Jeffery v Adams

Supreme Court of NSW|2023-09-26|Before: Peden J

Solicitors: Hones Lawyers Pty Ltd (Plaintiffs) C Adamson (Defendants) File Number(s): 2021/00257029 Publication restriction: Nil

Factual background

Since 1998, the plaintiffs, Trevor and Dina Jeffery, have been the registered proprietors of Lot 34 in DP 595376 (Lot 34).
The first, second and third defendants, Ronald, Kay and Edward Adams (together, Adams Defendants) are the registered proprietors of Lot 133 in DP 104248 (Lot 133). The fourth defendant, Nicole Atkinson, is the registered proprietor of Lot 132 in DP 1042485 (Lot 132).
Edward Adams and Nicole Atkinson are the adult children of Ronald and Kay Adams.
The plaintiffs' Lot 34 benefits from two registered rights of carriageway: 1. In 1972, a right of carriageway 10 metres wide was created by DP 241849 and an instrument under s 88B of the Conveyancing Act 1919 (NSW) (Conveyancing Act). It burdens Lots 133 and 132 (First ROC). 2. In 1978, a further right of carriageway 10 metres wide was created by DP 595376 and a s 88B instrument. It burdens Lot 133 (Second ROC). The Second ROC gives the plaintiffs access to their property from South Boambee Road.
There is no dispute about the Second ROC.

First ROC

The First ROC connects the lower part of Lot 34, where the plaintiffs' house is located, to a paddock situated at the top of a mountain (Top Paddock). Various animals are kept there. The First ROC traverses parts of Lots 133 and 132, and without it, the only way for the plaintiffs to access the Top Paddock is by a steep, rocky and narrow strip of land known as the "Handle". There is no existing track to assist any vehicle to travel up the Handle to reach the Top Paddock. The plaintiffs were not challenged on their evidence that they have never driven up the Handle (or any part of it) by vehicle.
In 1998, a dam was constructed on Lot 133, submerging part of the First ROC. Since the dam's creation, the plaintiffs have circumvented the dam via an established road that reconnects with the First ROC on the other side of the dam (Alternative Road). The defendants use this Alternative Road to access their respective properties. Part of the Alternative Road also forms part of a right of way granted to electricity provider, Transgrid, over Lot 133.
For about 15 years, the defendants never raised an objection about the plaintiffs accessing the First ROC by using the Alternative Road to circumvent the dam. In June 2022, after the plaintiffs commenced these proceedings, the Adams Defendants erected a gate across the Alternative Road and then locked it. The plaintiffs amended their pleading to seek an easement under s 88K. They were granted interlocutory relief to use the Alternative Road, pending final determination of these proceedings. The Adams Defendants do not propose to fill in the dam and return full access to the First ROC. The expert evidence is that emptying and filling in the dam would cost at least many hundreds of thousands of dollars.
The First ROC also passes through the southwest corner of Lot 132 before re-entering Lot 133. In the diagram below, there are two tracks marked on Lot 132, one marked "A" and one marked "K". The area marked "A" forms part of the First ROC. The area marked "K" is not part of the First ROC. For many years, the plaintiffs have used track "K", instead of "A".
The features described above, with the exception of the Transgrid access easement, are depicted in the diagram below. [1] The Transgrid access easement can be seen in a second diagram at [15] below.
The Transgrid easements and "A" and "K" are discussed in greater detail below.

Transgrid Easements

Transgrid has the benefit of two transmission line easements. The first Transgrid easement is for a transmission line 30 metres wide which was registered on 7 February 2000. The second is for a transmission line 15 metres wide which was registered on 29 December 2000 (together, Transgrid Easements). The Transgrid Easements overarch an easement 10 metres wide which provides access to the transmission lines from South Boambee Road and partially overlaps with the Alternative Road. This means there are existing legal rights of access over most of the Alternative Road.
Below is a diagram of the proposed easement (or the Alternative Road), shown by orange dashing. [2] In this diagram the existing Alternative Road can be seen as can its overlap with the Transgrid Easement.

"A" and "K"

For a long time, the plaintiffs and the fourth defendant mistakenly believed that "K" was located within the First ROC and used that land rather than "A". "K" has been termed by the parties as the "deviation route" (Deviation Route), because the plaintiffs deviated from the First ROC onto that land. The land marked "A", which is within the First ROC, has been obstructed by the fourth defendant's wire fences. The plaintiffs assumed that this inaccessible area was not part of the First ROC, and continued using the "K" as a Deviation Route without any complaint by the fourth defendant.
In October 2020, the fourth defendant began locking the gates on "K". Mr Jeffery's unchallenged evidence was that he regularly had difficulty getting Ms Atkinson to unlock the gates. On 3 August 2021, the fourth defendant, by her solicitor, Mr Adamson, denied the existence of the First ROC. It was only after these proceedings were commenced that the fourth defendant provided a key to the gates on "K". The wire fencing meant that access across "A" remained impossible.
In late 2022, the fourth defendant came to understand that "K" was not on the First ROC and she installed new gates to replace the existing wire fencing that obstructed use of "A" on the First ROC.
In January 2023, Mr Adamson, solicitor for the defendants, wrote to the plaintiffs' solicitors notifying that the fourth defendant would be changing the locks on the gates on "K".
The plaintiffs opposed changing the locks because the new gates on "A" on the First ROC were too narrow to enable adequate vehicular passage. Nonetheless, the locks on the original gates on "K" were changed. In effect, this has meant that the plaintiffs can no longer use the Deviation Route, about which they do not complain. The issue is that there is no other route through Lot 132 to join the First ROC, other than through the new gates and they are not easy to navigate with vehicles and trailers.
In summary, the plaintiffs allege they do not have sufficient access to the First ROC via "A". The gates across "A" are unlocked, but it is alleged they are too narrow for use in accordance with the terms of the First ROC.

Deed of Licence

In 2005, the plaintiffs executed a "Deed of Licence" with Ronald and Kay Adams as licensors (Deed) permitting the plaintiffs to use other parts of Lot 133 (Access Tracks).
The entrance to the plaintiffs' house is on the top side of a gulley that runs around the house. Vehicular access to the backyard can only be obtained by driving around the pool fence on the northern boundary on Lot 133 to the lower level. At the rear of the plaintiffs' house there are two septic tanks which require pumping by trucks every three years.
It appears that up to 2004, the plaintiffs were using part of Lot 133 to park vehicles and store materials for various construction work. Their uncontested evidence is that the previous owners of Lot 133 granted permission to do so.
The Deed purports to grant the plaintiffs use of an Access Track on Lot 133 adjacent to the northern boundary of the plaintiffs' house block.
Since 2005, the plaintiffs have used the Access Track to access their backyard and septic tanks without objection. In November 2020, the Adams Defendants erected a wire fence across the Access Track and asserted that the Deed was invalid and unenforceable. The Adams Defendants now challenge the validity and operation of the Deed.

The Dispute Between the Parties

The defendants now object to the plaintiffs' use of the Alternative Road and Access Track.

Plaintiffs' claims

The plaintiffs seek an order against the Adams Defendants under s 88K of the Conveyancing Act for the imposition of a right of carriageway over the Alternative Road.
Further, the plaintiffs seek to enforce the Deed of Licence executed by them and Ronald and Kay Adams. Whilst the wire fence was removed after the proceedings were commenced, the plaintiffs seek injunctive relief to restrain the Adams Defendants from any further breach of the Deed.
Against the fourth defendant, the plaintiffs seek orders requiring removal of the fence on "A" or installation of gates of an appropriate width.
They also seek orders entitling them to carry out work on "A" to remediate the uneven ground to render the First ROC reasonably fit for vehicular use.

Adams Defendants' cross-claim

The Adams Defendants have cross-claimed, alleging the plaintiffs have unlawfully traversed Lot 133 by driving on the Alternative Road and across "K", and by using the Access Track identified in the Deed. The plaintiffs defend that cross-claim on the basis that they have a legal right to deviate around the dam, which is an obstruction to their right of carriageway. An allegation that the Adams Defendants are estopped from alleging otherwise was not pressed. Further, in relation to the Access Track, the plaintiffs again assert that the Deed of Licence is valid and enforceable against Mr and Mrs Adams.
The Adams Defendants do not seek any order extinguishing the First ROC, and they appear to accept that the plaintiffs are entitled to deviate around the dam; the issue is what is the most appropriate route.

Issues for determination

In summary, the issues to be determined are: 1. Are the plaintiffs entitled to use the Alternative Road around the dam to access the First ROC, either by the creation of a s 88K easement, or other legal right? If so, are the defendants entitled to any compensation? 2. Ought the plaintiffs instead use alternative routes proposed by the defendants described as "Proposed easement 1" and "Proposed easement 2"? 3. Is the Deed enforceable and ought injunctive relief preventing its breach be granted? 4. Has Ms Atkinson substantially interfered with the First ROC, and, if so, ought orders be made requiring the removal or alteration of gates? 5. Ought the plaintiffs be entitled to carry out work on the First ROC?

View

On the first day of the hearing, the Court conducted a view of the relevant properties pursuant to s 53 of the Evidence Act 1995 (NSW) to assist with an understanding of the evidence. The plaintiffs' counsel and solicitor, and the defendants' solicitor attended. The various features of the properties and fences in the documentary evidence were pointed out.
The view commenced on Lot 34 adjacent to a large shed known as "Edward's residence", Edward being the third defendant. From the shed the main dam that submerged part of the First ROC could be observed.
As the view progressed past the plaintiffs' house to the north-eastern corner of the property, two poles cemented into the ground by the Adams Defendants could be seen. This was the location of the wire fence that had been erected across the Access Road. Counsel for the plaintiffs noted the proximity of the dam to the side of the Access Road, where the road falls away into the dam. The view then continued past the two septic tanks, which are situated to the right of the plaintiffs' backyard, toward a culvert and to an area where various paths intersect. This is the beginning of the Handle.
The view progressed up the Handle toward the Top Paddock. I observed exposed tree roots, rocky terrain and a very steep incline that required some effort to chart on foot. Approximately 40 metres uphill from the start of the Handle is the cattlegrid area that Mr Jeffery described as the "pickup and drop off point" for livestock, where there is some flat ground. On the survey, this is the 90 degree bend in the First ROC that meets the Handle.
The view progressed uphill, through the point of intersection at the end of the First ROC between the top of the Handle and the Top Paddock, until eventually reaching the peak of the mountain. There, I observed the lean-to, water tanks, and hay bales, the subject of the need for vehicular access to the Top Paddock. Several goats were present there.
The view then continued to the southernmost end of the First ROC, and back downhill past the cattlegrid toward the eastern corner of Lot 133 until eventually reaching the southern gates adjacent to "K" and "A". Senior Counsel for the plaintiffs noted the sharp turn that needs to be made by a vehicle to manoeuvre through the gate that intersects the fence line across "A", which is part of the First ROC as noted above.
Once the view reached the new gate erected on the northern side of the property, Mr Alexis drew my attention to the cattle grid, which is the point of entry into Lot 132 on "A". It was noted that a vehicle travelling through the 3-metre gate would need to make approximately a 90 degree turn over steep terrain for the purpose of getting through the gate to the First ROC.
The view then progressed to the Alternative Road and I observed where the First ROC was originally located, prior to the construction of the dam. I was then shown how the Alternative Road connects the First ROC by circumventing the dam.
Once arriving at the new gate that was constructed across "A" on Lot 132, Mr Adamson pointed out the defendants' "Proposed easement 2". I note here for completeness that the Proposed easement 1" was not specifically pointed out to me on the view. I observed that the Proposed easement 2 carries on from the track around the dam down towards another gate adjacent to two gum trees. The route then turns sharply across the paddock to the line of trees. I observed a gully, which Mr Adamson pointed out was the subject of water seepage. Further west of that, the route proceeded towards a tree line. Mr Adamson indicated that there were two options for proceeding towards the tree line: a lower option which runs around the top of the northern side of the spillage dam (which I understood to be part of Proposed easement 2), and another route along the fence line on the northern side of the fences going over to the tree line (which I understood to form part of Proposed easement 1).
The view then turned back from Proposed easement 2, and progressed toward "K" on Lot 132. The Transgrid access easement was at that time pointed out to me. The view concluded at the gate that was erected in June 2022, opposite Edward's residence where the view commenced.

Ought an easement be granted over the Alternative Road?

The plaintiffs' submission is that the s 88K application was to "regularis[e] the use of the [Alternative Road] around the dam via right of carriageway".
It is not in dispute that an applicant for an order under s 88K must establish: (a) the easement is reasonably necessary for the effective use or development of his or her land; (b) use of the land having the benefit of the easement will not be inconsistent with the public interest; (c) adequate compensation can be provided to the servient tenement owner; and (d) all reasonable attempts to negotiate the easement or an easement to the same effect have failed. If these requirements are satisfied, the Court may proceed to make an order imposing an easement, but retains a discretion to do so. Each of these elements is addressed in turn.
The law concerning the operation of s 88K is well known. I note that Mr Adamson for the defendants did not make any submissions by reference to any authorities as to why the proposed easement ought not be granted.

Reasonable necessity - s 88K(1)

The requirement of reasonable necessity is assessed by reference to the circumstances as they exist at the time of the hearing: Gordon v Lever (2019) 101 NSWLR 427 at 438 (Bell P, as the Chief Justice then was, Payne JA and Emmett AJA agreeing). That does not preclude consideration of how the land, the subject of the proposed easement has previously been used: see eg Owners Strata Plan 13635 v Ryan (2006) 12 BPR 23,485; [2006] NSWSC 221 at [67] (Rein AJ); King v Carr-Gregg [2002] NSWSC 379 at [59] (Foster AJ).
Reasonable necessity requires something more than mere desirability or preferability over the alternative routes available. However, it does not mean absolute necessity. To be "reasonably necessary" for use or development, the easement must be reasonably necessary for at least one or more proposed uses or developments, which are at least as reasonable as compared to the possible alternatives: 117 York Street Pty Ltd v Proprietors of Strata Plan No. 16123 (1998) 43 NSWLR 504 at 509, approved in Moorebank Recyclers Pty Ltd v Tanlane Pty Ltd (2012) 16 BPR 31,257; [2012] NSWCA 445 at [154] ("Moorebank").
The comparison of possible easements in s 88K(1) may lead to an evaluation of the advantages and disadvantages of the different possible easements, involving considerations such as costs and viability; a detailed comparative inquiry is not required in the language of s 88K(1): see, eg Debbula Pty Ltd v The Owners - Strata Plan 6954 (2003) 12 BPR 22,617; [2003] NSWSC 189 at [26] (Macready M); Fiona Burns, 'Court Imposed Easements in the Australian Torrens System: Are the Rights of Servient Owners Adequately Protected?' in Lyria Bennett Moses, Brendan Edgeworth and Cathy Sherry, Property and Security: Selected Essays (2010, Lawbook Co) at 226.
As Brereton J stated in Khattar v Wiese (2005) 12 BPR 23,235; [2005] NSWSC 1014 at [32] and [60] (which has been cited with approval in many cases): 32 In [a situation where an easement may be obtained over either of two lots], the applicant may, within reason, select that lot over which it desires to acquire an easement. This may require the court to undertake some evaluation of the alternatives, in order to be satisfied that the applicant's proposal is reasonable as between them, but this need not involve a precise assessment of the respective advantages and disadvantages of each course, nor necessarily acceptance that the applicant's preferred course is objectively superior to the alternatives, so long as it is reasonable. … 60 …The existence of a superior alternative might well remain at least a relevant discretionary consideration.
See also Rainbowforce Pty Ltd v Skyton Holdings Pty Ltd (2010) 15 BPR 29,367; [2010] NSWLEC 2 ("Rainbowforce") at [81] (Preston CJ).
A relevant consideration is if obtaining the easement will be easier than developing an alternative access. The cost of developing alternative access and the number of individual proprietors impacted by alternative access are relevant factors to assessing the comparative "ease" with which a proposed easement can be obtained: see for example Grattan v Simpson (1998) 9 BPR 16,649 at 16,651 (Young J). See also Mulder v Laura Holdings Pty Ltd [2023] NSWSC 812 at [42] ("Mulder").
In this case, I consider there is no doubt that the proposed easement (being the Alternative Road) is reasonably necessary for the effective use or development of Lot 34 for the reasons outlined below.
First, Lot 34 currently benefits from the First ROC. The easement is only being sought because that First ROC has been obstructed. Therefore, the "use" of Lot 34 must be considered in the context of its existing legal access entitlements. I consider that the Alternative Road is reasonably necessary for the effective use of the plaintiffs' land, because they require access to the existing First ROC, which has existed since 1972.
Secondly, the Alternative Road is the shortest proposed easement. It is the closest deviation around the dam.
Thirdly, the plaintiffs have a right to deviate around an obstruction on the First ROC. The plaintiffs referred to Hemmes Hermitage Pty Ltd v Abdurahman (1991) 22 NSWLR 343 at 355-6, where Priestley JA in obiter (Handley JA agreeing) explained the concept of "secondary rights" of the grantee of an easement, including the following: Another of the secondary rights … is the right of the owner of the dominant tenement to deviate onto the servient tenement in order to go round an obstruction placed on the right of way by the owner of the servient tenement. The right of deviation must be exercised reasonably: see generally Halsbury's Laws of England, 4th ed, Vol 14, par 159 at 77. … The passage seems to me to be a well expressed statement of the position to be drawn from the principles of the general law of property as subjected to the particular requirements imposed upon property law by the Real Property Act 1900. Stated shortly, the idea underlying the passage, relevant to the present case, is that the right of a grantee of a right of way to exceed the defined limits of his grant for purposes necessary for its enjoyment, by going on the land of the grantor, is an implied term of the grant itself, so that if the grant itself is duly registered, the implied right to exceed its limits for the stated limited purposes is just as much on the register book, and thus within all the requirements of the Real Property Act, as the express terms of the grant.
Whilst not characterised as "secondary rights of the grantee", Kirby J noted the following at 350: The right to go onto the servient tenement in order to effect the work needed to make the footway trafficable is not a separate encumbrance, estate or interest which under s 42 must be notified on the folio of the register F book lest the appellant take its land absolutely free of it. Instead, it is an incident of the easement which was notified. It is a right included in that easement by the law. It is thus notified when the easement which was expressed on the folio of the register was notified. It is not an implied easement.
The concept of a right of deviation was explained by reference to older authorities by Slattery J in Campbell v Baigent (2010) 15 BPR 28,959; [2010] NSWSC 1348 at [111]: Right to Deviate. There is generally no right to deviate from an easement. One exception to this rule is the right to deviate around an obstacle: Selby v Nettleford (1873) 9 Ch App 111. The other is the right to enter the servient owner's land but only to do necessary work in a reasonable manner. Aside from this use there is no other right to deviate: Bullard v Harrison (1815) 4M&S 387; (1815) 105 ER 877, Taylor v Whitehead (1781) 2 Doug KB 745.
His Honour further explained in Clough v Breen (No 4) [2023] NSWSC 1155 at [203]: … In some circumstances at general law the dominant tenement owner may have implied rights of access over the servient tenement outside an easement, in order have the benefit of the easement granted: see for example Maurice Toltz Pty Ltd v Macy's Emporium Pty Ltd [1970] 1 NSWLR 474 and Bradbrook and Neave's, Easements and Restrictive Covenants, A.J Bradbrooke and SV MacCallum, Lexis-Nexis Butterworths Australia 2011 ("Bradbrook and Neave") at [6.41]. And the general law confers limited rights of deviation from a right-of-way that are consistent with the Court's construction of Easement A. Bradbrook and Neave explain (at 6.43), "a grantee of a right of way has no right of deviation onto another part of the servient tenement, regardless of whether the way becomes impassable through natural causes or through lack of repair": see Bullard v Harrison (1815) 4 M & S 387; 105 ER 877 (KB). But a right to deviate exists where the obstruction is caused by the grantor: Selby v Nettleford (1873) LR 9 Ch App 111.
See also Castagna v Great Wall Resources Pty Ltd (2005) 12 BPR 23,363; [2005] NSWSC 942 at [22] (Young CJ in Eq).
Mr Adamson made no submissions to the effect that such principle was incorrect, nor that the obstruction of the dam was not caused by the servient tenement owner. There was the following exchange: ADAMSON: … My clients were perhaps under a misguided apprehension as to the law relating to going around a dam in order to use an easement. There appears to be some case law on that matter. HER HONOUR: Do you accept that there is a right of deviation around the dam? ADAMSON: I haven't looked at the case, but if that case law that was mentioned is correct, yes. I'm not going to dispute a judgment of a Supreme Court, unless it's appealed against, yes. I think it was Priestley J or something. If Priestley J said that, we have to comply and we have to acknowledge that. HER HONOUR: Why are we here? ADAMSON: We are here because that situation about locking the gate came about way into the proceedings.
Mr Adamson's further submission was: We concede then they go around the dam, but we have made two proposals. They can go around the dam by an alternative route, namely, proposal number 2 by Mr Spagnolo's evidence. … I said they could go around the dam. They can go around the dam. That doesn't mean they can go everywhere. They can go around the dam, according to proposal 2 that we've put forward.
Therefore, it seems that the defendants accept that there is a right of deviation around the dam, but do not accept that it ought be across the Alternative Road, and instead, ought to be pursuant to one of the two proposals put forward by the defendants, outlined below.
Fourthly, the Alternative Road is "substantially preferable", because it is an existing track that is used by the fourth defendant, and a large part of it is also used by Transgrid. Past and actual use of the land the subject of the proposed easement may be considered in the assessment of "reasonable necessity": Mulder at [40]. Here, the plaintiffs have used the Alternative Road since 1998, and for some 15 years without objection from the Adams Defendants. There is virtually no increase in the impact of the Alternative Road on the Adams Defendants' burdened land in Lot 133: Moorebank at [156].
The Adams Defendants will therefore not lose rights to develop that area of their land, because they cannot do so. As I noted in Mulder at [41]: The fact that others already have rights of carriageway over that land is an important matter because the impact on the defendant is much less than if the proposed easement would result in a novel use of the defendant's land that caused noticeable detriment: Moorebank Recyclers at [156]. To allow the plaintiffs to use that land will not impact at all on the defendant's rights to otherwise develop that land, which is already burdened …
Fifthly, I do not accept that merely because there are various other routes that the plaintiffs might use to access the Top Paddock, the Alternative Road is not reasonably necessary.
I note Mr Adamson's submission to the effect that neither the First ROC or any other alternative was safe or ought be used: The truth of the matter is the whole of the area on the hill shouldn't, probably couldn't but at least shouldn't be used for safety reasons, not merely our proposals. It would simply be crazy for people to go up there. Your Honour walked up the top, or possibly ran, but walked up the top and the idea that you would be up there in a vehicle for any purpose would be downright lunacy
That is not a reason for not granting the easement sought.
I do not accept that the Proposed easements 1 and 2 demonstrate that the Alternative Road is not "reasonably necessary". I do not accept that it is incumbent upon the plaintiffs to relinquish any part of the First ROC, in circumstances where it has been obstructed by the servient tenement owner. Instead, the only appropriate comparison is how the obstruction ought to be circumvented to provide the plaintiffs with a route to re-join the First ROC "reasonably", including with the least impact on the Adams Defendants. For that reason, neither the suggestion that the plaintiffs use the Handle, nor the two proposed easements leads to the conclusion that the Alternative Road is other than reasonably necessary.

Inferiority of Proposed easements 1 and 2

I consider the defendants' alternative routes are inferior for the below reasons.
In closing, Mr Adamson submitted that the Court ought find that Proposed easement 2 is the appropriate easement. Nevertheless, below I deal with each of the proposals raised in the evidence.

Use of the Handle

It appears the defendants faintly assert that the plaintiffs ought to use their own land on the Handle to access the Top Paddock, which would obviate the need for using the First ROC. I do not accept there is any basis for requiring them to relinquish their existing First ROC.
In any event, I accept the evidence of the plaintiffs' expert traffic engineer, who gives evidence about the vehicular access along the Handle. His opinion, which was not challenged in cross-examination, is that the Handle does not provide a viable or safe means of vehicular access or for the transportation of cattle or other animals in a trailer. The highest grade surveyed along the Handle was 43% over a chainage length of 10 metres, which was 4.9% more than the maximum grade surveyed to occur along the First ROC. The Handle also contains localised crests and numerous obstructions such as rock outcrops, trees, and tree roots.
Additionally, Mr McLaren states that the area at the bottom of the Handle, at the rear of the plaintiffs' house, has a steep average grade of 31.9% over a length of 4.07 metres. This flattens quickly to a localised depression, with the result that motor vehicles and trailers attempting to traverse this section to access the Handle would scrape on the ground and possibly become stuck due to the sharp transition of grades. This area also contains underground septic tanks which could be damaged if vehicles were to regularly travel over them. There is also a steep bank of approximately 1.8 metres in height adjacent to this section, and the width between this edge and a nearby structure is below the standard for safe vehicle access.
The defendants do not appear to challenge that evidence. However, Mr Mackay, a contractor who carries out earth moving works, gave the opinion that the Handle could be improved for vehicular access at an approximate cost of $20-25,000 per 200 metres. However, he has no engineering expertise and could not assist as to whether such development was viable from an engineering perspective. Further, he accepted that the work could only be carried out if Transgrid agreed to that work, and no investigations had been made as to whether such agreement would be forthcoming. Therefore, at best, Mr Mackay's evidence was hypothetical.
I note that Mr Adamson made a faint submission, without authority, that the plaintiffs would have to pay for the costs of improving the proposed earthworks, but suggested the parties ought to discuss that matter if I considered it an appropriate solution.
Mr Mackay also opined that a tractor could drive up the Handle, based loosely on his experience over an unidentified period of time of driving tractors over "country similar to this". That vague evidence is unhelpful. It can be accepted that it might be possible for a tractor to travel up some steep land. However, there is no evidence that any tractor could safely travel up the Handle in its current state, and no evidence that a trailer with animals could be safely towed by a tractor. The plaintiffs do not own a tractor, and have not needed a tractor to use the First ROC. They cannot be compelled to purchase a tractor.
I do not consider the Handle is a viable alternative that renders the Alternative Road other than "reasonably necessary".

Defendants' Proposed easement 1

Proposed easement 1 runs from the back of the plaintiffs' land adjacent to the Handle on the Adams Defendants' land. It does not circumvent the dam, nor traverse much of the First ROC. The problems with this alternative are as follows.
First, there are over 10mature and large trees in that location that would need to be moved or avoided. There is no evidence of the work involved. Mr Spagnolo, a registered surveyor for the defendants, notes in his report that "there are gum trees within 3 metres of the boundary, but a 10-metre-wide easement would allow for any small deviations required". However, during the course of cross-examination Mr Spagnolo indicated that "the trees could be removed", but that his opinion was not grounded in any knowledge of the Coffs Harbour Council policies regarding the removal of such mature trees.
Secondly, there is some evidence that water flows down that pathway when there is a significant weather event. There is no evidence of the safety or useability of that route during wet weather, and this was acknowledged by Mr Spagnolo during cross-examination. In contrast, the existing First ROC follows the land's natural ridgeline and has existed for over 50 years. Mr Adamson's submission was: There could be no suggestion that the fact that rain occurs in other areas as it would, it wouldn't affect easement A just as much as anywhere else. In fact there would probably be waterfalls coming down onto easement A.
That does not engage with the issue of the plaintiffs already having the First ROC over "easement A" that follows the ridgeline and has been used for many years.
Thirdly, the gradient of this proposed route is much greater than the part of the First ROC that it would replace. The plaintiffs' traffic expert, Mr Craig McLaren, opined that the gradient of the Handle, and the corridor of land next to it, which is up to between 38.1% and 43.0%, was too steep to permit the safe transportation of animals and/or food and water by way of vehicle and trailer. Mr McLaren was unshaken in his opinion that even a tractor would not be able to safely traverse that space with a trailer, because of a tractor's higher centre of gravity. I do not consider it necessary to resolve the controversy of whether a vehicle does exist that could traverse the Proposed easement 1. However, the doubt about the type of vehicle, including a tractor, that would be necessary also supports the conclusion that this is not a superior access route.

Defendants' proposed easement 2

The defendants' Proposed easement 2 followed the Alternative Road around the dam, but rather than continuing on the First ROC, cut across the Adams Defendants' land and then hugged the boundary with the Handle until it rejoined the First ROC. There are similar problems with Proposed easement 2 in terms of gradient and potential water impact. Further, that proposed route runs very close to another dam and over a deep gully. The stability of that route is not the subject of any expert evidence. The defendants accept that some work would be required to render the route useable. It is not apparent on what basis the plaintiffs ought to be required to use such a route.
I do not accept that the second proposed alternative route renders the Alternative Road other than "reasonably necessary".
For the above reasons, I consider an easement over the Alternative Road is "reasonably necessary".

Public interest - s 88K(2)(a)

Mr Adamson submits that the imposition of a s 88K easement would be contrary to "public interest grounds because the plaintiffs have in the past shown an arrogant disregard of their neighbours rights and interests and it is likely that if an easement is granted they will further interfere with the use and enjoyment of the owners of lot 133 and 132".
He was invited to provide any authority that supported that submission as to the proper interpretation of the sub-section. No authority was provided.
I do not accept that it has been demonstrated that the plaintiffs have acted with disregard to the defendants' rights and interests. Further, I consider that it is in the public interest that the plaintiffs have access to their land, in a way similar to their previous use of the First ROC. I accept that there is a public interest in the plaintiffs having access to use their otherwise "landlocked" Top Paddock land: Hanny v Lewis (1998) 9 BPR 16,205 at 16,209 (Young J); Marshall v Council of the City of Wollongong (2000) 10 BPR 18,163; [2000] NSWSC 137 at [20] (Bryson J).

Adequate compensation - s 88K(2)(b)

If the owner of the burdened land can be adequately compensated, and the Court is minded to grant the proposed easement, the Court is required by s 88K(4) to order the compensation it considers appropriate.
Compensation under s 88K often has three elements: (a) the diminished market value of the burdened land; (b) associated costs that would be caused to the owner of that land; and (c) if relevant, compensation for insecurity and loss of amenities: see eg Mulder at [49].
The plaintiffs' expert valuer, Mr Grahame Hollinshead, considered each of those elements and concluded that an appropriate amount of compensation for the imposition of an easement over the Alternative Road would be $825 plus GST. Mr Hollinshead's reasoning is sound, he was not required for cross-examination and there is no contrary valuation evidence. Further, the defendants did not submit that his evidence ought not be accepted, nor that a different amount of compensation was appropriate.
I accept that the appropriate amount of compensation is $825 plus GST.
For completeness, I reject Mr Adamson's oral submission that somehow added to that figure ought to be the value of unspecified and unvalued improvements the defendants had made on the First ROC. There is no principled basis for that submission.

Attempts to obtain easement or one to same effect - s 88K(2)(c)

Section 88K(2)(c) requires the plaintiffs to demonstrate that they have made all reasonable attempts to obtain the proposed easement or an easement having the same effect. A Court may be satisfied all reasonable attempts have been made if, viewed objectively, the applicant's negotiations for an easement have proved fruitless and it is "extremely unlikely" that future negotiations will produce a consensus: Smith v Woodley-Beattie [2009] NSWSC 380 at [73] (Smart AJ). In considering whether reasonable attempts have been made, the Court can consider facts arising after the commencement of proceedings: Studholme v Rawson (2020) 102 NSWLR 490 ("Studholme") at 511-512 (Basten JA with Bell P, as the Chief Justice then was, and Gleeson JA agreeing).
The parties engaged in mediation on 27 May 2022. Since then, the plaintiffs have made several open offers to the Adams Defendants for the proposed easement, with compensation and costs. I accept that there is no obligation on a defendant to accept an offer or agree to an easement over her land. However, the evidence demonstrates that the plaintiffs made efforts to engage with the defendants and all offers were all rejected or ignored.
Mr Edward Adams accepted in cross-examination that "this case is not about money" and that the Adams Defendants were not concerned about the quantification of the compensation offered, but instead did not want the plaintiffs traversing their land.
Mr McLaren's expert report confirms the serious vehicular access problems with the Handle, yet the Adams Defendants have not engaged with that evidence, nor served any expert evidence of their own. I infer from that conduct and Mr Adamson's submissions that the Adams Defendants were and remain implacably opposed to the Alternative Road.
In the circumstances, I consider that the plaintiffs have made all reasonable attempts to obtain the proposed easement and have satisfied s 88K(2)(c).

Discretion

Where reasonable necessity and the other elements in s 88K(2) are satisfied, the Court retains a discretion as to whether to grant the easement sought. The discretion is to be exercised having regard to the purpose of s 88K, which is to facilitate the reasonable and effective use or development of land, provided various conditions are satisfied, including that just compensation is paid for any erosion of private property rights.
Mr Adamson submits that the plaintiffs ought not have sought an easement under s 88K and instead sought to vary the existing First ROC under s 89, without elaborating. Section 89 empowers the Court to modify easements in certain circumstances. It is unclear why the plaintiffs would seek an order varying the First ROC. Instead, they seek to have alternative access to the First ROC, only because of the obstruction of the dam. However, should the dam be filled in, then they would have the right to use the whole First ROC and it might be appropriate to vary or extinguish the new easement being granted.
I do not consider there is any reason why the discretion to order an easement ought not be exercised.

Improving the First ROC

Further, the plaintiffs seek an order that they are entitled to carry out improvement works on the First ROC, particularly at "A", to improve its useability. They rely on Young J's decision in Bland v Levi (2000) 9 BPR 17,517; [2000] NSWSC 161 where at [13]-[17] his Honour stated: 13 There is precious little authority on the subject of ancillary rights in connection with easements. What there is makes it clear that one of the rights that the holder of a dominant tenement has is the right without prior permission of the servient owner to enter onto the servient land and take all necessary steps to grade the area of the right of way, to repair it, including replacing any structure on the right of way by way of concrete road to meet altered conditions. The basic law was summed up by McLelland J in Zenere v Leate (1980) 1 BPR 9300; and see also Newcomen v Coulson (1877) 5 Ch D 133 and Gale on Easements, 15th edition pp 45-46. 14 In Zenere v Leate, the plaintiff owned the servient land (No 87) and the defendants owned the dominant land (No 85). McLelland, J said at 9305: "...a term is to be implied to the effect that the dominant owner has such ancillary rights as are reasonably necessary to the effective and reasonable exercise of the rights expressly granted see Jones v Pritchard [1908] 1 Ch 630 at 638. Such ancillary rights include the right to carry out such work on the right of way site as may from time to time be reasonably necessary to create or maintain reasonable vehicular access along the right of way site and onto No 85, provided that such right be exercised in a manner which (a) is consistent with the reasonable use and enjoyment by the servient owner of the right of way site as the sole means of access between No 87 and a public road, and (b) does not interfere with the use and enjoyment of No 87 by the servient owner to a greater extent than is reasonably necessary..." 15 This passage has been followed on subsequent occasions; see eg Prospect County Council v Cross (1990) 21 NSWLR 601, 608. 16 The cases stress that there is no obligation on the servient owner to make the land suitable for the way, but that the dominant owner, may, without further permission, enter and do work to render the way fit for his or her purpose: Spear v Rowlett [1924] NZLR 801, 803. 17 The dominant owner has the right to pave the way so far as it considers it reasonably necessary to do so in order to enjoy the way: Butler v Muddle (1995) 6 BPR 13,984 at 13,987. The dominant owner may enter onto "the way and do whatever is necessary for the purpose of making it suitable for the exercise of the rights granted": Stokes v Mixconcrete (Holdings) Ltd (1978) 38 P & CR 488, 494-5.
See also Hare v van Brugge (2013) 84 NSWLR 41; [2013] NSWCA 74 at [28]-[29] where Barrett JA (Macfarlan and Tobias JJA agreeing) stated the law in a similar way and indicated that a dominant tenement owner would be responsible for the costs of any improvements he or she made.
No submission was made in opposition to such an order being made. I consider it is appropriate to do so.

Effect of Deed of Licence

In December 2004, and after the Adams Defendants had purchased Lot 133, it appears that the Adams Defendants were not objecting to the plaintiffs continuing to park vehicles on their land near the plaintiffs' swimming pool fence, as they had done with the permission of the previous owners of Lot 133. The Adams Defendants were concerned about their liability, if those vehicles were damaged by the defendants' cattle.
On 31 March 2005, Kay Adams wrote to the plaintiffs: Dear Trevor & Dina, As I have not heard from you in reference to my letter which I placed in your letter box on the 23rd December, 2004 I'm writing again to ask you to contact me as soon as possible to confirm a couple of details so that my solicitor can prepare a deed for you both to sign. The deed is for coverage of your access over our land and your acknowledgement that you agree to indemnify us against any damage caused to your vehicles (parked on our property) from our cattle rubbing on them etc, or any other loss while travelling over our land. I may be contacted on either of the above numbers. We noticed that you have remounting the gate near the top of the property and it is very much appreciated.
From correspondence in evidence, it appears that into September 2005 there was some negotiation of the terms of the Deed between solicitors acting for the parties, however, a Deed was executed by Ronald and Kay Adams and the plaintiffs and dated 1 August 2005.
The plaintiffs submit that the terms of the Deed provided them with a licence to continue using the track for vehicular access to their backyard around their pool fence. The Deed provides that the "Licensor" (first and second defendants) grants to the "Licensee" (plaintiffs) a licence to use the "Access Roads". "Access Roads" is defined as "the existing tracks on the land as highlighted the attached plan". The plan contained two highlighted areas. At one point in the hearing, the Adams Defendants asserted that the Deed was unenforceable, because there was no "attached plan". However, the original Deed was produced and that submission was not pressed.
The most substantive clause is Clause 3.1, which provides in part: 3.1 The Licensor [Kay and Roland Adams] hereby grants a licence to the Licensee [the plaintiffs] to use the Access Roads during the term of this Agreement subject to the following terms and conditions: … 3.1.2 The [plaintiffs] shall be responsible for maintaining the Access Roads and all surrounding areas in good order and repair at the [plaintiffs'] own expense. … 3.1.6 The Licensee hereby agrees to indemnify the Licensor against all claims for loss, costs, damages or expenses incurred by the Licensor as a result of any accident, injury, loss or damage arising from the Licensee's use of the Access Roads or arising either directly or indirectly from the failure of the Licensee to comply with any of the Licensee's obligations herein contained. … 3.1.8 Other than for the Access Roads, the [plaintiffs] must not use any other part of the Licensor's property for ingress or egress to the [plaintiffs'] property or any part thereof.
The Adams Defendants deny the Deed is valid because their son, Edward Adams, who was and remains a registered proprietor of Lot 133, did not execute it. Edward was overseas during most of 2004 and 2005. In cross-examination he accepted that, had his parents asked him to sign a deed, granting the plaintiffs the right to use the Access Track in return for indemnifying his parents and himself, then he would have signed it, after reading it. However, the plaintiffs only seek relief against Ronald and Kay Adams. Ronald and Kay Adams have not pleaded nor identified any proper basis to invalidate or render the Deed unenforceable against them by reason of Edward not being a party. There is no dispute that they executed the Deed. They plainly represented themselves as the "Licensor" and the registered proprietors "… of the land upon which the Access Roads are located." I do not consider there is any doubt that the Deed binds the parties who signed it.
Until November 2020, the plaintiffs consistently used the Access Track to access their backyard by vehicle and from time to time to park vehicles on it. The Adams Defendants were aware of this and never objected to it.
The Adams Defendants admit that in November 2020, they erected a wire fence over the Access Track and failed to remove it, despite the plaintiffs' requests. This led to the commencement of these proceedings by Summons on 8 September 2021. The Adams Defendants did not remove the fence until June 2022.
Edward Adams' evidence in cross-examination was that the purpose of erecting the wire fence was an attempt to force the plaintiffs to use their own land, including the Handle, rather than using the Access Track and Alternative Road.
The plaintiffs assert this was in breach of the Deed. I consider the proper construction of the Deed is apparent. I do not accept that there is any ambiguity that would engage the constructional technique of the contra proferentum rule. In any event, I note that the parties have expressly provided that such a tool will not apply to construction of the Deed in clause 2.1.9.
The Deed remains on foot. I do not accept Mr Adamson's submission that the plaintiffs "fundamentally breached" the Deed or their "ethical obligations", nor that such breaches, had they occurred, would give the defendants a right to terminate by erecting a wire fence, in light of clause 3.2.
Clause 3.2 provided for a termination mechanism if the defendants required the plaintiffs to rectify breaches of the Deed three times. There is no evidence that the Deed has been terminated in accordance with the agreed process in clause 3.2.
Mr Adamson made a faint suggestion that the plaintiffs had breached clause 3.4, which required the plaintiffs to pay a licence fee of $1.00 per year. However, the plaintiffs' evidence was that in 2005 either $20 or $50 was paid to the defendants. They were not challenged on that evidence, and I accept that at least $20 was paid and, therefore, there is currently no breach of the Deed in that regard.
I do not accept the defendants' submission that there was no entitlement to park cars on the Access Roads. I do not accept Mr Adamson's submission that unidentified surrounding circumstances lead to the conclusion that the purpose of the Deed was solely to provide the plaintiffs with "better access to their property". As noted above, the defendants referenced the purpose of the Deed was to deal with access, and potential liability of the defendants for the plaintiffs' vehicles parked on the Access Roads. Further, there is no express limitation in the Deed. While clause 3.1.8 does refer to limiting the plaintiffs' entitlement to access their property to only the Access Roads identified, it does not expressly provide any limitation on what can be done on the Access Roads.
I accept that the erection of the wire fence across the Access Track breached clause 3.1 of the Deed.
Given the continuing animosity between the parties, I consider it appropriate to make the declarations and injunctive relief sought by the plaintiffs against the first and second defendants from erecting further fences across the Access Track.
For completeness, I reject Mr Adamson's submission that the plaintiffs ought be denied relief because of any "unclean hands", in circumstances where the alleged breaches of the Deed and trespass by the plaintiffs have not been made out.

Interference with First ROC by Fourth Defendant

As against the fourth defendant, the plaintiffs seek a declaration that the wire fences, and now new gates, erected across "A" on the First ROC constitute a nuisance. Senior Counsel submitted that the appropriate relief as against the fourth defendant would be to order than the nuisance be removed.
An action for private nuisance protects the ordinary use and enjoyment of a possessory right over land from both tangible and intangible interference. An action in private nuisance requires a plaintiff to establish that enjoyment of the land has been substantially and unreasonably interfered with.
The plaintiffs rely on the decision of Brereton J in Trewin v Felton [2007] NSWSC 851 ("Trewin") for the proposition that a real and substantial interference with rights under an easement amounts to an actionable nuisance: at [73] (Brereton J).
In Trewin, Brereton J commented, at [36] that: [The aforementioned] authorities establish that, ordinarily, in the absence of a specific provision in the terms of the easement, and except where the circumstances otherwise indicate, the servient owner is entitled to fence the right of way, provided that sufficient points of access through gates are allowed to permit reasonable user [sic] of the right of way; … Further, the servient owner may gate the right of way, provided that the gate does not unreasonably obstruct user of the right of way.
A key issue in that decision was whether the erection of gateposts across part of an access easement amounted to an actionable obstruction, such that a nuisance could be found. His Honour found (at [77]-[78]) that: 77 So far as the gateposts are concerned, they are substantial brick structures and have the effect of narrowing the right of way at the commencement of the last 5 metres to 3.02 metres. Although 3 metres is sufficient for the passage of vehicles, this point in the right of way is one where maximum manoeuvrability is important to users, since it is the vicinity in which vehicles manoeuvre and turn to enter the garage on Lot 1, and those manoeuvres are restricted - particularly in the case of a vehicle towing a trailer - by the gateposts. 78 Generally there is no obligation on a servient owner to maintain the full width of the easement throughout, so long as there is no substantial interference with reasonable exercise of the right of way. Thus in Powell v Langdon, while Roper J held that a gate and low wall erected by the servient owner on a right of way over a strip of land 20 feet wide, leaving an opening of 8 feet 2 inches, was a real and substantial interference, notwithstanding that it was passable, because it constrained manoeuvrability, his Honour nonetheless thought that a 10 foot opening would have been sufficient. But in my view, the gateposts at the point at which they are located reduce the width of the right of carriageway below that of ordinary convenience for its users. Accordingly, the gateposts are an actionable obstruction.
Similarly, in this case, the narrow width of the gates across "A" have constrained the plaintiffs' ability to use the First ROC, and obstruct their ordinary use and enjoyment of the First ROC.
Despite this, Mr Adamson submits that Ms Atkinson was the "victim" of the circumstances caused by the plaintiffs.
The fourth defendant did not give evidence to contradict any of the plaintiffs' evidence. Therefore, there is no dispute as to how the plaintiffs have traversed Lot 132 using "K", when all parties understood that was the plaintiffs' entitlement.
Mr Adamson submits: From [when the parties realised the difference between "K" and "A" on the First ROC], there should have at least been an apology and some sort of acknowledgment of mistake. There wasn't. They still pursued the old case saying it was a deviation case. That was never pleaded before, never described that way in any letter before the Court, nothing. And then the other sides say we should pay their costs.
I am satisfied that the plaintiffs used "K" on Ms Atkinson's land, because of the fences she had erected (for the purpose of keeping animals safe), that prevented the use of "A". To that extent the plaintiffs' use of "K" was a "deviation" around an obstruction caused by Mr Atkinson.
Ms Atkinson is entitled to require the plaintiffs to only use "A". However, she is not entitled to prevent reasonable access over the First ROC, through the installation of fences and gates that mean the First ROC cannot be used in a reasonable way by vehicles. The First ROC is 10 metres wide. The gates Ms Atkinson has installed are only 3 metres wide.
The plaintiffs seek an order to the effect that the gates must be 6 metres wide. No submission was made against this in particular. I consider it appropriate to grant the relief sought by the plaintiffs.

Cross-claim

As noted above, the Adams Defendants' cross-claim alleges the plaintiffs have trespassed: 1. across Lot 133 by driving on the Alternative Road; 2. across "K" on Lot 132, and 3. by using the Access Track on Lot 133.
Mr Adamson's cross examination and submissions appeared designed to elicit some admission by the plaintiffs that they used those tracks, knowing they had no entitlement to do so. I do not accept that was the case. Mr Trevor Jeffery was not challenged on this evidence: I didn't know. I thought it was just the, the proper - 'cause there was a dam there, and that's the alternative route to go around the dam, and I always used that. I haven't gone anywhere else. That is the alternative route 'cause there's something blocking the right of carriageway. I have to go around.
There is no evidence that the plaintiffs knowingly used "K", rather than "A". Instead, as noted above, it appears that all the parties understood that the "K" was part of the First ROC, and use of the Alternative Road was appropriate as a deviation. The plaintiffs also considered their had a right to use the Access Track by reason of the Deed.
In any event, trespass is not made out, because lack of consent is the gist of the cause of action: Christopherson v Bare (1848) 11 QB 473. Because Ms Atkinson was aware that the plaintiffs were accessing "K", and allowed that access to occur without complaint, no trespass can be found, there being a justification for the plaintiffs' use: see eg Smethurst v Commissioner of Police (2020) 376 ALR 575 at [246] (Edelman J); Plenty v Dillon (1991) 171 CLR 635 at 639. Similarly, the Adams Defendants allowed use of the Alternative Road and Access Track for many years.
The cross-claim must be dismissed.

Costs

The plaintiffs seek orders that the defendants pay their costs on the ordinary basis.

Adams Defendants

The plaintiffs submit that the Adams Defendants ought to pay their costs of the proceedings on the ordinary basis, despite the language of s 88K(5), which provides that the "usual order" is that an applicant seeking an easement to be imposed on others' land pay that owner's costs of the proceedings.
The relevant principles concerning the operation of s 88K(5) are well known. For example, in Rainbowforce at [181]-[183] Preston CJ at LEC stated (citations omitted): 181 Section 88K(5) of the Conveyancing Act provides that the costs of the proceedings are payable by the applicant for the order unless the Court orders to the contrary. This creates an entitlement in the person affected by imposition of the easement "to have the costs of having it determined by the Court whether the circumstances appropriate for the grant of an easement are established, and the costs of assessing appropriate compensation"... 182 This entitlement will only be lost if and in so far as the person affected has engaged in unreasonable conduct, such as making the proceedings more expensive… 183 The basis on which costs should be paid is the ordinary basis and not an indemnity basis, unless the conduct of the applicant for the order has been such as to justify an order for indemnity costs…
Darke J further elaborated in McGrath v Mestousis (No 2) [2018] NSWSC 32 at [7]-[8] (citations omitted): [7] It is well established that an order to the contrary as envisaged by s 88K(5) may be made where the defendant has engaged in unreasonable conduct, including conduct that has made the proceedings more expensive … [8] In considering the reasonableness of the defendant's conduct, it is necessary to bear in mind that the conduct occurred in response to an application which, if successful, would result in the creation of an interest in the defendant's property. It has been held that s 88K bears a confiscatory nature …
In Studholme at [188], Basten JA stated: It is not possible to prescribe the circumstances in which an owner of land will be deprived of his or her costs in resisting an application under s 88K of the Conveyancing Act. Further, departure from the general rule does not entail a particular result. For example, if the court were satisfied that the land owner had acted so unreasonably so as to warrant a departure from s 88K(5), there would be a number of options open. The court could (i) deprive the applicant of some part of his or her costs; (ii) deprive the applicant of all of his or her costs so that neither party would pay costs; (iii) order that the owner pay some part of the applicant's costs; (iv) order that the owner pay all of the applicant's costs to be assessed on the ordinary basis, or (v) order that the owner pay some or all of the applicant's costs to be assessed on an indemnity basis. These options are in ascending order of departure from the statutory position and require increasing degrees of unreasonableness on the part of the owner.
Here, the issue is whether the defendants have relevantly behaved "unreasonably" in the litigation, such as to disentitle them to the usual costs order under s 88K(5), and if so, the appropriate order.
There have been other cases where a Court has ordered a defendant to pay some of the plaintiff's costs. For example, in Crawley v Baxter (No 3) [2023] NSWSC 955, Henry J ordered the defendants to pay 50% of the plaintiffs' costs. There, although the defendant's conduct was not so unreasonable as to warrant payment of all the plaintiff's costs in the proceedings, the defendant had actively pursued defences based on alternative means of access that were found to be unreasonable, and the defence was described by her Honour at [43] as going: … beyond putting the plaintiff to proof as to the necessity of the proposed easement as he actively advanced the existence of various alternative access routes that were unreasonable to pursue, most of the evidence and submissions were directed to those issues, and Mr Baxter's unreasonable conduct inevitably led to the prolongation of the proceedings and increased costs for which Mr Crawley ought not be responsible and which should be paid by Mr Baxter.
Further, in Swann v Spiropoulos [2006] NSWSC 1016, Campbell J made no order as to costs in a s 88K matter.
The plaintiffs rely upon what was described as "the vehement opposition to the granting of a right of access around the dam, which has been used for a collateral purpose, namely, to prevent access through Ms Atkinson's property". Mr Alexis submitted that this was "a very significant and powerful reason" for ordering that the defendants pay the plaintiffs' costs. Further, later the defendants did concede that there is some entitlement of the plaintiffs to avoid the dam, even though they do not accept that the Alternative Road was the most appropriate pathway. I have found that the defendants' Proposed easement 1 and 2 are not comparable.
I consider that the Adams Defendants have behaved unreasonably in the litigation. There is no rational or legal basis for them preventing the plaintiffs from using the Alternative Road to deviate around the obstruction of the dam, which they had been doing for so long. The plaintiffs have sought an easement that will be registered on title, in order to avoid any future dispute about whether they are entitled to use that track. It ought to have been unnecessary. The defendants' resistance went beyond merely putting the plaintiffs to proof and prolonged the hearing. Further, the issues in the cross-claim substantially overlapped with the plaintiffs' claim and the cross-claim failed.
Mr Adamson submits that the third defendant, Mr Edward Adams, ought receive his costs, because the plaintiffs did not and could not seek an order against him in relation to the Deed, since he was not a party: Quite extensive pleadings about estoppel by authority, estoppel by this and that conduct or whatever. He's had significant, substantial costs in relation to that. I ask that the other side pay Edward's costs of the whole proceedings, your Honour.
I do not accept that submission. Mr Edward Adams actively resisted the imposition of the easement over the land, in relation to which he is a joint registered owner. He also gave evidence on behalf of the defendants. It is rarely appropriate to make costs orders in relation to specific issues, where a plaintiff has had substantial success in the proceedings. Further, in circumstances where the Adams Defendants have always engaged the same lawyers, it is not apparent that Mr Edward Adams would have any costs beyond those of his parents.
Therefore, I consider that he ought be subject to the same costs order.

Ms Atkinson

While the easement being granted does not affect Ms Atkinson's land, the plaintiffs also seek an order that she pay their costs because she has actively resisted the imposition of the easement on the Adams Defendants' land. For example, it was Ms Atkinson who filed expert evidence, upon which the Adams Defendants then relied.
Further, the plaintiffs have been successful in obtaining relief against Ms Atkinson concerning her obstructions of the First ROC, and the allegations of trespass have failed.
Mr Adamson sought an order that the plaintiffs pay Ms Atkinson's costs: I also ask that an order for costs be made in favour of the fourth defendant under s 88K, I think it's (5), your Honour. There's just the idea that the fourth defendant did anything wrong. It's just incredible. They just twisted the facts by what is called sophistry. The Greeks used to do it. Sophistry. It's very persuasive, but it's not logical. It's not based upon fact. It's based upon sophistry. Clever argument. The fourth defendant is the victim in all of this. The fourth defendant has a hobby farm - well, she has a farm rescue, animal rescue facility. She needed the gates just to keep her animals within her property, just like all the neighbours want to keep their animals in their property. That's the reason they have fences and gates, not to keep other people out, it's to keep their animals in, primarily. She tried to avoid these proceedings. She gave them the keys, when she didn't need to because if she'd known about easement (a) and easement (k), she probably would have not given them the keys.
I do not accept that Ms Atkinson is the victim of anything, nor she is entitled to an order that the plaintiffs pay her costs. She actively resisted the plaintiffs' entitlement to deviate around the dam using the Alternative Road, and instead Mr Adamson asserted that she wanted the plaintiffs to accept one of the defendants' proposals. Her resistance has failed and therefore the plaintiffs have incurred costs dealing with that resistance. She has prevented the plaintiffs from using "A" on the First ROC, and her allegations of trespass have failed.

Orders

For the reasons above, the appropriate orders are: 1. An order imposing an easement for a right of carriageway 10 metres wide pursuant to section 88K Conveyancing Act 1919 (NSW) benefitting Lot 34 in DP 595376 (Lot 34) burdening Lot 133 in DP 104285 (Lot 133) over the existing access road around the dam on Lot 133 in the same location as the right of carriageway that benefits Lot 132 in DP 1042485 and denoted "K" in DP 1042485 (First ROC): 1. Commencing at the right of carriageway created by DP 595376 which benefits Lot 34 and burdens Lot 133; and 2. Ending at the intersection between the aforementioned right of carriageway denoted "K" in DP 1042485 and the First ROC. 1. The plaintiffs are to pay the first, second and third defendants as the registered proprietors of Lot 133 the sum of $825 plus GST by way of compensation for the easement. 2. A declaration that the wire fence on Lot 133 erected approximately perpendicular to the northern boundary of Lot 34 prevented the plaintiffs' use and enjoyment of the "Access Road" within the meaning of the Deed of Licence dated 1 August 2005 (Deed) and was in breach of that Deed of Licence. 3. The first and second defendants by themselves and their agents be restrained from erecting another fence in place of the wire fence or otherwise interfering with or obstructing the plaintiffs' rights to use the access roads pursuant to the Deed of Licence. 4. A declaration that the Lot 132 wire fences and the new gates (as defined in the Second Further Amended Statement of Claim) constitute a nuisance which substantially interferes with the plaintiffs' ordinary use and enjoyment of the First ROC. 5. An order that the fourth defendant either remove the gates and wire fences in Lot 132 that have been found to be a nuisance, or install gates in Lot 132 and wire fences on the First ROC on Lot 132 which open to provide an entrance width of no less than 6 metres to enable the plaintiffs to pass and repass through Lot 132 wire fences without needing to deviate from the First ROC. 6. A declaration that the plaintiffs have the right to carry out reasonable work on the land on which the First ROC is situated, in particular on the First ROC on Lot 132 to render that land fit for vehicular use, including levelling and grading work at their own expense, without the consent of the fourth defendant. 7. Grant liberty to the plaintiffs and fourth defendant to apply in relation to the operation of order 7 on 3 days' notice to the Associate to the Real Property List Judge setting out the relief sought. 8. Cross-claim dismissed. 9. Defendants to pay the plaintiffs' costs on the ordinary basis as agreed or assessed.

Endnotes

Extracted from the Second Further Amended Statement of Claim: Court Book, p 37.
Extracted from the report of the plaintiffs' expert surveyor, Peter Hawkes: Court Book, p 236. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 30 October 2023

Conveyancing Act 1919(NSW)ss 88B, 88K

(2019) 101 NSWLR 427

(2020) 102 NSWLR 490

At a glance

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Judgment (31 paragraphs)

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Legislation Cited (2)

Cases Cited (27)

Cited By (5)