Pullen v Smedley - [2017] NSWSC 1721 - NSWSC 2017 case summary — Zoe

NSWNSWSC

Pullen v Smedley

[2017] NSWSC 1721

Supreme Court of NSW|2017-07-27|Before: Ward CJ

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Source facts

Court

Supreme Court of NSW

Decision date

2017-07-27

Before

Ward CJ

Source

Original judgment source is linked above.

Judgment (68 paragraphs)

[1]

(8) Declare that the damage caused by the plaintiffs/cross-defendants to several large boulders on and in the vicinity of the respective rights of way in the course of road works carried out by them in or about August- September 2015 constitutes a trespass to land, by reason of it not being carried out with the consent of the defendants/cross-claimants and not within the rights conferred on the plaintiffs/cross-defendants pursuant to either of the respective rights of way. (9) Order that the damaged boulders each be replaced by the plaintiffs/cross-defendants at their cost with boulders of comparable size and appearance brought from off the plaintiffs/cross-claimants' property. (10) Reserve question of damages for trespass pending compliance with orders 6, 7 (if applicable) and 9 above. (11) Otherwise dismiss the plaintiffs' claims in the proceedings. (12) Reserve the question of costs. (13) Direct that written submissions as to costs be served within 7 days with the intent that costs will be determined on the papers. (14) Liberty to the parties to apply on 3 business days' notice for any amendment or variation of these orders and for directions in relation to the assessment of damages. In the transferred proceeding (2016/00366908) (1) Declare that the respondents have carried out work (Work) on land being Lot 20 DP 1163017 and Lot 21 DP 1163020 (the Land) being development for the purposes of a private road, or alternatively for the purposes of a dwelling house, by constructing a road surface using imported fill being the access road to their dwelling house on adjoining land within their rights of way over the Land but without development consent, when development consent was required for the carrying out of work for either purpose within the E3 Environmental Management zone applying to the land under the Wyong Local Environmental Plan 2013, contrary to 76A Environmental Planning and Assessment Act 1979 (NSW). (2) Further declare that the respondents by carrying out the Work have carried out prohibited development on the Land being development for the purposes of a waste facility, which is an innominate prohibited use under the Wyong Local Environmental Plan 2013, contrary to 76A Environmental Planning and Assessment Act 1979 (NSW). (3) Declare that the respondents have used the Land as a "waste facility" contrary to s 144 of the Protection of the Environment Operations Act 1997 (NSW) by placing, depositing and spreading on the Land material within the definition of "waste" in that Act being imported fill being building waste and crushed concrete waste derived from concrete, brick, tile and pipe and trace pieces of steel, alloy and timber (the Road Material). (4) Note and confirm the orders made in the associated (easement) proceeding (2016/00140145) in relation to the notification to the local council and Environment Protection Authority (EPA) as to the discovery of asbestos and for compliance with any direction by the EPA as to the containment or removal or part or all of the Road Material. (5) Reserve the question of costs. (6) Direct that written submissions as to costs be served within 7 days with the intent that costs will be determined on the papers. (7) Liberty to the parties to apply on 3 business days' notice for any amendment or variation of these orders and for directions in relation to any further relief to be granted following compliance with the orders made in the associated (easement) proceeding. Catchwords: REAL PROPERTY - Easements - Rights of way - Construction - Whether easement implicitly precludes grazing of cattle by servient tenement owner - Meaning of "all weather" access standard - Whether dominant tenement owner liable to contribute financially to the cost of certain works

[4]

ENVIRONMENT AND PLANNING - Pollution - Land pollution and waste - Special waste - Whether carrying out of works on right of way amounted to the use of land as a "waste facility" contrary to s 144 of the Protection of the Environment Operations Act 1997 (NSW) Legislation Cited: Contaminated Land Management Act 1997 (NSW), s 60 Environmental Planning and Assessment Act 1979 (NSW), ss 76A, 76B Environmental Planning and Assessment Regulation 2000 (NSW), Sch 1 Fences Act 1968 (Vic), s 4 Protection of the Environment Operations Act 1997 (NSW), s 48, 144, Sch 1, cl 39, 49, 50 Protection of the Environment Operations (Waste) Regulation 2014 (NSW), cll 6.1, 91, 92, 93 Wyong Environmental Plan 2013 (NSW) Cases Cited: Australia Capital Financial Management Pty Ltd v Linfield Developments Pty Ltd; Guan v Linfield Developments Pty Ltd [2017] NSWCA 99 Baypeak Pty Ltd v Lim [2005] VSC 77 Black v Garnock (2007) 230 CLR 438; [2007] HCA 31 Blacktown City Council v Hocking [2008] NSWCA 144 Breskvar v Wall (1971) 126 CLR 376 Codelfa Construction Pty Ltd v State Rail Authority (NSW) (1982) 149 CLR 337; [1982] HCA 24 David Peter Buckley v David Francis Timbury [2013] NSWSC 1009 Denton v Phillpot (1990) NSW ConvR 55-543 Department of Planning and Infrastructure v Glass Recovery Services Pty Limited [2015] NSWLEC 49 Director-General, Department of Planning and Infrastructure v Glass Recovery Services Pty Limited [2015] NSWLEC 49 Environmental Protection Authority v Hardt [2006] NSWLEC 438; (2006) 148 LGERA 61 Environmental Protection Authority v Terrace Earthmoving Pty Ltd (No 3) [2016] NSWLEC 50 Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89; [2007] HCA 22 Foxman Environmental Development Services [2015] NSWLEC 105 Gohl v Hender [1930] SASR 158 Halloran v Minister Administering National Parks and Wildlife Act 1974 (2006) 229 CLR 545; [2006] HCA 3 Hender v Gohl [1928] SASR 325 Kent v Wotton & Byrne Pty Ltd [2006] TASSC 8 Kettleton v Murray [2017] QDC 64 Kirkjian v Towers (Supreme Court (NSW), Waddell CJ in Eq, 6 July 1987, Unrep) Mouawad v The Hills Shire Council [2013] NSWLEC 165 Owners Corporation of Strata Plan 42472 v Menala Pty Ltd (1998) 9 BPR 16,337 Pettey v Parsons [1914] 2 Ch 653 Powell v Langdon (1944) 45 SR (NSW) 136 Sertari Pty Ltd v Nirimba Developments Pty Ltd [2007] NSWCA 324 Shannongrove Pty Ltd v Environment Protection Authority (2013) 84 NSWLR 688; [2013] NSWCCA 179 Short v Barrett (NSW Court of Appeal, 5 October 1990, unrep) Sinclair v Jutt (1996) 9 BPR 16,219 Stewart v Cooper [1986] TASSC 3; [1986] ANZ ConvR 631 Trewin v Felton [2007] NSWSC 851 Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335; (1987) 63 LGRA 361 Westfield Management Limited v Perpetual Trustee Company Ltd (2007) 233 CLR 528; [2007] HCA 45 Texts Cited: J Gaunt, Gale on Easements (20th ed, 2016, Sweet & Maxwell) P Jackson, The Law of Easements and Profits (Butterworths, 1978) S Odgers, Uniform Evidence Law (12th ed, LawBook Co) Category: Principal judgment Parties: Robert James Pullen (Plaintiff) Alan Robert Gilbert Smedley (Defendant) Representation: Counsel: J Van Aalst (Plaintiff) C Ireland (Defendant)

[6]

INDEX Introduction [1] Summary [5] Background [18] The respective properties [18] Smedley property [19] Pullen property [29] Gates along rights of way [32] Fencing along the rights of way [42] Condition of the rights of way prior to the Pullens' road works [47] Acquisition by the Pullens of their land and subsequent development applications [56] Communications as to the construction works on the Pullens' property and road works on Right of Way "B" [58] Dispute as to the gates on the right of way being left open and as to damage to boulders [79] Further complaints as to damage to the works on the right of way, including damage to boulders [86] Issues raised by Masterton [89] Escalation of the disputes [92] Commencement of proceedings [97] Incident in relation to the gate in August 2016 [101] Request made of Mr Fernance that cattle not be agisted on right of way [104] Commencement of proceedings in the Land and Environment Court [109] Inspection of access road by building certifier [110] Nub of the present disputes [117] Relief claimed in the various pleadings [125] Issues [129] The rights of way [130] Location of respective rights of way [131] Terms of the Right of Way [132] Lay Evidence [134] Expert Evidence [149] Mr de Silva's report of November 2016 [152] Dr Martens' report of August 2016 [155] The Joint Statement of Contamination Experts - February 2017 [161] Submissions on expert evidence [168] Conclusion [170] Issues [172] 1. Proper construction of the easements [172] Legal Principles [172] (i) "Right" to graze cattle on the right of way [177] (ii) What is meant by "all weather" access standard? [184] 2. Has there been a substantial interference by the Smedleys with the Pullens' reasonable use of Right of Way "B"? [190] (i) Requirement that gates on the right of way be kept closed [190] Determination [207] (ii) allowing cattle to graze on the right of way [230] (iii) Presence of the metal shipping containers [234] Determination [240] 3. Does the conduct of the Pullens in leaving gates open on the right of way amount to unreasonable use of the right of way? [243] 4. Declaratory relief sought as to fencing on western side of right of way [259] 5. The Pullens' road works [262] (i) Are the Smedleys are liable to contribute to the works carried out on Right of Way "B" pursuant to the terms of the easement? [263] Was the existing right of way prior to the road works trafficable to an "all weather" access standard? [270] Were the works properly done with as little inconvenience and causing as little damage as possible to Lot 21? [279] Determination [298] (iii) were the road works unlawful? [300] Conclusion that asbestos was part of the road fill material [300] Significance of the finding of asbestos [312] Requirement for development consent under the EPA Act [332] Implications of the finding that the road fill was waste [339] Summary of above conclusions regarding road works [361] (ii) Are the Pullens liable for damages for trespass and/or for damage to boulders on the Smedley property? [362] 6. Relief [366] Final Observations [385] Orders [393]

[7]

Judgment

HER HONOUR: These proceedings involve a dispute between owners of neighbouring rural properties in Ravensdale, New South Wales. I will refer to the neighbours by their surnames as the Pullens and the Smedleys, respectively. There are two sets of proceedings, which were heard together.
The first, commenced by the Pullens by way of summons (and then continued by way of pleadings) in this Court, involves a claim by the Pullens for declaratory and other relief relating to what they say amounts to a substantial unreasonable interference with their use of a right of way burdening land of the Smedleys, and for contribution by the Smedleys to the cost of certain road works undertaken by the Pullens on the right of way (on the basis that those works were required to render the right of way a trafficable surface to an "all weather" access standard within the meaning of the relevant easement) (2016/00140145). I will refer to this proceeding as the "easement proceeding".
The second, commenced by the Smedleys by way of summons in the Land and Environment Court (and then transferred to this Court), involves a claim for declaratory and other relief by the Smedleys in relation to the said road works (broadly, to require the removal of the road fill placed on the land and restoration of the land to its former condition) (2016/00366908). The Smedleys maintain that the works were unlawful in that they were carried out without the requisite development or regulatory approval in breach of both the Environmental Planning and Assessment Act 1979 (EPA Act) and the Protection of the Environment Operations Act 1997 (NSW) (POEO Act) (denied by the Pullens), and hence amounted to trespass for which they claim damages. They also claim damages for damage caused to a number of sandstone boulders on their property caused during the road works. I will refer to this proceeding as the "transferred proceeding".
A complicating factor in the respective proceedings, not least in relation to the relief that should be ordered, is the discovery of a fragment of asbestos at one point on one of the two rights of way burdening the Smedley land.

[8]

Summary

For the reasons set out below, I do not consider that the presence of the internal gates along the respective rights of way, nor the insistence upon the closing of those gates by the Smedleys, amounts to a real and substantial interference with the Pullens' reasonable use of the rights of way for access to their property or otherwise as permitted under the terms of the easements creating the rights of way. Nor do I consider that there is any real and substantial interference with the Pullens' reasonable use of their rights under the respective rights of way caused by the fact that cattle are able from time to time to graze on the grass verges of the rights of way and/or to move across the rights of way from one paddock to another. I find for the Smedleys on those issues. I also consider that the conduct of Mr Pullen since around May 2016 in deliberately leaving gates open along the rights of way (after having opened those gates in the exercise of the rights of access over the Smedley property), in the absence of a sufficient reason or excuse so to do, amounts to unreasonable use of the rights of way and is not permitted under the respective easements.
I find that the placement by the Smedleys of two metal shipping containers at a location partly on one of the rights of way interferes in a real and substantial sense with the reasonable use of the easement at that point on the right of way in that it impedes vision of any oncoming traffic or wildlife around the curve or bend of the right of way. In circumstances where it is accepted that there are probably other places on the Smedley property where the metal shipping containers could be located, and it is not apparent that there would be any great inconvenience to the Smedleys in re-locating the metal shipping containers off the right of way, I consider that they should do so.
As to the road works carried out by the Pullens' contractors on what has been referred to in the proceedings as Right of Way "B", I find on the balance of probabilities that works of some kind were necessary to render the existing surface of the right of way as at 2015 a trafficable surface to an "all weather" standard as that term should be construed in the relevant easement. That said, I am not of the view that the standard of works so required was to be measured by what would have satisfied the Pullens' building contractors' requirements before they would proceed with the construction of the Pullens' home; nor is it necessarily to be measured by reference to the rural fire service (RFS) guidelines. Rather, the term should be given its ordinary and common sense meaning; namely, a surface that is passable by traffic in all kinds of weather.
However, the works in fact carried out were inadequate for the purpose of rendering or maintaining the surface as a trafficable surface to an all weather access standard (particularly in light of the deficiencies in the drainage now identified on Right of Way "B"). Further works are now required in order to render Right of Way "B" a trafficable surface to an "all weather" access standard.
I find that development consent was required (and not obtained) for the deposit of the road fill on the Smedley property and that those works were unlawful and in breach of the EPA Act.
I find that the road fill deposited on Right of Way "B" and part of Right of Way "A" was "waste" and, by reason of the presence in the road fill of a fragment of asbestos, "special waste" (within the meaning of the relevant regulatory regimes). I find that the deposit and storage of the road fill amounted to use of the land as a "waste facility" and that (without development consent and without an environment protection licence) this was unlawful and in breach of the POEO Act, the road fill being "special waste" not falling within any applicable exemption.
The Smedleys are not obliged to contribute to the cost of the works carried out without the requisite approval and in breach of the EPA Act. Unless approval can now be obtained from the relevant authorities for the road fill to remain on the rights of way, the road fill should be removed and the land should be remediated at the Pullens' cost. If approval is now able to be obtained from the relevant authorities for the road fill, though unlawfully deposited, to remain on the rights of way (with whatever steps might be required to contain or "entomb" the area where the asbestos fragment was found), the Pullens should pay damages (to be assessed) for the trespass constituted by the unlawful placement of that material on the rights of way in the first place. Those damages would, at the least, include the expense to which the Smedleys have been put in the respective proceedings in establishing the unlawfulness of the works in question and the cost of remediation of the land.
Once the situation in relation to the asbestos has been determined by the Environment Protection Authority (EPA) (as to which I say more below), the Pullens should be required to rectify, at their own cost, the problems caused by the interference by their contractors with the drainage on Right of Way "B" and either to replace the boulders on the Smedley property that were damaged in the course of the road works with comparable boulders from off-site or, if that is not possible or cannot be achieved to the Smedleys' reasonable satisfaction, to pay damages (to be assessed) for the said damage.
The presence of the fragment of asbestos gives rise to serious health and safety risks, as explained cogently by the expert called to give evidence by the Smedleys (Dr Daniel Martens). Dr Martens said (at T 222): The presence of asbestos within that material means that at first instance there would be a risk that humans could become exposed to asbestos by direct contact but secondly the use of that material which contains asbestos for a road or a road pavement would mean that it is subject to the action of wear and tear from vehicles small and large using that driveway, or that access way. That has the potential to further grind up, crush, destroy and make small particles of what might be larger particles of asbestos and liberate asbestos fibres into the atmosphere. So it is not acceptable to have asbestos present within material that is used for a pavement for a road that is subject to obviously usage by vehicles, in my opinion.
Dr Martens' opinion was that, once material like the fragment of asbestos discovered by the Pullens' expert (Mr Vipulananda de Silva) has been found in a body of fill which has a uniform character, then there is a high likelihood of it being present in other locations and it is very difficult to undertake any level of sampling to say that the body of fill is free of asbestos (T 245).
Although in these proceedings the Pullens have emphasised a number of safety concerns (as to the presence of cattle on the Right of Way "B", as to the obstruction of vision on the right of way caused by the presence of the metal shipping containers, and as to the increased time it might take emergency vehicles to access their property if there is a need to open and close gates on the right of way in order to do so), they have urged the Court not to make orders for the removal of the whole of the road fill along the rights of way notwithstanding the discovery of the fragment of asbestos on Right of Way "A". This is on the basis, as I understand it, that the process of approval for the road works (by an accredited certifier for the purpose of the issue of an occupation certificate) is not yet complete. The Pullens say that this is a matter that should be determined by the local Council with assistance from an expert, such as Mr de Silva (who I note has advocated only a further selective testing regime as the first step to be taken and who was of the view that the finding of asbestos was "insignificant"). Dr Martens, to the contrary, has advocated the removal and disposal (at an appropriate disposal site) of the whole of the road fill placed on the rights of way by the Pullens and the remediation of the property.
The appropriate course at this stage in my opinion is to order that both the local Council and the EPA be notified of the discovery of asbestos on the property and that the Pullens be ordered to comply (at their expense) with whatever regime the EPA (being the appropriate body with expertise to make such a determination) determines should be put in place to deal with the risk posed by the discovery of asbestos on the land. Failing the determination by the EPA within a reasonable time of an appropriate disposal or containment regime, and approval by the local Council for the development works that were unlawfully carried out, the whole of the road fill should be removed by the Pullens and the rights of way remediated at their cost.
I will make orders accordingly.

[10]

Smedley property

The Smedley property comprises two lots (Lots 20 and 21). The Smedleys acquired the property pursuant to a contract for sale entered into in September 2014 from a company by the name of Zardon Pty Ltd, of which Mr and Mrs Scott (the Scotts) were or are the directors. The Smedleys occupied the property under licence from the former owner from about November 2014 until completion of the contract for sale in about September 2015.
Lot 20 adjoins a public road, Ravensdale Road, to the west. Ravensdale Road runs in roughly a north/south direction. Lot 21 is to the east of Lot 20 and does not have direct access to Ravensdale Road. Access to and from Ravensdale Road for Lot 21 is via a right of way burdening Lot 20 (referred to in these proceedings as Right of Way "A").
There is evidence from which it may be inferred that part, if not all, of the Smedley property was formerly operated by the Scotts as a horse and cattle stud (for example, references in ASIC documents to the "Misty Valley Horse and Cattle Stud" and the "Misty Valley Speckle Park Stud" showing the Ravensdale Road address - Exhibits 31; 32). Mr Pullen does not dispute that the previous owner of the land had horses on the land (T 56) and he was aware at time of his inspection of the property prior to entering the contract to acquire Lot 22 that the former owners "agisted horses, cattle, for the neighbour next door" (T 58.33). (The Pullens argue however, that there is no evidence that Lot 22 was so used.)
That said, the relevance of the knowledge of either couple as to the previous use of the respective properties is not apparent given that it is accepted by the parties that the terms of the easements are to be construed objectively, without reference to the subjective intention or contemplation of the parties at the time of the grant or thereafter (see Westfield Management Limited v Perpetual Trustee Company Ltd [2007] HCA 45; (2007) 233 CLR 528). The highest the evidence of previous use of the land was put by the Smedleys was that it informs the reasonableness of the Smedleys' present use of the land.
The Smedley property is presently used by the Smedleys for the grazing of cattle on agistment for a neighbouring farmer (Mr Wade Fernance), whose property is on the opposite side of Ravensdale Road, though Mr Smedley's evidence is that the Smedleys also intend to have horses on the property in the future (see Mr Smedley's affidavit of 21 September 2016 at [84]). The agistment arrangement was described by Mr Smedley in cross-examination as a verbal, or handshake, arrangement (T 159) agreed through Mrs Scott at the time the Smedleys entered into the contract to purchase the property, though in his affidavit evidence, Mr Smedley deposed to a meeting with Mr Fernance at about the time of his inspections of the property (at which meeting he says Mr Fernance said he would be happy to continue the agistment arrangement). Whatever the genesis of the arrangement, there is evidence of the payment of moneys for the agistment of Mr Fernance's cattle (see T 345) and it is not disputed that there is an arrangement of some kind in that regard.
The Smedley property covers around 162 or 163 acres and the number of cattle on the property will vary over the year, depending on the presence of calves at times (Mr Smedley said that the numbers were down to less than 30 at the time of the hearing, but I understand that with the presence of calves that might increase by 20-25 calves at calving time - see Mr Smedley at T 139; also T 338/339, where he put the number at up to 60-65; and his son's evidence at T 396/397), with one or two bulls. Ordinarily, the bulls are kept separate from the cows at calving time (T 397.39).
Lots 20 and 21 are divided by way of internal fences into a number of paddocks (some of which were designated, for ease of reference in these proceedings, as paddocks A-F). There are internal gates in the paddock fences through which cattle can be moved. It is Mr Smedley's evidence, to which I will return in due course, that the cattle are rotated through the various paddocks (at Mr Fernance's direction) from time to time (see for example T 140.10) and that occasionally Mr Fernance puts the cattle on the right of way through various gates (see T 140) to keep down the grass on the verges of the rights of way.
To the north-east of the Smedley property, the land is steep rocky land with an embankment down to the right of way. Mr Smedley's evidence is that the cattle still graze from time to time on the eastern side of the right of way (usually, as I understand it, in the winter as there is not adequate water for the cattle in that area of the property - T 140).
The Smedley homestead is located close to Right of Way "A", towards the north eastern corner of the Smedley property, in what was designated as paddock B - "the homestead paddock". There is no fence along the western side of Right of Way "A" at the entrance to the Smedley homestead, access to which is via a short driveway. (The asbestos fragment was located on Right of Way "A" not far from the entrance to the Smedley driveway.)
Past the Smedley homestead, on the western side of the right of way and on part of the homestead paddock, the Smedleys have placed two metal shipping containers on their property. (Although the statement of claim in the easement proceedings refers only to a metal shipping container, in the singular, Mr Smedley's evidence is that there are two containers and that they were placed adjacent to each other on concrete blocks off the ground at a spot where there were twin stakes in the ground.) Mr Smedley's evidence is that he believed at the time that the containers were being placed on the Smedley property (at the twin markers) not on the right of way. However, a survey plan in evidence (see Exhibit 2) clearly shows that the shipping containers are located partly on the right of way. Part of the Pullens' complaint in the present proceedings is that the placement of the metal shipping container(s) near a curve or bend on the right of way obscures the view of whatever may be around the curve or bend on the right of way (be that a vehicle or an animal) and poses a safety concern.

[12]

Gates along rights of way

Along the two rights of way, there are five gates in all. (A sixth gate referred to in the evidence is on the Pullen property itself.) The five gates in question were designated, for ease of reference in these proceedings, as gates 1-5 (though there was some inconsistency in the labelling of the gates in at least one of the photographs in evidence). The parties accept, as I understand it, that gates 1 and 2 (G1 and G2) are located on Right of Way "A"; gates 3-5 (G3-G5) on Right of Way "B" and I have proceeded on that basis (though in a survey plan forming part of Exhibit 2, the shading would suggest that G2 was on Right of Way "B").
In general terms, when travelling from Ravensdale Road the gates are located as follows: G1 is the first or front gate which gives access to Ravensdale Road; G2 is the gate past the Smedley homestead near the shipping containers; G3 is the gate past the bend on the right of way at about the point at which a metal shed is located (near the commencement of Right of Way "B"); G4 is the gate further to the south-east in Lot 21, at the point where Right of Way "B" and the dividing fence between paddocks E and F intersect (about the centre of Lot 21 according to Mr Smedley); and G5 is the last gate on Right of Way "B", at the boundary of the Pullen property. The Smedleys installed G2 in about December 2015 (see [12(b)] of their defence in the easement proceeding), after completion of the contract for sale in September that year. The other four gates were on the Smedley property at the time it was acquired by the Smedleys.
The dispute in the easement proceedings as to the Smedleys' insistence that gates be kept closed (assuming the gates are closed in the first place), largely concerns G2-G4, though the Pullens' desire that the western side of the right of way be fenced extends to G5.
The Smedleys' insistence as to the closing of gates is consistent with their understanding of the usual or common practice in relation to gates in rural areas (Mr Smedley at [76] of his 21 September 2016 affidavit refers to closed gates on a property as a normal incident of Australian life on a cattle property and at [78], which was read subject to relevance, he says his experience is that the general rule is "leave gates as you find them"). Mr Smedley says that gates are opened to facilitate the movement of livestock to graze in particular paddocks or travel through gate but are then closed; and his affidavit went on to make submissions as to the purpose of the gates ([79]-[83]). Mr Smedley's affidavit (at [13]) (again admitted subject to relevance), also deposes to his memory, from growing up on a semi-rural property and spending holidays staying at farms, "that the invariable practice was to always again close any gates that had been closed, after opening and passing through them".
Counsel for the Pullens professed his personal awareness of such a practice but did not acknowledge that this was a matter of which judicial note could be taken - see T 33.43 ff; T 40/41 (whether as to rural areas in general or as to this particular property). Whether or not there is a general practice of this kind as to the closing of gates on rural properties either locally or more widely is not necessary here to determine. The Smedleys say, with some force, that the easement proceeding does not turn on whether there is a universal (or even regional or local) practice as to the disposition of farm gates on rural rights of way, but on the terms of the easement.
The Pullens' complaint about the requirement for the closing of gates is linked to what I perceive now to be the Pullens' principal complaint, namely as to cattle being permitted on the rights of way at all (that complaint relating largely to the area from G2-G5). The Pullens accept that, to prevent cattle straying onto Ravensdale Road, G1 must be kept closed (though Mrs Pullen complains as to the difficulty of operating the latching mechanism presently on that gate); and there was no argument specifically directed to the closing of G5 at the boundary of the Pullens' property. It is the Pullens' stated preference that there be no internal gates at all on the right of way (other than G1), but even if the gates (other than G1) were to be removed or habitually left open, it is clear that the Pullens would still have a problem with the potential presence of cattle on the right of way (see for example, Mr Pullen at T 65.34), even though it was accepted by Mr Pullen that the presence of cattle on the right of way would serve a land management purpose and Mr Pullen understood the concerns of the Smedleys in this regard (T 60.25).
Mr Smedley has described the style and method of opening of G1-G4 (at [73] of his 21 September 2016 affidavit), as follows.
G1 is a wooden gate with wooden rails and posts, featuring decorative timber elements in the shape of triangles and designed to swing both inwards and outwards, which is opened by unhooking the chain from the eye of the latching mechanism (and which is closed by the reverse process). Mrs Pullen accepted that the process could be described as follows: the opening mechanism is by pushing a metal circle that is within and resting at an angle within a moderately large silver U-shaped bolt so that the longer arm of the U can be extracted from the eyelet that is attached or bolted to the wooden gate; and that, in terms of the physical effort involved in unlatching a gate using that mechanism, (assuming the chain is relatively slack), the key movement involves lifting that internal metal ring within that moderately large U-shaped bolt with one's fingers so that it does not form an impediment to lifting the U-shaped bolt through the eyelet. Mrs Pullen's difficulty is in performing that operation from the outside of the gate (at the entrance to and facing Right of Way "A") as that involves reaching through to the back of the gate.
G2-G4 are five bar steel stock gates, opened by unhooking the latch and lifting the chain from the eye on the fence post and then pulling the chain back through the gate (the reverse being done to close the gate). G2 is designed only to swing southwards because of the incline of the roadway; G3 and G4 are designed to swing both ways (according to Mr Smedley, this is to encourage any stock to move in a particular direction). Mr Smedley says that after the road works carried out by the Pullens on the right of way G3 has "dug into" the resurfaced road when it is opened or closed (but that prior to the road works it did not do so) and that G4 is no longer able to swing towards the north or south easily and now can only be opened when the gates swing towards the south. Mr Smedley says that G4 now hangs incorrectly from the fence posts because the positioning of the fence posts was altered by the resurfaced road. Mrs Pullen seemed to accept that the latching mechanism on these gates was not a problem, though her concern is that she may experience pain pushing the hinged gates closed (I say "may experience" because Mrs Pullen had rarely visited the property after her spinal injury and it was clear from her oral evidence that she is to a large extent speculating on how difficult she would now find opening and closing G2-G5 - which I will explain in more detail in due course).
By reference to the survey plans (see Exhibit 2 and Exhibit N), it appears that the distance between G2 and G4 is roughly 230m; between G2 and G5, roughly 445m (which I interpose to note is consistent with the road fill having been placed on both Right of Way "B" and Right of Way "A" - since the quote that was accepted by the Pullens referred to an area of some 600m). Although Mrs Pullen, in cross-examination, initially said that there were three gates in 100m (T 92), she later corrected that evidence (having, she said, been corrected in this regard by someone when she went back to sit down at the end of that day's testimony - i.e., while she was in the midst of cross-examination - see T 111), Mrs Pullen there accepting that the distance was around 300 to 400m. (This is of relevance given that the Pullens rely on a decision, to which I will refer in due course, in which it was found that there was an excessive number of gates on a particular right of way.)

[14]

Condition of the rights of way prior to the Pullens' road works

There is, as will be explored in more detail in due course, a dispute as to whether, at the time the respective couples acquired their properties, Right of Way "B" in its then condition constituted a trafficable surface to an "all-weather" access standard in terms of the relevant easement (this being relevant to the issue whether, leaving aside the contamination issue and the issue as to the lawfulness of the works, the Pullens can claim from the Smedleys half the cost of the road works they carried out on the rights of way).
In her affidavit, Mrs Smedley described the "right of way" (presumably there referring to both Right of Way "A" and Right of Way "B"), as it was at the time she and her husband moved onto the property (leaving aside the contentious label "all-weather") as a "crushed sandstone road base" (see [23] of her 21 September 2016 affidavit). She was cross-examined as to the choice of the language used in her affidavit (to suggest that the words used to describe the road were those chosen by her lawyers) but the real issue, as I apprehend it, was as to her description of the road as "all weather" and I place no weight on her use of that description.
Mr Smedley's understanding (that he says was conveyed to the Pullens at a meeting at which Mrs Scott was present in March 2015 and which is corroborated by Mr Pullen (see [67] below)) is that the previous owners (the Scotts) had placed a considerable amount of gravel on Right of Way "B"; an assertion also made in correspondence with the Pullens. (Mr Smedley also says that the Scotts had installed drainage on the right of way.)
The Smedleys' evidence is that, in their experience, the right of way was trafficable in all weather conditions (in the sense that vehicles would not become bogged even if the paddocks were sodden) by the kinds of vehicles typical of the area (4WD's) as well as by smaller cars of the kind that they or their son (or, to their observation, others) have driven over the right of way. Mr Smedley identified in the course of his oral evidence in chief the following makes of car that he has either driven or observed being driven on the right of way in all weather conditions in 2014 before it was resurfaced - a Nissan X-Trail, a Range Rover Sport or 92 Range Rover Classic, a Land Rover Discovery 4 (adding that the Smedleys in their business own a total of seven Land Rover vehicles), a VW Golf, small hire cars ("Corollas or even smaller") and a small, two-door hatch that he said he had observed a farm labourer driving onto the Pullen property (see T 129; 130.36).
The issue as to whether the then existing right of way was an "all weather" access road or surface was, and remains, an issue hotly in dispute between the parties. In due course I will refer to the expert evidence on this issue, though of course neither expert had observed the right of way in situ prior to the placement of road fill on it by the Pullens' contractors.
Photographic evidence was tendered by both sides as to the rights of way prior to the works in question. Pausing here, I note that I have also had the benefit of video footage taken by the Pullens, as well as maps and survey plans, to assist my understanding of the layout of the properties and the position of the rights of way and gates on the rights of way. I was taken to various photographs said to show aspects of the road works (including the complaints made by the Smedleys as to interference with the drainage) and the alleged damage to the boulders, as well as the alleged deterioration of the right of way surface following the road works.
I am cognisant of the limitations of, and caution to be shown when relying upon, video/photographic evidence of this kind (see Blacktown City Council v Hocking [2008] NSWCA 144; Short v Barrett (NSW Court of Appeal, 5 October 1990, unrep)). Indeed both Mr Smedley and Mrs Pullen, albeit in different contexts, pointed to difficulties with perceptions based on such evidence.
For example, Mr Smedley criticised photographs taken by the Pullens as being out of focus and missing various details. He accused the video photographer of one of the videos of having 'elected' to take the footage at particular angles. (See for example the criticism made at T 279.44-46; T 284.36-43; T 288.18-22; T 289.31-49; T 290.1-3). There also was a submission made that the video footage of the Pullens' daughter opening gates on the right of way showed that her actions were awkward. In turn, Mrs Pullen, when shown photographs of the metal shipping containers, emphasised the difference between what is shown on paper and what can be seen at the site.
Other than to note that the video footage of the Pullens' daughter opening G3 is consistent with the gate dragging on the resurfaced road at that point (to which Mr Smedley himself has deposed) and that I see nothing awkward in the actions there depicted; and to note that some of the photographs show damage to, or scraping of, the boulders (which Mr Pullen somewhat dismissively conceded in cross-examination - see T 74.4) and loose stones on the right of way or stones placed at the site of the culverts (see for example Exhibit W, T 290.40-45, and Exhibit X, T 291.28-50), I have relied on the video and photographic evidence only to obtain a general understanding of the layout of the rights of way and the gates on the rights of way so as to put into context the evidence of the various witnesses, including the expert witnesses (who were taken to certain of the photographs in the course of cross-examination).

[16]

Communications as to the construction works on the Pullens' property and road works on Right of Way "B"

By February 2015, at the latest, there must have been some discussion between the neighbours as to the proposed construction to take place on the Pullen property since, by email on 2 February 2015, the Pullens (referring to a previous email of which there was no copy in evidence) advised Mr Smedley (and the Smedleys' son, Robert, who was then living at the Smedley property) that the house plans had been approved and that construction should start in about a month's time. The email continued: … we need to choose a contractor to upgrade the access road. Have to [sic] had a chance to review the quotes or did you want to arrange others? Could you please let me know in the next week or so as we need to book this work in.
It is not clear which are the quotes referred to in that email (although it might perhaps be inferred from a later email that they included a quote from an entity known as "Tiny & Mighty" - since a later email suggests that a "discounted rate" was obtained from that entity - see below at [68]).
The response, the same day, from Robert Smedley (expressly on behalf of his parents - and he accepted in the witness box that his father had given him authority to represent him in respect of communicating with the Pullens - T 369) was that "our only obligation is to provide access along the easement and any maintenance or improvements to the access are at your cost".
In that email, Robert Smedley also made reference to "the strict rules relating to the Wyong River water catchment area" and to Council requirements for the road such as fire truck access and passing lanes. The email went on to advise that "you will be responsible for any damage the road construction may cause to our property" including but not limited to "soil erosion, run off, silt build up, contamination of adjoining land or existing infrastructure such [as] fences, damns [sic] or buildings on our property", which damage it was said may be caused by "inadequate specifications for the road construction or by the actual construction"; and that "[y]ou would be liable for the rectification of any such damages". (It was put to Mr Robert Smedley, which he did not accept, that this email was aggressive in tone and was assuming non-compliance by the Smedleys with the obligations to which reference was there made - see T 381; T 382.)
The email further advised that the Smedleys were prepared to contribute to half the cost of the road improvements from Ravensdale Road up as far as the gate on the easement located at or near the machinery shed (which I take to be G3), subject to certain specified provisos, including "[a]n adequate and acceptable quality of road which includes the addition of a binding top layer such as rotomill, unlike the quotes provided, which only allows for substrate". Further, it was said that the Smedleys would not contribute any funds to the completion of the road to the machinery shed until after completion of the construction of the Pullens' development "as we are not prepared to pay for repairs, only to have the road damaged by construction vehicles".
Pausing here, it appears from this and following communications that, on the Smedleys' part, umbrage was being taken at what was perceived to be an unjustified demand for payment of costs in relation to the road works proposed to be undertaken in connection with the construction of the Pullens' house. Whether or not this was the starting point of the dispute (as to which Robert Smedley was cross-examined - see T 371/2ff) or there were other issues between the neighbours at or prior to that point; and whether or not the communications were perceived at the time by the Pullens as aggressive in tone) is not clear. However, the apparent indignation or emotion on Robert Smedley's part at the suggestion that the Smedleys contribute to the road works can be discerned from the following exchange in the course of his cross-examination (from T 371/2): … A. The only correspondence by this time between us and the Pullens was via email so it wouldn't have been in any other way. Q. Is that because the relationship had totally broken down? A. From the Pullens' perspective yes, they were completely‑‑ Q. From both perspectives. A. Well we were reasonable throughout the process. Q. I won't resound [sic; scil; respond] to that. This email is seeking in effect you and your father's cooperation in respect to upgrading the access road. When I refer to access road in relation to this document, I'm referring to B, not necessarily A. You understand what I'm talking about? A. Yes, I understand they're two separate properties. Q. Yes, and they were seeking cooperation from you and your father in particular to choosing a contractor to upgrade the access road. You understood that? A. No. From the first conversations between us and the Pullens, they were actually requesting our financial contribution to the road. I wouldn't say that that was assistance necessarily or you know‑‑ … Q. Well, you told us before that the dispute between your family and the Pullens turned upon, if I understood you correctly, what was meant by all‑weather access standard, number one, and to be a trafficable surface. So there's two limbs, trafficable surface and all‑weather. A. Mm. … Q. Is that right? You and your father took the view that, during negotiations with the Pullens before the Masterton builders started work, you had a difference between you as to what that meant. A. Yes. Q. You took one view, they took a different view? A. Yes. Q. Didn't they ask for your cooperation and not to bother about all these distinctions, "Just let's get on with it to enable the building work to start and we can worry about it later?" A. No, that is not what they asked. Q. Isn't it? A. No. Q. I see. A. The first conversation between us and the Pullen's was when they arrived at our property and within five minutes, demanded that we pay them money, that is the first conversation. Q. I put to you that that's false, that of course they didn't demand money from you in the first conversation, that would be, I put it to you, something the Pullen's would never do. A. I put it to you that that is the Pullen's character. Q. So from the very first meeting with the Pullen's you came to the view, "We're not going to get on with these people." From the very first meeting when you say they demanded money - when you say "they," Mrs Pullen? A. Both, both Jennifer and Robert Pullen were present. Q. Was she demanding money? A. Yes. Q. What did she say? A. This is, you know, three years ago now so I can't remember the exact words but the conversation went along the lines of, "We are going to be building on our property in the coming months. We need the road to be upgraded, we've had quotes done. Can you give us our (as said) email address so that we can send you the quotes and we expect you to pay half the money." Q. You're saying that conversation was so offensive that from that point on there was no chance of a neighbourly relationship with the Pullen's? A. I wouldn't say that was the turning point. Q. It was the starting point? A. If you actually - it was the starting point, it was the starting point but if you go through the emails, extensive amount of emails, you'll see that there's a breakdown between the emails and there is no middle ground, you know, reasoning or anything done. There's no discussion as to the standards, it's just an opinion versus an opinion. … Q. "We're just giving you an update," it's just an update. A. By this time we'd already had aggressive behaviour from them, demanding money, so why would I not put it in writing as to what our position was? Why would I leave that to a phone conversation? Q. Let's assume for the moment you're correct and I'm not accepting it but let's assume you're correct, why didn't you water it down with being a bit more diplomatic and say, "Look, let's move on." A. If that was the case, that they were not demanding money in the first place and aggressive on our first meeting, then I would have been, you know, less confronting in that email but that was not the case. Q. In what way was Mrs Pullen aggressive? What was she doing? A. The [sic] demanded money from us with no grounds. Q. That's false, isn't it? You know that that's false. A. Its not false.
What emerges from this, and the subsequent communications, is that from this point onwards matters escalated to the stage where positions became increasingly entrenched and both sides accusing the other of not exhibiting good neighbourly relations, culminating in lawyers becoming involved and demands being issued (an unfortunate state of affairs if all that was initially in issue was the claim for contribution to road surfacing costs that must by now have well and truly been dwarfed by the costs of the litigation).
Going back to the email communications, there followed an email from the Pullens attaching the easement details and suggesting a meeting in person, in which the Pullens stated that sending emails with demands was no way to maintain good neighbourly relations. This was met by the response from Robert Smedley on 5 February 2015 that his reason for emailing was that "to date, you yourself have not exhibited good neighbourly relations". Complaint was made by Robert Smedley as to the installation of a power pole and meter box on the Smedley property (as an "unsightly eyesore at our front entrance") (the placement of which is explained in Mr Pullen's affidavit evidence in these proceedings - but nothing turns on this). Issue was again taken with the suggestion that there was an obligation to contribute to the costs of the road works, Robert Smedley asserting that an all weather road: … means a road that is constructed in such a way that excessive rain does not cause it to be flooded or sodden to such an extent that vehicles typical [note in this area it is considered a 4WD] of the area travelling over it are likely to become bogged. To be specific, an All Weather Road does NOT mean it must be a gravel road, it does NOT mean it must be free from pot holes or ruts and it does NOT mean it must be free of grass [emphasis as per original]
In that context, Robert Smedley asserted, among other things, that the existing road: was already a gravel road; did not flood during heavy rains; and did not become sodden during heavy rains such that a standard vehicle "let alone a vehicle typical of the area" would "get bogged". He also stated that the previous owners had already had the road graded and cambered and added "extensive amount of material including gravel" through to the Pullens' boundary and had installed drainage in order to ensure that the road was an all weather access road.
What next occurred was what Mr Pullen describes as an "informal meeting" on 1 March 2015, organised by Ms Scott, at which the Pullens, the Smedleys and their son Robert were present (see [8] of Mr Pullen's affidavit of 14 November 2016; [14]-16] of Mrs Pullens' affidavit of 23 November 2016). Mr Pullen says that at that meeting there was a discussion as to what was meant by "all-weather access" and he recalls that Robert Smedley had said that the Scotts had spent considerable effort "constructing the existing road" (something to which Mrs Scott presumably did not demur, since there is nothing in Mr Pullen's affidavit to suggest that she corrected that statement by Mr Smedley - rather, he says he replied to Robert Smedley that Mrs Scott had not mentioned that to him and that she had previously told him "they just spread out some fill that was left over from an excavation" ([8])). Mr Pullen says that at that meeting he said that underground electrical cables would have to be laid before the road re-surfacing work because a trench had to be built for the laying of the telephone cable by Telstra ([8]).
Then, by email on Sunday, 8 March 2015 (referring to a discussion between the Pullens and the Smedleys the previous Sunday - presumably that recounted in his affidavit as noted in the preceding paragraph), the Pullens advised Robert Smedley that their builder had confirmed a start date "in the next couple of weeks". The email referred to it having been agreed that "you were going to investigate getting someone out to access the road to determine which sections need to be upgraded" and enquired as to whether Robert Smedley had had "a chance to discuss the road details with the contractor I provided or were you able to arrange a quote from another contractor?" . The email referred to the need to "get this finalized soon" and annexed an "updated" quote from the Pullens' "preferred contractor", referring to a "discounted" cost on the crushed concrete ($30 per tonne) and extra passing bays required by the RFS.
Robert Smedley continued to take issue with the suggestion that works were required in order to upgrade the road, again referring the Smedleys to the Australian Road Research Board (ARRB) definition of "all weather road" that was set out in his 5 February 2015 email (see [65] above) and again asserting that the road was already a gravel road for its full length, stating that there were no points on the existing road where a 2WD "let alone a 4WD" would become bogged (see the email of 12 March 2015).
Robert Smedley then advised (revising the earlier position that had been communicated to the Smedleys - see [62] above) that he was "prepared to go beyond my obligations outlined within the easement provisions" and contribute to having the standard of the road improved beyond an "'all weather road' from the front gate at Ravensdale Road through to the second gate along the easement". He stated that "we would require that the culverts at the top of both of the damns [sic] to be rectified as without that work being done any work to the road would not last".
That led to further debate as to whether the current access road met the definition of an all weather road (see the email from the Pullens on 15 March 2015; email from Robert Smedley 25 March 2015). The Pullens' position was that: The RFS and the certifier our builder is using, indicate that a gravel road is the minimum requirement and we agree with this. Based on their requirements, this would mean the section of road just past your house to our property, a distance of approx. 600m needs to be upgraded to a gravel surface, with 3 x 20m passing bays.
The Pullens requested a 50% contribution to the cost of this "as per the registered easement conditions".
I interpose here to note that nothing in the correspondence to this point makes clear, or even conveys the impression, that the works to which the Smedleys were then being asked to contribute (on the basis that they were liable for such a contribution under the terms of the easement) were only temporary in nature - as Counsel for the Pullens submitted at the hearing they were always intended to be (see T 311.26; 402.44). Certainly the correspondence made clear that the building contractors were requiring upgrade works to be carried out but there is no statement to the effect that these were to be temporary or were to be followed by further works in due course. Nor does Robert Pullen's insistence that the road upgrade works were because he required an access road for the builders to be able to start their work lead to such a conclusion (T 58.40).
In any event, the upshot of this correspondence was that the Smedleys refused to contribute to the proposed road works (or to approve a particular contractor for that purpose) and the Pullens then proceeded to arrange for works to be carried out on Right of Way "B" in the period up to September 2015 (without the Smedleys' consent and without any development approval expressly related to the road works - I consider later their argument that approval was implicit in, or that the works were lawful by reference to, conditions contained in the development consent obtained for the construction of their house).
The Pullens then obtained a quote dated 18 May 2015 from "Tiny & Mighty Posi-track Excavations (in respect of Right of Way "B") "for the original road to be upgraded to an all-weather access road". The quote provided for the transport and supply of 430 tonne of 40mm road base. The work covered by the quote included "scallop and clean out original culvert to improve flow" and "scallop out high edges near the 2nd and 3rd culverts". Given that the quote was to spread new material 600m long (and 4m wide), it would seem (as noted above) that what was contracted for was an area not confined to Right of Way "B" (consistent with the Pullens' position as communicated to Robert Smedley that there needed to be a gravel road from just past the Smedley house - a distance of approximately 600m). By reference to its date, this quote cannot have been the "updated" quote referred to in the Pullens' 8 March email (see [68] above) nor one of the quotes to which reference was made in the 2 February 2015 email (see [58] above).
Moving ahead in terms of the chronology for a moment, the Pullens appear to have accepted that quote on or about 6 August 2015 (see the tax invoice issued on payment of the deposit) and made payment of a second deposit, said to be due on "day 1 as per job agreement" on 17 August 2015.
Mr Pullen has deposed that the material used for laying the surface of Right of Way "B" (which he describes as "recycled crushed concrete material) was delivered on or about 4 September 2015 and that it was supplied by EBH Environmental Services (EBH) (see [28]; [30] of his 14 November 2016 affidavit). Mr Pullen's evidence was that, when ordering the recycled crushed concrete from EBH he "was made aware that Douglas Partners were the accredited testers of the recycled material and that they carried out test on EBH's material each three months" ([31]). It is not apparent from any documentary evidence to which I was taken how it is that Mr Pullen formed that understanding at the time. Instead, Mr Pullen's evidence was that he received a copy of a report from Douglas Partners of the test result of the EBH recycled concrete material on 23 July 2015, disclosing 0.1% and 1.1% of foreign material type 1 (metal, glass, asphalt, stone, ceramics and slag (other than blast furnace slag)) in the two samples of grey sandy gravel tested (Annexure "F"), in response to a call he made to EBH following receipt of an email Robert Smedley had sent to his former solicitor on 11 October 2015 (see his 14 November affidavit at [29]-[31]). I note that Mr de Silva, referring to that Douglas Partners test report, nevertheless accepted that the material came to the site without a certificate "and, therefore, it is waste" (T 191).
Subsequently, Tiny & Mighty invoiced the Pullens for the "supply of extra truck and dog road material (33.82 tonne) to fill in hole, extend corner of road and put in muddy area near front gate" (which "front gate" is unclear) and then for further works including the reconstruction of culvert near shed gate; supply 2 tonnes of grey ballast; and place sandstone rocks around entrance and edges of culvert.

[17]

Dispute as to the gates on the right of way being left open and as to damage to boulders

Going back to the timeline of events, works were carried out on one or both of the rights of way prior to the resurfacing works on the rights of way, and prior to the commencement of the construction of the house, to excavate trenches for the laying of underground cables (for the provision of services to the Pullen property). According to Mr Pullen this had been foreshadowed at the March 2015 meeting (see [67] above), though in his affidavit of 21 September 2016 (at [38] Mr Smedley states that he had not previously been informed that this work (i.e., the work by the electrical contractors) "would be carried out or at that time) (see his cross-examination on this issue at T 160-161).
Disputes then arose as to the contractors leaving gates open on the rights of way. On 1 August 2015, Robert Smedley emailed the Pullens to complain about the builders "continually failing to close stock gates". He said that if this continued to happen he would be forced to padlock the stock gates but would provide the Pullens "alone" a key. He also said in that email that the builders had "started breaking up boulders" on the Smedley land.
The Pullens responded on 4 August 2015, expressing the hope that the builders had not been causing too much of an inconvenience and stating that "I have reminded them repeatedly to shut the stock gates as padlocking them would be an extreme measure and an inconvenience to us both by not providing unrestricted access as you are very well aware". The email suggested that padlocking the gates might also be deemed a substantial interference. As to the damaged boulders, the email stated that the boulders "dug up on the easement" was something that was "necessary" due to the requirement of the services being beneath the surface as per the easement conditions and requested advice as to what the Smedleys wanted done with the boulders (suggesting that they could be left in a suitable location near the boulders already located on the Smedley property or moved offsite).
On 5 August 2015, there were a number of email communications starting with a complaint by Robert Smedley that "once again" the gates had been left open the previous night. The email stated that "you are leaving me with no choice but to put locks on the gates in order to ensure the protection of the livestock". As to the boulders, it was said that they did not need to be destroyed; that those that had not been destroyed needed to be put back where they were; and that suitable replacements needed to be found for those that had been destroyed.
The Pullens' response to this was that the electrician said the gates had not been left open. They foreshadowed that if the gates were locked and a key was left they would "consider this" but that if the gates were locked and no key was left for the electrician to use then the electrician would have no alternative but to cut the chain. That provoked a threat by Robert Smedley to call the police if the locks were cut (though Robert Smedley did advise that the Pullens could collect a key); followed, according to the correspondence, by communications by both Robert Pullen and Robert Smedley with the local police as to the legalities of the conduct that each had threatened in relation to the locking of the gates/cutting of locks.
The Pullens then instructed solicitors who wrote to the solicitors who had previously acted on the settlement of the sale of Lot 22 (not for the Smedleys but for the previous owners of Lots 21 and 22), asserting that the placement of locks on the gates prohibiting reasonable access to the property was in clear violation of the Pullens' rights under the easement.
Robert Smedley responded to this, asserting that on an almost daily occurrence over the last 2 weeks stock gates for the property had been left open by people acting on behalf of the Pullens and that cattle had gotten out due to gates being left open; advising that a key had been made available to the Pullens; and stating that should they (the Pullens) "begin and continue to maintain their obligations (by which he emphasised that they must ensure that the gates are shut each and every time) we will remove the locks from the gates".

[20]

Escalation of the disputes

This rather unhappy state of affairs appears to have culminated in correspondence on 3 October 2015 from Robert Smedley notifying of his intention to install more gates along the easement during the week of 12 October 2015 and a response on 12 October 2015 by the solicitors acting for the Pullens, foreshadowing legal proceedings and a claim for reimbursement of "your contribution for the work on the carriageway", followed up by a similar letter from the solicitors on 11 January 2016.
There was then some dispute in March 2016 between the neighbours as to a new boundary survey obtained by the Pullens, in the course of which the Pullens advised that they would not allow access through their property by the Smedleys to a water tank owned by the Smedleys on land beyond the Pullen property.
This was followed by assertions in May 2016 by Robert Smedley that the Pullens had continued to leave gates open along the easement, had been moving cattle without the Smedleys' knowledge or consent between paddocks (the basis for which assertion is by no means apparent on the evidence and it seems unlikely at least on Mrs Pullen's part given her fear of cattle); and had accessed the Smedleys' property without authority (as to which there is again no basis put forward for this assertion).
At least the first of those assertions is admitted by Mr Pullen - namely, that from early May 2016 his practice has been to leave the gates on the rights of way (other than G1) open (at least if he does not observe any cattle on the rights of way). Mr Pullen's affidavit of 7 July 2017 deposes to occasions since early May 2016 when he has visited the property. He says that on each occasion all of the gates on Right of Way "B" were closed and that on most occasions he left them open and, when he later left the property - no matter how long he was on the property, all three of the gates were again closed (see for example [3]-[7]). He refers to occasions when all the gates were closed and he says the cattle were on the "fenced section" (or on one occasion when he says "[t]here was no cattle on the entire Smedley property"; see [22]; my emphasis). (As the Smedley property is some 162 or 163 acres it is hard to believe that this last assertion is not somewhat of an overstatement on Mr Pullen's part.)
The following exchange in Mr Pullen's cross-examination makes clear the stance which he has adopted at least since May 2016 (T 70-73): Q. It's the case, isn't it, that you now leave the gates open routinely when you visit the property because you seek to make a point in relation-- A. No, actually - sorry. Q. If you would let me finish. A. I'll stop. Q. You seek to make a point in relation to your claims in these proceedings. That's correct, isn't it? A. No, it's not. I actually sought legal advice and said, "Opening and closing the gates every time, is it really necessary", and my solicitor said, "No, it's not", and so, once I got the legal guidance, that's when I started leaving them open. … Q. Was the advice oral or in writing? A. I'm not sure. There was a previous solicitor. It wasn't George, my current solicitor. It was the previous solicitor, Graeme Peters. Q. You just can't be sure whether there was a letter or not? A. No. Well, it would have either been in an email or a phone call, one or the other, but I could certainly check whether there was an email in relation to it. Q. I call on any email setting out that advice if you could check that in due course. VAN AALST: Not produced. I can tell you now we don't have it. Q. It's the case, isn't it, that more or less, possibly with rare exception, but overwhelmingly whenever you visit the property now you leave the gates open. You don't close them after you progress through them? A. That's correct, yeah. Q. You do that notwithstanding what you accepted earlier was your knowledge of my clients' concern with gates being left open on their property. That's correct, isn't it? A. That's correct. Q. You do that and you're prepared to do that, that is, leave the gates open, regardless of any risk that that may create in relation to cattle moving from one paddock to another? A. No, that's not correct because the times the gates are open there are no cattle in the easement. Q. That's because of your earlier communication with Mr Fernance? A. But what I'm saying is I never leave gates open if there's cattle in an unfenced portion of the easement. Q. You say you know that there's no cattle on easement B because you've directed Mr Fernance, through your solicitor, not to put them on the relevant paddocks. A. That's correct. Q. That's right, isn't it? A. That's correct, but also from visually looking you can tell whether there's cattle there or whether they're behind fenced sections. Q. There would be no need to visually look, would there, because you've asked Mr Fernance, who owns the only cattle agisting on the property, not to have them on areas that may access the right of way. That's the case, isn't it? A. That's correct, but it just depends on whether somebody else has moved them. Q. Even though you've asked Mr Fernance to do that, you've observed occasions where there have been cattle on easement B since that letter of 29 November? A. No, I haven't. There has never been an occasion since then. Q. I suggest to you again there would be no cause for you to look around to see where the cattle are, would there? A. I do that anyway. Q. Even though you know you're not going to see anything on the relevant paddocks? A. That's correct.

[21]

Commencement of proceedings

As noted earlier, the first of the two sets of proceedings to be commenced was the easement proceeding brought in this Court initially by summons filed on 6 May 2016 by the Pullens. Relief was sought in the summons as to three aspects of the use of Right of Way "B": in relation to the gates over the right of way; in relation to the use of the right of way for grazing of stock; and for the fencing of the right of way and removal of a steel container (i.e., the metal shipping containers) said to be encroaching on the right of way. The Pullens also sought payment of half of the cost of the road works carried out on Right of Way "B" (said to be $22,953).
A statement of claim was then filed on 28 July 2016, pleading the Pullens' claims as to interference with their use of the right of way and the construction of the s 88B instrument in respect of Right of Way "B". The relief claimed in the statement of claim was broadly the same, though not in all respects identical, as that claimed in the summons. I set that out in due course (see [125] below).
The Smedleys filed a defence on 2 August 2016, as well as a cross claim on that date, in which among other things, they assert that they have not at any time obstructed or materially or substantially interfered with the exercise of the Pullens' rights pursuant to the easements. They maintain that as registered proprietors of the land they do not need the Pullens' consent to use their land for the purpose of an operational beef cattle farm and that the terms of the right of way (as to use by any reasonable means and causing as little inconvenience to them as practicable) require that the farm gates that lie across the right of way from time to time be shut after their use by the Pullens and their invitees. They assert that the placement of material on the right of way was done contrary to law and without the required development consent. As to the alleged encroachment of the steel container [sic] on Right of Way "B", the Smedleys deny any such encroachment (though Robert Smedley appeared to concede this in the witness box - T 392.36-40, albeit emphasising that the container was not on the road itself) but say that even if there is an encroachment it is de minimis. (They similarly deny that the installation of G2 is a substantial interference with the rights of use conferred by the easement in respect of Right of Way "B".)
I set out in due course the relief sought in the cross-claim (see [127] below).

[22]

Incident in relation to the gate in August 2016

After the commencement of the easement proceeding, there was an incident in August 2016 (to which Mr Pullen deposes in his affidavit of 14 November 2016 at [25]) on an occasion when he says that his daughter had been unable to open a gate on the property (G3). Mr Pullen says that he saw that the chain was so tightly attached to the gate since their arrival at the property half an hour earlier (when he had left the gate open) that it was impossible to unlatch and that he had no alternative but to use cutters to cut the chain so that he could return home (by which I assume he means returning to the Central Coast rental accommodation that he and his family were then occupying). Mr Pullen says that when he returned to the property two days later there was on either side of that gate "parts of an RSJ steel girder" which made it very difficult to open the gate (see [26] of that affidavit). There was photographic evidence both of the chain that had been cut and of the RSJ steel girders placed either side of the gate (as to which it was said I could take "judicial advice" that they were heavy - T 348).
Cross-examined about the placement of the steel girders, Mr Smedley said the following (T 346-351): Q. Do you recall evidence being given in relation to my client Mr Pullen having to use a metal cutter to undo a chain lock on one of the gates? Do you remember that? A. Yes I can recall it. Q. Isn't it the case that you put that chain on so tightly that you were attempting to restrain or restrict the Pullens from getting access through the gate which you caused to be let's call it locked by a very tight chain? A. No. Q. Could you explain how come the chain was put onto that gate so tight that Mr Pullen was unable to release it from the latch? A. If Mr Pullen understood the mechanics of the chain and latch on the gate he would know from experience or from having used the gates which he had used many times before that, that the chain will tighten itself down the gate and the more you force - you, you attempt to force it, it will get tighter. Also the design of the hook is such that it is a - I don't know what the right word is, a cam or something, that tightens and if you lever it the correct way it releases with simplicity. Q. That's false. I'm putting to you that you tightened that chain as much as you could so as to cause difficulty for Mr Pullen‑‑ A. No. Q. ‑‑or anybody else in the Pullen family‑‑ A. No Q. ‑‑who want to get through that gate. A. No. Q. You recall putting down RSJs at that gate? A. No. Q. Pieces of them? A. No I did not, I did not do that. Q. Who did that? A. Possibly my son Q. If you didn't put it there your son put it there, is that what you're saying? A. Yes. Q. Did you know he was going to put it there? A. He went up there to find something with which to keep the gate closed. Q. There was no cattle on the right of way at that time was there? A. That is of no relevance. Q. Why keep the gates closed? A. Because the Pullens are not farmers. It is a - it is our property, it is our right to decide which way the gates are managed. Because there are 35 gates on our property, in, in the property in entirety, somebody has to know whether gates are left open. It can't be every person who goes through decides for themselves which gates to leave open or which not. Q. They are very heavy to put it in mildly? A. I wouldn't call them heavy. Q. They were put there purposely to cause the Pullen family to have difficulty opening that gate? A. No. Q. There were no cattle on the right of way, were there, when the chain was put on the gate shown in the paragraph at 76V, were there? A. I answered that question before, there were no cattle there at the time. Who, who, who is to decide on a property with a right of way, with any man and his friends or whatever coming and going, who decides who is to open or close or keep open gates? Who is to make that decision? Q. I take it what you're saying is you're the person who makes the decision? A. And when we - from when we purchased the property, our decision was that all gates are to remain closed unless otherwise left for a reason. Q. I put to you that there was no need to have those pieces of an RSJ there because those gates didn't need to be closed. A. If Mr, if Mr Pullen had opened the chain as he was - would well have been able to do instead of using his camera and light to take a photo from an angle that showed it not - showed it as if it was horizontal, if he had used his own - his skill to, to release the, the hook, he would've got out as easily as anything. Q. For the final time, you purposefully - you and/or your son purposefully caused the tension to be made on that latch so as to make it difficult, if not impossible, to open the gate? A. I can positively say to you that is not the case. Q. Let's assume there were no cattle on the right of way then at that stage when Mr Pullen went to that gate to get in, he was towing a horse float at the time I think you may have read his affidavit where he says he was towing a horse float to get up to his property and I think it was also night time. You accept that? You've read his affidavit I assume, you're nodding your head so I think you're agreeing with me. A. Yes. Q. If there were no cattle there why wasn't the gate just open? A. I think I've already answered that. Q. Did you know he was going to come along that access way at that time? A. If Mr Pullen‑‑ Q. Did you know he was going to come along that access way that night? A. No. Q. Just go back to the RSJs, there was no need for that gate shown at 76W and 76X to be closed? A. So you're trying to say to me or Pullens are saying to you that they have a right to manage what way the gates are managed on our property? Our farming property? Q. These two photographs demonstrate your attitude towards the Pullen family. You're going to make it difficult for them to use the right of way. Why are you laughing at this? A. Because I find that rather laughable, that you would claim that. Q. What's your answer to that? A. If Mr Pullen had gone through the gate, opened the gate and latched it behind him, there would be no issue. Q. Was it because he had to use bolt cutters that caused your son to place those pieces of the RSJ where they're situated in those photographs? A. I would think that's rather obvious. Q. Couldn't he have got a piece of rope or something just to tie up the gate so as it would be easy to get access through the right of way and to go onto his property? A. And, and I would put to you that if Mr Pullen had latched the gate behind him as he, as he was doing in the early instances of his accessing our property instead of taking the legal advice that he claimed he was given which he cannot produce that the gate would've been not touched.
To anticipate the argument of the Smedleys, it is said that this incident amounts to no evidence of real substantial interference with the right of access; on the basis that this was one occasion and as a result of the fact that Mr Pullen had cut the chain securing the gate (T 347.33-47). It is submitted that that is hardly an unreasonable measure, the gates being there for a purpose having regard to the fact that the cattle that graze on the land

[23]

Request made of Mr Fernance that cattle not be agisted on right of way

Mrs Pullen has deposed to a meeting between herself and her husband and Mr Fernance on 27 November 2016 "to ask him to request the Smedleys do not graze his cattle on right of way "B" or on the unfenced portion of the land next to this section of the right of way". She says that Mr Fernance agreed to this (and sent a letter to her solicitor stating this) ([11] of her 7 July 2017 affidavit). (See also Mr Pullen's evidence at T 64.50-T 65; he accepting that the communication to Fernance and change to arrangements for his agistment of cattle to that extent affects the nature of the agistment agreement - T 65).
Notwithstanding that, according to Mrs Pullen, Mr Fernance had already orally agreed to the request that cattle not be grazed on Right of Way "B", that request was reiterated on a more formal basis through the Pullens' solicitors. They wrote, by letter dated 29 November 2016, to Mr Fernance (see annexure B to the affidavit of Mr Smedley sworn 20 July 2017), requesting that Mr Fernance's cattle "be agisted solely upon the Smedleys' property and not on any part of the right of way" and seeking a written undertaking "that from the date of this letter you will inform the Smedleys that the agistment of your cattle is to take place wholly within the boundaries of their property which is fenced and on the western side of the right of way". The letter further requested the provision of written confirmation within 7 days from the date of the letter "that you have informed the Smedleys not to graze any of your cattle on the right of way at any time". There was an implicit threat to join Mr Fernance to the proceedings as a defendant "and to seek the appropriate injunctive relief".
A handwritten note headed "To Whom it May Concern" and dated 2 December was signed by Mr Fernance stating that he had informed Alan Smedley on 29 November 2016 that "our cattle agisted on his property, are not permitted on the easement, until matters between the two parties are settled" (Annexure A to Mrs Pullen's 7 July 2017 affidavit).
Mr Smedley has deposed that, since about November 2016, the Smedleys have not invoiced Mr Fernance in respect of the agistment arrangement as he has not been able to use all of the paddocks in the Smedley property (in particular he says that the agistment of cattle has been restricted as they are unable to agist cattle on three of the paddocks on the property - namely, the paddocks designated as F, D and C) (see at [6]).
It appears that this sequence of events (coupled no doubt with the extent of the relief sought by the Pullens, including as to the fencing of the western side of Right of Way "B") is the basis on which the Smedleys complain that the Pullens are seeking to dictate how they (the Smedleys) operate their business on the property. Mr Pullen's position in that regard was made clear in the following evidence in cross-examination, after accepting that that the easement between G3 and G4 fenced on western side and saying that he is not seeking a fence along eastern side of easement (T 65-66): Q. So that being the case obviously whenever there are cattle in the upslope paddock to the east of gates G3 and G4 they would necessarily be free as they saw fit more or less and as the grass grew to go down onto the right of way between G3 and G4, that's correct isn't it? A. They would be if the cattle were up there, yes. Q. If the cattle were up there, certainly. The same would apply in relation to any cattle to the east of the G2 to G3 strip? A. That's correct. Q. Between G4 and G5, or could I just ask is if your understanding in these proceedings that you're asking for a fence to be installed on either side of the easement as it runs between G4 and G5? A. Only if the Smedleys wish to put cattle there that they would need to fence it, yes. Q. It's your position that should my clients seek to use that large southern paddock for their cattle then my clients, in your view, should fence the easement on both sides between G4 and G5? A. That's correct. Not necessarily both sides but one side, depending which side they want to put the cattle. Q. They can do it on one side but they just can't use the paddock on the other side for their cattle? A. Unless they fence it, that's correct.

[25]

Inspection of access road by building certifier

In late November 2016 a building certifier (Mr Cohen of essentialCERTIFIERS) inspected the right of way (presumably Right of Way "B") apparently for the purpose of an anticipated application by the Pullens for an occupation certificate.
By letter dated 29 June 2017, essentialCERTIFIERS advised Mr Pullen that an inspection had been carried out "on the access road installed to satisfy the conditions of consent" and that the surface was compliant but that the following matters were not completed to satisfy the condition of consent: the width of the road was not 3.5m wide for the length as required; and the turning circle was not constructed in accordance with the approved details.
That same day, the Pullens' solicitors wrote to the Smedleys' solicitors (see Exhibit U), forwarding a copy of the certifier's Record of Inspection dated 29 November 2016, and stating that: In order for our clients to obtain an Occupation Certificate, the Right of Way must be upgraded to bushfire standards as specified in the DA. The necessary upgrades are outlined in the [said report which was enclosed] … We also enclose two quotes for carrying out the necessary works as our clients would like to take possession of their new home as soon as pollable. We ask that your clients indicate which quote is acceptable to them. We draw your attention to the Section 88B Instrument DP 1163020B and paragraph 3 which in effect provides that our clients and yours are to bear in equal shares the costs of carrying out work within the site of the Right of Way. …
The letter went on to state that, should there not be a response to the request by 4pm, on 3 July 2017, their client would proceed to have the works carried out in accordance with one of the attached quotes. The quotes referred to an upgrade to "rural fire standards" or "bushfire standards". (I was informed at the hearing that, by agreement between the parties, neither quote has been accepted pending the outcome of these proceedings. Hence I assume that the works have not yet been done and an occupation certificate has not yet been issued.) The Smedleys' attitude to the proposed upgrade works was that they had no obligation to contribute thereto (see T 270ff; 272.50).
Reliance is placed on the 29 November 2016 letter by the Pullens for the proposition (to which I have earlier adverted) that the works carried out to the rights of way by Tiny & Mighty were "always intended" to be temporary and that those works were undertaken by Tiny & Mighty "specifically for the purpose of ensuring that Masterton's would have access on an all-weather surface to and from the site of the building works during the course of the construction works" (the significance of this going to the Pullens' argument that the road works did not require regulatory approval and that it is, in effect, premature to order the removal of the road fill since the process in relation to Council approval has not yet been completed).
Counsel for the Pullens submitted that (T 404): The importance of that evidence is that it demonstrates that my clients intended to finalise the surfacing and upgrading of the right of carriageway from the initial surfacing to a new surface, which will comply with the definition of being an all-weather surface. …
It does not follow, in my opinion, from the fact that an accredited certifier has not yet certified the access road as compliant with the development consent conditions, that the road works carried out to permit commencement of the building works by Masterton were "always intended" by the Pullens to be temporary. An available inference from the correspondence in evidence is that the proposed further works are only now sought to be done because the inspection report from the certifier has recorded a defective result in respect of those works. Nothing in the earlier correspondence suggested the works were intended to be temporary. Moreover, the defects identified by the certifier are hardly defects as to the "all weather" access standard or otherwise of the right of way, as such - they are defects relating to the bushfire requirements: namely, as to the width of the access road and completion of a turning circle.

[26]

Nub of the present disputes

As emerges from the above, there are, broadly speaking, two main areas of dispute.
First, the Pullens' complaint that there has been a substantial interference with their use of the right of way both by reason of the fact that the Smedleys have insisted that the gates along the rights of way be left in the position in which they are found (i.e., that if they are closed when the Pullens pass along the right of way, then the Pullens will close them after going through the gates) and by reason of the presence (from time to time) of cattle grazing on (or more precisely along) the side of the right of way. (As noted earlier, the Pullens make no complaint about the requirement that G1 be left closed to prevent access by cattle onto Ravensdale Road, although Mrs Pullen complains as to the present latching mechanism on that gate). The complaint as to substantial interference is both as to the presence (or potential presence) of cattle on the right of way and as to the gates installed on the right of way (the latter, it is said, being necessary because of the former).
Although, in the Pullens' outline of submissions dated 17 July 2017, the conduct said to amount to substantial interference with the Pullens' use of Right of Way "B" included the Smedleys' "constant surveillance of the internal gates being opened by the plaintiffs, their family and others", and Mrs Pullen gave evidence of the intimidation she feels in that regard (see [198] below) ultimately no submissions were made as to this amounting of itself to a breach of the Pullens' reasonable rights of use of the rights of way. (Mr Smedley denies various of the surveillance allegations and denies the alleged intimidation but it seems broadly to be accepted that the Smedleys have kept what might be described as a vigilant eye on the opening and closing of the gates on the right of way.)
Conversely, the Smedleys' complaint on this issue is that the Pullens have deliberately left open gates along the rights of way (and that they and their contractors have driven at excessive speed along the right of way) and that this is not a reasonable use of the right of way.
Pausing there, insofar as the Pullens have framed the principal issue as to the use of the relevant right of way as being as to whether the Smedleys, as proprietors of the servient tenement, were and are entitled to graze cattle (whether on agistment or otherwise) on Right of Way "B" (as an incident of which all internal gates along that right of way must always be kept closed immediately after access going to or from the dominant tenement) (see their July outline of submissions and the tenor of the opening submissions at the hearing - at T 2), the Smedleys argue (and I agree) that this involves a fundamental misconception.
The Smedleys say that their right to graze cattle, or to install and operate gates, on Right of Way "B" stems from their ownership of the land (the servient tenement) over which the right of way runs. The evidence of Mr Smedley is relied upon for the proposition that the gates are needed for cattle management; that all parts of the land through which the right of way runs are part of a working grazing property; and that grazing of the land including paddocks that are managed with gates G2-G5 need to be grazed for vegetation management reasons (T 343.5-44) and are grazed for income by the Smedleys (T 345.36-50). Either actual use or lawful ability to use for grazing is said to be enough to render the placement and normal operation of farm gates across the right of way, and the continuation of the right of way as an unfenced area on Lot 21, as acts that the Court could not accept represent a substantial and unreasonable interference with the rights of the dominant tenement owners the Pullens, over the right of way running through the Smedleys' property. It is further submitted that the Pullens' case, if upheld, would mean that the Smedleys cannot use a large part of their land and earn income from it as they are entitled to do.
The second main area of dispute relates to the Smedleys' complaint that the Pullens have carried out works along Right of Way "B" for which no approval has been obtained from the relevant authorities and in the course of which boulders on their property have been damaged and there has been interference with the system of drainage on the right of way (leading, it is said, to deterioration of the road surface that was laid by the Pullens' contractor). The Smedleys further complain about the quality of the material that was placed on Right of Way "B" (and Right of Way "A") during the road works carried out by the contractor engaged by the Pullens.
The Pullens contend that there was no requirement for approval specifically to be obtained for the road works that were carried out on Right of Way "B" - on the basis, as I understand it, that the approval for the construction of their home included as a condition a requirement for road access that made such works necessary. They say that the Smedleys are obliged to contribute half of the cost of those road works, on the basis that the works were necessary to make the road a trafficable surface to an "all weather" access standard. The Smedleys deny this and maintain that the Pullens are obliged to remove the road fill and to restore the land to its former condition. As to the finding of a fragment of asbestos, the Pullens accept that asbestos must be disposed of in an appropriately designated land fill but resist the proposition that all of the road fill must be removed.

[27]

Relief claimed in the various pleadings

The relief claimed in the Pullens' statement of claim in the easement proceedings, as originally framed, was as follows: GATES OVER RIGHT OF WAY 1. A declaration that the plaintiffs being entitled to the estate or interest in possession of the rights of way created upon registration of the deposited plans 1163017 and 1163020 as the dominant tenement with the right of enjoyment with all other persons authorised by them to go and pass and repass at all times and for all purposes with or without animals or vehicles or both to and from their dominant tenement being the land comprised in folio identifier 22/1163023 known as 279 Ravensdale Road, Ravensdale. 2. A declaration that the defendants closing or causing to be closed any of the gates situated along the right of way marked "B" referred to in in sheet 2 of 2 in the survey report by Everitt & Everitt dated 18 March 2016 ("the Survey") constitute a substantial interference with the plaintiffs' rights conferred upon registration of the deposited plan 1163020. 3. Order that the defendants be restrained from closing or causing to be closed any of the said gates. 4. Order the defendants remove or cause to be removed the gate and fence they caused to be erected at the northern end of the right of way. USE OF RIGHT OF WAY FOR GRAZING STOCK 5. A declaration that upon a proper construction of Part 2 clause 1 of the s88B instrument DPI 163020 the right of way marked "B" did not permit the right of way or any part of it to be used for livestock to graze or pass over. 6. Order the defendants and each of them their employees or agents be restrained from causing or acquiescing in livestock stock grazing on, or passing over any part of the right of way. FENCES 7. A declaration that upon a proper construction of Part 2 clauses 1 (a) and (b) and 2 of the s88B instrument DPI 163020 the plaintiffs being entitled to the estate or interest in possession of the dominate tenement may carry out fencing work: (a) on and along the western boundary of the right of way to where it adjoins lot 21 which is unfenced to construct a fence thereon to prevent livestock from straying onto or passing over the right of way: (b) on the eastern boundary at the northern end of the right of way to replace the fence to be removed pursuant to prayer 8 below; (c) on the un-fenced part of the north western boundary of the right of way where it adjoins the boundary between lots 20 and lot 21 to the position where the metal shipping container is encroaching onto the right of way; and (d) on the western boundary of the right of way adjacent to the metal shed. 8. Order the defendants remove the fence they caused to be erected which is encroaching on the right of way at its northern end, adjacent to its eastern boundary where shown in page 2 of 2 of the Survey. 9. Order that the defendants contribute half of the cost of carrying the out the fencing work (a split post and top rail fence with three plain wires below) along the western boundary of the right of way. CONTRIBUTION TO COST OF ROAD WORKS 10. A declaration that the road works on the right of way carried out between 17 August 2015 and 26 September 2015 was and is an all-weather access trafficable surface for the purposes of Part 2 clause 3 in the s88B instrument DP 1163020. 11. Order the defendants pay the plaintiffs the sum of $22,953.00 being their equal half share of the costs of carrying out the construction works referred to in prayer 8 above. METAL SHIPPING CONTAINER 12. Order the defendants remove the Metal Shipping Container off the right of way marked "B". 13. Costs.
Of that relief, the Pullens no longer press that which is italicised above (i.e., they press neither the declaration sought by prayer 7(b) nor the order sought by prayer 8). That relief relates to a minor encroachment of a fence on the curve or bend of Right of Way "B". They do, however, press the relief sought in relation to the removal of the shipping container(s) and they seek declarations as to their entitlement to carry out fencing work as described in prayer 7 along the western boundary of the right of way and for the Smedleys to be ordered to contribute to half of that cost.
The relief sought in the Smedleys' cross-claim in the easement proceeding is as follows: 1. A declaration that Cross-Defendants are required to close any farm gates placed by the Cross Claimants from time to time across the right of way on Lot 21 DP 1163020 (Lot 21) (including the three farm gates so located at present), being the right of way indicated on that deposited plan and created by the s 88B instrument registered on 5 April 2011 (Lot 21 Right of Way), after opening and passing through those gates in the course of travelling along the Lot 21 Right of Way. 2. A declaration that Cross-Defendants are required to close any farm gates placed by the Cross Claimants from time to time across the right of way on Lot 20 DP 1163017 (Lot 20) (including the one gate so located at present), being the right of way indicated on DP 1163017 and created by the s 88B instrument registered on 6 April 2011 (Lot 20 Right of Way), after opening and passing through those gates in the course of travelling along the Lot 20 Right of Way. 3. A declaration that Cross-Defendants, when using the Lot 20 Right of Way and Lot 21 Right of Way, including travelling in motor vehicles do so in a reasonable manner and at a reasonable speed. 4. A declaration that the placement, deposition and spreading by the Cross Defendants of the purported road base comprising fill and associated material (the Road Material) in the period of August to September 2015 by the Cross Defendants on Lot 20 and on the Lot 20 Right of Way and also on Lot 21 and on the Lot 21 Right of Way, constitutes a trespass to land by reason of being carried out without the consent of the Cross Claimants and not within the rights conferred on the Cross Defendants pursuant to either the Lot 20 Right of Way or the Lot 21 Right of Way. 5. In order that the Road Material placed on the Lot 20 and Lot 20 Right of Way and on the Lot 21 and Lot 21 Right of Way be removed by the Cross Defendants, and the surface of those lots be restored to their former condition as it existed prior to the placement, deposition and spreading of the Road Material. 6. A declaration that the damage caused by the Cross Defendants to several large boulders on and in the vicinity the Lot 20 Right of Way and the Lot 21 Right of Way in the course of the placement, deposition and spreading of the Road Material constitutes a trespass to land, by reason of it not being carried out with the consent of the Cross Claimants and not within the rights conferred on the Cross Defendants pursuant to either the Lot 20 Right of Way or the Lot 21 Right of Way. 7. An order that the damaged boulders each be replaced by the Cross Defendants with boulders of equivalent size and appearance brought from off site, or in the alternative damages in lieu of such replacement. 8. Substantial damages for trespass. 9. Costs
Finally, in the transferred proceeding, the Smedleys seek, relevantly, the following declaratory relief: 1. A declaration that the Respondents have carried out work (Work) on land being Lot 20 DP 1163017 and Lot 21 DP 1163020 (the Land) being development for the purposes of a private road, or alternatively for the purposes of a dwelling house, by constructing a road surface using imported fill being the access road to their dwelling house on adjoining land within their rights of way over the Land but without development consent, when development consent was required for the carrying out of work for either purpose within the E3 Environmental Management zone applying to the land under the Wyong Local Environmental Plan 2013, contrary to 76A Environmental Planning and Assessment Act 1979. 2. In the alternative to Order 1 above, a declaration that the Respondents by carrying out the Work have carried out prohibited development on the Land being development for the purposes of a waste facility, which is an innominate prohibited use under the Wyong Local Environmental Plan 2013, contrary to 76A Environmental Planning and Assessment Act 1979. 3. A declaration that the Respondents have used the Land as a "waste facility" contrary to s 144 of the Protection of the Environment Operations Act 1997 by placing, depositing and spreading on the Land material within the definition of "waste" in that Act being imported fill being building waste and crushed concrete waste derived from concrete, brick, tile and pipe and trace pieces of steel, alloy and timber (the Road Material). and an order in the following terms: 4. The Respondents remove the Road Material from the Land within 28 days of the date of these orders (for disposal at a licensed waste facility), and restore the Land to its former condition prior to the carrying out of the Work.

[28]

Issues

The issues for determination may conveniently be summarised as follows. 1. As to the proper construction of the easements creating the respective rights of way, both 1. as to whether the terms of the easement implicitly preclude the grazing of cattle by the servient tenement owner on the rights of way and; 2. as to what is meant by the words "trafficable surface … to an "all weather" access standard". 1. As to whether there has been a substantial interference by the Smedleys with the Pullens' reasonable use of Right of Way "B": 1. by the installation of G2 and by the insistence of the Smedleys that G2 and the other gates on the rights of way be kept closed (there being no complaint in this regard as to G1); 2. by the conduct of the Smedleys in permitting cattle to graze from time to time on the rights of way; and/or 3. by the presence of the metal shipping containers on or near the right of way. 1. Related to issue 2(i) above, whether the conduct of the Pullens in leaving gates open on the right of way amounts to an unreasonable use by them of the right of way. 2. Whether the Pullens are entitled to fence the western side of Right of Way "B" and whether the Smedleys are liable under the terms of the easement to contribute to 50% of the cost of that work. 3. As to the road works carried out by the Pullens: 1. whether the Smedleys are liable to contribute to half of the cost of the resurfacing works that have already been carried out on Right of Way "B"; 2. whether the Pullens are liable for damages for trespass in relation to the said works and/or for damage to boulders on the Smedley property caused during the works; and 3. related to 5(i) above, whether the road works carried out on Right of Way "B" were unlawful in that they required development consent and/or on the basis that they amounted to use as a waste facility in breach of the relevant legislation or otherwise. 1. Finally, in light of the determination of the above issues, what relief ought now be granted.

[31]

Terms of the Right of Way

The terms of Right of Way "B" and accompanying Easement for Services are contained in the s 88B instrument which was registered (DPI 163020B) on 5 April 2011. They are relevantly identical to the terms of Right of Way "A" and accompanying Easement for Services; and include the following: Use of the easement 1. The owner of the lot benefited may: (a) by any reasonable means pass across the lot burdened, but only within the site of this easement, to get to or from the lot benefited, and (b) do anything reasonably necessary for that purpose, including: (i) entering the lot burdened, and (ii) taking anything on to the lot burdened, and (iii) carrying out work within the site of this easement, such as constructing, placing, repairing or maintaining trafficable surfaces, driveways or structures. Conditions of Use 2. In exercising those powers, the owner of the lot benefited must: (a) ensure all work is done properly, and (b) cause as little inconvenience as is practicable to the owner and any occupier of the lot burdened, and (c) cause as little damage as is practicable to the lot burdened and any improvement on it, and (d) restore the lot burdened as nearly as is practicable to its former condition, and (e) make good any collateral damage. 3. The owner of the lot burdened and the owner of the lot benefited shall bear in equal shares the costs of carrying out any work within the site of this easement which is necessary to ensure that the trafficable surface is constructed, maintained and repaired to an "all weather" access standard. The cost of bitumen sealing any part of the trafficable surface shall be borne by the owner of the lot who wishes to carry out such work, unless otherwise agreed. By any reasonable means pass across the lots burdened (Lots 20 or 21, as the case may be), but only within the site of the easement to get to and from Lot 22;
The Easement for Services in respect of both lots permits the owner of the lot benefited to use the lot benefited (but only within the site of the easement and only beneath the surface of the lot burdened) to provide domestic services (as defined) to or from the lot benefited, and to do anything reasonably necessary for that purpose, including, inter alia, (b)(iii) "carrying out work, such as constructing, placing, repairing or maintaining pipes, wires, cables, conduits, structures and equipment", with similar conditions of use in relation to the exercise of those powers as set out in relation to the right of way.

[32]

Lay evidence

Evidence was adduced from each of the principal protagonists in the present dispute - the Pullens, on the one hand, and the Smedleys (and their son Robert) on the other. Each was cross-examined. An affidavit sworn by Mrs Pullen's father (Mr John Childs) was not read due to his ill-health and unavailability for cross-examination (and no issue was taken as to the absence of evidence from him). Adverse comment was made by the Pullens as to the absence of evidence from Mr Fernance (the neighbouring farmer whose cattle are agisted on the Smedley property), which I address below.
It was apparent from the rather argumentative manner in which at least some of the oral evidence was given (some examples of which can be seen in the transcript extracts included above) and from the tenor of much of the email correspondence (see the extracts above), that relations between the neighbours are, to say the least, not happy. The family members on each side appear to hold firm views as to the rightness of their side's position and the wrongness of the other; and there is an apparent suspicion of, and readiness to attribute what might perhaps be described as sinister motives to, the conduct of the other side.
So, for example, various allegations of conduct deliberately to inconvenience and intimidate the Pullens were put to the Smedleys in cross-examination (and denied by them) and Mrs Pullen has deposed to a belief that "the gates were closed to harass and intimidate me and my family because there was no other reason for the gates to have been closed" ([13]). Conversely, Mr Pullen seems to have taken a deliberately provocative stance in leaving the gates open (though acknowledging, as he did in the witness box, the Smedleys' concern that the gates be left closed as a matter of farm management); though Mr Pullen qualified this by saying that he only did so when there were no cattle there. Mr Robert Smedley, on the other hand, says that the gates are left closed even if there are no cattle in relevant paddocks because of the Pullens' lack of good neighbourly relations (and apparently from a concern as to establishing an adverse precedent in the present litigation). The Smedleys in effect accuse the Pullens of seeking to tell them how to run their property and of causing them not to be able to make money from the agistment of cattle in their retirement. Each side put in issue the unreasonableness of the other side's position and neither side appears willing to compromise whatever may earlier have been the position.
To my observation, Mrs Smedley (whose cross-examination was, I accept, much shorter than the cross-examination of the other lay witnesses and therefore perhaps less likely to provoke exasperation or argument on her part than that of others of the witnesses) was the most objective of the respective family members in addressing the issues put to her in cross-examination. She gave her evidence in a quiet and (relatively, though I accept not always) in a non-argumentative way. I say, relatively non-argumentative having regard to the following exchange, which commenced with questions about the shipping containers (T 367): Q. Of course, if people are coming at night time in the dark who are not familiar with the property but want to get to the Pullens house, there could be quite a few cattle for example where the metal container is, the shipping container, and they come around a bend, not knowing there are cattle there it's potentially dangerous isn't it? A. Well there's never been cattle near the shipping container. The cattle don't get through that. That's why the gates are there Q. But it's quite possible somebody could leave a gate open and cattle would stray? A. Well that's why we're asking people to close gates. Q. Yes or else keep the cattle off the right of way is the other alternative? A. So you know we've - we bought a property that we were supposed to be able to - you know sold to us as a farm with cattle on agistment and you know you're basically saying to us that we ca''t you know make money from the property which is what we were hoping to do when we bought the place. Q. Nobody is preventing you from making money from agisting cattle on the property. You understand all this case is concerned with is cattle being grazed on the right of way but not on any other part of the property. A. But when you're saying that they're being grazed on - what are, what are, what are the cattle grazing on on the right of way? Are they eating the stones and what have you? Q. You answer that question. A. Well they're not are they? They just walk across it. Q. There's not very much food for cattle on that right of way? A. No, of course there's not because you - I mean that's what we've been saying with the - you know, the stuff that's been put onto it
Nevertheless, Mrs Smedley was prepared to acknowledge the concerns of Mrs Pullen as to the presence of cattle on the right of way and accepted the proposition that (although the presence of cattle was not a concern to her) allowance had to be made for such concerns (see T 363-364). Mr Smedley, faced with similar questioning, made the rather pertinent (but no doubt unpalatable to the Pullens) observation that (T 352): Q. Would you agree with me when you heard that evidence that it's not appropriate for Mrs Pullen to be placed in that situation when trying to access her property to or from? A. If Mrs Pullen is scared of animals, why did they buy a property which is a cattle property with - which they knew were there and they've said that in their own affidavits, they knew the cattle were there, why did they buy the property?
Mrs Smedley appeared to me to be genuinely surprised at the proposition that the presence of cattle on the right of way would be intimidating. In similar vein, Mr Smedley appeared genuine in his protestation that he would happily walk amongst Mr Fernance's bulls.
What I draw from the manner in which the oral evidence was given, coupled with the tenor of the email communications in evidence, is that it is clear that emotions have been running high between the respective neighbours. Though no doubt much of the evidence has been given from the opposing perspectives of the two families, and must be approached with some caution in that regard given the obvious self-interest on both sides, I did not find any of the lay witnesses not to be credible witnesses; rather, they were speaking from their own subjective perspective of events. I do not consider that any adverse credit findings should be made in respect of the lay witnesses. (For completeness I note that Counsel for the Pullens suggested that cross-examination as to Mr Smedley's understanding of the plain English wording of the easement was relevant as going to his credit, insofar as this was a witness who said he had read the easement document many times. In that regard, the question whether Mr Smedley could point to any reference in that document to cattle grazing on the right of way - he could not - was of no assistance to me in relation to an assessment of Mr Smedley's credit. Moreover, when pressed on the issue later in Mr Smedley's cross-examination he made clear that his position was that "[n]owhere in the documentation regarding our property and the easement does it say that we cannot use the property in its whole as a farming property", by which he accepted he was including the right of way.)
As to the submission by Counsel for the Pullens that an adverse (Jones v Dunkel) inference should be drawn from the fact that Mr Fernance was not called to give evidence (on the nature of which, see Australian Capital Financial Management Pty Ltd v Linfield Developments Pty Ltd; Guan v Linfield Developments Ltd [2017] NSWCA 99 at [147] and the authorities cited therein), I am not satisfied that there is a proper basis to draw such an inference. The issues to which Mr Fernance might have been able to give evidence were limited (as to who is responsible for directing the rotation of the paddocks on which the cattle are permitted to graze and as to the temperament of his bulls) and were issues that only really emerged in the course of cross-examination of the Smedleys.
As to the first, the cross-examination appeared to be designed to establish that there was some deliberate conduct on the part of the Smedleys to inconvenience the Pullens by "putting" the cattle on the right of way. That suggestion was credibly refuted by the Smedleys (see below). Apart from the inherent plausibility of it being the working (as opposed to "gentleman") farmer who actually owns the cattle being the one responsible for decisions as to the rotation of his cattle (as opposed to a former television broadcast engineer on what without, any disrespect to him, seems to have been his first foray into farm ownership), whether or not those decisions may have been made in consultation with Mr Smedley, the idea that the cattle were deliberately placed or "put" in some fashion on the right of way in order deliberately to inconvenience the Pullens (as opposed to being permitted to wander to and from various areas either to graze on the grass verges or to cross into other paddocks or, on occasion, being purposefully led or encouraged onto the right of way in order to keep down the grass there) is fanciful in my opinion. There is no evidence to suggest that there was a deliberate rounding up of cattle in order to place them on the easement for the purpose of inconveniencing the Pullens. The highest the evidence goes in this regard is that from time to time a decision may be made for the cattle to graze on the easement for the purposes of maintenance of the grass there.
Robert Smedley denied any deliberate placement of cattle in the rights of way: Q. Have you been involved in placing cattle on the right of way? A. On the right of way? Q. Yes. A. No. Q. Never? A. I've been involved in moving cattle from one paddock to another, but I don't guide the cattle with a leash as to where they should eat food and where they shouldn't.
Otherwise, there is no reason not to accept the common sense of the evidence from Mrs Smedley to the effect that the cattle generally wander from area to area: Q. If I take you, now, to paragraph 31 at page 173, tell me when you've read the first sentence. Have you read the whole paragraph? Some of it's been rejected but just if you would just read the first sentence? If you'd read the first sentence. Now, what you're saying here is you saw Mr Pullen's black Toyota Prado driving along the right of way and there were cattle on the right of way A. There had been cattle in that, in that paddock, yes, but the cattle sort of just wander backwards and forwards, obviously, across it, they don't sort of just stand there all the time. Q. They're unpredictable in a way, aren't they? Whichever way they move? A. Well, usually, you know, if you're very quiet and just go through cattle, you know, they'll eventually just wander off. You just have to be a little bit patient and that's all part of being on a rural property, patience, yeah … Q. Which seems to suggest that there wasn't enough room on the right of way for both cattle and a car, is that right? A. The - well the cattle just wander backwards and forwards. I mean you know, it sort of - it's not a, a huge area [the right of way] but they sort of graze - most of them - most of the time they're down in the bigger section of it, down the thing, and certainly at night time they wouldn't be anywhere near that because the cattle actually usually just lie down and go to sleep and they wouldn't be‑‑ … Q. On the right of way? A. No not on the right of way, in the paddocks. I have never seen any of the cattle go to sleep on the right of way, that would be most uncomfortable for them.
It seems to me to be an example of the apparent willingness to attribute sinister motives to the Smedleys for it to be suggested that Mr Smedley was directly responsible for decisions to put cattle on the right of way and did so deliberately to inconvenience the Pullens (as opposed to responding from time to time to requests or instructions from Mr Fernance as to the order of the paddocks through which the cattle were to be rotated or the need to have cattle on the right of way to keep the grass down). Similarly, the suggestion put to Mr Smedley in cross-examination that action was taken by the Smedleys to put a chain (or tighten a chain) on G3 at a time when they knew Mr Pullen would be accessing the property at night ( T 386).
As to the second matter, the issue as to the temperament of Mr Fernance's bulls does not assist in the determination of the dispute. The Smedleys say that the bulls have a placid temperament (though Robert Smedley recognised that the bulls would not ordinarily be kept with the cows at calving time "for obvious reasons") and Mrs Smedley said she would quite happily walk through a paddock with them in it; Mrs Pullen finds them intimidating (and presumably would find them intimidating whatever their actual temperament, since she gives no evidence as to any occasion when one of the bulls was physically aggressive towards her). Had Mr Fernance been called to express an opinion as to the temperament of his cattle, I rather suspect there would have been an objection as to his expertise to express such an opinion but, in any event, it would not take matters very far. Whatever the temperament of the existing bulls says nothing about bulls that might be on the property in the future and common sense would suggest that a person who is intimidated by cattle may find bulls more intimidating than cows.
The fact that there is an agistment arrangement between Mr Fernance and the Smedleys (a continuation from the former agistment arrangement with the Scotts) and that it would have been possible for the Smedleys to have contacted him to give evidence (including that it was not suggested that he was unavailable to give evidence), does not put Mr Fernance in the Smedleys' "camp" so to speak. One inference that might readily be drawn from Mr Fernance's apparently prompt response to the implicit threat that he would be joined to the proceedings (by proffering the confirmation demanded by the Pullens as to the cessation of cattle grazing on the right of way pending the outcome of the proceedings) is that Mr Fernance (quite sensibly in my opinion if that be the case) did not want to become embroiled in the dispute between his neighbours. Whether he was reluctant to give evidence (as suggested by Counsel for the Pullens) or otherwise, it would equally have been open to the Pullens to call Mr Fernance to give evidence if they sought to establish through him that it was Mr Smedley (and not Mr Fernance) who made the relevant decisions as to the rotation of cattle or to bolster the Pullens' complaint as to the potential danger of the presence of cattle on the right of way.
Accordingly, I draw no adverse inference from the fact that the Smedleys did not call Mr Fernance to give evidence.

[35]

Dr Martens' report of August 2016

Dr Martens, in his report of August 2016, summarised the matters about which his advice had been sought as follows: 1. Determine if he material brought onto the site constitutes waste under the Protection of the Environment Operations Act 1997 (NSW) (POEO Act). 2. Is the road surface of an 'all weather' access standard. 3. Was the placement of material used in the construction of the road necessary to ensure a trafficable surface constructed and maintained to an 'all weather' standard. 4. Has the placement of material used in construction of the road: (i) Been carried out properly. (ii) Caused as little damage as practicable to the property at 277 Ravensdale Road. (iii) Restored the property as nearly as is practicable to its former condition.
His conclusion is that the material placed on the right of way (containing recycled material including concrete, brick, tile and pipe, trace pieces of steel, alloy and timber) is classified as General Solid Waste (non-putrescible) ([2.1.6.3]) meeting the definition of "waste" within the meaning of the definition of that term in the Dictionary to the POEO Act ([2.1.6.4]) and that the spreading of the material over the land was a prescribed activity under cl 6.1(1)(a) of the Protection of the Environment Operations (Waste) Regulation 2014 (NSW) (Waste Regulation) ([2.1.6.4]).
As to whether the access road is of an all weather standard, he said that in his view the material has not been adequately compacted; that much of it has been loosely placed and is susceptible to erosion and accelerated wear and tear; and that in time the material that has not been placed will not provide an all weather access to the adjoining development site ([2.2])
As to whether the placement of the material was necessary, it was his view, based on his limited inspection of the pre-fill pavement surface, that "it would have been possible to regrade the existing pavement surface and compact the residual material in order to achieve the desired all weather access driveway" and there was "no need to place the material over the existing pavement surface" ([2.3]).
Finally, as to the standard to which the material has been placed and its impact, Dr Martens said that the pavement that has been formed fails to provide a suitable 4m wide carriage way as required under ch 4 of the NSW Planning for Bushfire Protection (2006); that the pavement is not of an appropriate standard to ensure long-time performance as an all-weather access driveway; and that the drainage system servicing the access driveway appears to be undersized in places and is affected by pavement materials which have been redistributed by rainfall-runoff process ([2.4]).
Further, Dr Martens' opinion is that the presence of the fragment of asbestos constitutes the whole of the road fill as special waste and means that the waste must be disposed of in a specially designated disposal site.

[36]

The Joint Statement of Contamination Experts - February 2017

Then, as noted, experts provided a joint opinion of 23 February 2017. Relevantly, while Mr de Silva's report had identified asbestos in one of the test holes and Dr Martens did not dispute that finding, the issue as to the classification of the material placed over the access driveway was expressly framed on the basis that the asbestos was ignored. Ignoring asbestos, Dr Martens classified the material as General Solid Waste; Mr de Silva as Recovered Aggregate.
Having regard to the finding by Mr de Silva of asbestos, Dr Martens said the fill material was classified as "special waste - asbestos waste" in accordance with the NSW EPA Waste Classification Guidelines; Mr de Silva's opinion was that further sampling and testing would be required to isolate the extent of asbestos and if no further asbestos is found that the material would be classified as "recovered aggregate excluding the material from where the asbestos was detected" (my emphasis).
The experts agreed that no supplier certification had been provided to confirm that fill material was from a supplier authorised to provide recycled aggregate in accordance with the NSW EPA's waste exemption.
In that regard, Dr Martens said that while the material could, from a chemical and physical perspective, be potentially classified as recovered aggregate (ignoring the presence of asbestos), the waste exemption is given only for source suppliers and not for the purposes of waste classification once material has been deposited. He said that the presence of asbestos would mean that it cannot be classified as recovered aggregate. He also said that the exemption only applies to uses where application is to the minimum extent necessary and for approved developments and he was uncertain that the consent in question (presumably that for the construction of the Pullens' house) would approve the placement of the fill at the site. He said that the material cannot be categorised as complying with the EPA's recycled aggregate exemption.
Mr de Silva said that sampling and testing indicated that the material complied with the EPA Recovered Aggregate Order 2014 (issued under cl 93 of the Waste Regulation) and that the construction of the access way was approved in the development consent for the residence. He said that "[i]gnoring asbestos the material complies with the recovered aggregate order".
The experts maintained their respective views as to whether the access way had been constructed to an all weather standard and as to whether placement of the fill material was necessary. They also disagreed as to whether the fill material placed over the access road was suitable to remain on site. They did agree that the asbestos that had been deposited in the fill must be removed from the site and properly disposed of but Dr Martens was of the view that all the material must be removed, whereas Mr de Silva considered that further testing and sampling was required to assess the presence of asbestos. Mr de Silva said that "subject to no asbestos [sic; scil, being] found in the samples tested most of the road base material could be left on-site" and that a small quantity of material from the location of the asbestos find should be removed off site as "special waste".
In the course of their concurrent evidence, the experts were cross-examined (among other things) as to the nature of the material placed on the land and the application of the relevant regulatory regime to that material; and as to the present state of the road (referred to by Counsel for the Pullens as the compaction issue).

[39]

Legal Principles

Before turning to the particular issues that arise in relation to the construction of the easements, I note that there was no dispute as to the general principles which apply to the construction of instruments which create easements (which do not here need to be restated) save as to some confusion as to the relevance sought to be attributed by the Pullens to the previous use of the property. As already adverted to (see [22]), the parties agree that the relevant instruments are to be construed objectively and not by reference to the subjective intention of the owners at the time the easement was created (see Westfield v Perpetual). Counsel for the Pullens made clear (at T 2.44-3.1) that he accepted that position (notwithstanding an earlier submission as to it never having been envisaged at the time of the creation of the right of way that cattle would be permitted to graze on the right of way - T 2.39).
In Westfield v Perpetual, Gleeson, Gummow, Kirby, Hayne and Heydon JJ held that evidence as to the intentions and expectations of the parties to an instrument respecting the development of an area in the central business district of Sydney was inadmissible in construing the relevant instrument. Reference was made by their Honours to the fundamental considerations concerning the operation of the Torrens system of title by registration, with the maintenance of a publicly accessible register containing the terms of the dealings with land under that system, their Honours saying that rules of evidence assisting the construction of contracts inter partes, of the nature explained by authorities such as Codelfa Construction Pty Ltd v State Rail Authority of NSW (1982) 149 CLR 337; [1982] HCA 24, did not apply to the construction of the easement in question (see at [35]-[37]).
Their Honours noted the emphasis in decisions including Halloran v Minister Administering National Parks and Wildlife Act 1974 (2006) 229 CLR 545; [2006] HCA 3, Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89; [2007] HCA 22, and Black v Garnock (2007) 230 CLR 438; [2007] HCA 31, as to the importance in litigation respecting title to land under the Torrens system of the principle of indefeasibility as expounded in Breskvar v Wall (1971) 126 CLR 376, saying (at [39]) that "[t]he third party who inspects the Register cannot be expected, consistently with the scheme of the Torrens system, to look further for extrinsic material which might establish facts or circumstances existing at the time of the creation of the registered dealing and placing the third party (or any court later seized of a dispute) in the situation of the grantee".
Thus the question in the present case is as to the proper construction of the terms of the easement, not how the respective neighbours may have contemplated use of the easement, or of the servient tenement, as at the date of their purchase of the respective properties. Furthermore, earlier cases referring to the intention of the parties must now be treated with caution following the Westfield v Perpetual decision. (For that reason, the submission made for the Pullens as to the lack of evidence that, at the time of creation of the rights of way, Lot 22 was used for grazing purposes, goes nowhere.)
Turning then to the issues of construction that have been raised in relation to the easement over Right of Way "B", the first is the contention by the Pullens that, properly construed, the easement does not permit the grazing of cattle on the right of way; and the second is as to what is meant by the words "'all weather' access standard" in cl 3 of the terms of the easement (under the hearing "conditions of use").

[40]

(i) "Right" to graze cattle on the right of way

The substance of the Pullens' submissions as to the proper construction of the terms of Right of Way "B" is that the right conferred on the owner of the dominant tenement to carry out the work within the site of the easement "such as constructing, placing, repairing or maintaining trafficable surfaces, driveways or structures" (cl 1(b)(iii)), and in particular the fact that the easement contemplates that bitumen might be used to seal "any part of the trafficable surface" of the right of way (cl 3), is inconsistent with the land within the right of way being intended to be used by the owner of the servient tenement for grazing any animals (whether horses or cattle): That is, to permit the owner of the dominant tenement to cover the whole surface within the right of way with materials such as bitumen or cement is inconsistent with conferring a right for cattle to graze on the right of way.
Therein lies the misconception identified by Counsel for the Smedleys in the way in which the Pullens' case is based: namely, that one is looking for a right conferred by the easement on the servient tenement owner to graze cattle (or, for that matter, to install and operate gates) on the right of way. The Smedleys say, and I agree, that the right to permit cattle to graze on the right of way is one that stems from their ownership of the land over which the right of way runs. Indeed, Counsel for the Pullens accepted at (T 6) that it would not be incorrect to say that as registered owners of the land the Smedleys would be entitled to make use of the land any way they like subject to that use not amounting to an unreasonable interference with the right of way.
The relevant question in the present case is whether the easement implicitly precludes the particular use by the servient tenement owner about which complaint is now made, i.e., for the grazing of cattle (leaving aside the related factual question as to whether, on the facts of this case, the presence of cattle from time to time on the right of way amounts to a substantial interference with the reasonable use by the dominant tenement owner of the right of way - issue 2 below).
True it is that the terms of the registered easement contemplate that the owner of the dominant tenement (here, the Pullens) may (at its or their own cost unless otherwise agreed) choose to surface "any part of the trafficable surface" with bitumen. Leaving aside whether the whole width of the 10m right of way constitutes the "trafficable surface" (an issue that was not expressly addressed in the course of argument except to the extent that it was raised in the course of the Smedleys' closing submissions insofar as emphasis was placed on the works being "within the site of the easement", not necessarily across the whole of it, and as to the need for the works to be related to the reasonable use of the easement). Bearing in mind that one might expect vehicles might have difficulty driving right up to the edge of the site of the easement if that abuts or is close to, say, a rocky or treed embankment, it can readily be accepted that if the whole of the right of way were to be sealed with bitumen then, as a practical matter, there would be nothing on the right of way on which cattle could graze. Mrs Smedley said as much in cross-examination (to which I have earlier adverted).
Similarly, there is a right under the accompanying easement for services, for the dominant tenement owner to carry out work "such as constructing, placing, repairing or maintaining pipes, wires, cables, conduits, structures and equipment" as reasonably necessary within the site of the easement (but only beneath the surface of the lot burdened) to provide domestic services to or from the lot benefited (see cl 2 of the terms of the easement for services). It may be that works reasonably necessary to be carried out for the purpose of using the area beneath the easement for domestic services (as defined in the easement) might inhibit grazing on that area of the easement, at least temporarily. However, it is not suggested that this was or is necessary in the present case.
That said, neither proposition leads to the conclusion that the easement should be construed as precluding cattle being permitted to graze on the right of way created by the easement.
Moreover, even if the Pullens were to decide (at their own expense) to lay bitumen along the entirety of Right of Way "B" (and assuming that it could be shown that this is necessary to ensure that the trafficable surface is "constructed, maintained and repaired to an "all weather" access standard", since otherwise arguably such work would not be permitted under the terms of the easement in any event), that would not preclude the passage of cattle across the right of way (at whatever pace the cattle may choose or be able to pass) from paddock to paddock. It certainly might mean that the cattle would be less likely to linger on the right of way if there were no or little grass there, but it would not mean that there could never be cattle on the right of way and it would not obviate the need for gates across the right of way (insofar as those gates are for the purpose of facilitating the passage of cattle across the right of way).
On this first issue, therefore, I find that the easement as properly construed does not preclude the right of the servient tenement owner to permit cattle to graze on the right of way.

[41]

(ii) What is meant by "all weather" access standard?

The second issue of construction is what is meant by the description "all weather" access standard. I have adverted above to the definitions proffered by Robert Smedley on this issue. The Pullens, on the other hand, appear to rest their case on the meaning attributed to "all weather" access by their building certifier or under rural bushfire guidelines; and they maintain that, at a minimum, it means a gravel road (see Mr Pullen's evidence at T 60 that his understanding at the time of his correspondence with the Smedleys was that the accredited certifier's minimum requirement was a gravel road along the easement).
The term is not defined in the s 88B instrument and it was not suggested that the use of inverted commas around the words "all weather" imported any particular definition of the term. In the context in which the words appear in cl 3 (namely in the context of work which is necessary to ensure that "the trafficable surface" is of a particular standard), there is no reason not to construe the expression having regard to its ordinary meaning, namely that there be a surface within the easement capable of carrying traffic (which the parties have approached as meaning vehicular traffic but arguably might have included other kinds of traffic along the right of way, such as pedestrian or animal traffic) in all kinds of weather for the purpose of access along the right of way.
Relevantly, the fact that Masterton appears to have insisted upon a particular standard of road surface before it would proceed to commence the building works on the Pullen property (see [89] above) does not establish the meaning of "all weather" access standard (it might be, for example, that Masterton has a particularly onerous standard in that regard). Nor is the meaning of that term determined by the fact that the term is used in bushfire management regulations or Council development approvals provide much assistance, not least because of the absence of a definition of the term in those documents.
I would construe the expression in the easement, by reference to the ordinary understanding of "all weather", as meaning a surface passable by traffic in all kinds of weather (most relevantly, no doubt, in heavy rain or the like but perhaps also in drought if drought conditions may affect the "trafficable surface").
Pausing there, insofar as "all kinds of weather" would encompass a flood, there may be a question as to what is contemplated by the terms of the easement in that regard (particularly given the evidence of Robert Smedley that Right of Way "A" is in a flood prone area and impassable at times); see Dr Martens' evidence for example as to the exercise involved in creating an all-weather surface ( [293]; [295] below). However, as that issue did not arise I comment no further on that issue.

[43]

(i) Requirement that gates on the right of way be kept closed

The precise manner in which it is alleged that the closing of the gates constitutes a substantial interference with the Pullens' reasonable use of the right of way has varied in emphasis over the course of the proceedings.
Both Mr and Mrs Pullen in their affidavit evidence deposed to concerns as to the additional time taken by them to traverse the rights of way if the gates are closed and that it is then necessary to open and close each of the gates along the rights of way. They each deposed (in almost identical words) to having timed the travel from Ravensdale Road to their boundary when all the gates are closed (over 7 minutes) and when all the gates are open (less than 2 minutes) (see Mrs Pullen's affidavit of 25 June 2016 at [29]; Mr Pullen's affidavit of 3 May 2016 at [37]), the only difference being the addition at [29] of Mrs Pullen's affidavit of her expression of concern "as a mother" extending to the interference to emergency vehicles such as ambulances and fire brigade accessing their property in the event of a medical or other emergency (Mr Pullen deposing to a similar concern as to emergency access later in his affidavit at [39]).
The time frames there given for the traversing of the rights of way are based on the absence of cattle on the rights of way. Mr Pullen gave evidence of an incident when he was confronted by a large herd of about 30 cattle on the right of way and it took some time for him to be able to pass (see T 84.26). He said (at T 84.7): A. No, basically they - cattle are very slow, you could honk at them for ages, they'll just sit there and look at you, so sometimes it takes a long time to go through. So if there are cattle on the easement it could take even longer than that seven minutes. That seven minutes was based on there was no cattle on the easement, you just have to open and shut gates.
Cross-examined on what I might call the "timing issue", Mr Pullen's evidence was, in essence, that (other than concern as to safety implications if there were to be a bushfire or if emergency services needed access to their property), the gates posed an inconvenience, or a "bigger inconvenience" if it was dark or raining (T 70-73), but one that he could meet by, say, leaving 5 minutes earlier. He accepted that he was generally able to drive through the gates: Q. Generally able to drive through the gates by stopping at the gates, getting out, opening them, moving through, stopping, getting out, closing the gates and going on your way. That's correct, isn't it? A. I could do that, yes. (T 68.30) but that he now routinely left all the gates open except the gate at Ravensdale Road (T 69.5-15).
The kind of inconvenience about which Mr Pullen complains can be seen from the following exchange in cross-examination: Q. Leaving the gates open, I suggest to you, when you visit the property casually on a weekend that would serve no real purpose for you, apart from ultimately saving you, what, around five minutes of time. You agree with that? A. No, I don't because at the moment I'm doing a lot of building work to finish the house off. I've - I'm quite regularly going back to the shops to get more materials or whatever and so, if I was opening and closing the gates every time, it's not just the once I'm going up there and once I'm leaving. It could be three or four times during the day. I also take my children to sports events for their after activities on the weekend and that will require me going to and from the property a number of times. Q. You're saying that in terms of your scheduling throughout the course of the day, if there's this imposition of an additional five minutes created by the existence of closed gates along the easement, at the end of the day it may amount to a multiple of about 15 or 20 minutes, depending on the number of trips? A. Or an hour or whatever, yes, and depending on how many people visit the property as well. Q. If you make 20 trips during the day that would be 100 minutes and so on? A. Correct. Q. So it all gets, as far as you're concerned, oppressive and incredibly burdensome? A. It does become that way, yes. Q. In terms of your travelling to work in the morning, given that we're talking about a saving or a difference in time of five minutes between a two minute trip with the gates open and a seven minute trip with the gates closed, you agree that, if you wanted to, when you take up occupancy of 279 Ravensdale Road, it would be possible, for example, by means such as setting your daily alarm five minutes earlier to at least cater for that additional five minutes that you would take in getting to work if the gates were closed. You agree with that? A. Yes, I could allow for more time to open and shut gates. Q. Indeed, if you anticipated returning home in the evening after a day's work, you could in fact set your morning alarm say ten minutes earlier to compensate for the additional five minutes that you may take negotiating the closed gates. You accept that that would be something that if you wanted to do, you could do? A. I could do that, yes. (T 73.5-46). In re-examination, Mr Pullen added his concern for his wife: A. I suppose I'm - I was concerned for the extra time for me but I'm more concerned for my wife who comes home late at night because she has, you know, parent teacher nights or things like that, could be coming home in the dark, it could be raining. There's also, I suppose, factors if there's emergency services have to come in, if we have an emergency, that they wouldn't have potentially have to open and shut four gates over a period of 400 metres and that could hold up things, it could cause lots of issues.
Both Mr and Mrs Pullen (again in identical words) expressed concern that they and members of their family and guests or "others who may want to visit us" will be "prevented unnecessarily from having unhindered access to and from our home" (see [29]; [37] of Mrs Pullen's and Mr Pullen's affidavits) and say (at [30]; [38], respectively): It is not just the inconvenience of opening and closing the defendants' gates each time any of my family, relatives, friends or visitors have to use the right of way, but it is also the actual or potential danger which will be caused by the defendants' cattle or any of their stock being allowed to either stray onto the right of way or are taken onto it, because it is not fenced along its western side between the southernmost gate and the northern boundary of the block of land, or because the defendants or their son Robert opens any of the gates along the right of way. [my emphasis] See also [43] of Mrs Pullen's 23 November 2016 affidavit. Challenged on her stated concerns as to the position with visitors to the property, Mrs Pullen maintained her position (T 92): Q. You're not, by any stretch of the imagination, contending that there would be any real impediment to those who wanted to visit you, or your children, friends and family negotiating the right of way simply due to the presence of latched gates? You're not seriously putting that as a proposition before this Court are you? A. I am. Q. I suggest to you that that is a complete exaggeration of the facts, and you well know that friends and family and others would be in no way deterred from accessing a rural property, such as your proposed dwelling at 279 Ravensdale Road due to the presence of farm gates. You know that to be the case don't you? A. No, I think that's, I think that's too much speculation on the part of my friends and family.
There was also evidence as to the surveillance by the Smedleys of the Pullens' use of the right of way (see Mrs Pullen's evidence at [37] of her 23 November 2016 affidavit that "I know that we are observed by Alan Smedley, because every time a member of my family, friends or contractors enters out property and leaves the gates open, they are closed while we are still present on our property"; [10] of her 7 July 2017 affidavit to similar effect; Mr Pullen's evidence of Mr Smedley videotaping events on the right of way at [5]; [7]; [10]; [16]; [20] of his affidavit of 7 July 2017). Mrs Pullen's evidence was that she feels "harassed and victimised by the conduct of the defendants who have surveilled my movements" and that she finds the surveillance intimidating (though she also says she has rarely visited the property since her accident in July 2016).
During the course of the hearing, however, the emphasis as to why the gates on Right of Way "B" amounted to a substantial interference with the Pullens' rights to use the right of way focussed on two main issues: first, concerns as to the difficulty of opening and closing the gates (mainly on Mrs Pullen's part due to an injury she suffered on a boat trip in July 2016 - see [24] of her 23 November 2016 affidavit but also by reference to her parents if they needed to stay at the Pullens' house for any reason - [45]); and, second, as to Mrs Pullen's concerns at the potential presence of cattle on the right of way (see [22]; [33]; [34]; [43]; [45] of that affidavit).
As to the first, Mrs Pullen suffered a boating accident on 3 July 2016. She gave evidence as to a spinal injury and nerve pain limiting her movements including her ability to lift weight, twist or bend ([7]; [9] of her 7 July 2017 affidavit). She deposed (at [6] of that affidavit) that: Since my spinal injury in July 2016 I have rarely visited our property on Ravensdale Road. This is due to the fact that, with the extent of my injury, I am not able to open and shut the gates on my own. I am only able to access my property if accompanied by my husband or our three children. I also continue to be fearful of the defendants' surveillance of our movements which I find intimidating, and I will not access our property without another witness present with me.
Her complaint as to the main gate at Ravensdale Road (at [8] of her 7 July 2017 affidavit) is that: … the defendants have replaced the original wood slider that previously secured the main gate on Ravensdale Road with a smaller, unwieldy latch attached to a chain without consultation with my husband or myself. This latch has been placed on the internal side of the gate, so when entering from the road the latch cannot be seen and must be detected by touch. I am unable to reach through to unlatch this gate, and I now have concerns about my ability to travel to and from my workplace once moving into our residence, as I will be on my own.
As to the presence of cattle on the right of way, this obviously overlaps with the issue I consider in (ii) below and I will deal with it there.
As to the first issue, the Smedleys maintain that the installation and maintenance of openable farm gates on a rural or semi-rural property, such as Lot 21, cannot be said to constitute a substantial and unreasonable interference with the use of the right of way by the Pullens. They argue that hinged farm gates are a normal incident of Australian rural land and point to various cases in which such gates have been found in a number of the decided cases not to interfere with the reasonable user of rights of way. Both Mr and Mrs Smedley gave evidence of their experience or understanding of the general rule on rural property being that gates are left as one finds them. The Smedleys say that the gates over the rights of way serve a number of obvious purposes, including to allow separate paddocks to be closed in but still to allow use of the right of way, and to provide security (both from the public road and also from adjoining land).
The Smedleys note that in the present case the internal fences are quite different in style to the "Queensland" style gates and they argue that there is not the same factor as to the excessive number and placement at difficult locations of the gates as was the case in Sinclair v Jutt (1996) 9 BPR 16,219.
They argue that acceptance by Mr Pullen that the function of the gates across the right of way is to allow stock to pass through to other paddocks (T 62.12-19; T 62.44-49) is fatal to the Pullens' case, as the Smedleys are entitled to use their land for cattle grazing.
In this regard, the Smedleys submit that, in the circumstances of this case, Mrs Pullens' evidence came down to a consideration of personal preference and the proposition that, although she had not been advised by her medical advisors not to open gates, and although she conceded she could open all gates G1-G5, her back condition means that many activities are more painful at the end of a day and so she would prefer no gates (see T 107.46-50, T 110.34-36, T 115.23-27). It is further submitted that such a consideration of personal convenience does not amount to a real and substantial interference with the Pullens' legal right of access conferred by the terms of the easement. It is submitted that even if occasionally gates may need to be repaired or raised so that they are free swinging, this can be done and is not a reason to disallow gates (T 122.6-35).
The Pullens refer to the suggestion in Gale on Easements that whether the erection of gates is an actionable nuisance may depend on the motive of the party erecting them, (see at 13-15): If his behaviour is "unneighbourly" and motivated by malice or the desire to be awkward so as to further some ulterior motive, his conduct is likely to be held to be tortious [there citing Owers v Bailey [2006] 103(39) LSG 34 and Bramwell v Robinson [2016] EWHC B 26]
Hence, no doubt, the emphasis is placed in cross-examination of Mr Smedley and his son as to their motives in closing the gates and the like.

[44]

Determination

The position of gates erected over a private right of way has been considered in a number of cases (see for example, Pettey v Parsons [1914] 2 Ch 653; Hender v Gohl & Anor [1928] SASR 325; Gohl v Hender [1930] SASR 158; Denton v Phillpot (1990) NSW ConvR 55-543; Trewin v Felton [2007] NSWSC 851) and in the academic literature (see J Gaunt, Gale on Easements (20th ed, 2016, Sweet & Maxwell) at 13-14ff; P Jackson, The Law of Easements and Profits (Butterworths, 1978) at p 155). The Smedleys emphasise that a servient owner is entitled to erect an unlocked gate over a right of way to prevent stock from straying (citing Gale on Easements [13-15], fn 59) and that an owner of land can make any use open to an owner of land (here, grazing and stock management), so long as there is no real substantial interference with the enjoyment of the right of way (Gale on Easements at [13-15], fn 49).
The relevant question is whether, as a matter of fact, there has been a substantial interference caused by the erection and/or operation of the gates.
In Stewart v Cooper [1986] TASSC 3; [1986] ANZ ConvR 631 Neasey J (at [17]) summarised the applicable principles as including that, in the case of a right of way over private land, the owner of the dominant tenement does not have a right of access to and use of the right of way "wholly unobstructed by any limitation placed upon such use by the owner of the servient tenement"; that only a real substantial interference with the enjoyment of the right of way is actionable; and that, as long as the owner of the dominant tenement is given reasonable access to and use of the right of way, there is no substantial interference with the enjoyment of it.
The authorities in this area were considered more recently by Slattery J in David Peter Buckley v David Francis Timbury [2013] NSWSC 1009, a case not dissimilar to the present, involving neighbours on two rural properties in the Hunter Valley. There, it was alleged that the registered proprietors of the servient tenement (the Timburys) had obstructed the easement in a number of ways, one of which was latching and chaining an existing solar powered gate across the easement. The dominant tenement owner, Mr Buckley maintained that the latching and chaining of the gate interfered with its motor mechanism of the gate and thus caused damage to its mechanism. The reason given by Mr Timbury for the latching of the solar powered gate was that it regularly malfunctioned and that, unless latched, the gate did not meet the Timburys' need to contain their animals grazing in the right of way and did not prevent unauthorised or accidental access of persons to their property. His Honour accepted this as a reasonable and genuine concern on the Timburys' part in relation to their stock (see at [54]).
Mr Buckley raised as an issue a concern that the chaining of the motorised gate might render it impossible for visitors with limited mobility unable to open the gate using the motor function, and thus render it impossible for them to enter through the only access to his lot (see at [55]). The Timburys, on the other hand, argued that the true reason that Mr Buckley objected to the latching of the gate was that he and Mrs Buckley had to get out of their vehicle to open and shut it. There are therefore some obvious parallels to the present case. Slattery J held that the latching of the gate did not amount to a substantial interference with the use of the right of way.
Pausing there, in relation to the locking of such gates, in Denton v Phillpot , Young J, as his Honour then was, observed that even the locking of a gate is not necessarily a substantial interference (though Courts will easily find that locked gates do amount to actionable disturbance of rights of way), noting that if there is a good reason for having a gate (such as the interests of security) and the dominant owner is given a key to the gate Courts have not been over-anxious to find that there has been a substantial interference (see at 590,030). His Honour there also pointed out that the grantee of a right of way is not entitled to use the relevant land as though he or she were the owner of the land, and that he or she is only entitled to reasonable user of the right of carriageway.
In the present case, the Pullens placed reliance on the judgment of Santow J, as his Honour then was, in Sinclair v Jutt. There, the complaint was as to the erection by the servient tenement owner of a number of internal barriers consisting of different types of gates across the carriageway, including what were referred to as "Queensland style" gates which operated by stretching a piece of wire and attached timer across the gap in the manner of a demountable fence. The dominant tenement owner contended that that these gates interfered with the use of the right of way, pointing to the height of the gates and the fact that four of the gates were situated on ridge tops with steep approach and departure points; as well as to certain physical limitation on the part of the plaintiffs.
In Sinclair v Jutt, the right of way was the only access to the plaintiffs' property (as is the case here). The defendants' reasons for the gates were based on farming necessity. The plaintiffs accepted the defendants' right to have gates across the carriageway at the front and rear boundaries of the property (as is also in effect the case here) and to have internal gates "if there is a good purpose and good reason for them, or if they are justified" but they maintained that none of the internal gates served any good purpose or were so justified. In that case it was also alleged that internal gates had physically damaged the roadway and had prevented the plaintiff from carrying out maintenance work on that roadway.
By contrast, in the present case the Pullens' clear preference is for there to be no internal gates at all along the rights of way, other than G1 (see Mr Pullen at T 63; Mrs Pullen at T 93) and, while acknowledging the role played by such gates in relation to farm management (see Mr Pullen at T 62.25), they say in effect that there is plenty of acreage elsewhere on the property such that the gates would not be necessary if the cattle were to graze elsewhere.
In the pressed case, there is no evidence that the presence of the gates causes any obstruction to maintenance work on the rights of way (as was the case in Sinclair v Jutt) (and indeed it is Mr Smedleys' evidence that the presence of cattle, facilitated by the presence of gates on the right of way, assists in the bushfire preventative maintenance and in avoiding the increase of snakes on the property.
In Sinclair v Jutt, Santow J concluded that the number and style of gates on the right of way meant that the internal gates did constitute a real and substantial interference with the enjoyment of the right of way by the plaintiffs. His Honour accepted evidence that the "Queensland style" gates entailed a great deal more inconvenience and effort to open and shut than conventional swing gates (though he noted that the latter also caused significant inconvenience). His Honour said that the number of gates (four on a one kilometre right of way) also led to the conclusion that they represented a substantial interference with the right of way, there referring to evidence from an officer of the Department of Land and Water Conservation, who appeared for the defendants, that it was common for internal roadways on rural properties lo cross fences with a gate installed and that it was not unusual to find fences every 300-400m. There was no such evidence in the present case. (Taking the area between G2 and G4, if there was a complaint at the number of gates all that would presumably there be in issue would be G3 or G4 since G2 is a reasonable distance from G1 and G5 respectively. G3 and G4 appear to serve a legitimate purpose in facilitating access to the paddock on the other side of the right of way.)
Santow J accepted in Sinclair v Jutt that the number of gates and the evidence of the difficulty negotiating the opening and shutting of the internal gates was such that the gates did constitute a real and substantial interference with the right of way. His Honour was assisted in coming to that conclusion by the fact that the defendants were carrying on a small scale farming business only, on land classed as predominantly residential; and noted the evidence that there was a reasonably viable alternative to the placement of the internal gates, which his Honour found were clearly causing "real inconvenience". Accordingly, his Honour was satisfied that the defendants should be prevented from erecting any gates along the right of way except those located at the front and rear boundaries of the defendants' property.
Moreover, this is not predominantly residential land; it is land in an area zoned rural for agricultural purposes. The fact, if it be the case, that this may be a small farming operation (and there was no evidence as to how that would be determined in the context of this particular rural area) does not assist the Pullens to establish that there is a real and substantial interference in the present case. As to the viability of alternative locations for the gates, none was suggested. If the carrying capacity of the Smedley property for cattle is around the number that Mr Smedley estimated, then one might infer that restricting the cattle so that they could not graze on three of the paddocks would cause a real interference to the Smedleys' agistment business (and would presumably give rise to other potential land management issues - such as how to keep the grass down in the paddocks that could not be used for grazing in the absence of further fencing on the property).
As to the submission based on the motivation on the part of the Smedleys, the difficulty in my opinion in coming to any view as to "unneighbourly" conduct of either side is that I see fault on both sides. Neither has exhibited any real willingness to compromise. I will say something in due course as to the unfortunate aspects of this dispute. For present purposes I am not persuaded that the insistence on the closing of G2-G4 (or the erection of G2) was motivated by malice or any ulterior or sinister motive on the part of the Smedleys. As to the blocking of G3 by steel girders, that was an isolated incident and, though unfortunate, it seems to me that conduct from time to time on one or other of the warring sides has provoked retaliatory conduct by the other and it reflects well on neither.
I would infer that the chaining of the gate at G3 was a response to numerous instances where the gate was left open by the Pullens or their contractors and the stance adopted by Mr Pullen of deliberately leaving open the gates. There are different views as to the manner in which it was chained and how it came to be so tight that Mr Pullen could not open it and resorted to bolt cutters. I have already noted that Mr Pullen has made accusations against Mr Smedley in this regard and that those are denied. Mr Smedley's response is that Mr Pullen in effect himself caused the chain to be tightened in his efforts to open it. Where the truth lies on that issue I cannot tell but it is an isolated instance (and with common sense and even a modicum of good will between the neighbours hopefully will not be repeated).
Similarly, the placement of the steel girders (however heavy they may actually have been) may well have been an overreaction to the cutting of the chain or it may simply have been the case that those girders were handy at a time that the Smedleys considered the gate needed to be secured. At that time, though it is accepted there were no cattle then on the right of way, the demand had not yet been made of Mr Fernance to cease grazing his cattle on the unfenced portion of the right of way. Robert Smedley's explanation for keeping the gates closed (as to not wanting to create a precedent) seems to me to be a reaction (albeit that it might be said an overreaction) to the litigious state the matter had by then reached (but a reaction at least as unneighbourly as Mr Pullen leaving the gates open suggestion that he was leaving the gates open on legal advice that he could do so) and an explanation equally as plausible or implausible, depending on one's view of things as the suggestion by Mr Pullen that he was leaving them open following legal advice. (It would strike me as surprising were any advice of that kind not to have been carefully qualified but as there was no copy of any written advice in evidence, it is impossible to know what the advice actually was.)
In my opinion, the presence of the gates amounts to no more than an inconvenience in relation to the added time that it takes to open and close the gates and the fact that it may be dark or raining when that happens. There is no suggestion that the rural fire brigade or bushfire management protocols take issue with the number or style of gates here erected (and presumably if there were a threat of imminent bushfire, steps could be taken to secure open access by the opening of the gates to the property). Similarly, in the case of other emergency services, there is no evidence to suggest that the potential added time in getting to the property is so serious an issue as to amount to a real and substantial inference until access of the right of way. Delays are presumably experienced by emergency services due to all sorts of factors. I am not persuaded that an extra 5 minutes' potential response time to an hypothetical future emergency event is such as to make the habitual closing of gates on the right of way a substantial and real interference with the reasonable rights of use by the Pullens of the right of way.
As to Mrs Pullens' injury, in essence her evidence was that she has not really tried to see how she can manage the mechanism on the three gates in question (i.e. other than G1) as she has rarely visited the property since her injury (and she has not accessed the property on her own since the injury) (T 93.46; T 94.10). She is speculating as to the difficulty she would have in that regard (just as she said it would be speculation as to whether she would be able to use a wood slider of the kind that had previously been placed on the front gate, although she imagined that it would be easier to manage). She appeared to consider that the latching mechanism on the other gates apart from G1 was fine (T 105.18-19) and that she would not have a problem with a latch going across the top of the gate, securing the gate onto the gatepost (T 93).
Mrs Pullen has attempted to lead an active life since her injury. She can engage in day to day activities. She has not been told by her doctor not to engage in the kinds of actions involved in opening and closing the hinged gates and accepted that she had not been advised by her specialist not, for pain management reasons, to open gates. She accepts that she can do this albeit with pain (T 105.9).
The evidence does not support the conclusion that any difficulty she has in opening and closing the hinged gates is so extreme as to amount to a substantial interference with the reasonable use of the easement. Mrs Pullen has an issue with the latching mechanism on G1 but accepts that it needs to be closed for security and safety purposes (see T 93.29-31), and as noted it was conceded by Mrs Pullen that the latches on the other gates (apart from G1) were fine (T 105.18-19).
The Smedleys rely on Mr Smedley's evidence that the gates on the right of way serve a legitimate farming purpose. I accept that that is the case, having regard to the agistment of Mr Fernance's cattle. Mr Pullen himself accepted that it was a function of the gates across the right of way to allow stock that may be contained in paddocks on either side of a particular gate, to pass through those gates to adjoining paddocks (T 62.15) or conversely to be contained within a paddock. I have concluded that neither the style nor the latching mechanism of the gates makes them a substantial interference with the reasonable rights of use of the right of way (as is evident from the video footage that shows that the Pullens' teenage daughter is able to open and close the gates). There was no evidence as to what is common or usual in terms of the number of fences along a right of way of this kind from which I could make any finding that the number of gates on this stretch of the right of way is excessive.
I am not persuaded that the number of the gates across the section of the right of way from G2-G4 is excessive particularly given the fact that there are paddocks on the eastern side of the right of way to which it is desired that the cattle will have access from time to time and it may be more convenient for farm management purposes to have the cattle pass through one or other of the particular gates when crossing to other paddocks.
I have thus concluded that the placement and the normal operation of farm gates across Right of Way "B" does not amount to a real and substantial and unreasonable interference with the Pullens' reasonable right to use the right of way.

[45]

(ii) allowing cattle to graze on the right of way

As to the grazing of stock along the right of way, the Smedleys point to Kettleton v Murray [2017] QDC 64 at [32] and [34] (Robertson DCJ), where it was held that the grazing of cattle along a right of way that requires vehicles to slow and wait for the cattle to move does not represent a substantial and unreasonable interference with the enjoyment of a right of way.
The potential for encounters with the cattle is something that largely goes to inconvenience rather than to interference with use of the road as an accessway, with one qualification and that is the position of Mrs Pullen. She gave evidence as to her feeling of intimidation by cattle and her concern at the prospect that there might be a cow on the other side of a locked gate. Q. Just looking at page CB73, if you would be so kind, you say in our affidavit - and I may not have the precise paragraph, but I'll find it in a moment - you say in your affidavit that in effect the presence of cattle on the right of way that's something that, for your part, you don't like and, indeed, I think you've used the words you find that intimidating. That's correct, isn't it? A. That's correct. Q. Can I just dissect that? It's not as such the closed gates that you find intimidating. It's the cattle. Is that correct? A. The intimidation mainly comes from the cattle because the cattle - and I'm no expert. They have horns and they are totally packed and, yes, I find that frightening. Q. Indeed, if you do go to paragraph 27, but on page 74 of the court book, you will see in the last sentence you make a comment to that effect. Do you see that? A. I see what - you mean about the locked gate? Q. The cattle and the locked gate. A. Yes, but the cows are behind the locked gate. That's the point I was making that I had to open a gate where there's cows on the other side. Q. Your concern that you express there is with the prospect of encountering cattle or a locked gate. That's correct, isn't it? A. Well, it does mean both because the cattle I think I've covered. I find them frightening, unpredictable, but the locked gate in the middle of the night in an unlit right of way, on my own, I find frightening and, because the gates have been physically blocked by the defendants with steel beams and whatever else, I am terrified that if I'm on my own I'm trapped. I'm effectively in or out of my own property and I've got nowhere to turn, so that's what I find frightening. Q. Just dissecting that, your concern is with a locked gate. Is that right? A. Well, this is mainly what I'm talking about. I'm not going to argue that I find a gate that has been latched scary. That would be silly, but I am talking about the times, the numerous times the defendants have physically blocked our access. I as a - and now I have this back injury, I don't know what I would do. I can hardly turn to my neighbours for help. I don't know what I would do. We've got no mobile - sorry, no mobile phone coverage out there, so I couldn't ring home to ask somebody to come and help me. That's what I find That's correct. Q. Do you recall the question I asked was did your concern relate to a locked gate? Do you recall that was the question I asked? A. I do, but I was trying to answer it for you. Q. In your paragraph 27, except insofar as gates may be locked with padlocks or keys or other mechanisms, you accept that you're not expressing a concern that you're intimidated by a gate capable of closing or closed with a latch, is that correct? A. I don't find that intimidating, no. Q. But you say the prospect of encountering cattle on the right of way, are you saying you find that threatening and intimidating, is that correct? A. Yes, yes. They're huge. Q. I take it your background is not a rural one? A. No. Q. That's correct, isn't it? A. That would be correct.
As to the fear of cattle it is submitted by the Smedleys that "[t]he right of access conferred is not that of aseptic and instantaneous access hermetically sealed off from the surrounding rural environment".
It must be remembered that this is a rural property. On both the Smedley property and at least one neighbouring property to the north of Right of Way "A" there are animals. One may be sympathetic to Mrs Pullen's fears or concerns (and Mrs Smedley accepted that she was) but those cannot reasonably be permitted to dictate the manner in which the Smedleys operate their farm. There is much to be said for the rhetorical observation by Mr Smedley as to why the Pullens would acquire a rural property (access to which was over rights of way through a neighbouring property on which there were cattle at the time) if Mrs Pullen is so intimidated by cattle (see above). The answer might well be that, in hindsight, Mrs Pullen would not have done so had she been aware of the potential presence of cattle on the right of way. However, that does not mean that the prospect from time to time (and it is certainly this is no suggestion that it is all the time) of cattle on or near the right of way amounts to a real and substantial interference with the right of way. In my view there is no such interference with the Pullens' reasonable rights of user.

[46]

(iii) Presence of the metal shipping containers

The Pullens both complain, again in identical terms, that the placing of the metal shipping container "across the right of way" was done by the Smedleys without consultation and that it is placed in a dangerous position on the bend of the right of way (see [30]; [40], respectively). Mrs Pullen agreed that the metal shipping container of itself did not block access through that portion of the right of way but her position and that of her husband is that, in effect, it creates a blind spot on the right of way.
It was put to Robert Smedley that the metal shipping containers had been put there deliberately to cause inconvenience to the Pullens (T 395). He did not accept that.
At T 393, there was the following exchange: Q. I put to you that the metal container was placed in that specific position after you and the Pullens unfortunately had a bad relationship with each other? A. No, it was not, it was-- Q. Was that before then? A. It was after that, but it was not as a result of that.
Robert Smedley said the decision to place the containers where they were placed was his and his father's. Robert Smedley said that at the time the containers were placed there was a survey marker shown on the plan and the belief was that that was the corner of the easement. He conceded that the metal containers (or perhaps only one of them) are (or is) placed within the right of way, though not he pointed out on the surface of the road. He accepted that there are other places on the property where the containers could probably have been situated, though a number of places suggested to him were rejected by him as being unsuitable (such as areas where the paddocks were flood prone - see T 392-393 - and paddock E, which he said was a "perfectly good horse paddock").
Asked as to the potential danger as a result of the containers, there was the following exchange in Robert Smedley's cross-examination: Q. Did it not strike you and your father that to place that container in the position which you placed it was potentially dangerous for people leaving lot 22 to get to gate 2 and to go around the bend to the left to get to Ravensdale Road? A. I can't see why it be dangerous. Q. At night time? A. I imagine if you're driving at night time you would have your headlights on. Q. When you come along right of way B, approaching where the container stands, your headlights wouldn't get beyond, would they, the container so as to show you what is on right of way A just beyond the boundary between it and right of way B? There could be kangaroos coming up. A. There could be kangaroos, same as any public road or any windy-- Q. Wombats, there could be wombats? A. Yes, there can be. There is. Q. If it's night time, raining. A. Yeah. Q. Visibility would be low? A. No worse than any public road in the valley. No worse than Ravensdale Road or Yarramalong Road or Bumble Hill Road, which are windier and people drive along at 80 kilometres an hour with less visibility. I admit that it would be dangerous if you chose to use absurd speeds, like driving along at 60, 70ks an hour along a three and a half metre wide road. That could be dangerous, but as long as you were using sensible speeds and driving with caution, as you are expected to do as a licensed driver, then there would be no reason for it to be dangerous. Q. Isn't it the position that the people, whoever they may be, are going to use this right of way lawfully to leave from lot 22, the Pullen's land? They are going to have to go past that container and slow down where that container is to satisfy themselves that there are no obstructions in front of them, caused by whatever, on right of way A? A. I imagine drivers, whether driving lawfully or unlawfully, would be taking caution along any stretch of road that they're driving on and if they can't see around trees or blind bends on curves that they would be driving appropriately. Q. You're agreeing with me, aren't you, that the metal container is an obstruction to the vision of drivers driving in a south-north approximate direction to turn around the bend which is just beyond the container? A. I would say it's no worse than any public road.
The Smedleys argue that it can be inferred from the survey at p 600 of the Court Book (CB) (forming part of Exhibit 2), the metal container placed in part over the right of way does not cause a substantial interference with the right of way as the roadway within the right of way goes around it. They say that it does not obstruct free movement along the right of way. They say that the dispute as to the metal container embodies the unreasonableness of the plaintiffs, as the survey forming part of Exhibit 2 shows that the movement required to move it off the right of way is minor, and would only marginally widen the available corridor at that point.

[47]

Determination

In Owners Corporation of Strata Plan 42472 v Menala Pty Ltd (1998) 9 BPR 16,337, Bryson J considered an argument to the effect that it was an unreasonable impediment to allow a five metre opening in which to make a turn in reverse from a strip six metres wide into a strip five metres wide. His Honour said: The defendant's right of way does not entitle the defendant to have the whole of the six-meter strip cleared of any obstruction as if it were a billiard table. The plaintiff continues to be the owner of the plaintiff's 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 defendant cannot insist on more. …
I accept that the presence of the shipping containers on part of the right of way does not obstruct the road on the right of way in the sense that it remains possible for vehicles to pass along the trafficable surface of the right of way around the corner of the shipping containers. (Indeed Mrs Pullen also accepts that is it the case.) I also accept that if G2 is closed then one would have to stop and open the gate and thus would have an opportunity both to see and hear any oncoming traffic. Nevertheless, as the gate may from time to time be open the safety issue (which I consider to be a reasonable concern on the part of the Pullens) remains. (Had the metal shipping containers been wholly on the land outside the right of way an interesting question might have arisen as to whether obstruction of vision on the right of way caused by an object not on the right of way itself would amount to a real and substantial interference with the reasonable use of the right of way. I see no reason why it could not constitute such an interference but in any event the question does not here arise.)
In circumstances where I find that the metal shipping containers have been placed partially on the right of way and where it was accepted by Robert Smedley that there are other probably places on the Smedley property to which they could be re-located (and it has not been suggested that it would be exorbitantly expensive to do so), I consider that the obstruction of vision occasioned by their presence on part of the right of way does constitute a real and substantial interference with the Pullens' reasonable use of the right of way and that they should be moved.

[48]

Does the conduct of the Pullens in leaving gates open on the right of way amount to unreasonable use of the right of way?
I have referred already to the opposing contentions as to the potential presence of cattle on the right of way.
In Buckley v Timbury, Slattery J noted (at [93]) a distinction drawn in various of the Australian authorities between gates on urban and on rural land, stating the proposition taken from Hender v Gohl [1928] SASR 325 that, "[p]rima facie, leaving a gate open on rural land is not an injury - there must be actual damage consequent upon the gate being left open". Hender v Gohl was a case, not unlike the present, where the owners of the servient tenement which was used for grazing had erected a swing gate to prevent their stock from straying and complained at the conduct of the dominant tenement owners in that they had persistently neglected and refused to close the gate after passing through. In the Full Court of the Supreme Court of South Australia, Murray CJ said (at 329), that there was no principle of the common law binding the defendant to close the gate after using it and that: … All that the common law says is, Sic utere tuo ut alienum non laedas. Accordingly, the owner of the land subject to a right of way may erect a gate, provided it does not substantially obstruct the right of way, and the owner of the right of way may open the gate for the purpose of passage, provided he does not substantially injure the owner of the land. To merely leave the gate open is not an injury. There must be actual damage consequent upon the gate being left open. This appears to me to be in accordance with the ordinary law as to a private nuisance arising from the use of property.
Napier J agreed with Murray CJ that (assuming the servient tenement owner was entitled to maintain the gate) every omission to close the gate was not necessarily a breach of duty giving a right of action but went on to say (at p 330) that: ... it might be an unreasonable use or exercise of the rights of way to open the gate and leave it open, and if actual loss or damage resulted I think that this would be an unreasonable, and therefore an unauthorised, interference with the plaintiff's use and enjoyment of the servient land. If this is the position, the rights of the parties should be capable of adjustment upon the ordinary 'rule of give and take, live and let live', between neighbours.
In other words his Honour contemplated that in some circumstances the leaving open of a gate on grazing land might amount to an unreasonable use or exercise of the right of way, which would be actionable if actual loss or damage resulted therefrom.
In later proceedings between the same parties (who apparently had not been able to adhere to the "give and take, live and let live" rule - as seems to be the case in the present proceedings), Gohl v Hender , Napier J found in favour of the plaintiff and granted an injunction to restrain the defendants from any unreasonable use of the right of way by leaving the gate open in breach of what his Honour considered to be the implied duty or obligation on the part of the dominant tenement owner (namely, the obligation to close the gate when it had been opened in exercise of the rights conferred by the easement "unless the circumstances of the particular occasion afford some sufficient reason or excuse for leaving it open"). At 163, his Honour said: ... [I]n the ordinary course of things I think that any person who is entitled to open the gate in the exercise of the right, and thereby to interfere with the plaintiffs' property for the purpose of passing through it, acts unreasonably if, having opened the gate, he leaves it open when he knows, or ought to know, that it is, or may be, necessary to keep in the stock depastured on the land."
Santow J, in Sinclair v Jutt, was not prepared to distinguish between a gate to keep in stock depastured on land and other gates; rather his Honour considered that the question (there being as to whether the gates in question amounted to a substantial interference with the use of the right of way) was one of fact to be determined on the circumstances of the particular case with due regard to the competing rights and interests of the parties.
More recently, in Baypeak Pty Ltd v Lim [2005] VSC 77, Balmford J considered a number of issues arising in a dispute as to whether the occupiers of adjoining lands were liable, for the purposes of s 4 of the Fences Act 1958 (Vic), to construct, or join in or contribute to the construction of, a dividing fence and/or a dividing fence and gate along an unfenced portion of boundary between their two properties which was the subject to an easement of carriageway in favour of the respondent.
Of the questions to be determined, one was whether the magistrate had erred in law, among other things, in determining that it would be an unreasonable impediment to the dominant tenement owner to order the construction of a fence and gate on the right of way and a substantial interference with her rights to require her to contribute to the fencing of the area in dispute (questions (c)(i);(iii)). Another (question (d)) was whether as a natural and necessary incident to the use and enjoyment of that part of the servient tenement owner's land, the common boundary should be fenced in with an entrance gate erected to enable access to the servient tenement owner's and that it was not unreasonable that persons using the private road (the easement of carriageway) should open and close the gate, which is to be reasonably erected for that purpose, when they pass through the dominant tenement owner's property.
Balmford J accepted that the construction of a fence and gate across an easement of carriage way was not, in itself, an unreasonable or substantial interference with the rights of the adjoining owner as owner of the dominant tenement, though accepting that there may be circumstances in a particular case, where a particular proposed fence and gate might constitute such an interference (citing Powell v Langdon (1944) 45 SR (NSW) 136 where the proposed fence and gate were such as to cause an obstruction to the right of way, rendering it too narrow for ordinary convenience).
Balmford J considered that although the construction of the proposed fence and gate might (in some way not made clear in the proceedings) affect the dominant tenement owner's ability to use her car port; would limit the area in which visitors to her property could park; and would make access to the wheelchair ramp outside the house (on one day a year) less convenient, the greater flexibility that the dominant tenement owner presently enjoyed did not derive from the easement but from the absence of a fence; and that, as none of the matters of which she complained was an incident of her rights as owner of the dominant tenement, and the loss of flexibility could not be regarded as an interference with her rights in that capacity.
In obiter, addressing the question of fact posed by question (d)(ii), Balmford J referred to the judgment of Napier J in Gohl v Hender as providing guidance, noting his Honour's statement as to the duty or obligation to close a gate opened in the exercise of the rights conferred by the easement "unless the circumstances of the particular occasion afford some sufficient reason or excuse for leaving it open".
In the present case, the Pullens know that the Smedley property is used for the grazing of cattle and know that from time to time cattle may be grazing either on the right of way or in paddocks through which the right of way crosses, and they know that gates on the Smedley property are used for the purpose of the management of the cattle (and of the Smedleys' concern that the gates be kept closed to prevent cattle straying). I am of the view that opening closed gates in the exercise of their rights of access and then leaving them open on the right of way amounts to an unreasonable use by the Pullens of the right of way for them (absent a sufficient reason or excuse for leaving the gates open - such as a medical emergency or, say, if the gate were to be left open only for a very brief period of time when there were no cattle observed on the rights of way).
In other words, absent pressing circumstances that on a particular occasion may give rise to a reasonable excuse for the gates to be left open, I consider that it is incumbent on the Pullens, as part of their reasonable use of the right of way, to leave the gates on the right of way as they find them when passing through (open, if the gate was open on arrival at the gate; closed, if the gate was closed on arrival at the gate). Any other conduct on their part in a rural area where the right of way crosses paddocks in which cattle are known from time to time to graze would in my view be unreasonable.
Having the benefit of the easement does not equate to ownership of that strip of land. The Pullens' conduct in deliberately leaving gates open along the right of way; in demanding that there be no cattle on the right of way or grazed in unfenced paddocks from which they could have access to the right of way; and in the manner in which they have argued this case, suggests that they think otherwise.
I have given some thought as to the utility of granting declaratory relief of the kind sought, and as to whether any such declaration would be too vague (insofar as it would need to carve out circumstances in which a gate could be left open "for sufficient reason or excuse", to use the words of Napier J). However, I consider that there is utility in granting a declaration of the kind sought, having regard to the uncompromising stance both sides have taken to date and the need to impress upon the Pullens that their rights under the rights of way are for reasonable (not unreasonable) use for access and for works of the kind contemplated under the terms of the easement (and subject to the conditions there specified).
That said, I have a difficulty with the application for declaratory relief as to the speed of travel across the right of way as that is vague and unduly prescriptive. Furthermore, the presence of closed gates of itself must act as a practical curb to excessive speed.

[53]

(i) Are the Smedleys are liable to contribute to the works carried out on Right of Way "B" pursuant to the terms of the easement?

The Pullens' claim for contribution to the road works carried out on Right of Way "B" turns on the proposition that the works were necessary in order to render the surface a trafficable surface to an "all weather" access standard. The Smedleys deny that the road works were required for that purpose but in any event they maintain that the works were not properly effected in terms of the easement and that, having been effected without the proper approval, the works were unlawful and hence they are not obliged to contribute to them.
The Smedleys emphasise that while the terms of the easement confer on the Pullens the right to carry out work within the site of the easement (such as constructing, placing, repairing or maintaining trafficable structures) this is only on the condition that the Pullens ensure all work is done properly; that the work causes as little inconvenience as practicable to the Smedleys and as little damage as is practicable to the lot burdened (in the case of Right of Way "B" this being Lot 21); and that the Pullens restore Lot 21 to its former condition and make good any collateral damage after completion of the works.
The Smedleys argue that the placement of the fill on Lot 21 and associated roadwork has not been done properly; that it has caused more than a "little inconvenience" (and more than that which could not have been practicably avoided), to them; and that it has caused more than "as little damage as practicable" to Lot 21. They complain that the Pullens have not restored the land to its former condition nor made good the collateral damage caused to Lot 21. They complain that the fill was or contained extraneous contaminants including asbestos, and bits of tile and metal; and that it was done without the requisite development consent. Hence they submit the work was not done properly.
The Smedleys further say that the work has inconvenienced them by creating a situation in which they need to remove this waste from their land, and has damaged Lot 21 by the presence of the contaminated material (and also by reason of what they maintain is the sub-standard drainage work that was carried out). They argue that these aspects of the roadwork also constitute unrectified collateral damage within the terms of the easement.
Thus it is submitted by the Smedleys that they are not obliged to contribute to the cost of the road works that were carried out by the Pullens on the basis that they were works contravening the terms of the easement (being unlawful work or work that in effect pollutes and degrades the right of way).
Insofar as the Pullens point to cases where the question was as to an unreasonable withholding of consent to the lodgement of a development application or to the upgrade of the road in a reasonable and lawful manner (such as Kirkjian v Towers; 6 July 1987, Waddell J, unreported), the Smedleys argue that these cases are beside the point. As to Sertari Pty Ltd v Nirimba Developments Pty Ltd [2007] NSWCA 324, the Smedleys argue that it makes plain that the obligation of the owner of a servient tenement to consent to improvement of the easement where that is necessary or convenient for the exercise of the rights conferred by the easement is one that exists unless there is lawful reason not to provide such consent (including where there would be a breach of the terms of the easement) (see at [19] and [20]). The Smedleys say that if the dominant tenement holder puts forward a proposal that breaches the law, and carries out the work, then the dominant tenant holder is not entitled then to ask for a sharing of the costs of that unlawful work, even if (contrary to the Smedleys' contentions in the present case) it could have been lawfully approved.
In any event, the Smedleys contend that as the deposition of waste was involved, no development consent could in fact be obtained for this work even if the waste was being emplaced for road or driveway construction, and further that even if development could have been obtained for that waste deposition, a further approval (namely an environment protection licence) was required.

[54]

Was the existing right of way prior to the road works trafficable to an "all weather" access standard?

I have already concluded that the words "all weather" access standard in the context of the easement mean a surface which is passable in all kinds of weather.
There is little from which to determine, as an issue of fact, whether Right of Way "B" was, prior to the Pullens' works, a trafficable surface to an "all weather" access standard.
There is evidence from the Smedleys that they were able to drive across the access road in a variety of vehicles in all weather conditions and even when the paddocks were sodden. Ironically, Mr Robert Smedley has to some extent lent support for the Pullens' case on this aspect of the matter, since he says Right of Way "A" is impassable in floods; but given the different location of the two rights of way and the comments of Dr Martens as to what would be involved in constructing a truly all-weather road [see [293]; [295] below) it is difficult to draw much from this. Dr Martens described the former pavement surface as "compacted clay" and says the existing access track prior to the placement of fill was constructed using hillslope cut and fill methods. He has expressed the opinion that "the track could have been modified and widened with significantly less fill that has been brought onto the site under existing conditions" but his understanding that the track was trafficable is based on discussions with the Pullens (see joint report question 8). However, his initial report made clear that he had only had a "limited" inspection of the pre-fill pavement surface. His report appears to be predicated on some work being required "to regrade the existing pavement surface and compact the residual material in order to achieve the desired all weather access driveway"; just that there was no need to place the material that was placed over the existing pavement surface (see [2.3]).
On the other hand the Pullens maintain that the road was not to the requisite standard, asserting in their correspondence with the Smedleys that it became sodden in heavy rain. In the course of the hearing they placed weight on the requirement of Masterton that the road be upgraded before its contractors would commence works and on the certification by the accredited certifier that (with the works carried out) the road was to an all access standard but defective in the stated two respects. Mr de Silva has maintained that the pre-existing road was not an all weather access road because of his testing of the compaction of the pre-existing fill. In the joint experts' report, Mr de Silva says that the road base material has been placed on cut fill surface "which exposed high plasticity clay". He says that this type of material weakens in wet weather "and therefore a suitable road base cover is required". He confirmed in cross-examination that the first inspection that he carried out of this easement was some time after receiving the instructions in August 2016 and therefore that he had only seen the former surface of the easement (as it was prior to the additional road material) at the bore holes that he had dug. That said, Mr de Silva accepted that there was no record of high plasticity clay constituting the underlying strata across significant portions of the rights of way in his written statement of evidence of 28 November 2016.
The photographic evidence does not greatly assist me Apart from the recognised limitations of such evidence (to which I have earlier adverted), it is by no means apparent that simply because the photographs show some form of earthern or compacted vehicle tracks those tracks were passable in all kinds of weather. Nor does the evidence of the Masterton requirements assist, since the Masterton definition of an "all weather" road is largely unexplained other than by a reference to free access for its building contractors. Similarly, the suggestion that a gravel road is the "minimum" is not of much assistance since there is evidence (albeit second-hand but not apparently cavilled with by Mrs Scott) that gravel was deposited on Right of Way "B" by the Scotts at an earlier time.
I am therefore largely left with the Smedleys' evidence of their experience in traversing the rights of way and the expert evidence as to the compaction of the soil found when they tested it (after the road works). Given that the observations by the Smedleys as to the state of the right of way prior to the road works are likely to be coloured by their perspective of events generally, I place more weight on the expert evidence in this regard.
In their joint report, both experts were asked whether placement of the fill material was necessary. Dr Martens referred to the "existing access track" as having been constructed "using hillslope cut and fill methods"; described the "former pavement surface" as having been "compacted clay"; and stated that he understood that the track was "trafficable" (although this is said to be from discussions with the owner [of 277 Ravensdale]; i.e., the Smedleys). In his earlier report, he had stated that there was "no need" to place the material over the existing pavement surface". In contrast, Mr de Silva considered that the new material was placed "on cut fill surface which exposed high plasticity clay", which he states "weakens in wet-weather" and therefore requires "a suitable road base cover". He then opined that the thickness of the material actually placed "is considered the minimum required for larger commercial vehicles".
While I prefer Dr Martens' evidence as to the asbestos contamination, his evidence as to the "all weather" characteristic of the pre-existing road fill must be treated with some caution as it appears to have been based at least in part on the instructions given by the Smedleys as to the fact that they were able to travel over the road in all weather. On the basis of Mr de Silva's evidence (and the experts' views as to what would now be needed for an all-weather road - see [293]-[295] below), I consider that, on the balance of probabilities, the then trafficable surface of Right of Way "B" was not to an "all weather" access standard. If so, then the Smedleys would have been liable to contribute to half of the cost of the works (albeit that the Pullens would have been liable for the whole of the cost of works not done properly in accordance with the terms of the easement and for the rectification/restoration of damage occasioned by the works - particularly in relation to the drains and also in relation to the damaged boulders).
However, ultimately nothing turns on this given my conclusion as to the unlawfulness of the works (see below).

[55]

Were the works properly done with as little inconvenience and causing as little damage as possible to Lot 21?

Both experts were cross-examined as to the state of the rights of way following the work that was undertaken and as to whether the right of way now satisfies the description of an all weather access way.
Mr de Silva's position was that the works are adequate. He did not agree that, in terms of the roadwork that has been done, there are numerous soft batters along the edge of the road material that has been placed that have not been compacted. Directed to particular photographs, he did not agree that they showed uncompacted soft batters in the material that had been deposited along the side of the road, although he accepted that one photograph (at CB 733; Exhibit 9) showed that there was unconsolidated fill appearing on either side of the sandstone that had been placed around the drainage pipe. He agreed that if a vehicle went off the centre part of the constructed roadway on to those edges of unconsolidated fill, that that could lead to a situation of instability or a loss of traction on the part of the car wheels but said that this was not because the fill was uncompacted but because it is too steep.
Mr de Silva did not accept that it was evident that whatever was done in terms of the construction of the road and the placement of the fill at a location shown in one photograph (CB 718; Exhibit 7) had been "more or less entirely ineffective" in preventing the erosion of a large amount of the fill constituting the road from the road itself into areas adjoining the road in a rainfall event. He did agree however, that the lack of spoon drains (which he called table drains) had contributed to that issue. He said that the photograph in question showed mostly the erosion happening on the high side (or left-hand side of the high zone) and said that there was erosion (caused by water that had flowed over the road) and he could see some erosion gullies on the batter but he said that the reason for that was not placement of more material on the surface, but not having a proper table drain on the high side of that road.
Mr de Silva said that, at the bottom of the hill, there should be a table drain; that it was there in some places but that in some places it was not that effective ("[m]aybe it has been sealed off, or it has not been constructed". His view was agreed that the photograph he was shown revealed that there was no effective table drain, which he said was why water had gone over the road and across to the other side, causing some erosion. His view was the reason for the erosion the fill material from the high side to the low side was not because there was too much material on the surface but because there was no table drain. (Pausing there, whichever of those two reasons be the correct one, both supported the conclusion that the road work has been ineffective.)
Mr de Silva nevertheless agreed that in order to preserve the fill material after its placement on the road at this location there would need to have been an effective drain installed on the high side of the road. He also agreed that at the point that the photograph was taken the resurfaced road did not have effective spoon drains. However, he also said (somewhat inconsistently) that when he had visited the property generally, there were effective table drains and he did not see this type of condition on the driveway at the time he had inspected it.
Ultimately, Mr de Silva agreed that the photographs at CB 716 and 717 (forming part of Exhibit 7) showed water pooled along the side of the road and agreed that it was clear that the newly-constructed road had not been constructed with effective drainage, at least at that point where the water is pooled. He also agreed that there had been no crowns in the centre of the road camber constructed or installed as part of these road works, but said that crowning was not always present on roads constructed on a slope: It could be just a one‑way cross pole rather than a crown, as you would find in the flat area. This is a sloping ramp, so it will likely - I mean, the way it has been constructed is for water to flow across to the right-hand side from the photograph, that is, to the low side.
Dr Martens' observation as to the drainage of the road, as installed, was as follows: Only really one comment, and that is: to have an all‑weather surface for a road, you must have an appropriate drainage system that services that road. So the consequences of not having an appropriate drainage system are the things that you've shown us in these photographs that you may have the road material being washed away and once it's gone, obviously, it can't provide an all-weather service road. You'll have puddles, as is shown, for example, on pages 716 and 717. Those puddles will soften the pavement. There's some evidence of that in 716. You can see that puddle bleeding, if you like, water across the road. That will lead to rutting and then further deterioration. So the drainage system is integral to the design of any driveway or road and, without a proper drainage system, there's no guarantee that the road will be an all-weather service either at the time of construction or in the future.
Dr Martens considered that the appropriate treatment for a road like this, if crowns were not to be used, would not be arranging the road so that it slopes down from the high side but rather to grade it slightly into the hill: Yes, that's called a one-way cross fall or a reverse cross‑fall into the hill. The advantage of that is that there is a very small amount of water that runs over the road. It's just what falls directly onto the road, and then it then is guided back into the hill and then, as Mr De Silva pointed out correctly, there would be a drainage system in place, a table drain or a spoon drain, and that would collect water from the hill slope as well as from the road. That drainage system would need to be sized appropriately to cater for the catchments that were contributing to the drain. So they would not necessarily be the same size along the full length of the right of way. They may vary in size, as would the pipes that would be required to relieve the spoon drains at various locations.
Dr Martens considered that this had not been done along the right of way: It hasn't been done, which is why we see this drainage issues on the photographs shown. In my view, it looks like some of the fill has been placed over previous drainage lines and that's why you've got, for example, on photograph 7 on page 718, there's an erosion track - a prominent one in the centre of that photograph, but there are a range of other indicators that show, in my view, that the water flow across that road is much more substantial than just that small erosion track. For example, there's something that - a term that's called "winnowing out" of fines. So in the lower left-hand corner, the pavement that's exposed, you can see the larger rocks are prominent and they're not, sort of, mixed in with smaller rocks and fine sediment. That normally occurs if the fines are prominent and they're not sort of mixed in with smaller rocks and fine sediment. That usually occurs if the fines are washed away. It's called a "winnowing out" of the fines.
Mr de Silva accepted that some work had been carried out in relation to the road culverts and agreed that the water flows that existed in relation to the road prior to the installation of those culverts would necessarily have been changed, due to the construction of the road and the work that was done in relation to those new or modified culverts.
As to the culverts, Dr Martens said that those he observed were small diameter plastic pipes, 200 millimetres or less, where the up slope and down slope points of the culvert, the entry and the, and the exit points had some sandstone boulders placed around those points to form a head wall and in some circumstances, as is shown on CB 721, some smaller rocks were placed either near to the entry point of the culvert or within the table drain near to the culvert (see also CB 733).
Dr Martens had inspected all the culverts. He said: Every culvert was flawed in terms of its design, in my view. Every culvert had sediment accumulating within the inlet locations and had deficient spoon drains feeding those culverts and had deficient erosion control measures up slope and down slope of the culvert. I, I can't give any more details about specific culverts.
In terms of the adequacy of the culvert and drainage work that had been done, Dr Martens said: They, they appeared firstly undersized, and certainly they appeared not able to cope with the type of sediment that would be produced, either locally or from the material that was placed over the right of way. … the type of sediment being generated from the adjoining catchment areas, and the type of sediment being generated from the fill material deposited over the right of way.
Dr Martens was of the view that to construct a road to an acceptable all‑weather access standard, the drainage system would need to be designed and then constructed in accordance with general engineering principles, so that the roadway remained dry or, during rainfall conditions only "sheds" the amount of water that falls on the road.
Mr de Silva agreed that some level of design was required but said that the location of this access way at the bottom or at the middle of a very steep, very long hill was such that a lot of water would be generated in rain periods. He said that, and prior to the construction of the new pavement, that water would have flowed over that road at all the locations, not concentrated: So, so the old - so, so there may have been one or two culverts initially but, but very likely the water would have flowed across the road at all the, most of the locations, rather than concentrated at culvert locations. But when the construction of the road and the, and the, and the drains have made the flow to be concentrated into maybe five or six locations Therefore you get more water at those locations and there, there is the chance of water dropping(?) or water flowing or water, or, or erosion - is this more concentrated erosion is, is possible. So I agree completely that it requires additional work in terms of drainage, in terms of construction of the batters on the, on the site. But then this - due to this location of this one, this will become a more or less suburban road, rather than a access way to, to a single residence. So, so there are practicalities in terms of cost and, and, and the mechanics(?). So, so while saying that this is inadequate, I am, I'm of the opinion that you won't be able to make a completely dry road under all rainfall conditions for this location without spending quite a lot of money. So it is probably not within the scope of work for an access way. (my emphasis)
Mr de Silva agreed that in order to ensure that a suitable road was constructed for all‑weather access purposes, so that it remains dry in all weather conditions, a substantial amount of further funds would need to be expended on this road.
Dr Martens was of the view that in order to put what was there into the condition of an all-weather access road, given the work that had been done, the drainage and culvert issues needed to be remedied. Asked whether he agreed with Mr de Silva's view that it was unsuitable for this location (see [288] above, Dr Martens said: Look, it's an ordinary requirement for these long private - I use the word "driveways" or private access ways to be properly drained and really the main reason for that, apart from the all-weather access issue, is the fact that you'll have to rebuild it very frequently. As you can see from the photographs, there's already evidence of erosion and it is an expensive exercise, no doubt, to construct one of these very long access ways, particular if you need to require - you're required to comply with the planning for bush fire requirements which, of themselves, have their own specifications. So it would make sense to spend some more money upfront to put in a proper drainage system which is engineered appropriately so that you get the best long-term usage out of the money that you spend constructing the access way. So it's not an out of the ordinary expense, it's, in fact, a very ordinary expense and it's a bit perplexing in this circumstance why the drainage system wasn't installed as part of the construction of the access way [i.e., at the time that the access way was resurfaced]
Dr Martens said there was evidence that at some locations there were table drains and at other locations he suspected there were no table drains and, as Mr de Silva had suggested, the water would have flowed across the road. He said that: The only difference there being that with the placement of this, what is called unconsolidated material, over that base material that was there prior to the deposition of this material, it changes the nature and character of the road and because the material is unconsolidated and can easily be washed away, it is, of its nature, much more susceptible to erosion and, therefore, there's a much higher need to have in place a formal drainage system. I've seen many, many road like this on private driveways or on farm access ways where, with all good intentions, the owner of the site has imported material onto the site and built, in some circumstances, quite a - well compacted driveway but because the drainage system has not been constructed or engineered properly, all the goodwill and the money that's been spent on constructing that driveway has literally washed away within a few years
Nevertheless, Dr Martens placed an important caveat on this, in that he did not consider that any further works should be done before dealing with the asbestos issue.

[57]

Conclusion that asbestos was part of the road fill material

Mr de Silva initially agreed in cross examination with the proposition that all the material that was sampled in the ten bore holes comprised material that was deposited on Rights of Way "A" and "B". However, he later qualified this - not accepting that the body of material that was sampled was material that had been wholly deposited by the Pullens' contractors. He said: No, I don't know whether the material was entirely deposited by my client. I tested ten samples of which one sample actually was on driveway A [Right of Way "A"], which may contain material deposited by others other than my client.
Mr de Silva accepted that he had no evidence for the proposition that the material in any of the ten bore holes (including that sampled from Right of Way "A") came from any other source.
Mr de Silva agreed (having regard to the quote for the deposition of material on 277 and 279 Ravensdale Road, and the fact that there was no restriction in that quote to Lot 21, as well as the instructions he had been given by the Pullens' solicitors (in which he was asked to consider the two adjoined rights of way but was there referred to the material for the resurfacing of Lot 21), and taken to the fact that his own expert's report made no distinction between the samples that were collected on Lot 20 and the samples that were collected on Lot 21 in terms of their source) that his exercise was to consider the whole of the deposited material be it on Right of Way "A" or Right of Way "B" without distinction.
Mr de Silva then agreed that, as far as he was aware, the material that was sampled at AH08 formed part of the material deposited by the Pullens' contractor. Mr de Silva said that the surface appearance of the material was the same at AH02 and AH08. He agreed that the term "the deposited material comprised" included the material found at each of the boreholes, and that, considered as a whole, the material that was deposited, comprised things other than brick, concrete and ceramics. Mr de Silva also agreed that, insofar as the material comprised things other than concrete, brick, ceramics, natural rock and asphalt (such as the foreign material in AH01 and the asbestos in AH08), it was not, considered as a whole, material comprising only those things listed falling within section 1.2 of the resource recovery exemption.
Mr de Silva's position ultimately seemed to be that, having earlier accepted that asbestos found in AH08 was part of the body of waste material that was deposited on the rights of way (see [300] above), he nevertheless could not be 100% sure that this was the material that was deposited by a Tiny & Mighty contractor.
Dr Martens had no concern as to whether any of the materials sampled in the various bore holes that were sampled was or was not deposited as part of the Pullens' road upgrading exercise.
Mr de Silva for his part was not prepared to agree that (although he could not be 100% certain) he had no real reason or evidence for concluding other than that this material was likely to have been deposited at the time Tiny & Mighty did its road works. He said: No. This material, H8 was excavated right at the intersection of that driveway A [Right of Way "A"] and the short driveway to the residence in lot 20 [the Smedleys' house]. So - so that driveway would have been constructed long before the resealing of - of driveway - driveway B [Right of Way "B"]. So there is - because there was a driveway already existing, I can't be 100% certain whether the material I tested was entirely from the material that the contractor recently deposited, or whether it is coming from a previous construction activity. All I know is this material came from that driveway.
Mr de Silva chose the locations at which the bore holes were drilled for sampling purposes. He said that the reason that he chose to drill a bore hole at AH08 on Right of Way "A" was that the material at the intersection of the driveway to the [Smedley] residence and the main driveway at driveway A [Right of Way "A"] looked similar to the material on the surface "of the entire driveway". Pausing there, when the experts were shown a video of Right of Way "A", by reference to the description given of the location of AH08 (described by reference to chainage measurements by Dr Martens), it is apparent that AH08 was not at the intersection of Right of Way "A" and the driveway to Smedley homestead but at a point closer to Ravensdale Road,
Mr de Silva said that the assumption he had made at the time was that the material from AH08 formed part of the material that was deposited as part of these road works and said that "in probability" that was the case (although he could not be 100% certain of that) (T 216.27).
Dr Martens asked in effect whether he thought it possible that the fragment of asbestos could have come from some other source other than the fill said (T 249): All things are possible. However, I think in this circumstance it's very, very unlikely because the auger hole where the material was taken from, which is AH08, which provides a description "sandy gravel, fine to coarse grained, fine to medium sand, brown concrete, and brick fragments" is almost identical to all of the other descriptors given for the other there's only one development when you were inspecting it and that was lot 22?
I have concluded on the balance of probabilities that the fragment of asbestos found at AH08 was from the road fill by Tiny & Mighty in August - September 2015. The fragment was found in an augur hole (AH08) dug to a depth of 0.75cm (T 173.17) and was part of material that was of uniform appearance to the balance of the material spread over both Right of Way "B" and that part of Right of Way "A" where the asbestos was found. Indeed, the uniformity of the fill was what led Mr de Silva to carry out a test at that point of Right of Way "A". It is clear from the initial invoice for the 430 tonnes laid on the surface by Tiny & Mighty that it was to be spread over more than Right of Way "B" alone. The supplementary 32 tonnes appear to relate to a muddy area near "the front gate" (perhaps G5 since there was no material laid at G1) and around the curve or bend of the road (neither locations being consistent with where the fragment of asbestos was found).
I accept Dr Martens' conclusion as to the asbestos fragment, noting that Mr de Silva himself accepted the likelihood or probability that that was the case (T 216.27), Dr Martens' evidence being that it is very, very unlikely that the asbestos came from another source. Accordingly, on the balance of probabilities I find that this fragment of asbestos was part of the road fill supplied by EBH and spread over the surface of the road in September 2015 by Tiny & Mighty.

[58]

Significance of the finding of asbestos

The significance of the finding of asbestos, as Dr Martens explained, is that the waste as special waste is then classified as "special waste - asbestos". The experts were agreed that asbestos can only be disposed of at a properly authorised landfill site (in accordance with cl 80 of the Waste Regulation).
The Smedleys point to the decision of Sheahan J in Foxman Environmental Development Services [2015] NSWLEC 105 as instructive in this regard, particularly to counter the proposition by Mr de Silva that the finding of asbestos was "insignificant" and his opinion to the effect that the appropriate course (if further testing in the area in which asbestos was found or further along Right of Way "B" disclosed no more asbestos) would be to limit the removal of fill to that area where asbestos was found and otherwise leave the road fill in place.
The Foxman case involved charges that a defendant (Foxman) was guilty of offences in relation to the transporting and storing and disposing of waste in a similar regulatory context to that here under consideration. Sheahan J considered, first, whether the material was waste (noting the Waste Classification Guidelines to the effect that the first step in classifying any waste requires the establishment of whether it is special waste due to contamination with asbestos (see [90]). His Honour was satisfied beyond reasonable doubt (that being necessary as the proceedings were in respect of an alleged criminal offence) that the material in that case was waste as defined under the POEO Act ([183]; [207]). His Honour then considered whether any general or specific exemptions applied (the relevant recovered aggregate exemption orders in that case being orders made in 2008 and 2010, with the inclusion of a corresponding provision to cl 7.2.7(c)) and held that they did not ([223]).
There, more than 53 pieces of asbestos had been found in the material both in the surface and at depth ([225]) but his Honour accepted the evidence of the expert in that case to the effect that the material (all 15,900 tonnes of it) should all be classed as "special waste - asbestos waste" ([226]), having regard to the definition of asbestos waste as being any waste that contains asbestos. Similarly, at [230]-[231], Sheahan J addressed a submission that the land had been maliciously "salted" with asbestos pieces (on top of virgin natural material) but held that the Recovered Aggregate Exemptions did not apply because, having found that the material transported to the site contained asbestos pieces, "all of that material on the land is "special waste -asbestos waste" ([231]).
Applying that approach, I note the following definitions.
The definition of waste in the Dictionary to the POEO Act is as follows: waste includes: (a) any substance (whether solid, liquid or gaseous) that is discharged, emitted or deposited in the environment in such volume, constituency or manner as to cause an alteration in the environment, or (b) any discarded, rejected, unwanted, surplus or abandoned substance, or (c) any otherwise discarded, rejected, unwanted, surplus or abandoned substance intended for sale or for recycling, processing, recovery or purification by a separate operation from that which produced the substance, or (d) any processed, recycled, re-used or recovered substance produced wholly or partly from waste that is applied to land, or used as fuel, but only in the circumstances prescribed by the regulations, or (e) any substance prescribed by the regulations to be waste. A substance is not precluded from being waste for the purposes of this Act merely because it is or may be processed, recycled, re-used or recovered.
Part 3 of Sch 1 of the POEO Act contains the following definitions of waste: Division 1 Waste classifications 49 Definitions of waste classifications (1) In this Schedule: special waste means any of the following: … (b) asbestos waste, … (2) Despite subclause (1), in this Schedule, any waste that is classified as one of the following classes of waste, in accordance with an immobilised contaminants approval granted under Part 10 of the Protection of the Environment Operations (Waste) Regulation 2014, is taken to be waste of that class: (a) general solid waste (non-putrescible), (b) general solid waste (putrescible), (c) hazardous waste, (d) restricted solid waste, (e) special waste. ... Division 2 Other definitions 50 Other definitions (1) In this Schedule: asbestos means the fibrous form of those mineral silicates that belong to the serpentine or amphibole groups of rock-forming minerals, including actinolite, amosite (brown asbestos), anthophyllite, chrysotile (white asbestos), crocidolite (blue asbestos) and tremolite. asbestos waste means any waste that contains asbestos. ...
The NSW Government Waste Classification Guidelines of April 2008, revised in July 2009, include special waste (defined as including asbestos waste as defined in cl 50 above) as one of six "waste classes". The Guidelines provide that the first step in classifying any waste requires the establishment of whether it is "special waste due to its contamination with asbestos (i.e. classified as asbestos waste) ...". The Smedleys emphasise the reference in the Waste Classification Guidelines to the potential environmental impacts of special waste which need to be managed to minimise the risk of harm to the environment and human health.
The experts were agreed that asbestos waste can only be disposed of at a suitably regulated landfill site (see cl 80 of the Waste Regulation specifying that the disposal of asbestos waste must occur at a properly authorised landfill site).
Both experts confirmed that the fill material cannot be categorised under the EPA's Virgin Excavated Natural Material ("VENM") waste exemption or the EPA's Excavated Natural Material ("ENM") waste exemption.
The Smedleys argue that the road fill falls within clauses (a), (b) and (d) of the definition of "waste" (as explained in Dr Martens' expert report). (See the discussion of the definition of "waste" in the POEO Act and its history in Shannongrove Pty Ltd v Environment Protection Authority (2013) 84 NSWLR 688; [2013] NSWCCA 179 at [5]-[24]; [40]-[41] to which reference was made in Director-General, Department of Planning and Infrastructure v Glass Recovery Services Pty Limited [2015] NSWLEC 49, Pain J at [73]-[78]; Foxman at [80].)
They note that its characterisation as waste does not depend merely on the fact that it contains asbestos; and they point to Mr de Silva's acceptance that the material was waste (see [4.3]), including recycled building material, concrete, brick and ceramic fragments, foreign material, plastics (as well as the fragment of asbestos at AH08. (See Mr de Silva at T 187.46-50, T 188.1-4; Dr Martens at T 188.15-24). They say it is irrelevant that the material is re-cycled or reused (referring to the decision in Foxman at [202]).
I agree. The road fill clearly falls within the definition of "waste" (and because of the fragment of asbestos, is classified as "special waste").
Pausing here, I note that the experts were asked their opinion as to how, ignoring the asbestos, the road fill material was to be classified. Approaching the question on the assumption (contrary to the finding I have made) that the fill did not include any fragment of asbestos, the question as to how it is then to be classified gave rise to much debate. As noted earlier, Dr Martens would have classified the fill on that assumption as General Solid Waste; Mr de Silva described it as "recovered aggregate" but said that in the way that it was used it should not be treated as "waste".
Mr de Silva's conclusion that it was "recovered aggregate" (but would not be treated as "waste") was based on the following reasoning: testing of the material indicated that it complied with the Recovered Aggregate Order 2014 (treating the finding of foreign material at AH01 as an "anomaly"); the definition of waste in the Waste Regulation is very broad; it is not known whether the supplier of the material (EBH) complied with the Recovered Waste Order; a person receiving waste product must comply with the Recovered Aggregate Exemption 2014 and as long as the person does so the product used will not be considered waste; construction of an access for an approved development is an approved work; therefore application of the material (for use for road making on the right of way) is an approved use under the Recovered Aggregate Exemption 2014 (see his report at [4.2]-[4.3]). As to what he meant by the expression "for beneficial reuse for road making", Mr De Silva said that was not a reference to any legislation but that he considered it was the intent in the Recovered Aggregate Order i.e., that the statement "Process into an engineered material" has the implication of engineering applications or road making:
In other words, Mr de Silva's understanding seems to have been that if the waste is used "for beneficial use for road making" for an approved development, the product is no longer characterised as waste (and there would be no need for an EPL).
Dr Martens on the other hand said that: Look, I'll put a layman's interpretation on that. If material is classified as waste, the exemption only operates to exempt a consumer of that recovered aggregate waste from certain elements of the Protection of the Environment Operations Act. It doesn't change the nature of its classification at any stage, it is always waste, it just means that certain sections of the Act and the regulations won't apply but it's still waste. And there's a paragraph after (e) which probably should be read as well, "A substance is not precluded from being waste for the purposes of this Act merely because it is or may be processed, recycled, re-used or recovered." ….
Mr de Silva did not accept that the actual nature of the material (as being waste and recycled concrete and building material recycled from discarded concrete and building materials) would not change even the material could be characterised as within the Recovered Aggregate Exemption 2014. His view was that is that if an expert characterised this as material that falls under the exemption to the recovered aggregate order, it was no longer waste but agreed that that was not supported in the legislation.
I do not accept Mr de Silva's contention that "waste" if used for beneficial use for roadmaking is no longer to be regarded as "waste". Rather, if its use is authorised under the relevant regulatory regime governing the disposal of waste, then there would not be a contravention involved in its use but it would remain as "waste", for the reasons given by Dr Martens.
I find that the road fill remained "waste" (and "special waste") even though used for road making on a private road and even if (which I find not to be the case - see below) its use was permissible under Recovery Agreeable Exemption 2014 (see below).

[59]

Requirement for development consent under the EPA Act

As previously noted, Lots 20 and 22 are zoned under the Wyong Local Environmental Plan 2013 (as RU 1 Primary Production and E3 Environmental Management). Within those zones, no development apart from "home occupations" is permissible without consent. Both "roads" and "dwelling houses" (which would allow driveways and access roads that are ancillary to "dwelling houses") are permissible with development consent. The relevant consent authority is the local Council (Wyong Shire Council).
The Smedleys accept that development consent could have been obtained for the roadwork and placement of clean fill (i.e., not being waste) on Lot 21 prior to the works being carried out, but they say that this was not done and, absent such consent, the roadwork and placement of even clean fill on Lot 21 was unlawful and contrary to the Wyong Local Environmental Plan 2013 and s 76A of the EPA Act. (This is the basis for the declaration sought in prayer 1 in the summons in the transferred proceeding.)
The Pullens, as I understand it, contend that the imposition of condition 14 in the development consent obtained for the construction of the dwelling on Lot 22 constitutes the relevant approval. The Smedleys point out that an application for development consent for road works on Lot 21 would have needed the consent of the owner of Lot 21 (i.e., the consent of the Scotts before 22 September 2015 and the Pullens as owners after that date) (referring to Pt 1, 1(i), Sch 1 of the Environmental Planning and Assessment Regulation 2000 (NSW)); and there is no evidence of any such consent.
The Smedleys argue (and I accept) that, on its proper construction, the development consent given for the construction of the Pullens' house on Lot 22 does not purport to give any development consent for the road work on Lot 21. True it is that the consent obtained by the Pullens for the construction of their house requires that access roads be compliant with bushfire planning regulations. However, if the access roads in question are over another owner's property (i.e., here, the Smedleys), then this would mean that the Pullens would need to obtain a development consent (with the approval of the owner of that property) to carry out the works necessary to comply with condition 14 of the development consent for Lot 22. Thus even if it were to be said that the road works were ancillary to the construction of the dwelling (which the Smedleys dispute is correct), no development consent was obtained.
The Smedleys maintain, and I agree, that in the present case there is no development consent capable of being properly construed as a consent authorising the road work that was performed by the Pullens on Lots 20 and 21 (or any road work on the right of way through Lots 20 and 21 at all).
The fact that the Smedleys may not have been entitled to withhold consent to works falling within the terms of the easements is not to the point. Their consent was not requested; development approval was not obtained for the road works; and hence they were in breach of the Wyong Local Environmental Plan 2013 and s 76A of the EPA Act. A declaration to that effect should be made.
As to the consequences of that breach in terms of the relief sought by the Smedleys, they note that there is a broad discretion conferred by s 124 of the EPA Act for relief to be granted to remedy a breach of that Act and point to Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335; (1987) 63 LGRA 361, where this broad discretion was found to be akin to the discretion to grant equitable relief in this Court and to be informed by the same principles. The Smedleys argue that the breach by the Pullens of the EPA Act, by carrying out development without the requisite development consent, does violence to the orderly enforcement of the planning law and is far from a technical breach due to its material adverse environmental consequences. I address the question of relief in due course.

[60]

Implications of the finding that the road fill was waste

Placement of even clean fill in the circumstances of this case amounted to a breach of the EPA Act. However, what was placed on Lots 20 and 21 was clearly "waste" within the meaning of the POEO Act.
The Smedleys further contend that the placement of the waste involved use of the land as a "waste facility" without lawful authority and, without the requisite development consent, was in contravention of s 144 of the POEO Act, and was use of the land for a prohibited purpose within the E3 Environmental Management zone, contrary to s 76B of the EPA Act.
"Waste facility" is defined in the Dictionary to the POEO Act as follows: waste facility means any premises used for the storage, treatment, processing, sorting or disposal of waste (except as provided by the regulations).
The Smedleys argue that use of the land as a waste facility is established by the deposit or storage of the waste on the land, irrespective of the purpose of that use. Thus they argue that it is irrelevant that the work was ancillary to the construction of the dwelling house on Lot 22 (referring to Environmental Protection Authority v Hardt [2006] NSWLEC 438; (2006) 148 LGERA 61 at [107] (Preston CJ at LEC); Mouawad v The Hills Shire Council [2013] NSWLEC 165 at [139] (Pepper J); EPA v Terrace Earthmoving [2016] NSWLEC 50 and [122]-[131] (Craig J)).
Without both development consent and an environment protection licence (EPL) from the EPA the Smedleys say that the deposit and storage of the road fill (as a waste facility) was unlawful and contrary to s 144 of the POEO Act (a declaration to that effect being the third prayer sought in the summons in the transferred proceeding).
The Smedleys argue that development consent could not have been granted for use of the land as a "waste facility" due to the zoning under the Wyong Local Environmental Plan 2013 which prohibits that use and that an environment protection licence (EPL) was required due to cl 39 of Sch 1 of the POEO Act, which requires a licence for the activities of depositing and storing waste on land. That clause provides, relevantly, as follows: 39 Waste disposal (application to land) (1) This clause applies to waste disposal by application to land, meaning the application to land of waste received from off site, including (but not limited to) application by any of the following methods: (a) spraying, spreading or depositing on the land, … (c) filling, raising, reclaiming or contouring the land. (2) However, this clause does not apply to an activity that involves any of the following: (a) sites inside the regulated area that, over any period of time, receive from off site a total of no more than 200 tonnes of the following waste (and no other waste): (i) building and demolition waste only, (ii) building and demolition waste mixed with virgin excavated natural material, … (3) The activity to which this clause applies is declared to be a scheduled activity. …
It is not in dispute that the Wyong Local Government Area (now Central Coast Local Government Area) is in the "regulated area" for the purposes of cl 39 of Sch 1 of the POEO Act. Nor is it disputed that over 430 tonnes of the waste were deposited on the rights of way (above the 200 tonne limit for a non-licensable deposit of building and demolition waste) (see the Tiny & Mighty invoice; Exhibit L). The effect of coming within cl 39 is that the activity of the depositing and storage of this waste on the land is a "scheduled activity" as referred to in sub-cl (3) of cl 39 of Sch 1 to the POEO Act. Pursant to s 48 of the POEO Act, an EPL is required for the carrying out of a scheduled activity. So, absent a relevant exemption, the Smedleys argue that, at a minimum level, the fact that there have been 430 tonnes of waste placed is enough to mean that there has been a breach of the POEO Act.
The lack of an EPL for the deposit of this waste on Lot 21 was thus said to be contrary to s 144 of the POEO Act, regardless of whether any development consent could have been obtained for the works (which for the reasons explored above, the Smedleys say could not have been obtained).
This brings me to the debate as to the operation of the Recovered Aggregate Exemption 2014. This exemption operates, where applicable, to exempt a party (such as a land owner) from an otherwise applicable licensing requirement such as that prescribed by cl 39 of Sch 1 to the POEO Act. Counsel for the Smedleys argues that if the Recovered Aggregate Exemption order does not apply in the present case, then given that the Pullens accept that the Recovered Aggregate Order 2014 does not here apply - as it is applicable only to a supplier and there was not evidence of appropriate certification by the supplier - then there was a requirement for an EPL due to the deposition of waste on this land under cl 39 of Sch 1 of the POEO Act; and a breach of the POEO Act (irrespective of the presence of asbestos) since no licence was obtained.
The Pullens conceded in closing submissions that the material delivered to the site was not certified recovered aggregate for the purpose of the EPA Recovery Order 2014 under Pt 9, cl 93 of the Waste Regulation. They accept that the Recovered Aggregate Order 2014 is limited under cl 2.1 to persons who "supply" recovered aggregate generated, processed or recovered by that person; and they say that it was not any part of their case to argue that the supplier to Tiny & Mighty (EBH) complied with the requirements of the Recovered Aggregate Order 2014 (though I interpose to note that Mr Pullen's affidavit deposing to an awareness of the Douglas Partners testing conveys a different impression).
However, the Pullens contend that the Recovered Aggregate Exemption does apply in the present case on the following basis.
The Pullens submit that the materials referred to in the SGS Analytical Report (Douglas Partners report) (which include sand, rocks, and crushed concrete) fall within the material which constitutes "waste" to which the Recovered Aggregate Exemption 2014 applies (with, they concede, the exception of the asbestos fragment found in the AH08).
The Pullens' contention is that the Recovered Aggregate Exemption 2014 applied to the material supplied and laid on the rights of way because the material was to be applied in the access road for "road making" on a "private road" (bringing into operation the conditions of exemption under cl 7.2.7(c) to be applied to a development consent "approved by a Council"). They place emphasis on the fact that, at the time the Tiny & Mighty quotation was accepted on 6 August 2015 the Wyong Shire Council determination of their development application had already been conditionally approved (on 29 January 2015) and it contained reference to the access road in condition 14 which requires compliance with 4.1.3 (2) of the "Planning for Bush Fire Protection 2006".
The Recovered Aggregate Exemption 2014 (a copy of which was attached to Dr Marten's expert report is issued by the EPA under cll 91 and 92 of the Waste Regulation. In the introduction to the exemption, it states that it exempts a consumer of recovered aggregate from certain requirements und the POEO Act and the Waste Regulation in relation to the application of that waste to land, provided the consumer complies with the conditions of the exemption. It expressly states that this exemption should be read in conjunction with the Recovered Aggregate Order 2014.
Clause 1.1 states that the exemption applies to "recovered aggregate that is, or is intended to be, applied to land for road making activities, building, landscaping and construction works". "Recovered aggregate" is defined in cl 1.2 as "a material comprising of concrete, brick, ceramics, natural rock and asphalt processed into an engineered material", not including refractory bricks or associated refractory materials or asphalt that contains coal car.
The exemption applies to any person who applies or intends to apply recovered aggregate to land as set out in cl 1.1 (cl 2.1). Subject to the conditions of the exemption, the EPA exempts each consumer from certain specified provisions of the POEO Act and Waste Regulation, including s 48 of the POEO Act in respect of the scheduled activities described in cll 39 and 42 of Schedule 1 of the POEO Act (cl 6.1).
The conditions to which the Recovered Aggregate Exemption 2014 is subject are set out at cl 7. Clause 7.1 provides that: At the time the recovered aggregate is received at the premises, the material must meet all chemical and other material requirements for recovered aggregate under the 'recovered aggregate order 2014'.
Clause 7.2 provides that the recovered aggregate can only be applied to land in road making activities, building landscaping and construction works and goes on to state: … This approval does not apply to any of the following applications: … 7.2.7. Construction of roads on private land unless: (a) the recovered aggregate is applied only to the minimum extent necessary for the construction of the road, and (b) a development consent has been granted under the relevant Environmental Planning Instrument (EPI), or (c) it is to provide access (temporary or permanent) to a development approved by a Council, or (d) the works are either exempt or complying development.
Counsel for the Pullens emphasised the disjunctive "or" at the end of sub-clauses (b) and following. In other words, the Pullens' position, as I understand it is that if the material placed on the rights of way falls within the definition recovered aggregate then it is not necessary that the construction of the road be the subject of a development consent; it is sufficient that the construction of the road is to provide temporary or permanent access to a development approved by the Council (i.e., in this case the construction of a house on Lot 22).
The Smedleys contest the proposition that the condition at sub-clause (a) has been met but, whether or not the recovered aggregate was applied "only to the minimum extent necessary for the construction of the road, the difficulty is that the presence of asbestos in the road fill means that the material is properly classified as special waste (asbestos waste) and hence must be deposited and stored in accordance with applicable requirements for special waste. The exemption itself notes that the receipt of recovered aggregate remains subject to other relevant environmental regulations in the POEO Act and the Waste Regulation, expressly referring to "the special requirements for asbestos waste" (Part 7 of the Waste Regulation). In Foxman, Sheahan J expressly noted (at [134]) in relation to the exemptions relating to aggregate that: … the exemptions … exempt producers and consumers in only a limited range of specified matters. The material remains waste … and the exempted waste material remains subject to other environmental regulations, in particular the special requirements for asbestos waste, as Special Waste …
There, his Honour said (at [224]) that: Firstly, the use of exempted waste material remains subject to other environmental regulations in the POEO Act and Waste regulations. Regardless of whether an exemption applies or not, the material "remains" :special waste" as defined under the Act, because of the presence of asbestos (see [86] above). It was common ground that "special waste" cannot be exempted for use under the RAEs [recovered aggregate exemptions]
Similarly, in the present case, accepting Dr Martens' evidence and by reference to the definitions in the POEO Act, I find that the body of the material placed on the rights of way as a whole constituted special waste (because of the presence of the fragment discovered on Right of Way "A") and, as such, the Pullens cannot rely on the Recovered Aggregate Exemption (even if they could otherwise have established that the recovered aggregate had been spread only to the minimum required to construct the access road on private land - as to which I have my doubts). Thus they needed to obtain not only development consent to carry out road works on Lots 20 and 21, but also they needed an EPL for the placement of this material (being special waste) on the land, without which there is a contravention of both the EPA and the POEO Act.

[62]

(ii) Are the Pullens liable for damages for trespass and/or for damage to boulders on the Smedley property?

Turning back to the second issue arising under issue 5, liability for trespass to the property is said by the Smedleys to arise in two ways: first because of the unlawful nature of the works carried out and the placement of contaminated fill on the property (which has been dealt with above) and, second, as to the damage occasioned to the boulders on the property.
As to the boulders, the Smedleys say that the carrying out of work by the Pullens' electrical contractor, prior to the carrying out of the roadwork, caused damage to Lot 21 that extended to the crushing, scraping and defacement of several sandstone boulders on the land along the edges of the right of way. The Smedleys seek an order (at [7] of the cross claim) that the boulders be restored and replaced. Alternatively they seek damages for the trespass to the land involved in the damage to the boulders be paid, with that sum to be assessed (which would require a direction for a further hearing on that matter, or reference to a referee).
The evidence of Mr Pullen on this issue (given somewhat dismissively) was to query what is meant by "damage" and then to say) (T 74): Q. You acknowledge that your electrical contractors caused a certain degree of damage that's shown in the various photographs in these proceedings to those boulders? You acknowledge that? A. I don't - it depends what you define as damage. Q. Well, scraping and knocking-- A. Yes, there was scraping on them because they had to move them out of the way with an excavator, and then move them back when they finished. Q. I'm correct, aren't I, it seemed to me to be the case, but is your understanding that they are sandstone boulders? A. That's my understanding yes. There's lot, there's lot of them over both our properties.
The proposition that there are lots of boulders on the properties begs the question. I accept that the boulders are features of the landscape that the Smedleys consider attractive and they have a legitimate complaint at the damage occasioned thereto. If the Pullens are able to locate comparable (but undamaged) sandstone boulders (on their own property) to replace those that are damaged, they should have the opportunity to do so. Failing that, damages will have to be assessed.

[63]

Relief
The Smedleys submit that this is special waste deposited in an inappropriate location and it should be removed in its entirety (referring to the evidence at T252.24-50, T 244.23-50 and T 245.1-30).
The Smedleys ask that the Court to take judicial notice of the health risk posed by the presence of asbestos - referring to Kent v Wotton & Byrne Pty Ltd [2006] TASSC 8, Blow J at [12]), cited in Odgers, Uniform Evidence Law (12th Edition) at [EA. 144.60], commentary in relation to s 144: asbestos is dangerous, and can be deadly. The removal of asbestos, both from buildings still in use and from buildings being demolished, and the extreme care that needs to be taken by workers involved in its removal, are now facts of modern life. I think it is generally known that it is inhalation of asbestos that can result in death.
Counsel for the Pullens ultimately appeared to accept that the presence of the fragment of asbestos made this special waste in accordance with the Waste Guidelines, in the following exchange with Dr Martens: WITNESS MARTENS: Yeah, that's correct. We have one fragment and that makes it special waste in accordance with the criteria of the guidelines. VAN AALST: We understand that. There's no dispute about that. [my emphasis] The question is, from a pragmatic point of view, Mr De Silva suggesting, has he not, given an opinion that further tests be carried out in the area where this fragment was found to see if there are any other fragments or the existence of fibres in the vicinity. I'm not talking about the near vicinity, but Mr De Silva can indicate what sort of range he's looking at. Would you agree that that's the starting point to determine whether or not, on the probabilities, there is further asbestos on right of way A? WITNESS MARTENS: My opinion is quite simple: that asbestos has been found by Mr De Silva, not myself. That makes it special waste. As an access way, it is [not] an appropriate location to have a special waste deposit on private land. If 20 bags of dirt were collected over the next couple of days and they all did not show asbestos, that does not mean that asbestos is not present; that just means in those 20 bags of dirt that were collected no asbestos was present. All I'm saying very simply to the Court is: if that material were left on site and for whatever reason asbestos was no resampled in the next 20 bags of dirt, but there was asbestos present there - and my view is that there is a likelihood that the asbestos will be present in other locations - that presents an ongoing risk to human health at that site to both property owners. If it were my property, I certainly would not want any risk of asbestos‑contaminated waste laying on my land. That's the difficulty with this, and the difficulty is whilst, you know, with my 21 or 25 years of expertise looking at this type of material, I missed when I walked over the site observing asbestos. That's not unusual. I've been to many sites where I've missed finding asbestos and it's been found. It's difficult to find, particularly if it's below the surface. If it comes to the surface in the future because of soil and water erosion or because of the action of the vehicles, then that risk will represent itself in the future. The piece of asbestos that was found is very small. It's not really observable to the naked eye as you walk across the pavement. The risk of similar sizes of material, smaller pieces of asbestos that could easily be crushed and liberate respiratory fibres is real and is present at that site.
Dr Martens also said: … Because of the nature of the material, it is homogenous in colour and character, it is grey, the asbestos pieces are likely to be quite small and crushed and the material that's been found was a small piece, I think 3 or 55mm in size. Once a material like that has been found in a body of fill which has a uniform character, then there is a high likelihood of it being present in other locations and it is very difficult to undertake any level of sampling to say that it is free. Where the asbestos is suspected of being in larger fragments, visual inspection can be undertaken and careful sifting through the material, obviously with protective clothing and breathing apparatus and those sorts of things. Where it's already been processed and crushed and then mixed and redistributed, it's a very difficult - it, it really is the - an example of the same issue of if we, if we assume that the only place that it's likely to be located - sorry, the only place within the testing regime undertaken so far where there is asbestos is AH08, how far from AH08 would one go before one would say, "We would capture that material that's potentially contaminated with asbestos."
See also the evidence of Dr Martens extracted at [13] above.
In closing submissions, the central submission for the Pullens was that the works carried out by Tiny & Mighty on the rights of way were temporary, in order to enable Masterton to carry out the building works on Lot 22, and that it has been established that the Pullens' intention is to have a further surface laid on the right of way (referring to the letter dated 29 June 2017 from Szabo & Associates to Coleman Grieg and their response of the same date (Exhibit "U") relating to consent for the further works required as a result of the inspection of the accredited certifier. It was submitted that the surface laid down by the Pullens' contract was not intended to be the final product: "[t]he final product would come along once we get to the certifier examining the surface so that it complies with the RFS requirements and also to put down a more permanent surface than the original surface". Unfortunately, I have difficulty accepting that proposition where there is nothing in the contemporaneous documents that supports the proposition that the initial resurfacing was to be a temporary surface. The fact that it was laid down to satisfy Masterton's requirements for the building to commence, which Mr Smedley accepted in cross-examination, does not establish that proposition.
The Pullens nevertheless say that it will be a matter ultimately for the principal certifier (Mr Cohen) to examine the access road once the final surface has been laid to be satisfied that the access road complies with rural fire service (RFS) criteria. On that basis they contend that the construction of the access road over Right of Way "B" is not yet complete and that, for that reason and because of the discovery by Mr de Silva of the fragment of asbestos, there will have to be further testing of the material delivered and laid by Tiny & Mighty. They say that it will be a matter for the Council to determine, on the advice of an expert such as Mr de Silva, what tests should be undertaken and that it is not for this Court now to pre-empt that process. They say that the finding of the asbestos fragment in AH08 and the testing to be carried out to determine if there is evidence of other fragments or fibres of asbestos is a matter for the Council, not for the Court, knowing that the final surface for the access road and the materials to be applied are yet to be laid and tested.
I note that it is not suggested by Counsel for the Pullens that, irrespective of how much asbestos was found in the material laid by Tiny & Mighty, the Pullens could lay that material on the right of way in accordance with the Recovered Aggregate Exemption. (In that regard, there seems to be a tacit acceptance of the proposition that, to the extent that the body of material placed on the right of way contained an asbestos fragment, at the very least that material would not fall within the Recovered Aggregate Exemption.)
Rather, what Counsel for the Pullens says is that the asbestos found on Right of Way "A" has already been removed and the issue now is what tests have to be carried out as to whether or not there is any other asbestos on the respective rights of way. That proposition is not accepted by the Smedleys (nor by their expert, whose evidence was compelling in this regard), who maintain that the appropriate order (having regard to the multiple breaches and the fact that this is classified as special waste) is that the whole of the road fill should be removed and the land remediated.
Insofar as there is any suggestion that the accredited certifier could determine and deal with the issues in relation to waste and environmental matters arising under the POEO Act, the Smedleys point out that an accredited certifier under Pt 4A of the EPA Act has no responsibilities under the POEO Act and that the grant of development consent is something that only Wyong Council could give as the consent authority. Thus it is said that the involvement of the accredited certifier cannot "plug the regulatory gap" in terms of the licensing requirements under the POEO Act or the environmental/development issues under the EPA Act.
My concern is that the decision as to how best to deal with the special waste would best be made by the relevant environmental protection agency that deals with issues such as asbestos contamination. It is not for an accredited certifier (who is called upon to certify compliance with rural fire service requirements) to take on the role of determining matters as to the containment or removal of special waste. Both experts in the present case agreed that asbestos waste should be disposed of in a special (appropriately regulated) landfill site. As to the extent of the testing to be carried out, Counsel for the Pullens suggested that the first step would be for the certifier, being put on notice of the existence of the fragment of asbestos, to request an expert's advice (from someone such as Mr de Silva) as to what tests should be carried out and that at that time the EPA would be contacted "as a matter of course" by the certifier to notify the EPA of the finding of the asbestos and the tests which should be undertaken to determine whether or not there is any further asbestos anywhere in the field "so they work together". No such notification has apparently yet been made.
I raised the issue of notification to the authorities with the parties in the course of submissions. Counsel for the Smedleys referred to s 60 of the Contaminated Land Management Act (NSW), which provides that in certain cases there is a duty (on the part of both the owners of land and to those placing waste on the land) to notify the environment protection authority if certain specific matters are triggered. He submitted that the state of the evidence and the expert opinions obtained by the parties was such that the duty to notify had not yet been triggered under that legislation. Counsel for the Pullens, as adverted to above, considered that the notification would occur by the certifier after he had formed whatever view he forms as to compliance with the conditions of development consent.
There is an obligation on the occupier of premises on which a "pollution incident" occurs such that "material harm to the environment is caused or threatened" to notify the relevant authority (the EPA) (POEO Act, s 148). By reference to the definitions contained in the Dictionary to the Act, it is arguable that Part 5.7 of the Act imposes upon an occupier a reporting obligation in relation to the discovery of a "not trivial" amount of asbestos. Section 159 of the POEO Act sets out the requisite manner and form of the notification See also cl 101 of the Protection of the Environment Operations (General) Regulation 2009 (NSW)). The content of the required notification is set out in s 150 of the POEO Act. The meaning of "material harm to the environment" for the purposes of Pt 5.7 is set out in s 147.
Whether such an obligation has arisen at the present time may be unlikely, having regard to the submission made by Counsel for the Smedleys in relation to the duty under the Contaminated Land Management Act; and this was not debated (although, as I say, I raised the issue as to notification) in any detail in the course of argument.
Nevertheless, I am firmly of the view that if I accede to the urging of the Pullens not to make an order at this stage for the wholesale removal of the roadfill, it should be on the basis that the appropriate authorities are notified so that a determination can be made by those with expertise in the area.
I have concerns as to the evidence given by Mr de Silva on the issue of testing. His initial position was that further testing be carried out in the general area where the asbestos fragment was found and he was of the opinion that if no further asbestos was then found it could be assumed that the rest of the road fill could remain. Pressed by Counsel for the Pullens he then suggested that as a matter of prudence the testing could be carried out beyond Right of Way "B". I am troubled that this does not adequately address the serious risk posed by the presence of asbestos (albeit a small fragment of asbestos) on a site such as this (as identified by Dr Martens).
It may well be that the expense of extensive further testing would be such that the most sensible outcome at this stage (and one that the Pullens might find more palalable) would indeed be for the removal of the entirety of the road fill and proper remediation of the rights of way. And I am conscious that there were multiple breaches of the environmental protection legislation which cannot be condoned. However, at this stage, there having been no notification to the relevant authorities, I consider that the appropriate relief to be granted is to make the declarations sought as to the relevant breaches and to direct that the authorities be notified and that the Pullens comply (at their own expense) with whatever regime the EPA advises should be put in place to deal with the issue of asbestos contamination on the land.
If the road fill is removed, and the land is remediated (at the Pullens' cost) to the condition it was in before the road works, an issue may then arise as to whether further works are necessary to render the surface a trafficable surface to an "all weather" access standard (given my finding that on the balance of probabilities it was not to that standard before the road works). The Smedleys would be required under the terms of the easement to contribute to half the cost of any such further works. It strikes me that the sensible course would be for the parties to liaise once the position of the EPA in relation to the contaminated road fill is known, to avoid unnecessary costs of remediation of the rights of way to their former condition only for there then to be works required to render the surface a trafficable surface of an all-weather standard. Whether the relationship between the neighbours is such that a sensible approach will be taken in that regard is a matter about which I will not speculate.
The Smedleys submitted that, to the extent that the orders sought for rectification of the damage to Lot 20 and 21 and the right of way were not granted or were limited in their scope, damages should be awarded to them (for trespass to land) with the assessment of the amount depending on the scope of the restorative orders. (They accepted that they would not be entitled to damages if the Court were to order that the Pullens fully repair and remediate the right of way at their cost, other than in relation to the claim relating to the damages to the boulders.) In these circumstances the issues as to damages for trespass remains a live issue and there may need to be a further hearing in due course to address those issues.

[64]

Final observations

The present dispute has all the hallmarks of an unfortunate neighbourhood dispute in which the principal protagonists appear to have adopted entrenched positions and do not appear able or willing to approach issues in an objective fashion, which is regrettable when there appears to be scope for compromise on at least some of the issues in dispute.
So, for example, I would have hoped that the issue as to the difficulty Mrs Pullen says she has with the opening of G1 would surely have been able to be addressed co-operatively by the parties exploring different latch mechanisms (whether by reverting to the wood slider that was formerly there or otherwise); as also complaint as to the opening and closing of G2-4. I accept that there might well be costs issues involved, but those would also seem amenable to resolution in a cooperative fashion, particularly to the extent that any problems with the swinging mechanism of G3 or G4 (such as the apparent need from the video footage for someone opening G3 to lift and drag the gate across the road surface) are referrable to the way in which the road was resurfaced by the Pullens' contractors.
Similarly, the complaints made as to the obstruction to vision caused by the presence of the metal shipping containers could surely have been amenable to a sensible solution, particularly when Robert Smedley accepts that there would probably be other places where the containers could be located.
More difficult, I accept, are the concerns arising from Mrs Pullen's fear of cattle but they might have been able to be accommodated to an extent (or at least ameliorated) if the Pullens had an understanding as to what the usual or likely rotation programme would be for the movement of cattle from paddock to paddock (though I am not suggesting here that there would be any obligation on the Smedleys to obtain the Pullens' consent to such a rotation programme).
The situation with the gates appears to have been exacerbated by Mr Pullen's stance in persisting to leave open gates along the right of way notwithstanding his understanding that the gates serve a purpose in the management of cattle on the property and as to the Smedleys' concerns in that regard. Had there been a measure of co-operation between the neighbours it might well have been the case that a regime could have been agreed whereby, if the cattle were not in particular paddocks from which the right of way could be accessed then one or more of the gates could be left open but that if the gates are left closed then the Pullens (other than in exceptional circumstances) would agree to keep them closed after passing through them.
Concerns as to the deterioration to the road surface following the Pullens' road works might also have been able to be accommodated (perhaps by the appointment of an independent expert to advise as to what was necessary to rectify the position) and, similarly, there is no reason to think that some suitable arrangement as to replacement of the damaged boulders could not have been reached.
What no doubt might have been the most difficult issue would be how to accommodate the concerns held by the Smedleys and their expert (which I share as to the risks posed by the discovery of a fragment of asbestos near their driveway on the right of way, in view of the starkly different way in which the respective experts have suggested that issue be resolved. That said, I would have expected that the Pullens would share the concerns as to the health risks posed by the discovery of asbestos on the right of way (over which they anticipate their children may ride bicycles or horses), particularly given the concerns expressed by them as to other potential safety risks (such as their stated concerns as to the implications if there is an emergency for the additional time taken to open and close gates and the concerns as to the presence of cattle on the rights of way).
However, despite my encouragement (during the course and at the close of the hearing) that the parties seek to explore possible acceptable compromises, that has either not occurred or has not borne fruit; and perhaps that is not surprising given that others before me have expressed similar forlorn hope for sensible compromise by neighbours (see for example the comments of Napier J in Gohl v Hender).

[66]

In the easement proceeding (2016/00140145) 1. Order the defendants to remove the Metal Shipping Containers off the right of way referred to in these reasons as Right of Way "B" (being the right of way on Lot 21 DP 1163020 (Lot 21) indicated on that deposited plan and created by the s 88B instrument registered on 5 April 2011 (Right of Way "B"). 2. Declare that the conduct of the plaintiffs/cross-defendants in leaving open any of the three farm gates erected across Right of Way "B", after opening and passing through those gates in the exercise of their rights under the said s 88B instrument, amounts (in the absence of sufficient reason or excuse to do so on any particular occasion, as explained in these reasons) to an unreasonable use of their rights under the said s 88B instrument and is not permitted thereby. 3. Declare that the conduct of the plaintiffs/cross-defendants in leaving open the second farm gate erected across the right of way referred to in these reasons as Right of Way "A" (being the right of way on Lot 20 DP 1163017 (Lot 20) indicated on that deposited plan and created by the s 88B instrument registered on 5 April 2011 (Right of Way "A"), (referred to in these reasons as G2), after opening and passing through that gate in the exercise of their rights under the said s 88B instrument, amounts (in the absence of sufficient reason or excuse to do so on any particular occasion, as explained in these reasons) to an unreasonable use of their rights under the said s 88B instrument and is not permitted thereby. 4. Note that the Court does not accept a fear of cattle to amount to sufficient reason or excuse to leave any of the said farming gates open after having opened them in the exercise of rights under respective s 88B instruments. 5. Declare that the placement, deposit and spreading by the plaintiffs/cross-defendants of material (the Road Material) in the period August to September 2015 on part of Right of Way "A" and on Right of Way "B", constitutes a trespass to land by reason of being carried out without the consent of the defendants/cross-claimants and not being within the rights conferred on the plaintiffs/cross-defendants pursuant to either of the respective s 88B instruments creating the respective rights of way. 6. Order that the plaintiffs/cross-defendants notify the local Council and the Environment Protection Authority (EPA) in writing within 7 days as to the discovery of the fragment of asbestos on Right of Way "A" and provide copies to those authorities of the expert reports obtained from Dr Martens and Mr de Silva and tendered in these proceedings; and that the plaintiffs/cross-defendants comply with any direction by the EPA as to the containment or removal of part or all of the Road Material and thereafter remediate the rights of way so far as possible to restore them to their former condition as they existed prior to the placement, deposit and spreading of the Road Material. 7. For the avoidance of doubt if the EPA determines that the Road Material cannot be appropriately contained and should be removed, or otherwise is not able or not prepared to determine within a reasonable time a regime for the containment or removal of the Road Material, the defendants/cross-claimants have liberty to apply on reasonable notice for the making of orders for the removal by the plaintiff/cross-defendants of the entirety of the Road Material and remediation of the land at their cost. 8. Declare that the damage caused by the plaintiffs/cross-defendants to several large boulders on and in the vicinity of the respective rights of way in the course of road works carried out by them in or about August- September 2015 constitutes a trespass to land, by reason of it not being carried out with the consent of the defendants/cross-claimants and not within the rights conferred on the plaintiffs/cross-defendants pursuant to either of the respective rights of way. 9. Order that the damaged boulders each be replaced by the plaintiffs/cross-defendants at their cost with boulders of comparable size and appearance brought from off the plaintiffs/cross-claimants' property. 10. Reserve question of damages for trespass pending compliance with orders 6, 7 (if applicable) and 9 above. 11. Otherwise dismiss the plaintiffs' claims in the proceedings. 12. Reserve the question of costs. 13. Direct that written submissions as to costs be served within 7 days with the intent that costs will be determined on the papers. 14. Liberty to the parties to apply on 3 business days' notice for any amendment or variation of these orders and for directions in relation to the assessment of damages.

[67]

In the transferred proceeding (2016/00366908) 1. Declare that the respondents have carried out work (Work) on land being Lot 20 DP 1163017 and Lot 21 DP 1163020 (the Land) being development for the purposes of a private road, or alternatively for the purposes of a dwelling house, by constructing a road surface using imported fill being the access road to their dwelling house on adjoining land within their rights of way over the Land but without development consent, when development consent was required for the carrying out of work for either purpose within the E3 Environmental Management zone applying to the land under the Wyong Local Environmental Plan 2013, contrary to 76A Environmental Planning and Assessment Act 1979 (NSW). 2. Further declare that the respondents by carrying out the Work have carried out prohibited development on the Land being development for the purposes of a waste facility, which is an innominate prohibited use under the Wyong Local Environmental Plan 2013, contrary to 76A Environmental Planning and Assessment Act 1979 (NSW). 3. Declare that the respondents have used the Land as a "waste facility" contrary to s 144 of the Protection of the Environment Operations Act 1997 (NSW) by placing, depositing and spreading on the Land material within the definition of "waste" in that Act being imported fill being building waste and crushed concrete waste derived from concrete, brick, tile and pipe and trace pieces of steel, alloy and timber (the Road Material). 4. Note and confirm the orders made in the associated (easement) proceeding (2016/00140145) in relation to the notification to the local council and Environment Protection Authority (EPA) as to the discovery of asbestos and for compliance with any direction by the EPA as to the containment or removal or part or all of the Road Material. 5. Reserve the question of costs. 6. Direct that written submissions as to costs be served within 7 days with the intent that costs will be determined on the papers. 7. Liberty to the parties to apply on 3 business days' notice for any amendment or variation of these orders and for directions in relation to any further relief to be granted following compliance with the orders made in the associated (easement) proceeding.

Pullen v Smedley

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Judgment (68 paragraphs)

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Legislation Cited (8)

Cases Cited (29)

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