1998. Because Mr Fenwick has been excluded from the site, the evidentiary onus was on Wambo to adduce evidence as to the condition of the creek at the site of the crossing. 104As a general rule, a servient owner (that is, Wambo) is not obliged to maintain a right of way. Therefore, prima facie , if Mr Fenwick needed to construct works to provide a crossing over the South Wambo Creek, he, not Wambo, would have to construct the crossing. It would be an implied term of the right of way that Wambo would do all that was necessary on its part to allow Mr Fenwick to use the right of way. This would include its giving consent to any necessary development application and to any necessary application under the Water Management Act for the construction of a crossing. 105There was no contract whereby Wambo was obliged to maintain a vehicular crossing at South Wambo Creek. Nor was the condition of the development consent (referred to at [27] above) a source of rights enforceable by Mr Fenwick in this court. 106However, Wambo has interfered with the crossing by its construction of the culvert bridge in 1998 and its subsequent removal of that bridge and re-contouring of the creek. Given that Wambo had designated that crossing as the route of the northern right of way, it was obliged when carrying out the work of removal of the culverts and re-contouring of the creek to provide a crossing at least as adequate as the crossing that existed before the culvert bridge was constructed. Otherwise its works of first constructing and then removing the culvert bridge and re-contouring the creek would substantially have interfered with the right of way. 107Wambo gave no evidence as to whether the condition of the creek crossing after removal of the culverts and re-contouring was more or less favourable to its being crossed by vehicles than the crossing before 1998. It can be inferred that no evidence it could have adduced on that question would have been favourable to it. 108Prior to 1998 there was a bed crossing over South Wambo Creek at the point in question, albeit that the crossing was often only possible with a four-wheel drive vehicle. Wambo adduced evidence from a Mr Michael Shaw, a civil engineer. Mr Shaw gave evidence that there were four engineering options for a crossing at the South Wambo Creek. These were either a bridge, a crossing with concrete box culverts similar to those previously installed, a crossing using pipe culverts, or a crossing involving grading of the bank to allow direct vehicular entry and exit to and over the creek. 109The provision of any of those crossings requires approval under Pt 3 of the Water Management Act . Wambo did not seek approval for any such crossing because it wanted to stop Mr Fenwick from using his right of way. Given that it was Wambo's works over the creek and the effect of the 2007 flood that necessitated further works to be done to the creek, Wambo was required to seek approval and to do such works as were necessary as to provide a crossing over the creek. There had been such a crossing before Wambo carried out its works. Therefore it was its responsibility to reinstate some form of vehicular crossing. Professor Butt states (Peter Butt, Land Law , 6 th ed (2010) at [16 107]): " ... the grantor may be required to repair if the disrepair flows from some act ... that he or she does on the site of the easement. " 110Dr Phillipa from the Department of Water and Energy advised Wambo in August 2007 that the Department would prefer to see a bed-level crossing or a bridge rather than another culvert design. Any of such crossings would meet Wambo's obligation to reinstate a vehicular crossing over the creek. 111Wambo has led no evidence that the present condition of the creek would allow a vehicular crossing. In any event, the case was litigated on the basis that a creek crossing required approval under the Water Management Act as a controlled activity ( Water Management Act 2000, s 91E). As Wambo sought and obtained approval for the carrying out of a controlled activity on the creek, if it were to restore some form of vehicular crossing to Mr Fenwick, it was required to seek the necessary approval for such a crossing. 112Wambo did not do this, notwithstanding that in his letter of 7 March 2001 Mr Hopps had advised that it was then Wambo's intention to retain a creek crossing which would be more trafficable than the former crossing. Wambo's position as stated in its letter of 23 October 2008 (quoted above at [65], and reiterated in further correspondence), was that as Mr Fenwick did not have a legal right of way, it did not intend to repair the crossing. This was an implicit acknowledgment that if Mr Fenwick had a right of way (which Wambo ultimately conceded he did) it was obliged to repair the crossing. That required it to obtain the necessary approval from the Department of Water and Energy. 113It is not known what the Department might require by way of a vehicular crossing. It might accept a bed crossing. It might approve a new box culvert crossing, although this seems unlikely. It might require construction of a bridge. Damages are not an adequate remedy because it is not known what form of crossing will be required. That uncertainty is caused by Wambo's decision to obtain a controlled activity approval for works that provided for no crossing of the creek. It misled Mr Fenwick into the belief that it had obtained the necessary approval to reinstate a crossing. 114The enforcement of a mandatory order requiring Wambo to seek the necessary approval for a vehicular crossing and to construct that crossing may require some supervision by the court, but should not require continual supervision. The works involved are not complex. 115In these circumstances a mandatory injunction is appropriate to require Wambo to take all steps necessary on its part to obtain approval for a crossing of South Wambo Creek at the crossing designated in the plan annexed to its letter of 13 December 2002, for persons on foot or by vehicle, and to construct the necessary works to effect such a crossing.

Damages 116Since 23 October 2008 Wambo has denied Mr Fenwick access to the northern right of way. It has fenced off the right of way. From 11 January 2008 its management determined that it would not reinstate a crossing over South Wambo Creek. I infer that had it sought approval to reinstate a crossing over South Wambo Creek, the approval would have been given by no later than 1 May 2008. That was the date on which the Department of Water and Energy approved Wambo's application to carry out the rehabilitation work to South Wambo Creek for which approval was then sought. Had such approval been sought, it is a reasonable inference that vehicular access over South Wambo Creek could have been reinstated by at least October 2008. 117Accordingly, Wambo is liable for damages for its obstruction of the northern right of way since October 2008. It will be some months before a crossing is provided. Damages cannot be quantified with any precision. Wambo contended that any damages were minimal. Mr Fenwick had access to roads leading to Bulga and Warkworth through the southern right of way. However, Mr Fenwick deposed that travel to Warkworth and beyond now took at least half an hour longer each way. He had been a regular attendee at the local gun club at Warkworth, but the extra travelling time created too much delay. As a result he had had to cut down his time at that gun club. He said that he did not visit friends and relatives in Singleton as often as he would otherwise have done had he not had to travel the longer distance. I accept that evidence. 118Damages as a result of the interference with the right of way cannot be assessed by calculating what extra petrol might have been consumed in Mr Fenwick's having to travel a longer distance to Warkworth, what extra wear and tear, if any, there might have been to his car in taking the longer route, or what financial disadvantage he may have suffered by having to take a longer time to travel to Warkworth or Singleton. Not only are these matters not capable of being precisely quantified, but they do not reflect the true loss. The true loss is the loss of amenity in the imposition of delays in Mr Fenwick's pursuing a favoured recreational pursuit and in otherwise travelling to Warkworth and Singleton. The question of the appropriate measure of damages is not capable of an articulated reasoned answer that allocates a dollar figure to a particular claim, for example, so much for extra travelling time, or so much for disappointment in missing one or more meetings of the club. Nonetheless, the damage is real. In my view, $20,000 is the appropriate amount of compensation for having been denied the use of the easement.

Injunction 119Wambo has repeatedly denied Mr Fenwick's right to use the right of way, although it had no lawful or plausible basis for that assertion. It has physically blocked his access. A mere declaration of Mr Fenwick's entitlement would not be an adequate remedy. The sanction of contempt proceedings is necessary to ensure that Wambo and its management respect Mr Fenwick's rights. Mr Fenwick is entitled to an injunction to restrain Wambo from continuing to obstruct the right of way.

Conclusions 120For these reasons I have concluded that: a) the persons entitled to use the easement are not confined to Mr Fenwick, his agents, servants and workmen, but include all persons authorised by him, including his family, tradespeople and visitors; b) Wambo has designated as the route of the right of way over the servient tenement the subject of the 1915 memorandum of transfer, the route shown in the plan that accompanied Mr Hopps' letter of 13 December 2002 that is Annexure A to these reasons; c) Wambo is estopped from denying that Mr Fenwick is entitled to a right of way over its land shown as burdened by the " Right of Way Extension to Warkworth " as depicted in the plan that accompanied Wambo's letter of 13 December 2002 and is Annexure A to these reasons; d) that right of way is to be on the terms of the right of way created by the 1915 transfer, including the right of Wambo reasonably to vary the route of the right of way, provided that in so doing it provides alternative access to a road leading to Warkworth; e) if not agreed, the terms of such right of way can be determined by the court; f) Wambo is required to do all things necessary on its part to obtain the necessary approvals for and to construct a vehicular crossing at South Wambo Creek at the crossing designated as the crossing for the right of way in Wambo's letter of 13 December 2002; g) Wambo should pay damages of $20,000 for interference with the right of way; and h) Wambo should be restrained from further obstructing the right of way. 121I will stand the proceedings over to a convenient time for counsel for the plaintiff to bring in short minutes of order consistent with these reasons. The short minutes should also provide for the 1915 right of way to be registered over lots 82 and 83 of DP 548749. 122I have previously ordered that Wambo pay part of Mr Fenwick's costs on the indemnity basis ( Fenwick v Wambo Coal Pty Ltd [2011] NSWSC 176 at [74]). Prima facie Mr Fenwick is entitled to his costs of the balance of the proceedings. There may be an issue as to the basis on which they should be ordered. There may have been offers exchanged relevant to questions of costs. I will hear the parties on costs. Annexure A Annexure B 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: 29 July 2011

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