FitzGerald v Foxes Lane (NSW) Pty Ltd

Medium Neutral Citation: FitzGerald v Foxes Lane (NSW) Pty Ltd [2025] NSWCA 212

Hearing dates: 27 June 2025

Date of orders: 18 September 2025

Decision date: 18 September 2025

Before: Leeming JA at [1];
Kirk JA at [26];
Adamson JA at [163].

Decision: (1) Appeal allowed in part.
(2) Set aside orders 1 and 5 of the Supreme Court made on 21 October 2024, and order 2 made on 18 November 2024, and in lieu thereof make the following orders:
(a) The defendants are restrained from causing crops to be planted or for “tramlines” to be created or maintained on a five metre wide vehicular track along the right of carriageway which burdens the first defendant’s properties on Lots 10 and 11 in Deposited Plan 1163015 and benefits the plaintiff’s property on Lot 19 in Deposited Plan 817727 (“Right of Carriageway”).
(b) Declare that the plaintiff may undertake work on a five metre wide vehicular track along the Right of Carriageway in the nature of light grading or drag bucketing in order to even out the tramlines running across the track.
(c) The plaintiff is restrained from undertaking grading, drag bucketing or ploughing on the Right of Carriageway unless he has given the servient tenement owner at least 14 days written notice of the works he proposes to undertake.
(d) Defendants to pay 75% of the plaintiff’s costs of the proceedings incurred from 21 December 2022.
(3) Respondents to pay 50% of the appellant’s costs of the appeal.

Catchwords: LAND LAW — easements — substantial interference with easements — whether cropping over a right of carriageway constituted a substantial interference with dominant owner’s rights — remedies for substantial interference — whether dominant owner entitled to construct proposed crowned road — width of road which the dominant owner is entitled to undertake work on — whether 14 day notice period prior to undertaking work expressed as part of declaration is justifiable
TORTS — nuisance — trespass — whether appellant entitled to have the full width of the right of carriageway cleared — whether appellant entitled to greater amenity damages — whether appellant entitled to exemplary damages
APPEALS — point not taken below — pleadings — whether issue of substantial interference raised before primary judge and understood to be in issue

Legislation Cited: Conveyancing Act 1919 (NSW), ss 88B, 89, 181A, Part 1, Schedule 8.
Water Management Act 2000 (NSW)

Cases Cited: Butler v Muddle (1995) 6 BPR 13,984
Dare v Pulham (1982) 148 CLR 658; [1982] HCA 70
Dickson v Petrie [2025] NSWCA 110
DSHE Holdings Ltd (Receivers and Managers) (in liq) v Potts (No 2) [2022] NSWCA 258
Fox v Percy (2003) 214 CLR 118; [2003] HCA 22
Hare v van Brugge (2013) 84 NSWLR 41; [2013] NSWCA 74
Lee v Lee (2019) 266 CLR 129; [2019] HCA 28
Mantec Thoroughbreds Pty Ltd v Batur (2009) 25 VR 507; [2009] VSC 351
Moncrieff v Jamieson [2007] UKHL 42; [2007] 1 WLR 2620
New South Wales v Zreika [2012] NSWCA 37
Owners Corp of Strata Plan 42472 v Menala Pty Ltd (1998) 9 BPR 16,337
Owners Corporation Strata Plan 533 v Random Primer Pty Ltd [2025] NSWCA 8; (2025) 262 LGERA 96
Prospect County Council v Cross (1990) 21 NSWLR 601
Riechelmann v McCabe [2024] NSWCA 37
Theunissen v Barter [2025] NSWCA 50
Westfield Management Ltd v Perpetual Trustee Company Ltd (2007) 233 CLR 528; [2007] HCA 45

Category: Principal judgment

Parties: Joseph Roger FitzGerald (Appellant)
Foxes Lane (NSW) Pty Ltd (First respondent)
Gerardus Johannes Jacobus Kurstjens (Second respondent)
Maria Matthieu Elisabeth Kurstjens (Third respondent)

Representation: Counsel:
E W Young and P Springthorpe (Appellant)
T Alexis SC and J Smith (Respondents)
Solicitors:
BDN Lawyers (Appellant)
Cole & Butler Lawyers (Respondents)

File Number(s): 2024/418675

Publication restriction: Nil

HEADNOTE

[This headnote is not to be read as part of the judgment]

The appellant, Mr Joseph FitzGerald, owns farmland near Moree in northern New South Wales which has the benefit of a registered right of carriageway (ROC) over neighbouring farmland (relevantly, Lots 10 and 11 in DP 1163015) owned by the first respondent, Foxes Lane (NSW) Pty Ltd, which company is controlled by the second and third respondents, Mr Gerardus Kurstjens and Ms Maria Kurstjens. The servient land was previously used for grazing, however, from around 2011 the respondents began using the land for cropping. They planted crops across the ROC, employing a system of cultivation involving “tramline” ruts which affected the track’s surface. Consequently, various disputes emerged between the parties.

The appellant filed a summons in the Supreme Court seeking declaratory and injunctive relief concerning the respondents’ farming activities on the ROC; declaratory relief relating to his plan to construct an unsealed crowned road over the ROC; and damages. The respondents filed a cross-claim seeking, amongst other things, damages for nuisance and trespass; declaratory relief relating to the respondents’ ability to farm over the ROC; and extinguishment of the ROC, or in the alternative, its reduction in width.

The primary judge substantially rejected the appellant’s claims, holding that the respondents are entitled to use the ROC in any way, including by cropping, provided that there is no substantial interference with the appellant’s rights under the ROC; the appellant’s proposed road works were not reasonably necessary in circumstances where he “has always been able to pass and repass along the ROC” with his ute; the appellant was required to give 14 days written notice of substantial interference on the ROC before undertaking works to remove it; the appellant was entitled to damages in the sum of $2,500 for the nuisance occasioned by the respondents’ obstruction of the ROC in late 2022 (but not exemplary damages); the respondents were entitled to damages in the sum of $2,500 for nuisance and trespass occasioned by the appellant’s excessive use of the ROC in relation to past grading; and it was not appropriate to extinguish or modify the ROC.

The appellant challenges the orders made by the primary judge on various grounds. A preliminary issue as to the raising of one of the issues also emerged.

The issues to be determined on appeal are whether:

(1) the respondents’ use of the ROC by cropping constitutes a substantial interference with the appellant’s rights;

(2) if so, what relief should issue, and relatedly, whether the appellant is entitled to undertake his proposed roadworks;

(3) the primary judge erred in awarding damages to the first respondent;

(4) the primary judge erred in not awarding greater damages to the appellant;

(5) a requirement for a 14 day notice period is justifiable; and

(6) the issue of whether the respondents’ cropping over the ROC constitutes a substantial interference was raised in the proceedings below.

The Court held (Kirk JA, Adamson JA agreeing, Leeming JA dissenting), allowing the appeal in part:

Raising of the issue of substantial interference

1. Per Kirk JA, Adamson JA agreeing: The primary judge’s list of issues did not in terms identify the issue of whether or not the respondents’ cropping over the ROC constituted a substantial interference with the rights of the appellant. However, that topic appears to be implicit in the issues identified, which reflects the parties’ joint statement of issues: [52]. It was necessarily raised by the appellant’s application for declaratory and injunctive relief. While the claim for injunctive relief was given secondary emphasis in the court below, it was pressed: [53]-[56]. The primary judge dealt with the issue of injunctive relief, albeit shortly, seemingly directing her attention only to the obstructions, which reflects that her Honour did not consider cropping across the ROC to be a relevant interference. In this context, it is apparent that distinct claims for declaratory and injunctive relief relating to the respondents’ conduct in cropping over the ROC, based on substantial interference, were raised, and understood by both sides and the primary judge to be in issue. The respondents did not argue to the contrary on appeal: [57]-[58].

2. The appellant complained that there was a “gap” in the primary judge’s reasoning because her Honour failed to deal with the question of substantial interference. While it was not separately addressed, her Honour’s reasoning demonstrates an implicit conclusion that the respondents’ conduct in cropping over the ROC was not of itself a substantial interference with the appellant’s rights: [59]-[60].

3. Per Leeming JA: The parties identified, in accordance with their obligations, the real issues in dispute which were more refined than those in the pleadings and affidavits. These issues were reflected in the parties’ joint statement of issues, in which there was no mention of any substantial interference with Mr FitzGerald’s rights. The primary judge was entitled to rely on the parties’ joint statement of issues, and resolved the issues as formulated by the parties: [4]-[11]. This is a case where parties capably represented by senior counsel at trial should be permitted to identify the real issues for determination, and should not be permitted by new counsel to raise different issues: [22].

4. One of the alleged difficulties with order 1 made by the primary judge is that her Honour should have found that the respondents’ cropping over the ROC was a substantial interference with Mr FitzGerald’s rights under the ROC. The primary judge enjoyed the benefit of a view. It is not difficult to infer that limited submissions made on behalf of Mr FitzGerald for injunctive relief and for findings that cropping on the ROC was a substantial interference reflected what was apparent to everyone when actually on the ROC. It was plain that at least some of the cropping activities on the ROC did not give rise to a substantial interference with Mr FitzGerald’s rights. The extent to which there was interference depends at least on the time of year, the nature of the crop, the level of moisture in the ground, the manner in which the ROC had been maintained and the frequency of Mr FitzGerald’s use of it. The course taken by her Honour was an appropriate one, which effected a practical outcome: [15]-[23].

Whether the respondents’ cropping activities are a substantial interference with the appellant’s rights

5. Per Kirk JA, Adamson JA agreeing: The issue raised is not one of construction but rather relates to the reasonableness of the parties’ actions, which arises subsequent to construction of the easement in question. This issue is essentially an evaluative matter involving close analysis of the facts: [68]-[75].

Westfield Management Ltd v Perpetual Trustee Company Ltd (2007) 233 CLR 528; [2007] HCA 45; Owners Corporation Strata Plan 533 v Random Primer Pty Ltd [2025] NSWCA 8; (2025) 262 LGERA 96; Theunissen v Barter [2025] NSWCA 50; Dickson v Petrie [2025] NSWCA 110; Butler v Muddle (1995) 6 BPR 13,984; Owners Corp of Strata Plan 42472 v Menala Pty Ltd (1998) 9 BPR 16,337; Mantec Thoroughbreds Pty Ltd v Batur (2009) 25 VR 507; [2009] VSC 351, referred to.

6. The obscuring effect of the respondents’ cropping is a significant interference in the ability of the appellant and his invitees to make use of the ROC: [77]-[82]. The reduction in speed and ease of travel occasioned by the cropping is of some significance in affecting exercise of the rights: [83]-[88]. The damage to vehicles is a factor of some weight, but not of itself a substantial interference given the rural context: [89]-[91]. The limitation on the types of vehicles that can use the ROC represents a significant interference: [92]-[100]. The effect of tramline cropping on waterflow in and of itself has not been shown to constitute a substantial interference: [101]-[107]. The second respondent’s evidence that cropping over internal roads is “normal farming practice” was undercut by the respondents’ own expert and their farming manager. Whatever weight is given to what the appellant did on his own internal road is offset by what the respondents do for tracks they wish to use: [108]-[113].

7. Appellate restraint is called for with respect to the relevant findings of fact made by the primary judge, who had the benefit of viewing the relevant properties and being driven over the ROC but relates only to findings of fact which manifest the primary judge’s advantage. It does not extend to the decision of her Honour: [114].

Fox v Percy (2003) 214 CLR 118; [2003] HCA 22; Lee v Lee (2019) 266 CLR 129; [2019] HCA 28; Riechelmann v McCabe [2024] NSWCA 37, referred to.

8. The combination of the matters referred to involve a substantial interference by the respondents in the appellant’s rights. The respondents’ use of the land subject to the ROC by way of cropping in a tramline manner is, to a significant extent, incompatible with the use of that land as a carriageway. So much was reflected in the evidence of the second respondent and the evidence of the experts in the joint expert report. The respondents positively asserted such incompatibility in their written submissions in support of their primary case of extinguishment or modification: [115]-[122]. In any case, the incompatibility is established by the evidence. While forbidding cropping on the ROC would come at an economic cost to the first respondent, that cost must be seen in context and the respondents’ economic self-interest cannot trump the legal rights held by the appellant: [123]-[127].

Hare v van Brugge (2013) 84 NSWLR 41; [2013] NSWCA 74; Theunissen v Barter [2025] NSWCA 50; Moncrieff v Jamieson [2007] UKHL 42; [2007] 1 WLR 2620, referred to.

Appropriate relief and the appellant’s desire to build a road

9. Per Kirk JA, Adamson JA agreeing: As with the first issue, this issue is not one of construction and is essentially an evaluative matter involving close analysis of the facts: [68]-[75] (see point 5 above). Given the incompatibility, the appropriate resolution is to grant injunctive (rather than declaratory) relief preventing cropping across the ROC (where this would not prevent it being planted with grasses to return it, in effect, to pastureland): [129]. The creation or maintenance of tramlines should also be injuncted. It is not necessary to prevent cropping across the whole 20 metre width of the ROC. It is appropriate to specify a width of 5 metres to limit further disputes: [132]-[133]. As for remediation, it is appropriate to declare that the plaintiff may undertake work on a five-metre vehicular track along the ROC in the nature of light grading or drag bucketing: [134]-[139].

The requirement to give 14 days notice

10. Per Kirk JA, Adamson JA agreeing: The imposition of a 14 day notice requirement could not be justified as a matter of construction of the “proper meaning” of the ROC, where any such construction would affect successors in title of the current parties. Nevertheless, it is appropriate to make an injunction regulating the current parties’ reasonable use, which requires notice to be given of grading, drag bucketing and ploughing: [63], [140]-[143].

11. Per Leeming JA: The point about the form of the declaration now being taken, the reasons of Kirk JA are agreed with, but save for that, the appeal should otherwise be dismissed: [25]

Damages in favour of the first respondent

12. Per Kirk JA, Leeming and Adamson JJA agreeing: the appellant’s claim for some kind of road cleared across the whole ROC is not consistent with a pragmatic balancing of competing interests. Moreover, there are several gates which exist on the ROC with a maximum width of 3.5 metres, and the appellant did not submit that those gates themselves constitute a substantial interference. The attack on her Honour’s reasoning is not made good: [1] (Leeming JA); [144]-[148] (Kirk JA); [163] (Adamson JA).

Owners Corp of Strata Plan 42472 v Menala Pty Ltd (1998) 9 BPR 16,337, referred to.

Damages in favour of the appellant

13. Per Kirk JA, Leeming and Adamson JJA agreeing: The appellant’s damages claim was pleaded by reference to the period of August to December 2022 (with one paragraph relating to the planting of wheat in April 2024). It was that period which the primary judge addressed. While the appellant’s written submissions below went beyond the pleading by referring to a loss of amenity since cropping started in 2011, the respondents did not address the case on that basis in written or oral submissions and cannot be said to have acceded to a widening of the case against them. In this context, there was no error in the judge’s reasoning on the claim for loss of amenity. Nor has error been shown in relation to not allowing the specific sum of $4,400. The appellant’s claim for exemplary damages, too, is not made out: [1] (Leeming JA); [149]-[158] (Kirk JA); [163] (Adamson JA).

Dare v Pulham (1982) 148 CLR 658; [1982] HCA 70; New South Wales v Zreika [2012] NSWCA 37, referred to.

JUDGMENT

1. LEEMING JA: I have had the considerable advantage of reading the reasons for judgment of Kirk JA in draft. I agree with his Honour, for the reasons he gives, that all the subsidiary aspects of the appeal (grounds 3-6) fail. However, I have come to a different conclusion in relation to the principal point argued on appeal, which turned on the failure of the primary judge to find that the respondents’ use of the right of carriageway (ROC) by cropping constituted a substantial interference with Mr FitzGerald’s rights. The primary judge made no such finding. I have concluded that that reflected the way the trial was run, and that Mr FitzGerald is not entitled to succeed in this appeal on the basis of the different case now sought to be run. I shall be able to explain why I have reached those conclusions quite concisely, in light of the background contained in Kirk JA’s reasons, with which the following presupposes familiarity.

2. The parties are rural neighbours. They have many grievances concerning the ROC enjoyed by Mr FitzGerald over the respondents’ land, which was for many years used for grazing, but which since around 2011 has been used for cropping. Crops have been grown over the ROC, and farm machinery runs across the ROC along “tramlines” which are claimed to cause rutting and corrugation of the surface of the track. The cross-claim identified with some specificity alleged against Mr FitzGerald going back more than a decade, to May 2013, concerning his intentional acts of damage to crops on the respondents’ land, and in three cases intentional acts of threatened physical violence against the Kurstjens and their employees. The defence to the cross-claim contested this, including frequently by stating that Mr FitzGerald was conducting light grading work. Pages 10-16 of Mr FitzGerald’s affidavit affirmed 5 October 2023, pages 13-26 of Mr Kurstjens’ affidavit affirmed 22 June 2023 and pages 5-18 of Ms Kurstjens’ affidavit affirmed 23 June 2023 address the conflicts, with each of the three subsequently responding to what was said by the other.

3. The primary judge resolved none of those issues. It would not have been sensible to do so, nor was her Honour asked to do so.

4. The primary judge was able to hear the trial in three days. That was because the parties identified – in accordance with the obligations placed upon them and their lawyers by s 56 of the Civil Procedure Act 2005 (NSW) – the real issues in dispute. Those issues were more refined than those in the pleadings and affidavits. Mr FitzGerald claimed an entitlement to build a crowned road over the ROC, and he sought damages for trespass and nuisance. The respondents sought the ROC to be extinguished, and they also sought damages for trespass and nuisance. Both sides also sought relief, by way of declaration and injunction, clarifying what each could do on the ROC.

5. This was reflected in a “Joint Statement of Real Issues” supplied in advance of the trial, together with relatively extensive written submissions. The Joint Statement of Real Issues contained four headings: “Construction of the ROC”, “Extinguishment under s 89 of the (NSW)”, “Tort claims by the plaintiff against the defendants” and “Tort claims by the cross-claimant against the plaintiff”. None of the 12 issues framed under those headings mentioned any substantial interference with Mr FitzGerald’s rights under the ROC. The issues were framed more prosaically. The issues under the heading “Construction of the ROC” were whether the right of carriageway (a) permitted Mr FitzGerald to construct a crowned road, or to conduct grading activities, or to “address and/or harass the defendants’ staff” as alleged, or (b) permitted the respondents to conduct “the type of farming activities on (including planting over the top of) the ROC”.

The overarching issues in dispute in the proceedings are as follows:

(a) Whether Mr FitzGerald is entitled to build up and maintain a formed road on the ROC free from interference from the defendants’ cropping activities (as he contends), or alternatively whether the defendants are entitled to crop across the road on the ROC and Mr FitzGerald’s right to undertake works on the ROC is limited to where something presents a substantial interference with its trafficability (as the defendants contend);

(b) Whether the ROC is to be extinguished or modified pursuant to s 89(1) of the Conveyancing Act;

(c) Whether the defendants’ historical conduct amounts to substantial interference with the ROC entitling Mr FitzGerald to damages (which overlaps with (a) above because the defendants’ conduct relied on by Mr FitzGerald for this claim includes cropping across the ROC); and

(d) Whether Mr FitzGerald’s historical conduct amounts to nuisance and/or trespass entitling the defendants to damages (which overlaps with (a) above because the conduct relied on by the defendants for this claim includes the steps Mr FitzGerald has taken to clear and maintain the trafficability of the ROC).

7. It is true that the written submissions proceeded to identify a suite of more detailed issues, which extended to whether an injunction should issue restraining “cultivating and planting crops across the ROC, causing deep wheel tracks across the ROC, preventing or interfering with Mr FitzGerald’s periodic maintenance and formation of a road on the ROC and preventing or hindering passage of vehicles along the ROC”. However, no injunction would issue in such general terms, and as Kirk JA observes, the oral submissions concerning injunctive relief were muted.

8. Pages 47-48 of Mr FitzGerald’s opening submissions asserted that there had been substantial interference with the easement. However, those paragraphs explicitly equated this aspect of the case to Mr FitzGerald’s entitlement to construct a crowned road: “For the same reasons that the Court should find that Mr FitzGerald was entitled to build up and maintain a formed road on the ROC, it follows that by cropping across the road … and preventing Mr FitzGerald undertaking maintenance the defendants committed the tort of nuisance by substantially interfering with Mr FitzGerald’s rights …”.

9. The primary judge was entitled to rely upon the Joint Statement of Real Issues, and the “overarching issues” identified by Mr FitzGerald, in formulating the issues for determination as occurred at [15]:

The issues in dispute are:

(1) On the proper construction of the ROC, in the current circumstances:

(a) is Mr FitzGerald entitled to construct an unsealed road and drains; and/or

(b) is Foxes Lane Co entitled to grow crops and carry out farming activity on the ROC?

(2) Ought the ROC be extinguished or narrowed pursuant to s 89 Conveyancing Act, primarily because other access routes are available and appropriate for Mr FitzGerald’s use?

(3) Ought either party be entitled to damages for the nuisance or trespass of the other?

10. The primary judge summarised the issues at the outset of her reasons as follows:

11. Mr FitzGerald wishes to improve the ROC’s usability by constructing an “unsealed crowned road 100-300mm high together with table drains, as appropriate”, and undertake periodic grading activities. A table drain is, according to the experts, a “trapezoidal [shape] … flat bottom drain with shallow slopes either side of it to minimise erosion risk on the slopes that is lower than the landform [ie track].” Table drains may be constructed in different widths and depths. The narrower and deeper a drain is, the greater the concentration of water, which can lead to greater erosion. He further seeks an injunction preventing the defendants cropping over and creating tramlines on the ROC.

12. In contrast, Foxes Lane Co submits that Mr FitzGerald is not permitted to “physically change, modify or damage the servient tenement” unless he is removing or remedying anything that substantially interferes with his right to pass or repass along the ROC, and has given it at least 14 days’ notice. The defendants assert that Mr FitzGerald is entitled to do what is reasonably necessary for him to use the ROC, but he has not demonstrated that it is “reasonably necessary” to carry out any work, or at least not the work that he proposes. They assert that building the proposed road would not be reasonably necessary, noting that Mr FitzGerald has always been able to drive along the ROC, even if with some difficulty due to Foxes Lane Co’s cropping activity.

13. While Foxes Lane Co also seeks the extinguishment of the ROC, or its modification pursuant to s 89 Conveyancing Act 1919 (NSW), it accepts that if a finding is made that it is “entitled to crop across the carriageway”, or that Mr FitzGerald “is not permitted to build a road on the carriageway”, then its case under s 89 is “difficult, if not impossible”.

11. Her Honour resolved the issues formulated by the parties, and summarised at the commencement of her reasons, by rejecting both sides’ primary positions. Mr FitzGerald was not entitled to build a crowned road, and the respondents were not entitled to extinguishment of the ROC.

12. That left the intermediate cases for damages and declaratory and injunctive relief unresolved. The primary judge made orders for each side to pay damages to the other in the amount of $2,500. Mr FitzGerald appealed from that, but I agree with Kirk JA that that aspect of his appeal must be dismissed.

13. The first order was a declaration:

A declaration that the Right of Carriageway … on its proper meaning permits the owner of the dominant tenement and his invitees to go, pass and repass at all times and for all purposes with or without animals or vehicles or both to and from the dominant tenement along the route of the carriageway, but does not authorise or permit the owner of the dominant tenement or his invitees to physically change, modify or damage the servient tenement including any crops growing thereon by the use of digging or grading implements or machines or otherwise, unless:

(a) there is something on the ROC that substantially interferes with the dominant owner’s right to go, pass or repass along the carriageway; and

(b) while the plaintiff remains the owner of the dominant tenement, he gives the servient tenement owner at least fourteen (14) days’ written notice of the substantial interference on the ROC before any work is undertaken on the ROC to remove it.

14. In this Court, counsel for Mr FitzGerald, who had not appeared at trial, contended that there were two difficulties with the declaration. One was technical. It was that the construction of the ROC could not yield the period of at least 14 days’ notice in the second condition. The submission is sound. Yet nothing of substance turns on it, and the same position should be reflected in the terms of injunctive relief. I would note that no such point appears to have been made at trial. Indeed Mr FitzGerald appears to have agreed in oral closing submissions (there were no written closing submissions) that declaratory relief would suffice, in that her Honour asked “I don’t understand why you want that relief as opposed to some form of declaration” and the response included “your Honour might not worry about the injunction” (Tcpt 2 October 2024, 217.25-29).

15. The second point is that it was said that the primary judge should have found that the respondents’ cropping over the ROC was a substantial interference with Mr FitzGerald’s enjoyment of his rights under the ROC. Mr FitzGerald pointed to the obscuring effect of crops, especially upon invitees not familiar with the route. He pointed to the bumpiness of the tramlines created by the farming equipment, which could slow down vehicles and even damage them. He emphasised that the ROC conferred rights which should be enjoyed by him and his invitees driving all manner of vehicles, not merely 4-wheel drive vehicles and other farm vehicles.

16. True it is that when senior counsel then appearing for Mr FitzGerald opened the case, he said, by reference to photographs of crops:

there are extensive crops rising some distance up that one would have to smash a vehicle through, and ahead of your Honour’s visit, it’s been mown to put it into a more presentable state. That’s shown in photographs A, and in the photographs marked B, you see something more representative of the state of it, particularly B2, for instance. So the case against us is that although he has a right of carriageway, really, at certain times of year, he and all of his invitees will simply have to smash through his neighbour’s crops and that he commits a tort, makes himself liable for damages if he attempts to grade a path so that he can drive on earth rather than bash through crops.

17. That submission appropriately recognised that the impact upon Mr FitzGerald of the cropping activities was seasonal and depended on the steps taken by the respondents.

18. The trial judge enjoyed the benefit of a view immediately after opening addresses. Her Honour accompanied by representatives of both sides drove along the entirety of the ROC as well as the surrounding roads. Her Honour recorded this in detail at [16]-[29] including stating at [18]:

No 4-wheel drive vehicle had any difficulty driving along the ROC, even though in places, there were low-lying plants or crops and the surface was not always flat or dry.

19. It is not difficult to infer that limited submissions made on behalf of Mr FitzGerald for injunctive relief and for findings that cropping on the ROC was a substantial interference with his rights reflected what was apparent to everyone including the trial judge when actually on the ROC. It was plain that at least some of the cropping activities on the ROC did not give rise to a substantial interference with the enjoyment by Mr FitzGerald of his rights.

20. Further, her Honour was evidently concerned by practical issues in the relief sought by Mr FitzGerald that no cropping activities take place. There was a relatively extensive exchange in final address concerning a possibility which, it might be thought, was far from fanciful, namely, that the respondents ceased cropping activities over the ROC, but for a period of time Mr FitzGerald ceased to use the ROC himself. The debate proceeded on the basis that if left unvegetated, there was at least the possibility that the ROC would deteriorate though erosion. The exchange concluded as follows:

HER HONOUR: At the moment, assume, they’re not going to crop over the right of carriageway, they’re going to crop to either side, they’re going to leave the right of carriageway. Mr Fitzgerald can do what he’s entitled to do on it. He chooses to do nothing. You say then if it got really terrible the defendants have to fix it.

HUTTON: Your Honour, that is exactly the type of situation in a residential environment. If one were to undermine a right of carriageway through the servient tenement – were to undermine a right of carriageway by carrying on activities outside the right of carriageway that caused it to erode and fall away. yes, they would have to fix it.

HER HONOUR: But if they are planting crops in an attempt to avoid erosion and the like, and historically Mr Fitzgerald has not used the right of carriageway often.

HUTTON: Well, he has used it often on the evidence, but yes, I understand your Honour’s hypothesis.

HER HONOUR: Then they need to amend their farming practices depending on whether Mr Fitzgerald in one year decides not to use it at all and in another year decides to use it every day 10 times a day.

HUTTON: Well, if they plant over the right of carriageway - the evidence is that if they plant over - so on the secondary position, your Honour’s against me on the road, if they plant over the right of carriageway, the evidence is, your Honour’s heard it, they can take steps to put through a farm road that would be passable. You’ve seen it by slashing the crops, perhaps spraying the crops as they did when they were ordered to, or when they undertook to, slashing the crops as they did just prior to the view and then applying some kind of treatment so that it goes down to stubble and earth as we saw when we drive across it.

21. That exchange reflects the difficulties with the unqualified injunction sought on appeal.

22. I think this is a case where parties capably represented by senior counsel at trial should be permitted to identify the real issues for determination, and should not be permitted by new counsel to raise different issues. I am sceptical about the practical reality of invitees (it was not disputed that there was no actual evidence of the number of invitees). I am also sceptical that there was any significant driving in this area, where most of the public roads are unsurfaced, by vehicles other than 4-wheel drives and farm equipment.

23. The primary judge was evidently aware that the particular cropping activities conducted by the respondents might interfere differently with Mr FitzGerald’s ability to traverse the ROC. The extent to which there was interference would (or so it seems to me) depend at least on the time of year, the nature of the crop, the level of moisture in the ground, the manner in which the ROC had been maintained and the frequency of Mr FitzGerald’s use of it. There was so far as I can see no suggestion at trial of the primary judge being asked to, or there being precise evidence which would have permitted her Honour to, make more nuanced findings about the extent of the interference at various times of the year in various weather conditions and with various crops being grown. The course taken by her Honour was, in my opinion, an appropriate one, which left open the possibility that there be a substantial interference, and put in place a mechanism which permitted its resolution, ideally without these litigants coming into contact with each other. That was a practical outcome which accorded with legal principle and the issues litigated by the parties. It permitted the real issues identified by the parties to be resolved quickly and relatively cheaply. It did not resolve all the permutations of future contention which might arise, but that is not, to my mind, a fair criticism of the court’s role in a case such as this.

24. It may be arguable that Mr FitzGerald may not have had full opportunity to respond to the points made above, although the respondents contended in oral submissions that “her Honour just didn’t accept that there was any evidence of any interference, be it substantial or otherwise” and that “[t]he evidence shows that Mr FitzGerald has consistently driven over the carriageway and driven over the crop”. However, because my judgment is a dissenting one, it is unnecessary for me to consider whether Mr FitzGerald should be permitted to be heard further on this issue.

25. The point about the form of the declaration now being taken, I agree with Kirk JA’s response, but save for that I would otherwise dismiss the appeal.

26. KIRK JA: The appellant, Mr Joseph FitzGerald, owns farmland near Moree in northern New South Wales. The land has the benefit of a registered right of carriageway () over neighbouring farmland owned by the first respondent, Foxes Lane (NSW) Pty Ltd. That company is controlled by Mr Gerardus Kurstjens and his daughter Ms Maria Kurstjens as directors, being the second and third respondents. In around 2011 the respondents began using the servient land for cropping, where previously it had been used for grazing. They planted crops across the ROC, employing a system of cultivation involving “tramline” ruts which affected the track’s surface.

Background

32. The ROC is depicted by the dotted line which proceeds from Point S to Point Y in this diagram:

33. The relevant lots to this appeal are Lots 10, 11, 20 and 21, owned by the first respondent, and Lot 19, owned by the appellant. Lot 21, which was previously a public road, runs between Lots 10 and 11 and 21 on the one side and Lots 19 and 20 on the other. The appellant inherited Lot 19 in 2009, it having been in his family since 1925. Entities controlled by the second respondent purchased Lot 10 in 2011 and Lots 11 and 20 in 2013. The ownership of those lots was transferred to the first respondent in 2017.

34. The ROC which is the subject of this dispute was registered in August 1992 in conjunction with DP 817727. The ROC is about 3.5 kilometres in length: approximately 2.65 kilometres proceeds through Lot 10, approximately 800 metres proceeds through Lot 11, and it runs for a very short way through Lot 20. The registered instrument under s 88B of the Conveyancing Act 1919 (NSW) refers to the ROC in the following terms: “Right of carriage way 20 wide”. It was not disputed that “20 wide” means 20 metres, and that the reference to “right of carriage way” incorporates the terms then identified in Part 1 of Schedule 8 of the Conveyancing Act (by operation of s 181A of that Act), namely:

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 him, 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.

35. In June 2011 the lots were re-arranged through a subdivision, and the original ROC was incorporated into a new deposited plan (DP 1163015).

36. In 2014 the State granted a “Right of Access 20.115 Wide” (ROA) over Lot 21, which was the abovementioned public road, for the benefit of Lot 19 in the original DP. A further deposited plan (DP 1197617) and an associated s 88B instrument were registered in June 2014 to that effect. That appears to have been done due to the first respondent’s purchase of that road from the State, the effect being that it would no longer be a public road. The ROA is approximately 20 metres wide. Mr FitzGerald requires the benefit of the ROA in order to traverse from the ROC, across Lot 21 (which used to be a public road) to proceed into his lot, being Lot 19. The terms of the ROA were quoted at J [32].

37. In submissions to this Court the appellant noted that all but about 20m of the access route to Lot 19 is over the ROC on Lots 10 and 11, and said that the short passage over Lots 20 and 21 was not cropped by the respondents, such that it was only necessary to address the ROC on Lots 10 and 11, and not the ROC on Lot 20 or the ROA on Lot 21.

38. From around 2011 Lots 10 and 11 have been used for cropping, whereas historically they had been used for grazing. More recently, the area of Lot 11, which had previously been cropped, has now been left for native vegetation to regrow. In oral submissions, counsel for the appellant accepted that in relation to Lot 11 “the conduct of cropping operations is not an issue and it wasn’t the subject of debate below”.

39. The respondents use a “tramline” or “controlled traffic” method of cropping which involves running all farm cropping machinery (for planting, spraying and harvesting) along paths programmed using GPS guidance. The purpose of the tramlines is to maximise yield by minimising the area traversed by farming machinery. The machinery paths tend to become compressed, creating ruts. The cropping runs in question over Lot 10 extend over a number of kilometres, crossing over the ROC at an angle of about 45 degrees. The second respondent said that he thought that these were the longest cropping runs in the whole operation, although he was not sure.

40. The tramlines are in pairs about 3 metres apart, that being the wheelbase width of the relevant farm machinery. There was unclear evidence as to how far apart the pairs are, with the second respondent saying at one point that they are 12 metres apart, and at another stage that they are 24 or 48 metres apart. The compressed area in the tramlines is about 75 centimetres to 1 metre wide. The tramlines are of varying depths. The joint expert report (JER) noted that the tramlines can become depressions of 10 to 20 centimetres; the second respondent accepted that the tramline ruts can range from 5 to 30 centimetres deep.

The primary judgment

48. The appellant and the second and third respondents all gave evidence and were cross-examined. The same is true of the respondents’ farm manager, Mr Glenn Coughran. The primary judge did not find it necessary to express any credit or reliability findings.

49. Four experts gave evidence in the form of individual reports, participated in a conclave, produced a joint report (the JER), and gave oral evidence concurrently. The two experts called for the appellant were Mr Simon Buchanan (a soil conservationist and specialist in erosion and sediment control) and Mr Michael Frankcombe (a specialist in erosion and sediment control and land stabilisation and rehabilitation). The two experts relevantly called for the respondents were Mr Stuart Thorn (an agronomist) and Mr Peter Taylor (an irrigation, environmental and resources consultant). The joint report produced a high degree of unanimity.

50. The primary judge had the benefit of a view of the ROC, the relevant properties and the surrounding tracks and roads. The view was conducted in four wheel drive (4WD) vehicles. The primary judge travelled over that part of the ROC on Lot 10 twice during the view, and over the part on Lot 11 once. Her Honour’s observations, relevantly, were as follows:

[18] … No 4-wheel drive vehicle had any difficulty driving along the ROC, even though in places, there were low-lying plants or crops and the surface was not always flat or dry.

[19] … Prairie Straight is an internal farm road created and maintained by Foxes Lane Co [ie the first respondent]. It is not cropped over and is used by heavy farm machinery and smaller farm vehicles, such as 4-wheel drive utilities. Prairie Straight had a noticeably superior surface to the ROC and it was possible to drive faster on it. It had recently been drag bucketed to level out erosion and improve the surface. Foxes Lane Co carries out such maintenance “as needed” and sometimes, a few times a year. …

[25] The view proceeded through Lot 11 on the ROC. Lot 11 is not currently cropped, but there was some vegetation on the ROC, including what appeared to be some crop stubble. Again, no vehicle experienced any difficulty driving over the ROC, even though it was not completely flat or dry. …

[28] The view … proceeded through Mr FitzGerald’s property to Foxes Lane and then back to Moree (path X to Z). Mr FitzGerald’s track on his property was not in a much better condition than the ROC.

51. The primary judge identified the issues in dispute in these terms at [15]:

(1) On the proper construction of the ROC, in the current circumstances:

(a) is Mr FitzGerald entitled to construct an unsealed road and drains; and/or

(b) is Foxes Lane Co entitled to grow crops and carry out farming activity on the ROC?

(2) Ought the ROC be extinguished or narrowed pursuant to s 89 Conveyancing Act, primarily because other access routes are available and appropriate for Mr FitzGerald’s use?

(3) Ought either party be entitled to damages for the nuisance or trespass of the other?

52. This list was a summation of a longer joint list of issues provided by the parties. It does not identify in terms one key issue, namely whether or not the conduct of the respondents in cropping over the ROC constituted a substantial interference with the rights of the appellant as owner of the dominant tenement. However, that topic appears to be implicit in issue 1(b) identified by her Honour. It reflects the second issue identified in the parties “Joint Statement of Real Issues”, namely “[w]hether, on their proper construction, the terms of the ROC permit the defendants to conduct the type of farming activities on (including planting over the top of) the ROC as alleged against them by Mr FitzGerald at CB 12-15”. The parties labelled all issues in dispute between them relating to what they each could do on the ROC as matters of construction. As explained below, that is not really what is involved. That labelling did not detract from the fact that they were in dispute about their respective activities.

53. The dispute about the respondents’ cropping activities necessarily was raised by the appellant’s application for declaratory and injunctive relief. The appellant’s amended summons sought a declaration that various actions of the respondents in the period 2011-2024 constituted “an unreasonable interference with the use and enjoyment of the right of way”, including “ploughing, discing, tyning and otherwise cultivating across tracks in use” on the ROC, “planting crops over tracks in use” on the ROC, and hindering the appellant’s attempts at periodic maintenance and formation of the track. The amended summons also sought injunctive relief against “discing, tyning, cultivating or otherwise disturbing”, or “planting crops or any vegetation on or over”, the appellant’s road words located upon the ROC. The appellant’s amended statement of claim spelt out the respondents’ actions which were said to amount to a “substantial and unreasonable interference” with the appellant’s use and enjoyment of the ROC. Although that was done under a heading relating to the nuisance claim, it could also reasonably be understood to support the claim for declaratory and injunctive relief.

54. The appellant’s claims for injunctive relief were given secondary emphasis in the court below, but they were pressed. The appellant’s written submissions below said that the “principal relief sought by Mr FitzGerald is declaratory and injunctive relief which will make clear his entitlement to form an unsealed road on the ROC and also make clear that the defendants are not entitled to plant crops over it or plough or disc through it”. The submissions later said:

[61] Mr FitzGerald further contends that the defendants are committing a substantial interference with the ROC by cropping across it using heavy farm machinery imposing tramline tracks, which effectively undoes the effect of his light grading activities and would destroy a formed road should he build one.

[62] Mr FitzGerald seeks the following relief in his summons:

a. declarations and injunctions to prevent the defendants cropping across the ROC (paragraphs 1(a), 1(b), 1(e), 1(f) and 2(a));

b. declarations and injunctions requiring the defendants to remediate the damage their cropping activities have done to the road in use on the ROC (paragraph 3); and

c. declarations and injunctions confirming his entitlement to build and maintain a formed road and preventing the defendants from interfering with him doing so (paragraphs 4A and 4B). …

[81] As to whether the defendants’ cultivation of the servient land is a substantial interference with the ROC, the evidence establishes that the practice of imposing tramlines by cropping across the ROC interferes with its trafficability and causes other inconveniences and safety risks.

55. In closing oral address, senior counsel for the appellant said this, amongst other submissions directed to the topic:

Can I just clarify exactly what findings we say your Honour might make about what amounts to substantial interference with the grant, and thus, in effect, defines what my client can do.

So, the first possibility, which I have already referred to, is that your Honour might find that the defendants are not entitled to crop over the right of carriageway unless they take steps to make it trafficable afterwards, so it would be a substantial interference to crop over the right of carriageway unless you take the kinds of steps that we know they take with their own farm roads, such as mowing down the crops or cutting the crops as they do with a slasher and having heavy vehicles drive over them in order to depress some of the corrugations. …

56. And the following exchange, for example, subsequently occurred between the primary judge and senior counsel for the respondents:

HER HONOUR: But you commenced by saying that if the crop was two metres high, then that would be an unreasonable interference, and that ought to be cut down.

ALEXIS: Yes.

HER HONOUR: So, you would also accept that if there were divots in the carriageway that did really - or that did impede passage, that would also be a substantial interference. So, it’s a question of degree.

ALEXIS: It is, of course, and, your Honour, my dramatic example of a crop in excess of a metre high - and I should have, perhaps, made this clear – accepts that a standing crop of that dimension would create a substantial interference. Something would have to be done. The owner of the dominant--

HER HONOUR: You say the test is whether you can drive through.

ALEXIS: Yes.

HER HONOUR: Drive through with a four-wheel drive Ute.

ALEXIS: That’s an extreme example to demonstrate that that could be a substantial interference and, therefore, the owner of the servient tenement would have to do something about it.

57. In her judgment the primary judge dealt with the issue of injunctive relief, albeit shortly, seemingly directing her attention only to the obstructions, saying that “while Mr FitzGerald sought injunctions, I do not consider that there is an ongoing threat of further interferences with his access along the ROC” (J [94]). That conclusion reflected the fact that her Honour did not consider cropping across the ROC to be a relevant interference with the appellant’s rights.

58. In this context, in my view it is apparent that distinct claims for declaratory and injunctive relief relating to the respondents’ conduct in cropping over the ROC, based upon substantial interference, were raised in the proceedings below, and were understood by both sides and by the primary judge to be in issue. Importantly, the respondents did not argue to the contrary on appeal.

59. The appellant complained that there was a “gap” in the reasoning of the primary judge because it “skipped over the question of whether or not there was a substantial interference” and in effect proceeded to consider the issue of whether the appellant is entitled to construct the proposed road. Whilst it was not separately addressed by her Honour, it is implicit in her reasoning that she was not of the view that there was a substantial interference with the appellant’s rights under the ROC. Her Honour noted at [15(1)(b)] that one of the issues in dispute was whether Foxes Lane Co was entitled to grow crops and carry out farming activity on the ROC. At [71], when dealing with the periodic grading by the appellant, her Honour said that “Foxes Lane Co is entitled to use the ROC in any way, including by cropping over it, provided that it does not cause a substantial interference with Mr FitzGerald’s right to pass and repass”. The reasons then continued:

[72] Mr FitzGerald is not entitled to do more than what the expert Mr Thorn explained was ‘only very minor regrading of the road so as not to affect the quality of the soil for [the] establishment and growing of crops.’ Such maintenance would permit the use of a light grader, such as one towed. Only if there were significant ruts in the track would a larger grader be needed, and only for those particular sections. To the extent that there are crops that interfere with Mr FitzGerald’s access, he may cut them back: see eg Treweeke v 36 Wolseley Road Pty Ltd (1973) 128 CLR 274 at 280 (McTiernan J) (in a different context, pruning of obstructing bamboo appropriate).

[73] Further, the area for such ‘reasonable’ maintenance is only of a sufficient width so as to allow Mr FitzGerald’s farm vehicle to pass.

[74] Therefore, it is appropriate to make orders in the form sought by Foxes Lane Co concerning the entitlements of the parties to carry out works on the ROC.

60. Her Honour later said that “[i]t is appropriate to declare that Foxes Lane Co is entitled to use the ROC, including by cropping, but not so as to create a substantial interference with Mr FitzGerald’s ability to pass and repass the ROC with a vehicle usually used on farm roads” (at [147]). Thus her Honour implicitly concluded that the respondents’ conduct in cropping over the ROC was not of itself a substantial interference with the appellant’s rights.

61. The orders made by the primary judge included this declaration:

A declaration that the Right of Carriageway … on its proper meaning permits the owner of the dominant tenement and his invitees to go, pass and repass at all times and for all purposes with or without animals or vehicles or both to and from the dominant tenement along the route of the carriageway, but does not authorise or permit the owner of the dominant tenement or his invitees to physically change, modify or damage the servient tenement including any crops growing thereon by the use of digging or grading implements or machines or otherwise, unless:

(a) there is something on the ROC that substantially interferes with the dominant owner's right to go, pass or repass along the carriageway; and

(b) while the plaintiff remains the owner of the dominant tenement, he gives the servient tenement owner at least fourteen (14) days' written notice of the substantial interference on the ROC before any work is undertaken on the ROC to remove it.

62. There are two problems with the form of this order. First, its effect is that if there is a substantial interference then that may be remediated upon 14 days notice being given. So expressed the order has limited practical utility. In substance it simply restates the applicable legal principle that an interference with an owner’s rights in relation to an easement is actionable if that interference is substantial. The declaration does little to articulate the types of interferences which would be considered substantial and therefore does little to quell the parties’ practical dispute. Moreover, neither this declaration nor anything else in the orders recognises what her Honour had articulated at [72], namely that she considered that the appellant was entitled in some circumstances to engage in minor or light grading.

63. Second, the imposition of a 14 day notice requirement could not be justified as a matter of construction of the “proper meaning” of the ROC, where any such construction would affect successors in title of the current parties. Yet that is how the order was expressed. When challenged, the respondents made little attempt to support the form of the order even though it was they who had suggested it. If any such order was justified it would have been in the form of an injunction regulating the current parties’ reasonable use in light of their history of disputation. As shall be seen, in my view such an order is appropriate in this case.

64. As regards the appellant’s claim to be entitled to undertake road works by constructing “an unsealed road … with a crowned centre 100-300mm above the natural land surface and table drains” (to quote part of the declaratory relief sought by the appellant), her Honour’s reasons for rejecting the claim were:

[66] I do not consider Mr FitzGerald’s proposed road works are ‘reasonably necessary’ in the circumstances where he has always been able to pass and repass along the ROC with his utility vehicle. No doubt Mr FitzGerald can traverse the ROC in an ordinary farm vehicle without carrying out such significant works. As seen on the view, it is completely possible for a vehicle to drive over even quite mature crops. If he was not able to pass and repass over the ROC from time to time, then he would be entitled to remove some crop growth or flatten some tramlines.

65. The appellant had claimed damages in nuisance, seeking $4,400 wasted costs incurred with respect to the hire of the grader in August 2022, $86,500 for the cost to be incurred in building the formed road, $75,000 in general damages for loss of amenity, and exemplary damages in the range of $40,000-$50,000. As to the first, that was rejected both because the primary judge considered the grading was not reasonably necessary, and in any event her Honour concluded that the appellant used the grader for other work on his property and “therefore obtained the benefit of the hire charge and suffered no identifiable loss” (J [87]). The road building costs were rejected because the task was not reasonably necessary. As for the loss of amenity, given her Honour’s conclusions on the reasonableness of the respondents’ conduct in cropping on the ROC the only loss of amenity her Honour found was in the period of August-December 2022 when the appellant was denied access to the ROC, for which a sum of $2,500 was awarded (J [86]). The claim for exemplary damages was rejected (J [89]-[93]), including because the respondents had “acknowledged that the self-help action was inappropriate” and had accepted they should pay the appellant’s costs up to 20 December 2022 when the obstructions were removed (J [88] and [93]).

66. The respondents successfully claimed damages for nuisance and trespass in relation to the appellant’s grading of the ROC, both with the commercial grader and the appellant’s own light grader. The primary judge awarded compensation of $2,500.

67. The primary judge then went on to consider and reject the claim made by the respondents that the ROC should be extinguished, or reduced in width, pursuant to s 89 of the Conveyancing Act. Her Honour noted that the respondents had accepted that this claim was “weak” if she found that the respondents were entitled to crop over the ROC (J [110]). She noted that although the appellant had other access routes to his property, the ROC provided him “with the shortest access route” and one which “[d]ries out more quickly than other access routes when there is extreme weather” (J [137]). The respondents have not challenged her Honour’s rejection of their claim under s 89.

Characterisation of the issues and relevant legal principles

68. It appears that in the Court below the parties sought to put the claims about what they each could and could not do under the easement in terms of how the ROC should be construed. Yet, as each side accepted on appeal, in substance the issues raised are not ones of construction but rather relate to the reasonableness of their respective actions. That type of issue arises subsequent to construction of the easement in question: note Theunissen v Barter [2025] NSWCA 50 at [97]; Dickson v Petrie [2025] NSWCA 110 at [109]-[111].

69. The rights of the first respondent are those arising from its ownership of the land. Those rights are subject to the registered ROC. The rights of the appellant are those expressed in the ROC and any rights ancillary to those express rights. The ROC provides the appellant, his successors and invitees the “[f]ull and free right … 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”. That right must be understood in the context of a long access route across farmland. At the time of the grant the servient tenement was used for grazing. There was video evidence taken in about 2010 which was accurately summarised in the respondents’ submissions as showing “the track to be bumpy, but mostly flat – consisting of dirt compacted paths [for vehicle wheels] … and in between in the middle of the track was slightly elevated green vegetation where no vehicle would likely travel”.

70. There was some suggestion by the respondents that the ROC should be construed to extend to passage only by an “ordinary farm vehicle”, perhaps meaning 4WD vehicles. That issue overlaps with the practical question of the interaction of the parties’ rights in the current circumstances. Insofar as the point is put as a matter of construction it should be rejected. As the High Court said in Westfield Management Ltd v Perpetual Trustee Company Ltd (2007) 233 CLR 528; [2007] HCA 45 at [30], “the term ‘for all purposes’ encompasses all ends sought to be achieved by those using the Easement in accordance with its terms” (see also the authorities referred to at J [64]). The respondents argued that “the purpose of the grant, assessed from the perspective of a reasonable person in the position of the parties to the grant, would have contemplated passage by ordinary farm vehicles, not a sports car”. However, as the appellant said in reply, the terms of the ROC are not limited to usage by farmers, and even farmers may use vehicles other than “usual farm vehicles”.

71. A similar argument to that of the respondents was rejected by Habersberger J in Mantec Thoroughbreds Pty Ltd v Batur (2009) 25 VR 507; [2009] VSC 351, in persuasive terms:

[74] One other circumstance that I consider should be taken into account is that the easement in question benefited a rural property. Thus, it must have been contemplated that the easement would be used in the ordinary course of farming activities, should it be needed. This would likely involve the movement of cattle or other stock, the driving of tractors, motorbikes and other machinery and access by car or utility vehicle. I see no reason why this should not also include the occasional large truck or semi-trailer. Trucks are clearly used in farming activities, and occasionally bringing a larger vehicle onto the land is not an unlikely occurrence. In addition, it must have been contemplated at the time that a house might be built on the newly subdivided lot 4. There seems to be no reason, therefore, why the easement of way does not extend to all forms of vehicular traffic and I so find.

72. Relevant principles as to the respective rights of dominant and servient owners were summarised by this Court recently in Owners Corporation Strata Plan 533 v Random Primer Pty Ltd [2025] NSWCA 8; (2025) 262 LGERA 96:

[26] The owner of a dominant tenement benefited by an easement may obtain relief from a court to protect its ability to exercise a right of way where actions of the owner of the servient tenement constitute a substantial interference with that right. So much has long been recognised: Clifford v Hoare (1874) LR 9 CP 362 at 371; Powell v Langdon (1944) 45 SR (NSW) 136 at 139; Finlayson v Campbell (1997) 8 BPR 15,703 at 15,709-15,711; Lowe v Kladis [2018] NSWCA 130; (2018) 19 BPR 38,599 at [92] and [96]. The test has also been expressed, somewhat awkwardly, in terms of “a real substantial interference”. It is not apparent that the adjective “real” adds anything to “substantial”. Indeed, in the case where that phrase was first employed the test was also just expressed in terms of “substantial interference”: Pettey v Parsons [1914] 2 Ch 653 at 662 per Lord Cozens-Hardy MR, see also Swinfen Eady LJ at 665-666, Pickford LJ at 667.

[27] Each owner has rights which must be accommodated to that of the other. In “deciding what is a substantial interference with the dominant owner's reasonable use of a right of way, all the circumstances must be considered, including the rights of other persons entitled to use the way”: Saint v Jenner [1973] Ch 275 at 279. The principle was explained in pellucid terms by Barrett JA in Hare v van Brugge (2013) 84 NSWLR 41; [2013] NSWCA 74:

[25] It may readily be accepted that a concept of reasonable use applies. But it applies to both parties. Each of them — the servient owner and the dominant owner — must exercise a degree of restraint in relation to an easement site. Neither may exercise his or her rights (the rights arising from the easement, in the case of the dominant owner, and the rights incidental to ownership of the burdened fee simple, in the case of the servient owner) in a way that interferes unreasonably with the enjoyment of the other’s rights. …

[28] In Powell Roper J said that whether or not an interference was substantial and thus actionable was a “question of degree to be decided in the light of the circumstances of each case” (at 139). In Middleton v Arthur [2002] NSWSC 627; (2002) 11 BPR 20,263, Palmer J similarly said as follows, in a statement quoted approvingly in Lowe at [93]:

[48] What amounts to a substantial interference with the reasonable use of a right of way for the purposes of a dominant tenement is essentially and ultimately a question of common sense judgment founded upon the circumstances of each particular case. An obstruction may be small in size and short in duration but, in the light of the particular use for which the right of way is reasonably required, it may nevertheless be a substantial interference. On the other hand, the obstruction may be large in size and of permanent duration and yet, because of the limited use for which the right of way is reasonably required, it may not be a substantial interference. [Citations omitted.]

[29] The notion of “common sense” has been subject to some criticism in another legal context, relating to causation: see the discussion in Fisher v Nonconformist Pty Ltd (2024) 114 NSWLR 1; [2024] NSWCA 32 at [103]-[113]. Invocation of that notion can tend to be question-begging. However, the point being made in Middleton still has force. It is consistent with “treating the issue as an evaluative question of fact to be assessed in a practical manner”: Fisher at [113]. Easements involve a legal abstraction applying in very practical terms on the ground. They are not fixed in aspic: eg Timpar Nominees Pty Ltd v Archer [2001] WASCA 430 at [36]-[37]. As explained by Barrett JA in Hare, they involve taking account of the reasonable interests of the respective owners. Whether or not there has been a substantial interference in the rights of the dominant owner involves a practical, evaluative judgment about neighbours being able to exercise their respective property rights, taking account of the nature, extent and significance of any interference.

73. As regards the appellant’s desire to build a formed road along the ROC, no such right is granted expressly. The issue is whether or not there was an ancillary right to do so. Neither side challenged her Honour’s summary of the case law which established that the issue turns on whether doing so was reasonably necessary for the dominant owner’s enjoyment of its express rights (J [37]-[50]). Merely because something proposed does not substantially interfere with the servient owner’s rights does not necessarily mean that it is reasonably necessary. In Butler v Muddle (1995) 6 BPR 13,984, at 13,986, Young J noted the “general proposition that a right of way is not the equivalent of ownership”. His Honour then explained (at 13,987, citations omitted):

it was said that where one had a right of carriageway one could pave so that the wheels of one’s carriage did not sink into the ground. But none of that authority gives any licence to the dominant owner to pave the whole of the right of way. His right is only to pave so much as is reasonably necessary for his enjoyment.

74. Similarly, Bryson J said in Owners Corp of Strata Plan 42472 v Menala Pty Ltd (1998) 9 BPR 16,337 at 16,340 that:

The [dominant owner’s] right of way does not entitle the [dominant owner] to have the whole of the 6 m strip cleared of any obstruction as if it were a billiard table. The [servient owner] continues to be the owner of [its] land, and may use it in any way and maintain on it any structure if it does not create a real substantial interference with the enjoyment of the right of way. If enough space is left free for passage without any real substantial interference with the right to pass and re-pass, the [dominant owner] cannot insist on more.

75. The two issues raised on the appeal which concern what the parties are entitled to do are essentially evaluative matters involving close analysis of the facts: whether the respondents have substantially interfered with the appellant’s rights under the ROC by cropping over it as they have; and whether the works proposed by the appellant are reasonably necessary for the enjoyment of the rights conferred by the ROC.

Are the respondents’ cropping activities a substantial interference with the appellant’s rights?

76. The appellant argues that the respondents’ cropping of the land causes several forms of interference with the use of the ROC by himself and his invitees.

Obscuring the path of the ROC

77. The appellant complained that cropping over the ROC substantially interferes with use of the ROC by inhibiting the ability to identify the ROC. The complaint has force. The respondents treat Lot 10 as one very large paddock in their cropping activities, making no attempt to avoid or distinguish the ROC. Doing so removes the track marks that are a familiar feature of farm access routes, of the kind illustrated on the 2010 video. An invitee who was unfamiliar with the ROC would have little idea of the route after the ROC had been cropped over. It is entirely plausible that even the appellant might have some such difficulty, particularly at night. Users of the ROC would thus be at risk of veering off the ROC such as to trespass on the respondents’ land. They would also be at risk of hitting hidden obstacles such as rocks, holes or the like. Mr Coughran accepted in cross-examination the obvious proposition that if a road is cropped across it is more difficult to identify its route.

78. The respondents’ answer to this point is in effect to say that driving over the ROC will re-establish a track after it has been cropped over. The second respondent gave evidence – which can be accepted (as the appellant did) – that “[s]o long as the road is frequently driven on by light vehicles, the crop does not substantially grow on the road”. However, that answer does not address the initial obscuring effect of the cropping. And it depends upon the ROC being used frequently. Any farm track may become grown over if not used to some extent. But there is evidence that cropping can produce quick growth. The respondents plant winter crops of wheat, barley and chickpeas, and a summer crop of sorghum (and in some years will leave Lot 10 fallow). The appellant gave evidence, not challenged in cross-examination, that “sorghum grows quickly and will likely reach a height of about 80cm within the next month before reaching a height in excess of 1 metre”.

79. The force of the point is illustrated by the respondents’ own actions. A few weeks prior to the hearing – and prior to the primary judge’s view – they ran a slasher over the ROC. That was the first time they had done any such thing. The second respondent’s explanation was that the appellant had not been driving consistently over the ROC in the preceding period, suggesting that he had been taking slightly different routes over the breadth of the ROC, and as a result “the wheat was growing much more”. Whether or not the appellant had deliberately not been driving or driving consistently on the ROC so as to let the path become obscured (as the second respondent implicitly suggested), it is clear that the respondents slashed the route because otherwise it would have been unclear. This evidence was not mentioned by the primary judge.

80. The primary judge seemingly gave little weight to this type of interference, saying that “[a]s seen on the view, it is completely possible for a vehicle to drive over even quite mature crops” (J [66]). Her Honour had earlier said that when driving on the view on a different road adjacent to Lot 10 there was a boggy patch, which led the drivers “to veer off the path of the road and drive over Foxes Lane Co’s Lot 10 field of crops growing alongside the road” (J [22]). Her Honour indicated that “[e]ven though the grain crops were relatively mature with yellowed heads that stood at about hip-height, the vehicles had no trouble driving over those crops” (ibid). I accept her Honour’s description but not her Honour’s implicit conclusion. That it is not difficult to drive over a mature crop for what seems to have been a short period immediately adjacent to a visible road says little about the significance of having to do so over an unmarked 2.65 kilometre right of way in the middle of a large paddock in Lot 10.

Reduction in speed and ease of travel

83. The primary judge noted that on the view of the properties no 4WD vehicle “had any difficulty driving along the ROC, even though in places, there were low-lying plants or crops and the surface was not always flat or dry” (J [18]). Her Honour observed that Prairie Straight, an internal farm road on Lot 10 created and maintained by the first respondent, was not cropped over, had “a noticeably superior surface to the ROC”, and could be driven on faster (J [19]). That road is maintained by the respondents by being “drag bucketed” as often as a few times a year. That involves a tractor pulling an implement along the road to even out and compress the road. The respondents did nothing to maintain the ROC (apart from their actions a few weeks before the primary judge’s view).

84. All of the four experts who gave evidence together had visited the properties at least once before. In the JER they recorded that they all agreed with the following propositions:

The method of farming requires the use of tramlines that run generally in an east to west direction. The use of the ROC requires grading of the tramlines to achieve a trafficable surface. …

The type of crop grown in the paddocks adjoining the ROC do not significantly impact travel along the ROC. The crops can be driven over. The only identified issue is larger stubble from high crops such as corn or sorghum. Lighter vehicles such as cars, may be impacted by dry stubble causing under-body damage, block of radiators and scratching of body paint.

When the tramlines extend across the ROC, some trafficability issues are caused, making the ROC rough and more difficult to drive along. Deeper tramlines can be formed across the ROC when heavy farm machinery crosses the ROC.

The tramlined nature of cropping impacts the surface condition of the ROC and reduces the speed at which it can be trafficked smoothly and safely.

85. Neither side argued that these expressions of views were outside the expertise of the experts or should be ignored.

86. One of the appellant’s experts, Mr Frankcombe, gave evidence that the ROC could be “comfortably traversed at approximately 30-40 km per hour” where it had been cultivated, whereas speeds of 60-80 km/h were possible where it was not cultivated. The appellant himself said much the same thing, adding that the tramlines “impact on trafficability in a similar fashion to speed bumps”. It will be recalled that the evidence suggests the pairs of tramlines were 12, 24 or 48 metres apart, and the ROC over Lot 10 is some 2.65 km long. That equates to a very large number of effective speed bumps.

87. Mr Coughran accepted in cross-examination that tramlines across a farm road make it more difficult to drive along the road.

88. This impact of the respondents’ cropping is of some significance in affecting exercise of the rights granted by the ROC.

Damage to vehicles

89. As just noted, it was said in the JER that “[l]ighter vehicles such as cars, may be impacted by dry stubble causing under-body damage, block of radiators and scratching of body paint”.

90. The appellant gave some evidence of damage to his vehicles. He said that his Toyota Hilux developed “a loose main earth and loose starter motor” following the planting of a sorghum crop in 2022, noting that he believed the “rough conditions” on the ROC contributed to “additional wear and tear on the vehicles”. He said that different crops have different impacts. With respect to sorghum, he said that in 2022 he “experienced abrasive damage to paintwork under my bulbar as well as radiator blockages during flowering”. He opined (in evidence limited to his understanding) that chickpea plants exude an acidic substance which can cause more damage to the bodywork of light vehicles travelling over the crop. He said that in his experience this causes a “build-up of discolouring and corrosive exudate on the bodywork”.

91. Without relying on the appellant’s views as to chemistry, it can be accepted that driving over the tramlines has the potential to cause mechanical problems in vehicles, and that having to drive over crops and stubble may cause some physical harm. I consider this to be a factor of some weight, but not of itself a substantial interference given the rural context.

Limitations on the types of vehicle that can use the ROC

92. As noted, the primary judge found that “Mr FitzGerald can traverse the ROC in an ordinary farm vehicle” (J [66]). The appellant did not challenge that finding, but argued in effect that it illustrated that the respondents’ cropping activities impeded use of vehicles over the ROC in two respects, relating to the nature of the vehicle and the nature of its engine.

93. As to the first, the appellant explained that he would not feel comfortable using the ROC “in an ordinary family car with a crop growing over it”, having earlier referred to his Ford Falcon as an example. The respondents submitted that there is no evidence that the appellant ever drove his Falcon on the ROC. That submission is in fact consistent with the appellant’s evidence. There was evidence that the appellant had been able to drive a Citroen C5 car over the ROC in 2015. The appellant noted that his Citroen was a diesel vehicle and had a hydrostatic suspension which he said allowed it to be elevated so that it could be used on a “rough track”.

94. In any event, the respondents did not dispute that there may be limitations on the ability of ordinary cars to use the ROC when cropped over but argued (as already noted) that “the purpose of the grant … would have contemplated passage by ordinary farm vehicles, not a sports car”.

95. The second limitation of which the appellant complained arose from the fact that, to quote his evidence, “[e]ven after harvesting, the remaining crop stubble presents a fire hazard and makes passage on the driveway difficult”. The respondents noted, correctly, that there was no evidence of any fire occurring as a vehicle traversed the ROC. That does not mean the risk is not real. Indeed, the evidence of the second respondent itself indicated as much:

while I accept that dried out crop, grasses and weeds can be a fire hazard for petrol cars as the catalytic converter on the exhausts gets too hot, farm utes and farm machinery are diesel vehicles which do not get so hot underneath and do not, in my experience, present the same risk. In my experience, very few farmers and people who work in farms use petrol vehicles, because of the potential for this risk.

96. The appellant agreed in cross-examination that the risk of fire is “substantially diminished” with a diesel vehicle as opposed to a petrol vehicle. The second respondent did not suggest that all farm vehicles have diesel and not petrol engines.

97. The primary judge did not address these issues, beyond implicitly finding that it was reasonable that there may be impediments to vehicles other than “ordinary farm vehicles” using the ROC. The respondents said that the appellant “made no final submissions” on the risk of damage to vehicles or the risk of fire in the Court below. Both parties provided lengthy written opening submissions and made only oral submissions in closing. The appellant’s opening submissions did complain of risks of damage and fire. In any event, these issues have been raised now, having been addressed in the evidence of both sides.

98. The respondents said that the appellant “raised a number of ‘issues’ expressed in the form of risks, but there was never any evidence to show that any of those risks ever materialised”. Yet, as the appellant submitted, a risk can itself constitute a substantial interference. Justice Bryson explained as much in Prospect County Council v Cross (1990) 21 NSWLR 601 at 610 (emphasis added):

an interference and a substantial interference with the enjoyment of rights created by an easement can in principle occur in ways other than offering physical impediment to the exercise of those rights. Acts or circumstances which create danger and in that way, or in any way offer an impediment to the freedom of a decision to exercise and continue the exercise of the right, or impose a risk or cost on so doing, could fall for consideration as interference and substantial interference with the exercise of the right.

99. As noted, whether or not there has been a substantial interference with the rights of the dominant owner involves a practical, evaluative judgment about neighbours being able to exercise their respective property rights, taking account of the nature, extent and significance of any interference. There was evidence that the ROC, like other tracks and roads in the area, could become boggy and potentially impassible in wet conditions. And any sensible sports car driver would think carefully about what country tracks they took, and might well hesitate about driving over the ROC whether cropped or not. That the ROC had such inherent limitations is not an answer to the appellant’s complaints that the respondents’ actions in cropping over the ROC impeded its use by making it more difficult and risky for ordinary non-farm vehicles, and petrol vehicles (whether used for farming or not), to drive over the ROC. The respondents’ arguments were also undermined by the evidence of Mr Coughran, quoted below at [109], that it was not usual to crop across farm access roads, including “so that the road itself remains trafficable … for ordinary vehicles”.

100. In my view these effects of the respondents’ cropping activities represent a significant interference with the ability of the appellant and his invitees to use the ROC.

Waterflow issues

101. The appellant referred to runoff and waterflow issues arising from the cropping and tramlining over and around the ROC. This aspect of the alleged substantial interference is also relevant to the appellant’s desire to construct a formed road. The gist of this complaint is that the use of the tramlines directs water runoff onto the ROC and intensifies the flow of water over it, causing increased erosion. Without the corrugation of the tramlines, it was submitted that the water would run off in a broader manner, rather than the waterflow being concentrated over the ROC. The appellant argued that an “engineering solution” was required, including the construction of a crowned road with a drain.

102. The JER addressed the issue as follows:

The natural flow direction of water across Lot 10 is from east to west which is the general slope direction within the paddock. Prior to cropping of Lot 10, the stock bore drain intercepted most of the flows across Lot 10 from the east and diverted them to the south-west of the ROC.

Cropping activities have caused a reduction in the flow capacity of the bore drain due to partial infilling. As a result, surface runoff previously intercepted and diverted by the stock bore drain is now readily able to overflow the channel, which results in more water being intercepted by the ROC. This causes accelerated erosion in the form of deep rills and shallow gullies at some locations along the ROC and in some locations in cropland west of the ROC. …

As a result of the modification to surface drainage due to the adoption of tramline cropping and removal of the stock bore drain, the tramlines and ROC have become preferential flow paths. Further erosion and deposition will continue to alter the surface of the ROC and increase the maintenance requirements required to retain unrestricted movement of machinery and vehicles.

103. Mr Buchanan, who had been engaged by the appellant, had prepared a “watershed analysis” of the drainage catchment of the surrounding area which includes the ROC. The JER referred to that analysis as “fit for purpose”. A review of those flow paths indicates that the change in use of the land appears to have also caused an increase in the size of the drainage catchment area which includes the ROC, implying that a greater quantity of water is being directed towards the ROC.

104. The JER also said that during severe rainfall, siltation occurs where eroded soil from the field is deposited onto the ROC, delaying potential use of the ROC after a rain event as “it is loose, unconsolidated silt, that retains more moisture due to its lower density, and presents a limitation to vehicle and plant traffic when moist”.

105. The appellant referred in his affidavits to increased erosion and waterflows being caused by the rutting and corrugation of the surface “to his observation”, and spoke of accentuated flows onto the ROC creating a risk of erosion. However, when referring to access to his farm during an unusually wet period from September to November 2022, the appellant also emphasised that the ROC was one of few access routes which provided relatively reliable access, even during periods where there had been significant rainfall. He said that “[f]lows and erosion damage in Lot 10 had been mainly restricted to the tramlines imposed across it by the farming operations”. He referred to being able to use the ROC in October 2022, mentioning that “my observations at the time were that the water flows on and across Lot 10 near the ROC were primarily related to the tramlines imposed on the land, with some minor flow on the ROC itself”. He gave evidence that the ROC “is self draining and so recovers well after rain” and said that “following rain events, the ROC provides the earliest and easiest route of access to, and exit from” his farm.

106. Perhaps ironically, the respondents dispute the appellant’s assessment of the accessibility conferred by the ROC, with the second respondent deposing that “[m]y recollection is that the ROC was largely inaccessible in the periods of September, October and November 2022”, and saying that the ROC is “impassable whenever there is even light rain”. He also said that “tramlines operate to spread the water across the land evenly. Without the tramlines, water can pool and flow in sheets across the land, and this causes erosion”. He said that it was part of their “design” (with tramlines running in the same direction as the slope of the land) to “direct and drain water from the land”.

107. Taking account of all of this evidence, I am not persuaded that the effect of the tramline cropping on waterflow in and of itself constitutes a substantial interference. The appellant simultaneously argued that the cropping causes increased erosion and waterflow over the ROC while emphasising that the ROC has remained one of the more reliable access roads in the region. What the evidence does tend to indicate is that the tramlines facilitate water flow and may themselves tend to become eroded and somewhat deeper. That fact no doubt contributes to the depth of the tramline ruts, perhaps contributing to the effects of the tramlines which have already been discussed.

Common practice and what the parties do on their own access tracks

108. The second respondent gave evidence that “[p]lanting on internal roads is normal farming practice in my experience, and especially on the black soil”. The appellant responded:

In my experience, in some circumstances crops are planted over unused “paper” roadways or over tracks that are in active use where the cropping will not disrupt access, such as where flat farm tracks are regularly used for the passage of tractors and heavy machinery, which stops crop growth and compacts the ground to assist passage. However, in my experience, cultivating and planting of crops including using a tramline farming system over a main external farm access route like the ROC is not normal farming practice.

109. The evidence of the second respondent was undercut by Mr Thorn, the agronomist who was called by the respondents, who said that “[i]t’s certainly not common practice to farm over farm roads”. And it was also undercut by this exchange in the cross-examination of Mr Coughran:

Q. ... There are commonly access roads from the public road system to homesteads, or farm infrastructure, or other locations within a farm. Do you agree with that?

A. Yes.

Q. It is common to crop on either side of the road of this kind, but not to crop across the road, isn’t it?

A. Yes.

Q. The reason for doing that is so that the road itself remains trafficable, isn’t it, for ordinary vehicles?

A. Yes.

110. There was evidence that the appellant himself had cropped over a track on his own property, using a tramline system. It seems that the appellant regarded this as an example of cropping over a track in active use, claiming that the corrugations on the road in question had been compacted by the amount of traffic using it. That being said, the primary judge noted (and I accept) that the track in question “was not in a much better condition than the ROC” (J [28]).

111. The respondents argued that if the appellant employs cropping and tramlines over his own access road that is a persuasive indicator that there was no substantial interference with the appellant’s rights under the ROC, as part of the practical evaluative judgment this Court is required to make about neighbours exercising their respective property rights. The point has some force, but it is limited. As counsel for the appellant submitted, the appellant is entitled to impede use of a track on his property if he wishes, and that is a different thing to having his legal right to access the ROC impeded.

112. Furthermore, whatever weight is given to what the appellant did, that is offset by what the respondents themselves do for tracks which they wish to use. As already noted, the respondents maintain Prairie Straight by drag bucketing it. The second respondent accepted in cross-examination that they do not employ tramlines across that road. And an exchange soon thereafter is notable:

Q. The driveway that you have to the homestead that we saw there, I take it you don’t crop over that driveway.

A. No, that’s – that’s a gravel on there, that is.

Q. That’s because that’s used for ordinary vehicle access – light vehicle access.

A. Yeah. Yeah. Yeah. Yeah.

Q. So, that would be your Ford Falcons, et cetera, drive along that driveway.

A. Yeah. Yeah.

Q. They need a road that hasn’t been cropped over.

A. Yeah. Yeah. Yeah.

113. It is apparent that what was good for the goose was not good for the gander, as far as the respondents were concerned.

The competing land uses are incompatible

114. To begin with it is necessary to acknowledge that the primary judge had the benefit of viewing the relevant properties and being driven over the ROC. I accept that that is an advantage held by her Honour not possessed by this Court. Accordingly, a compelling basis would need to be shown to depart from factual findings made by her Honour based upon having had that advantage: note Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 at [23]; Lee v Lee (2019) 266 CLR 129; [2019] HCA 28 at [55]; Riechelmann v McCabe [2024] NSWCA 37 at [53]. No such basis has been established by the appellant. Nothing in the analysis above departs from the relevant findings of fact made by her Honour, as set out above at [50]. However, appellate restraint in this regard relates only to the findings of fact which manifest the primary judge’s advantage. It does not extend to the decision of her Honour: Lee v Lee at [56]. It is the duty of this Court to reach its own view on the legal issues in dispute in light of the facts.

115. The ROC did not require that the respondents only ever engage in grazing on Lot 10, as though the land use was frozen as at the time the right was created. But in changing use they could not ignore the right held by the dominant owner. As outlined above, the obscuring effect of the respondents’ cropping activities is a significant interference with the ability of the appellant and his invitees to make use of the ROC. The same is true of the increased difficulty and reduced speed of travelling on it, and the impediment placed on using non-farm vehicles or any vehicles using petrol engines. The potential for causing mechanical and physical problems with vehicles is also a factor of some (if lesser) weight. The combination of all such matters involves a substantial interference by the respondents in the rights held by the appellant.

116. Put simply, the respondents’ use of the land subject to the ROC by way of cropping in a tramline manner is, to a significant extent, incompatible with the use of that land as a carriageway. So much is reflected in the evidence. In the second respondent’s first affidavit, under the heading “Loss and damage by reason of the ROC”, he complains that since the appellant started to drive over the ROC “there has been almost no yield from those parts of Lot 10 that are burdened by the ROC”, for reasons which include the compaction caused by the appellant’s use of it. He had earlier referred to “the resulting damage to the crop on Lot 10 along the passage of the ROC” caused by the appellant’s driving, and also complained that the grading undertaken by the appellant had caused “damage to our tramlined cropping system”.

117. In the JER the four experts said (emphasis added):

For the plaintiff and any other persons authorised [by] him, tramline cropping impacts the trafficability of the ROC and it is therefore necessary for the plaintiff to grade out the tramlines and wheel ruts which cross tangentially across the ROC to provide a trafficable surface. This requires the defendant to reestablish the tramlines for cropping surfaces.

Use of the ROC as an access road and cultivation of the paddock in an east-west direction are considered as competing land uses. …

If the road within the ROC was regularly maintained and farm machinery could avoid disturbance within the ROC, there would be no, or minimal issues between use of the ROC and farming operations crossing the ROC.

118. The two experts retained by the appellant, Mr Buchanan and Mr Frankcombe, went further: “the use to the ROC need to be either cropping, or carriageway. It cannot be both.”

119. The conclusion expressed by Mr Buchanan and Mr Frankcombe was not challenged by the respondents in cross-examination. That was not mere happenstance. The respondents positively asserted such incompatibility in their written submissions to the Court below. They explained that “on the [respondents’] primary case the ROC ought to be extinguished or modified”. In support of that primary case, they said that “[c]ritically, the experts are unanimous in saying that the use of the ROC as an access route and the cultivation of the paddock of an east-west direction ‘are considered as competing land uses’ (emphasis added)”. After quoting the statement by Mr Buchanan and Mr Frankcombe that the carriageway cannot be used both for cropping and as a carriageway, the submissions went on to say this:

The competing features of this landscape are incompatible. This is founded on the ROC in its diagonal position across the slope of the land, the method of tramline farming, Mr FitzGerald's driving, ploughing and grading activities on the ROC, and the extent to which a former stock bore drain remains effective in removing water from the eastern part of the paddock. This is not merely a case about better economic output from the farm, but one about basic competition between land uses. That is sufficient to satisfy the test of hindrance to a real and sensible degree.

120. The primary judge only touched briefly upon this issue in rejecting the respondents’ extinguishment claim, quoting the statement by Mr Buchanan and Mr Frankcombe and saying:

[121] However, during their joint evidence in Court, Mr Buchanan and Mr Frankcombe explained that cropping would be incompatible only if the ROC was built up, as suggested by Mr FitzGerald, with table drains. Mr Frankcombe also accepted that cropping or grassing over the ROC provided a way of avoiding erosion that occurs with a dirt only track, with 70% coverage being “best practice”.

121. In so concluding her Honour was accepting, ironically, an oral submission made on behalf of the appellant. However, that view is not supported by reference to the oral evidence of the two experts, which relevantly was as follows:

HUTTON: So, would you mind, 4.6.6, Mr Buchanan and Mr Frankcombe, you have expressed a different view on preference to Mr Thorn and Mr Taylor, and you said that in your view, that preference, the best access is the existing right of carriageway with some sort of lightly crowned road and table drain. So, Mr Frankcombe, you say at the start of 4.66 that the ROC needs to be cropping or carriageway. It cannot be both. Were you referring to the whole width of the ROC there or what part of it?

WITNESS FRANKCOMBE: Correct. So, if - if - so it’s either a road or it’s a crop. That was - that was the point we were making.

HUTTON: Okay, but as I understood your answers earlier, it’s left open, as it were. It’s a matter for road design as to whether or not you would need the whole 20-metre width of the right of carriageway--

WITNESS FRANKCOMBE: That’s correct--

HUTTON: --for a lightly crowned road.

WITNESS FRANKCOMBE: --and - and the drains.

HUTTON: That’s something that you’d need to look into when you design the road--

WITNESS FRANKCOMBE: Correct.

HUTTON: -- together with considering Water New South Wales requirements, et cetera.

WITNESS FRANKCOMBE: Yes. Yes

HUTTON: Mr Buchanan.

WITNESS BUCHANAN: And you would expect the drain - if you were to do a table drain, the table drain would need to increase as you - as the catchment area got aligned, so it’s a 2.2 kilometre right of carriageway. At the start, with the less catchment, it would be narrower, but as you got down towards Prairie Road, it would have to get wider, so, if you’re designing one that would be 20 metres, you may not need all 20 metres up at the eastern end.

122. The questions and answers relate to whether or not the full width of the ROC was needed for a road. To that extent they limit any suggestion that there was a fundamental incompatibility between cropping and carriageway for the whole of the ROC. But neither the questions nor the answers alter their expressed conclusion as the incompatibility of those two land uses. Mr Frankcombe went on to accept that in giving the incompatibility answer he had not considered an intermediate option raised by the respondents’ senior counsel (explained below at [130]) about cropping over the ROC but then taking steps such as grading to render it trafficable. Yet the taking of such steps illustrates that in substance the two uses are not compatible.

123. In any case, in my view the incompatibility is established by the evidence. That the two uses are incompatible is hardly surprising. As Lord Scott said in Moncrieff v Jamieson [2007] UKHL 42; [2007] 1 WLR 2620 at [54], in terms quoted approvingly by this Court in Theunissen at [132]:

Every servitude or easement will bar some ordinary use of the servient land. For example, a right of way prevents all manner of ordinary uses of the land over which the road passes. The servient owner cannot plough up the road. He cannot grow cabbages on it or use it for basketball practice.

124. Justice Barrett explained in Hare v van Brugge (2013) 84 NSWLR 41; [2013] NSWCA 74, at [25], that neither the servient owner nor dominant owner may exercise their rights “in a way that interferes unreasonably with the enjoyment of the other’s rights”. Leaving aside for a moment the past grading activities of the appellant, at the heart of this case is the appellant’s desire to use the ROC for the purpose for which it was granted – as a carriageway. The second and third respondents gave evidence to the effect that the appellant had not previously used the ROC much, implying that his increased use related to the parties having fallen out and/or because the appellant was a difficult person. Conversely, the appellant gave evidence that “using the ROC is a matter of personal significance for me” given his family’s long connection to the property. Whatever consequence this competing evidence may have had with respect to the respondents’ extinguishment claim, it has little relevance to the appellant’s claim. No matter what the appellant’s motivations, he has a legal right to use the ROC and to invite others to do so; he has been exercising that right; he wishes to continue to do so; and his doing so is being substantially interfered with by the respondents.

125. In the JER the experts addressed the consequence if driving across the ROC using larger farming machines was not possible. They explained that a “headland would need to be created on either side of the ROC to allow the machinery to turn”, and that as some of the equipment is up to 48 metres wide it would be necessary to allow a turning circle of at least that diameter on either side. They calculated that some 42.2 hectares of cultivation field outside the ROC would be affected. They also noted that the need to turn the machinery around would increase the time taken (and no doubt fuel usage) for cropping tasks. The evidence indicated that 42.2 hectares is about 6% of the land area of Lot 10.

126. Mr Coughran testified that the 45 degree angle of the ROC to the tramlines “means it is very difficult to accurately turn the large … machines at the proper angle”. However, in cross-examination he accepted that the first respondent cropped around some infrastructure on another part of its farm where the tramlines were at about the same angle. He agreed that if he was told that the business was not permitted to farm across the ROC he would simply impose headlands on either side of it. Thus this point can be set aside.

127. It can be accepted that forbidding cropping on the ROC would come at an economic cost to the first respondent, including because of the need to set aside headlands. But that cost must be seen in context. The cropping runs in Lot 10 run for kilometres and are probably the longest cropping runs in the operations of the respondents’ business (see above at [39]). The business crops around other access routes and infrastructure. The respondents have chosen not to apply the same approach to the ROC. Their economic self-interest cannot trump the legal rights held by the appellant.

Appropriate relief and the appellant’s desire to build a road

128. The orders sought by the appellant in his notice of appeal relevantly included a declaration that the respondents are not entitled to “plant crops over the track in use on the ROC”, nor to plough/cultivate (etc) across the track, nor to cause deep wheel ruts on the track, nor to prevent or interfere with the appellant’s periodic maintenance and formation of the track. He also sought a declaration that he is entitled to “construct an unsealed road on the ROC with a crowned centre and table drains”, which depends upon him establishing the reasonable necessity of taking that step (see above at [73]-[75]).

129. Given the incompatibility between the uses identified above, the appropriate resolution is to grant relief preventing cropping across the ROC (where this would not prevent it being planted with grasses to return it, in effect, to pastureland). In my view it is more appropriate that this be injunctive rather than declaratory relief, binding the current parties in light of the circumstances presented.

130. Some concern was raised in the evidence about erosion along the ROC if it was not cropped. In the course of questioning the experts, senior counsel for the respondents raised “a less invasive solution to erosion across the carriageway”, being the planting of a crop over it, potentially with steps being taken to control the height of the crop. Mr Taylor, briefed by the respondents, agreed that taking that step or “planting a crop of grass” would be a “less extreme or less invasive solution to erosion”. Mr Thorn, the other relevant expert briefed by the respondents, said that it “would be difficult to establish crops because of the compaction” on the ROC but agreed that a crop would hold the soil together. Mr Frankcombe noted that best practice to avoid erosion was to have a minimum of 70% vegetative cover, and that a problem with crops – as opposed to grass – was that with cropping “you have periods of where there’s a lot of bare soil”, which would mean that a crop would give vegetative cover “only … part of the time”. He said that “a grass cover would be the most practical, low-cost solution for both parties”. Mr Buchanan said he had “no great disagreement”, seemingly referring to all of the views expressed. Mr Taylor later said that the existing ROC was “gradually turning into a deeper gully”, but the erosion issues could be solved by “grassing it”. He said, in agreement with what Mr Frankcombe had earlier said, that “the crop is bare at times, in between cropping” and that a grassed area “stays stable”.

131. This evidence about erosion from both sets of experts itself reinforces the appropriateness of prohibiting cropping – as opposed to allowing grass to regrow – on the track. It certainly does not weigh against taking that step.

132. What should be injuncted is not only the planting of crops across that track but also the creation or maintenance of tramlines. It is the tramlines which substantially contribute to the increased difficulty and reduced speed of travelling on the ROC and which create the potential for mechanical and physical problems with vehicles. It is sufficient, I think, to refer to the tramlines in terms.

The requirement to give 14 days notice

140. As already explained (at [63]), it was not appropriate to express a 14 day notice requirement as part of a declaration as to the meaning of the ROC. That does not mean the making of some such order was unjustified. As the appellant accepted, the primary judge “no doubt wanted to reduce acrimony between the parties”. Nevertheless, the appellant submitted that:

[t]he proposed solution (14 days’ notice before removing a danger/risk) is impractical: it can only be discovered when actually using the ROC and passage has become impossible, dangerous or risky; it precludes preventative maintenance; and it is ripe for future disagreement and disputes that would not exist if the dominant could simply build a formed road …

141. His counsel added that “any substantial interference is only going to be apparent once you’re there” given that the ROC is “a lengthy carriageway, it’s not a matter of metres, it’s 3.5 kilometres”.

142. There is some force in these submissions, and that militates against requiring the appellant to give notice of minor maintenance works, such as filling in occasional potholes using a shovel in the back of his ute. However, more significant works such as grading or drag bucketing are in a different category. They would require some preparation by the appellant; if only, for example, to attach a grading implement to his ute. There is a history of long and heated disagreements between these parties, leading to apprehended violence orders. That fact militates in favour of imposing a notice requirement in writing so as to reduce the risk of confrontations. Moreover, requiring 14 days notice will give the respondents an opportunity to undertake remedial work themselves, which will in turn reduce the potential for conflict, and also allow the respondents a chance to seek to protect their own legitimate interests by doing the work in a way that minimises erosion and such like. The injunction should be expressed to encompass grading, drag bucketing or ploughing, given that some of the witnesses have said that the implement which the appellant has dragged behind his ute has a ploughing effect.

143. A notice requirement may cause some delays to any necessary remediation or maintenance work. Yet that will cause limited detriment to the appellant given that he has other access routes to Lot 19.

Damages in favour of the first respondent

144. The first respondent claimed damages for nuisance and trespass in the sum of $76,720 for remediating the ROC when the appellant excessively graded the ROC on at least seven occasions. The primary judge was not satisfied that any loss of that amount had been suffered but awarded a minor amount of $2,500 as vindication of the infringement of the rights of the first respondent. Her reasons were as follows:

[99] I consider that Mr FitzGerald’s use of the grader as seen in the video in evidence from 2018 was excessive user and amounts to a nuisance and a trespass. Mr FitzGerald could be seen grading across an area many times as wide as his utility truck. He was adamant in cross-examination that he “needed” 20 metres of the ROC. However, no explanation was provided as to why Mr FitzGerald needed to clear as wide an area as he did, when his vehicle could already pass relatively quickly, and where the track on the ROC can accommodate vehicles of about 3 metres wide.

[100] Further, as found above, he was not entitled to bring on a commercial grader on any occasion, and therefore to the extent that he did so, it amounted to a trespass and a nuisance.

145. The appellant submitted that one of the bases upon which the primary judge came to that conclusion was that no explanation was offered by the appellant as to why he needed to grade as wide an area as he did. It was submitted that this finding was made in spite of the appellant’s affidavit evidence outlining the various widths required for the roadway and drains. The appellant deposed to requiring a 6 metre wide track and a 14 metre table drain, which plan he said was formulated following consultations with “earth moving contractors and a soil conservationist”.

146. The appellant’s claim for some kind of cleared road across the whole of the ROC is not consistent with a pragmatic balancing of the competing interests. As Bryson J explained in Menala, the dominant owner’s right does not entitle it “to have the whole of the [right of carriageway] cleared of any obstruction as if it were a billiard table” (at 16340). Moreover, as the respondents noted, there are several gates which exist on the ROC with a maximum width of about 3.5 metres (see J [4]) and the appellant did not submit that those gates themselves constituted a substantial interference. Her Honour’s reasoning at [99] is sound.

147. As for the reasoning at [100], the appellant twice organised for a large grader to come on to Lot 10 (see above at [43]-[44]). The evidence about what was proposed on the first occasion, in 2013, is somewhat unclear. On the second occasion, in August 2022, the appellant was seeking to have constructed a proposed “formed and rolled 6 metre wide track” with a 14 metre wide “flat bottom table drain”. As explained, the construction of such a road is not reasonably necessary. The attack on her Honour’s reasoning is not made good.

148. Grounds 3 and 5 of the notice of appeal are rejected.

Damages in favour of the appellant

149. The appellant also challenged the award of $2,500 damages made by the primary judge in his favour, arguing that if he was successful on ground 1 of the appeal (substantial interference by cropping) then he should receive a greater amount for his loss of amenity. He also sought exemplary damages having regard to the respondents’ “deliberate and contumelious disregard” of his rights.

150. The appellant has demonstrated a substantial interference with his rights by way of the cropping over the ROC. The appellant disputed the respondents’ contention that there is insufficient evidence of a loss of amenity, referring to evidence of his frequent use of the ROC and the “self-evident” detrimental effects of difficulties in identifying and passing along the ROC, needing to drive more slowly, and the risk of vehicle damage. The appellant sought $75,000 in amenity damages. In one of his affidavits, he referred to “significant financial harm and distress” from not being able to use the ROC. However, the nature of the claimed financial harm was not explained in any great detail. It is also unclear whether that harm refers to the obstructions between August and December 2022, or whether he was referring to the alleged interferences more generally.

151. In any case, as senior counsel for the respondents pointed out in oral address, the appellant’s damages claim was pleaded by reference to the period of August to December 2022 (with one added paragraph relating to wheat having been planted on the ROC in April 2024). It was that period which the primary judge addressed (J [75]-[86]). The appellant’s written submissions below went beyond the pleading in referring to loss of amenity since cropping started in 2011. But the respondents did not address the case on that basis in their written or oral submissions below. They cannot be said to have acceded to a widening of the case against them: note Dare v Pulham (1982) 148 CLR 658 at 664; [1982] HCA 70. There is no reason why the appellant should not be held to his pleaded case. I do not consider the one paragraph relating to April 2024 makes a material difference to the assessment.

152. In this context I see no error in the judge’s reasoning on the appellant’s claim for loss of amenity, which was:

[86] Having regard to the authorities discussed above, the relatively short period of time which the ROC was obstructed, and the limited evidence of impact on Mr FitzGerald and his invitees, I consider that $2,500 is the appropriate amount of compensation to reflect the inconvenience that Mr FitzGerald suffered when he was unable to use the ROC from time to time during the 4 month period, despite his efforts to remove obstructions.

153. Nor has error been shown in not allowing the specific sum of $4,400 for the attendance of a commercial grader in August 2022 given the finding that the appellant in fact then used the grader for other work on his property (J [87]).

154. As for exemplary damages, relevant principles were summarised in New South Wales v Zreika [2012] NSWCA 37 as follows:

[61] Exemplary damages go beyond compensation and are awarded as a punishment to the guilty, to deter similar conduct in the future and to reflect “detestation” for the action: Lamb v Cotogno [1987] HCA 47; 164 CLR 1, at 8. Exemplary damages are awarded rarely and not every finding of fault warrants an award: Lamb v Cotogno, at 6 [12]. Nonetheless, such damages can be awarded in a wide variety of circumstances. Generally speaking, what is required for an award is “conscious wrongdoing in contumelious disregard of another’s rights”: Gray v MAC [(1998) 196 CLR 1; [1998] HCA 70] at 7 [14].

155. The appellant supported his claim on three main bases. First, he invoked the respondents’ deliberate action in preventing him from using the ROC in August to December 2022. I accept that was conscious wrongdoing, albeit in the context of a long-simmering dispute that was becoming increasingly heated on both sides. As the primary judge noted at [93], the respondents “acknowledged that the self-help action was inappropriate” and, in recognition of that fact, volunteered that they should pay the costs of the proceedings up to 20 December 2022. Their conduct does not call for further punishment.

156. Second, he submitted that “[i]f all servient tenement owners treated rights of carriage way as have the [respondents] in this case, there would be little benefit to easements of that kind”. That rhetorical flourish amounts to a complaint that his rights have been infringed, as I have held. But awarding exemplary damages requires something more than that.

157. Third, the appellant complains that the primary judge gave no consideration “to the repeated convictions of Mr Kurstjens and his corporate interests for illegal clearing”. The submission is devoid of merit. Presumably the second respondent has already been punished according to law for any such convictions. And those convictions have little connection to the matters at hand.

158. The appellant’s claim for increased damages is not made out.

Conclusion and orders

159. The appellant has succeeded in his main argument on appeal, namely that the respondents substantially interfered in the exercise of his rights under the ROC and that he is entitled to relief to prevent that infringement. He has not succeeded in obtaining the relief he sought relating to building a road over the ROC, nor in challenging the damages awarded against him, nor in increasing the damages awarded to him, nor (in substance) in lifting the 14 day notice requirement.

160. As regards costs of the appeal, it is appropriate that the Court “make an order that is fair in all the circumstances, taking account of the extent to which issues are separable, and without aspiring to the false hope of mathematical precision”: DSHE Holdings Ltd (Receivers and Managers) (in liq) v Potts (No 2) [2022] NSWCA 258 at [9]. Overall it might be said that the appellant has had about 75% success and the respondents about 25% success by reference to the time and resources directed to the various issues. That equates, on a net basis, to an order that the respondents pay 50% of the appellant’s costs of the appeal.

161. It is also necessary to revisit the costs order made in the proceedings below. Further issues were raised there than arose on appeal, the most notable being the respondents’ “primary” claim for extinguishment or narrowing of the ROC, which the primary judge rejected. To make separate costs orders on the respondents’ cross-claim, as opposed to the proceedings as a whole, may well create the opportunity for further disputation and undue transaction costs in assessment. It is appropriate that, instead, the respondents be ordered to pay 75% of the appellant’s costs of the proceedings at first instance incurred from 21 December 2022 (leaving in place the order that the respondents pay the appellant’s costs prior to that date).

162. The orders of the Court should be as follows:

163. Appeal allowed in part.

164. Set aside orders 1 and 5 of the Supreme Court made on 21 October 2024, and order 2 made on 18 November 2024, and in lieu thereof make the following orders:

(a) The defendants are restrained from causing crops to be planted or for “tramlines” to be created or maintained on a five metre wide vehicular track along the right of carriageway which burdens the first defendant’s properties on Lots 10 and 11 in Deposited Plan 1163015 and benefits the plaintiff’s property on Lot 19 in Deposited Plan 817727 (“Right of Carriageway”). (b) Declare that the plaintiff may undertake work on a five metre wide vehicular track along the Right of Carriageway in the nature of light grading or drag bucketing in order to even out the tramlines running across the track. (c) The plaintiff is restrained from undertaking grading, drag bucketing or ploughing on the Right of Carriageway unless he has given the servient tenement owner at least 14 days written notice of the works he proposes to undertake. (d) Defendants to pay 75% of the plaintiff’s costs of the proceedings incurred from 21 December 2022.

3. Respondents to pay 50% of the appellant’s costs of the appeal.

4. ADAMSON JA: I agree with Kirk JA.

**********