Simpson & Anor v Bagnall & Anor

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

1815/00 - JAMES DAVID SIMPSON & LYNNE ELIZABETH SIMPSON v STEPHEN DAVID BAGNALL & LORIS LORRAINE STEVENSON

1 This litigation arises out of an acrimonious and sometimes violent dispute in the otherwise serene and beautiful Taylors Arm Valley (the Valley) in the Parish of Medlow and the County of Raleigh in an area known as Burrapine near Macksville on the North Coast of New South Wales. The dispute arises out of problems the plaintiffs have been experiencing in gaining access to their property which is landlocked from the public road, Taylors Arm Road. 2 The proceedings were expedited and heard in Coffs Harbour on 17, 18 and 19 July 2000. A view of the area was conducted on the afternoon of 17 July 2000. Some further documentary evidence was filed with written submissions in Sydney on 28 August, 2000 when judgment was reserved. Mr C Hodgson, of counsel, appeared for the plaintiffs and Mr L. Gyles, of counsel, appeared for the defendants.

Properties in the Valley 3 The plaintiffs are the registered proprietors of Portions 62 and 63 being the whole of the land, excluding the road shown in the title diagram, in Certificate of Title Identifier 5250-138 (the plaintiffs' property). The defendants are the registered proprietors of Portion 23, also excluding the road shown in the title diagram (the defendants' property), which is situated immediately to the south of the plaintiffs' property. Neither property has direct access to the public road, Taylors Arm Road, which is to the east of and runs parallel with the eastern boundaries of both properties. 4 Between 1962 and about 1973 the plaintiffs' property was owned by Mr Young, the brother of Douglas Young, a witness in these proceedings. It was then owned by Robert McWilliam, also a witness in these proceedings, between 1973 and 1982. The male plaintiff became the registered proprietor on 3 March 1982 and the plaintiffs are now the registered proprietors. 5 The defendants purchased the defendants' property in about December 1996 from Gavin Roy Stack and Regina Debbie Grzelczak (Stack and Grzelczak). Stack and Grzelczak had purchased it some time in or after 1993 from Alan and Mary Ann Carruthers. Prior to that Allen Agricultural Pty Ltd, the principal of which is David Ven Allen (Ven Allen), had owned it since 1983. 6 Immediately to the south of the defendants' property is Portion 22, the registered proprietor of which is Mr C Hansen who purchased the property in approximately 1993 (the Hansen property). 7 Directly to the south of the Hansen property is Portion 40 the registered proprietor of which is Mr A G Sessions who purchased it in 1996 from Mr L Reed, who had owned the property since 1982 and had lived there between 1987 and 1996 (the Sessions property). 8 Immediately south of the Sessions property are Portions 76 and 64, the registered proprietors of which are Neville and Gwendoline Stack, the parents of Gavin Roy Stack, who purchased the property in 1991 from A L Schultz who had owned it since 1983 (the Stack property). None of the properties referred to above have direct access to Taylors Arm Road. 9 Immediately south east of the Stack property is a portion of land owned by the Bowraville Local Aboriginal Land Council (the ALC property) which has direct access to Taylors Arm Road. 10 The upper reaches of the Taylors Arm River (the River) runs through or forms the eastern boundary of each of the plaintiffs', defendants', Hansen, Sessions, Stack and the ALC properties. A Crown Public Reserve road (the Crown road) crosses each of these properties and the River in the ALC property before it intersects with Taylors Arm Road from the ALC property. There is a bridge across the River in the ALC property which has been referred to in these proceedings as the southern bridge. 11 To the south west of the Stacks and the ALC properties is Portion 43 which has been owned by Rodney Jarmain since 1988 (the Jarmain property). Mr Jarmain gains access to his property from Taylors Arm Road via the Crown road through the ALC property across the southern bridge and through the southern portion of the Stack property through which the Crown road travels. 12 At the north east corner of the plaintiffs' property the Crown road travels east across the plaintiff's eastern border with and through a small area of land, described in a map (Ex. C) as part of DP 836767 and apparently owned, at least in 1988, by Lance Foley (the Foley property), where it crosses the River and then intersects with Taylors Arm Road. 13 Immediately north of the plaintiffs' property is Portion 8, the registered proprietors of which are Wayne John Irvine and Dixie Michele Irvine (the Irvine property). The Crown road does not traverse any part of the Irvine property which has direct access to Taylors Arm Road. 14 The Irvine property was previously owned by Kenneth Rex Brown and Heather Florence Brown (the Browns) between 1982 and 1993 and by Neil Young and Helen Maree Young (the Youngs) from 1993 until the latter part of 1996 when the Irvines purchased the property. 15 To the west of the plaintiff's property is Portion 115, the registered proprietor of which is Edward Borg (the Borg property). The Borg property does not have any direct access to Taylors Arm Road and ingress and egress is through the other properties, the details of which appear later in this judgment.

The Plaintiffs' Property 16 The plaintiffs' property consists of approximately 330 acres upon which there are growing 2,500 macadamia trees. There are a further 10,000 to 15,000 young macadamia trees growing in a greenhouse constructed at the rear of the homestead. The plaintiffs also use part of their property for the agistment of cattle for which they receive some income. 17 Improvements on the land consist of a house in which the plaintiffs live, cattle yards, sheds and three internal bridges. The terrain is hilly in parts and one of the internal bridges is below a small dam which apparently floods during heavy rain and takes the bridge out of operation until the flooding subsides.

The Defendants' property 18 There is some hilly terrain on the defendants' property, however there are flat areas where the homestead is situated and also north of the homestead. There are also some steep slopes including the gully to which reference is made later in this judgment. 19 Mr Bagnall also owns other land in the area and apparently uses part of the track, referred to below, to access those properties and also to conduct boundary checks on the defendants' property from time to time. The defendants have not lived on the property since it was purchased in 1996 but intend to reside there later in the year. 20 Mr Bagnall claimed that he and his partner wish to grow mango trees and vegetables in the area where both the Crown road and the track traverse the property to the north of the homestead. He gave evidence that he would not have completed the purchase of the property if there were to be public roads on it. However the title search of the defendants' property contains two notifications relevant to this claim. They are: "Land excludes the road(s) shown in the title diagram" and "Subject to pre-acquisition notice for road purposes pursuant to sec. 185 of the Roads Act 1993", reference to which is made later in this judgment.

The Crown Road and the Track 21 The Crown road has been impassable in places for some years. On the Stacks' property two houses are built across the Crown road. On the Hansen property and partly on the defendants' property there is a garage and part of a house built across the Crown road. 22 In the middle of the defendants' property travelling north towards the plaintiffs' property the Crown road descends into very steep and impassable terrain which is apparently mapped as Protected Land under section 21(B) of the Soil Conservation Act, 1938 and a formal authority for clearing would be required from the Soil Conservation Service. This option has been discouraged by the Department of Land and Water Conservation (the Department) as "impractical". 23 The Crown road is not sealed and it is apparent that because these parts to which I have referred are impassable land owners have used a track (the track) slightly to the west of the Crown road. In the area of the steep descent on the defendants' property, referred to in the proceedings as the gully, there is a semi-circular track to the west of the Crown road which leaves the Crown road at the beginning of the gully, traverses in the semi-circle to the north west and travels back in the semi-circle north east to meet up again with the Crown road at the other end of the gully. 24 In 1995 the plaintiffs commissioned a survey of the Crown road as it traverses the Stack property (64 & 76), the Hansen property (22), the Sessions property (40) and the defendants' property (23) to the boundary of the plaintiffs' property (63). That survey, together with diagrams of the position of the buildings erected on the Crown road, appears in Schedule 1. Taylors Arm Road 25 Taylors Arm Road is a public road travelling parallel with the eastern boundaries of all these properties. To the south east is Macksville and the Pacific Highway. To the north west are more rural properties and a possible access through what has been described as a dirt tack to Armidale. 26 Taylors Arm Road is a dirt and gravel road and is maintained by the Nambucca Shire Council. Travelling along the road from Macksville to the entrance of the Crown road at the ALC property, which is just north west of Apple Tree Creek, the road, although winding and undulating, has no major steep slopes on either side. 27 Travelling south from the Irvine property back towards Macksville is a different matter. The are some steep hills through which the road winds, sometimes reasonably sharply, from which there are steep slopes on either side of the edge of the road into the Valley below. 28 There was no expert evidence called about the safety of this road. The plaintiffs claim it is "dangerous" in the area between the Irvine property and the ALC property. The defendants point to the fact that it a public road used by a 23 seater school bus and many other services. It is submitted that in those circumstances it could not be described as dangerous. 29 On the evidence before me, including the view, I am not in a position to find that the road between the Irvine property and ALC property is dangerous but it is obviously somewhat more difficult to manoeuvre than the section after the ALC property travelling to Macksville.

History of use of the Crown Road and Track 30 The plaintiff, Mr Simpson, gave evidence by way of a number of affidavits and was also cross examined. Some of his affidavit evidence proved to be quite inaccurate. In his affidavit of 17 March 2000 Mr Simpson gave evidence that that the Crown road and track, referred to in this judgment as the southern route, was the route over which he travelled for an uninterrupted period of thirteen years from 1982 to 1995. 31 During cross examination it was established that Mr Simpson had not used the southern route until 1987/1988. Between 1982 and 1987/88 he used the northern route to Taylors Arm Road through the Irvine property, then owned by the Browns. There was a bridge over the River at the northern border of the plaintiffs' property adjacent to the Irvine property. After crossing this bridge the plaintiff, with the Browns' permission, was able the travel about 100 metres diagonally across the south eastern corner of the Irvine property to Taylors Arm Road. 32 This northern access suffered a rather abrupt interruption in about 1987/88 when Mr Brown burnt the bridge down and then chainsawed the remains after a dispute with Mr Simpson. Although it seems that Mr Simpson was subsequently permitted to travel across a portion of the paddock, this access was also cut off after a further dispute with Mr Simpson about rubbish being left in the paddock and the plaintiffs' dogs chasing Mr Brown's cattle. The relationship between Mr Brown and Mr Simpson seems to have been quite volatile at times and Mr Brown alleges that Mr Simpson threatened to shoot him when he refused him access through to Taylors Arm Road. 33 After this dispute Mr Simpson approached Ven Allen, who then owned the defendants' property, and requested and was given permission to travel through his property on the Crown road and track to access Taylors Arm Road to the south. Mr Simpson's oral evidence was that he used this southern route between 1987/88 and 1995 when problems to which reference is made below arose. Since 10 July 1995, but for a two week period in August 1997, the plaintiffs have once again used the northern route after a new bridge was constructed over the River on the northern boundary in place of the bridge that was burnt down. 34 Edward Borg gave evidence by way of affidavit and was not available for cross examination. No application was made in respect of Mr Borg's unavailability however it was noted that the parties accepted that Mr Borg had not always lived in the Borg property during the relevant period (which is taken to be during his ownership of the property) and that he currently had access to his property through the Irvine property or another access route further north. 35 Mr Borg purchased his property at about the same time Mr Simpson purchased the plaintiffs' property in 1982. At the time of the purchase the access to the Borg property from Taylors Arm Road was along the southern route along the Crown road and track. Mr Borg used the southern route until late 1994 or early 1995. 36 During this period, apart from seeing the plaintiffs' and Jarmains' vehicles on the southern route, Mr Borg also observed vehicles from the Police Service, the Ambulance Service, Telstra, Northpower, and the Fire Brigade. The use by these various services was also observed by Mr Reed. A Mr Argue agisted his cattle on the Borg property, and later on the plaintiffs' property and from time to time transported the cattle in a cattle truck over the southern route. This was observed by Mr Simpson, Mr Borg and Mr Jarmain. 37 About two or three times per year during those thirteen years Mr Borg graded the southern route using his tractor fitted with a blade. When needed, he, Mr Simpson and Mr Jarmain put gravel on the Crown road and track, particularly on the damp areas. In 1991 it seems that almost all the landholders who used the southern route cooperated in a "working bee" to repair and strengthen the southern bridge which had been damaged by rain, flooding and general wear and tear. 38 Mr Jarmain also used the southern route to obtain access to and from the Borg property particularly when Mrs Borg provided baby sitting services for his young daughter. In the early to mid 1980s this involved about two or three trips per week between the two properties along the southern route. 39 Mr Reed used the southern route for access to his property for the whole of the period he lived on the property between 1987 and 1996 when he sold the property to Mr Sessions. 40 Between 1962 and about 1973 Mr Douglas Young's brother owned the plaintiffs property. Mr Douglas Young gave evidence of travelling on the track to the north of the position of the house on the defendants' property. His recollection was that there was always a track there and a gate into the plaintiffs' property from the defendants' property. Mr Young remembered Mr G Killmore, who was the Fire Brigade captain during this period, maintaining the track. 41 Between 1973 and 1982 Mr Robert McWilliam owned the plaintiffs' property. During that period Mr McWilliam's son lived on the property and Mr McWilliam lived on what is now the ALC property. He gave an historical perspective of the landholdings in the Valley and claimed that the majority of the properties to which reference has been made were part of what was known as the Killmore estate. The Killmore homestead together with a sawmill were situated on what is now the Hansen property and, in stark contrast to Mr Young's evidence, Mr McWilliam understood that the southern route finished at that homestead. 42 Mr McWilliam was not aware of the southern route beyond the point of the old Killmore homestead until 1996 when it was pointed out to him on a map by Mr Neville Stack. He said that whenever he had visited what is now the plaintiffs' property he did so via the northern route through the Irvine property, usually on horseback but at times in a vehicle. 43 Ven Allen gave evidence of the work that he did to maintain the southern route between 1983 and 1993 when he sold what is now the defendants' property to the Carruthers. This was the route that Ven Allen used to access his property from the Taylors Arm Road and was the route that he permitted the plaintiffs to use when the northern route was cut off. He said that more construction and maintenance work was done on the route between 1983 and 1989 than after 1989. This work was done to make the route trafficable and was traversable by a 2 wheel drive vehicle except during periods of very heavy rain. 44 From all the evidence it seems to me that the southern route, the Crown road and the track, has been used at least since 1982 by Messrs Borg, Ven Allen, Reed, and later by Messrs Hansen and Stack. The plaintiffs have used it from 1987/88 to 1995 and for a short period in 1997. It is also clear that up until 1995 a spirit of cooperation existed amongst the landholders in this part of the Valley for the construction and general maintenance of the southern route.

Problems in the Valley 45 On 10 July 1995 Stack and Grzelczak erected a gate across the track on the southern route. The gate was locked and the plaintiff was not provided with a key. This action caused problems and arguments, including a physical altercation between the male plaintiff and Stack and Stack's father. At about the same time Mr Borg was involved in a verbal joust with Stack, Stack's father and one of Stack's brothers when he rode his horse down the southern route to the area where the gate had been installed. He was refused access and claims he was verbally abused by the Stacks. 46 There is no doubt that relationships in this part of the Valley turned sour in 1995. The plaintiffs allege the "problems" commenced after the Stacks moved into the Valley and the gate was installed across the southern route. There is no doubt that Mr Simpson has displayed some very spirited and even wild behaviour which has been unacceptable to the Stacks and Hansens. This has included the use of foul language, the tooting of car horns at night and threats that houses erected on the Crown road may be "removed". It is not clear to me whether this wild behaviour preceded or postdated (or both) the cutting off of access from the north to the southern route. 47 I have also heard evidence about gun shots being fired over the plaintiffs' property and damage to the defendants' property, including broken windows and damage to an air conditioning unit and a door. The plaintiffs have been present in their home when the shots have been fired. Mr Bagnall visits the defendants' property every couple of months and when the damage to the property was noticed he put a locked gate at the southern border of his property, which was also damaged subsequently. 48 There has been no evidence called upon which I could make a finding as to the identity of the perpetrators of the damage to the defendants' property or the persons discharging the firearms in the direction of the plaintiffs' property. However the evidence of the general unrest between the parties and between the plaintiffs and the Stacks and the Hansens is relied upon by the defendants in resisting the plaintiffs application.

Previous proceedings 49 The plaintiffs commenced proceedings against Stack & Grzelczak and the Stacks in this Court in which the plaintiffs sought a declaration pursuant to s 4(2) of the Inclosed Lands Protection Act 1901 (the ILP Act) that the centre of the existing track traversing Portion 23 (then owned by Stack and Grzelczak) and Portions 64 & 76 (the Stack property) be deemed to be the centre of the existing Crown road on those properties (the 1995 proceedings). 50 The 1995 proceedings were heard by Hulme J who delivered judgment on 15 October 1996. His Honour dismissed the Summons on the basis that the operation of subsection 4(2) of the ILP Act was as a defence to a prosecution and that the respective civil rights of the parties involved were not affected: Simpson v Stack & Grzelczak ( Hulme J, unreported, NSWSC, 15 October 1996). 51 The plaintiff appealed from Hulme J's judgment and that Appeal was settled on 5 August 1997. At that stage the parties to the proceedings were the plaintiffs as Appellants, Stack and Grzelczak as First Respondents, the Stacks as Second Respondents and the present defendants as Third Respondents. The defendants' then solicitor, G R Locke, filed a submitting appearance for the defendants as third respondents to the Appeal. 52 One of the matters noted in the Consent Orders made on 5 August 1997 was that the Stacks undertook not to deliberately obstruct the southern route. Another matter noted was an undertaking given by the plaintiffs not to permit or allow any vehicle weighing more than 3 tonnes to cross the southern bridge or to use the southern route in an unreasonable manner.

Deed of Agreement 53 On 19 July 1996 the Youngs, the Irvines, Stack and Grzelczak and the Stacks entered into a Deed of Agreement. The Irvines agreed that they would grant to the plaintiff, Mr Simpson, who was not a party to the Deed, a "formal registrable right of carriageway" over the Irvine property which was described as an "access road" in a plan which was annexed to the Deed. 54 The granting of the formal registrable right of carriageway was to be "in consideration for proper and adequate compensation" from Mr Simpson "in accordance with the registered valuer's assessment of the value of such carriageway, and all costs associated with the granting of such carriageway including survey fees, conveyancing and registration fees". The consideration for the covenant by the Irvines was an agreement by Stack and Grzelczak to refrain from issuing a Cross Claim against the Irvines in the 1995 proceedings.

Further Problems 55 Within weeks of the settlement of the Appeal problems arose between the plaintiffs and the defendants as a result of the defendants bulldozing mounds of soil across the track which prevented the plaintiffs from using the southern route. The plaintiffs' solicitor wrote to the defendants' solicitor on 26 August 1997 suggesting that the undertaking by the Stacks was, by implication of the defendants submitting appearance, applicable to them and that it had been breached. There appears to have been no response to this letter and the defendants subsequently changed solicitors. 56 No further communication appears to have occurred between the parties for about two years. On 11 August 1999 the plaintiffs' solicitor wrote directly to the defendants complaining that the defendants had erected a gate across the track preventing the plaintiffs from using the southern route. This letter confirmed that the plaintiffs had been "forced" to use the northern route to Taylors Arm Road through the Irvine property. The unsatisfactory features to this northern route were particularised as follows: · the arrangement of the internal bridges on the plaintiffs property were designed for access via the track or southern route; · the northern route involved traversing private land not owned by the plaintiffs; · the internal bridges on the plaintiffs' property were not substantial enough to carry the weight of vehicles required for the plaintiffs' proper use of the land; · the northern route required a key to unlock gates necessitating the plaintiffs to attend whenever anyone wished to enter the plaintiffs' property; and · the northern route was a greater distance to and from Macksville. 57 The letter requested the defendants to grant an easement to the plaintiffs "2 metres wide, along the actual track" and advised that the plaintiffs were of the view that: · use of the land, over which the "actual track" passes, was not inconsistent with the public interest; and · the defendants would be adequately compensated for any loss or disadvantage, which would arise from the imposition of the easement, by the payment of $1.00. 58 The defendants new solicitors, Graham Barrett & Associates, responded on 17 August 1999 claiming that the plaintiffs access to the north to Taylors Arm Road was only 180 yards from their property whereas the southern access was more than 4.5 kilometres and involved a number of properties. The letter also advised that the area over which the easement was sought effected "the most arable areas" of the defendants' property. The offer of $1.00 compensation was rejected as "ludicrous".

The Roads Act 1993 Applications 59 In December 1996, with the encouragement of the Department, Mr Borg lodged an application pursuant to the provisions of the Roads Act 1993 for the opening of a public road over the southern route. The department undertook to waive the administrative fees and to bear the substantial costs associated with completing the necessary survey work. Following the advertising of the application in the local newspaper the plaintiffs also lodged an application in April 1997 for the opening of the public road to cover the separate turn-off to the plaintiffs' property at the northern boundary of the defendants' property. 60 The Roads Act 1993 is an Act which makes provision with respect to the roads of New South Wales. It repealed the State Roads Act 1986 and The Crown and other Roads Act 1990. A public road is defined as (a) any road that is opened or dedicated as a public road whether under the Act or any other Act or law; and (b) any road that is declared to be a public road for the purposes of the Act (s 4). A "Crown road" is defined as a public road that is declared to be Crown road for the purposes of the Act (s 4). 61 Application can be made to the responsible Minister (the Minister) for the acquisition of land for the purposes of a public road (s 182). The Minister may by notice published in the gazette acquire the whole or any part of the land to which the application relates (s 182(3)). The Minister has to decide whether to deal with the application or refuse to deal with it (s 184(1)). If the Minister decides to deal with the application the Minister is required to give notice to the Registrar-General of the decision to deal with the application (s 185). 62 Once the Minister decides to deal with the application, a notice of that fact must be published in the local newspaper and served on each person who is an apparent owner of the land affected (s 184(2)). The notice, amongst other things, is required to state that if the land is acquired any person having an interest in the land will be entitled to compensation so long as the person has lodged a claim of interest with the Minister (s 184(3)(e)). 63 If the Minister decides to continue with the proposed acquisition the Minister must determine each claim of interest and if such claim is rejected reasons must be given for such determination (s 187(2)). After the claims of interest have been determined the Minister is required to give notice of the decision to continue with the proposed acquisition of the land to the applicant and to each person whose claim of interest has been accepted (s 189(1)). Any person from whom an interest in land is acquired under the Act is entitled to compensation from the Crown for the land acquired (s 190(1)). 64 The applicant is required to pay to the Crown the amount of any compensation to be provided together with any costs incurred by the Crown in connection with the provision of any compensation (s 190(6)). The amount of the compensation is determined, relevantly to this case, either by agreement between the applicant and each person whose claim has been accepted or, failing agreement, by the Land and Environment Court (s 191). If there is no agreement the claimant, the applicant or the Minister may apply to the Land and Environment Court to determine the compensation to be provided (s 193). 65 In February 1997 Notification was given by the Minister that he was considering the acquisition of lands within the ALC property, the Stack property, the Sessions property, the Hansen property and the defendants' property generally following the existing track in use as depicted by broken line on the diagram provided with the Notification. The Notification also announced that in connection with the proposal the Minister also intended to consider the closing of unnecessary Crown public roads traversing the same properties as shown by hatching on the diagram provided with the Notification. That diagram appears in Schedule 2. 66 In May 1997 the plaintiffs were advised that the Minister had decided to deal with the plaintiffs' application and received notification that the Minister was considering the acquisition of the lands within the defendants property generally following the track depicted in the diagram enclosed with the Notification. That diagram appears in Schedule 3. 67 On 3 December 1997 the plaintiffs were notified by the Department that the application had been approved "subject to a survey being undertaken and to satisfactory agreements being reached regarding compensation". The plaintiffs were also advised that the Department was arranging to undertake a survey "as soon as practicable" and a copy of the registered survey plan would be provided to them when it was available. 68 On 19 May 1998 the plaintiffs received further notification which appears to be a notification consistent with a decision having been made by the Minister pursuant to s189(1) of the Roads Act 1993 in the following terms: "After consideration of all submissions lodged in response to advertising the above application it has been approved that the proposed road opening as shown by red colour in the attached diagram may proceed subject to survey being undertaken in the first instance, and subject to compensation agreement being reached between yourselves and the affected land owners. The claim of interest lodged with this Office by S.D. Bagnall and L L Stevenson in respect of the land proposed to be acquired has been accepted by the Minister. Following completion and registration of the plan of survey you will be notified to commence any necessary compensation negotiations with Mr Bagnall and Ms Stevenson. In the meantime this department will now arrange for the completion of the survey of your application, as shown on the attached diagram, and the subsequent registration of a plan at the Land Titles Office. A departmental surveyor is in the process of undertaking the survey in conjunction with the application by E P Borg. When the survey has been registered with the Land Titles Office I will forward you a copy together with notification to proceed with compensation negotiations with the claimants, Mr Bagnall and Ms Stevenson." (Ex. J) 69 There appears to have been no further communication from the Department between May 1998 and October 1999 when Mr Borg telephoned the Department. He was advised by letter from the Department dated 29 October 1999 that the "road plan" had been "partially completed". He was also advised that the anticipated completion had been further delayed because the Department's "technical resources in the survey/drafting area are limited and unavoidable delays are being experienced in this office". The letter stated that "every effort is being made to bring this matter to finality and hopefully a copy of the final plan will be available in the near future". The Department thanked Mr Borg for his patience and understanding. 70 It is apparent that the plaintiffs and Mr Borg approached the local member of Parliament who also made representations on their behalf to the Department. On 19 November 1999 the Department wrote to Mr Andrew Stoner MP, Member for Oxley. The letter recounted much of the history of the disputation between the plaintiffs and Mr Borg on the one hand and the Stack family on the other and then stated:- "An identification survey commissioned by the Simpsons confirmed that several buildings owned by Mr and Mrs Stack are located on the road reserve. The physical relocation of the track from freehold land to the legal road reserve is not a practical option due to the constraints mentioned. For environmental reasons the Department is not prepared to consent to construction of the significant section of unformed road reserve where it crosses a steep gully. The initial circumstances limited the effective role of the Department of Land and Water Conservation in the dispute. It is our view that the department does not have an enforceable duty to remove works or obstructions unlawfully erected on a Crown road by another party. In such cases it is considered preferable that the parties involved seek a more practical solution. The people involved, including the Stack family, were advised to legalise the existing track where it is situated on freehold land. This would allow the unnecessary sections of Crown road to be closed which in turn would enable the Department to dispose of the land subject to the unauthorised encroachments. Alternatively the onus would be on the Simpsons and Mr Borg to commence legal proceedings to have the unauthorised structures removed." (Ex. J)

71 The department notified Mr Stoner that the Nambucca Shire Council had been approached in relation to the matter but had opposed transfer of the road to its control unless it was upgraded to normal subdivision standards. The letter then concluded in the following terms:- "The current road opening application has been in abeyance whilst the Department completes the necessary plan of survey. Unfortunately unavoidable delays have been experienced due to the limited technical resources available in the Grafton Office. Notwithstanding the constraints the survey has now been completed and drafting of the linen plan is currently being finalised. In the circumstances this has been a complex and expensive exercise. Whilst the delays are regrettable the department is bearing all administrative costs associated with the application and in doing so has made a significant contribution to resolving the access problems confronting the Simpsons and Mr Borg. This case is unique on the North Coast in this regard." A copy of the registered plan will be forwarded to affected parties as soon as practicable to enable the negotiation of compensation to proceed. Gazettal of the road opening is dependent on the affected parties reaching agreement. If agreement cannot be reached the question of compensation may need to be referred to the Land and Environment Court for determination". (Ex. J) 72 During the course of the hearing of this matter the plaintiffs' solicitor telephoned the Department to make further inquiry on the status of the matter. On 18 July 2000 the Department wrote to the plaintiffs' solicitor in terms almost identical to those contained in the letter to Mr Stoner but with the following addition: I regret that I am unable to nominate a firm completion date. However my office has just completed its draft business plan for the year. There are only three surveys on the program at this time and I have allocated sufficient time to complete this survey this financial year. On known priorities it is expected that the plan will possibly be completed during the first quarter of the year." (Ex. K) 73 The proposed acquisition of land by the Minister for the purpose of opening the road with a consequential closure of the present Crown road is an acquisition of land including the identical portion of the land in the defendants' property over which the plaintiffs ask this Court to make orders. Should the Minister acquire the land it becomes Crown land. That land is free of all trusts, restrictions, dedications, reservations, obligations and interests (s 202(1)). However there may be excepted from such an acquisition any easement which is specified in the notice affecting the acquisition and to which the land was subject immediately before the acquisition. In those circumstances the restriction continues to have affect as if the acquisition had not taken place (s 202(2) and (3)). 74 Although there has been what seems to be an inordinate delay of nearly four years in this process, for which the Department has expressed regret, all that seems to remain to be done for the opening of the public road is the registration of the survey/plan with the Land Titles Office and the agreement or determination of compensation. 75 Once this is concluded the Plan can be gazetted and the road formally opened. The public road will be over the southern route which will avoid the buildings erected on the Crown road thus giving the owners of those properties the benefit of that land which is presently the Crown road. Any agreement or determination of compensation would probably take these matters into account. The proposed road will traverse all of the properties to the south of the plaintiffs' property, not simply the defendants' property, which will then regularise the whole of the southern route giving access to Taylors Arm Road.

Further Proceedings Commenced 76 These proceedings were commenced on 22 March 2000. The plaintiffs seek a declaration that pursuant to s 4(2) of the ILP Act the centre of the track traversing Portions 23 (the defendants' property) be deemed to be the centre of the existing Crown road. Alternatively the plaintiffs seek an order pursuant to s 88K(2) imposing an easement over that part of the land on the defendants' property which is the track on the southern route.

Inclosed Land Protection Act 77 Section 4 of the ILP Act provides: (1) Any person who, without lawful excuse, enters into the inclosed lands of any other person, without the consent of the owner or occupier thereof, or the person apparently in charge of the same or remains upon the inclosed lands of another person after being requested by the owner or occupier or person apparently in charge of those lands to leave those lands, shall be liable to a penalty not exceeding 5 penalty units and the proof of such lawful excuse shall be upon the Defendant in any such case. Without prejudice to the generality of the expression "lawful excuse" a drover or person in charge of stock being driven upon a road lawfully inclosed with the lands of any person shall be deemed to have lawful excuse for entering such lands for the purpose of preventing the stock from straying or regaining control of stock which have strayed from such road. In this subsection "stock" includes horses, cattle, sheep, goats, pigs and camels. (2) Where a road is lawfully inclosed with the lands of any person, and such road is not clearly defined but there is a reasonably defined track commonly used by persons passing through such lands, the centre of such track shall, for the purposes of this Act, be deemed to be the centre of the road. (3) Where a road is lawfully inclosed with the lands of any person and such road is not clearly defined and there is no reasonably defined track through such lands a person passing through such inclosed lands shall not be guilty of an offence unless it is shown that the route taken by such person in so passing was, having regard to the circumstances, unreasonable. 78 "Inclosed Lands" are defined by s 3(1) of the ILP Act as: (a) prescribed premises, or (b) any land, either public or private, inclosed or surrounded by any fence, wall or other erection, or partly by a fence, wall or other erection and partly by a canal or by some natural feature such as a river or cliff by which its boundaries may be known or recognised, including the whole or part of any building or structure and any land occupied or used in connection with the whole or part of any building or structure. 79 "Road" is defined in s 3 of the ILP Act as: Any land proclaimed, dedicated, resumed or otherwise provided as a public thoroughfare or way or any land defined, reserved or left as a road in any subdivision of lands. 80 Section 3(2) of the ILP Act provides: Where a road is lawfully inclosed with the lands of any person, those lands, but not the road, shall be deemed for the purposes of this Act to be the inclosed lands of the person.

81 The plaintiffs submitted that s4(2) gives this Court power to make the declaration sought in the Summons. No authority was cited for this proposition but Mr Hodgson submitted that the language of the second reading speech introducing the sub section in the 1939 amending legislation is couched in terms of rights as opposed to mere defences. In this regard he relied upon the following portion of Sir Henry Manning's speech in the Legislative Council on 30 August 1939 at page 5877 of Hansard: In the second place the bill deals with the case where a road is inclosed with a property. The object of the amendment is to make the boundary of the property the boundary, not the road itself. Therefore a person would be entitled to go within the fence for the purpose of making use of the road. 82 Mr Hodgson placed quite a deal of emphasis upon the use of the word "entitled" in an attempt to make good his submission. However this part of Sir Henry Manning's speech was dealing with s3(2) not s4(2). Section 3(2) is, as s4(2) is, a sub section which "deems" the existence of certain circumstances "for the purposes of this Act". 83 An interesting view about the reason for these amendments is provided by CM Collins (1 Law Book Co.'s Land Laws Service 198). He attributes the necessity for the amendments to Ex Parte Baldwin (1908) 8 SR (NSW) 19. In that case Baldwin was charged at Narromine under s4 with entering the inclosed lands of Bragg, without lawful excuse, and without the consent of the owner. He was convicted and fined. 84 Baldwin was a drover in charge of sheep and travelled about three miles along the road through Mr Bragg's property. Bragg had obtained from the Chairman of the Local Land Board permission to enclose this road and to put gates across it. Baldwin went along the road with his sheep but there was no evidence that any of the sheep strayed off the road onto the respondent's land. The Full Court said: These were not the enclosed lands of any other person. What was enclosed was a public road, the soil of which is vested in the Crown. I think therefore that the Magistrate was wrong in fining the applicant. 85 The ILP Act creates a penal offence of trespass. Prior to the 1939 amendment it was clear that the ILP Act intended that a criminal charge of trespass to land should only lie where the boundaries of the land, the subject of the proposed prosecution, were clearly defined. In Treweeke v Benson (1936) 53 W.N (N.S.W.) 151, a case which involved the use of a road, the precise position of the boundaries of which was not clearly defined, Owen A.J. considered Ex Parte Baldwin but found it did not assist in the case before him. Of the facts before him his Honour said at 152: Had the magistrate found that the road was not a public road, but merely a road or track used by persons, not as of right but only by the permission express or implied of the owner of the land over which it ran, different considerations would apply and I think the offence charged would have been made out. 86 It may be that if the legislature was motivated to amend the legislation in consideration of the various prosecutions under the ILP Act, Treweeke v Benson may also have been a decision to which regard was paid in the introduction of s4(2). 87 In my view Sir Henry Manning was focused on the purpose of the ILP Act when he said at 5876 of Hansard: Hon. Members will remember that the Principal Act mainly makes its an offence for any person, without lawful authority, to enter upon the inclosed lands of any person without the consent of the owner, occupier or person in charge. 88 And later at 5877: The…amendment is designed to meet cases where there is no defined road, but a defined track, and it provides that the centre of that track shall be deemed to be the centre of the road. The bill also deals with cases where there is no defined road or track, and in that case a person who drives cattle through the property can be by route which is reasonable, having regard to all the circumstances. If he deviates from what is regarded as a reasonable track, he will incur the possible risk of being held a trespasser. 89 In any event it seems to me that if the legislature intended by s4(2) to empower the court to make a declaration adversely affecting the property owners' title independently of any prosecution, as opposed to providing a deeming provision for the purpose only of the defence of reasonable excuse in a prosecution, there would have to be clear express provision to that effect. Alternatively it would have to be ascertainable by necessary implication from the provisions of the ILP Act: Wik Peoples v The State of Queensland & Ors (1996) 141 ALR 129 per Kirby J at 284. 90 Mr Hodgson submitted that when a comparison with s4(3) is made with s4(2) the implication is that s4(2) is not only "enlivened" in prosecutions. The terms of s4(3) include express reference to circumstances in which a person "shall not be guilty of an offence". The absence of such reference in s4(2) is relied upon for the implication that s4(2) can be utilised to seek the declaration independently of a prosecution. 91 I am not satisfied that this is a reasonable construction of the ILP Act. Section 4(2) must be read in context. In my view the irresistible construction is that it relates directly to "lawful excuse" in s4(1) and extends the circumstances that fall within that defence to a prosecution that were not present prior to the amendment in 1939. 92 I am not satisfied that the express provision or necessary implication referred to in Wik Peoples v The State of Queensland can be gleaned from the ILP Act. 93 The purpose of the ILP Act is to protect inclosed lands from intrusion and trespass. The way in which such protection is effected is the deterrence of intruders and trespassers by prosecution, conviction and penalty. It is not the purpose of the ILP Act to create title in land and adjust property rights independently of prosecutions. Some rights are deemed to be in existence where certain prerequisites are established providing the alleged trespasser with a lawful excuse - or claim of right - to be on the particular inclosed lands, the subject of the prosecution. 94 Much debate has occurred over the years in relation to a claim of right ousting the jurisdiction of justices and the steps that should be taken in such circumstances: Barns & Campbell v Edwards & Linden (1993) 68 A Crim R 140. However the plaintiffs contend that such a right should be declared in the absence of any prosecution. 95 I am of the view that the words "for the purposes of this Act" in s4(2) limit the application of the section to prosecutions for trespass in which the Court may, if satisfied on the evidence of the particular case that the prerequisites are established, deem the centre of a track which may not be any part of the road, to be the centre of the road, which in turn would provide a "reasonable excuse" to the defendant for being upon the inclosed lands. 96 In these circumstances the order sought in paragraph 1 of the Summons is refused.

Application pursuant to S 88K of the Conveyancing Act 1919 97 Section 88K of the Conveyancing Act provides: (1) The Court may make an order imposing an easement over land if the easement is reasonably necessary for the effective use or development of other land that will have the benefit of the easement. (2) Such an order may be made only if the Court is satisfied that: (a) use of the land having the benefit of the easement will not be inconsistent with the public interest, and (b) the owner of the land to be burdened by the easement and each other person having an estate or interest in that land that is evidenced by an instrument registered in the General Register of Deeds or the Register kept under the Real Property Act 1900 can be adequately compensated for any loss or other disadvantage that will arise from the imposition of the easement, and (c) all reasonable attempts have been made by the applicant for the order to obtain the easement or an easement having the same effect but have been unsuccessful. (3) The Court is to specify in the order the nature and terms of the easement and such of the particulars referred to in s 88(1)(a)-(d) as are appropriate and is to identify its site by reference to a plan that is, or is capable of being, registered or recorded under Division 3 of Part 23. The terms may limit the times at which the easement applies.

(4) The Court is to provide in the order for payment by the applicant to specified persons of such compensation as the Court considers appropriate, unless the Court determines that compensation is not payable because of the special circumstances of the case.

(5) The costs of the proceedings are payable by the applicant, subject to any order of the Court to the contrary.

(a) released by the owner of the land having the benefit of it, or

(b) modified by a deed made between the owner of the land having the benefit of it and the persons for the time being having the burden of it or (in the case of land under the provisions of the Real Property Act 1900 ) by a dealing in the form approved under that Act giving effect to the modification.

(7) An easement imposed under this section, a release of such an easement or any modification of such an easement by a deed or dealing takes affect:

(a) if the land burdened is under the Real Property Act 1900 , when the Registrar-General registers a dealing in the form approved under that Act setting out particulars of the easement, or of the release or modification, by making such recordings in the Register kept under that Act as the Registrar-General considers appropriate, or

(b) in any other case, when a minute of the order imposing the easement or the deed of release or modification is registered in the General Register of Deeds.

(8) An easement imposed under this section has effect (for the purposes of this Act and the Real Property Act 1900 ) as if it was contained in a deed.

(9) Nothing in this section prevents such an easement from being extinguished or modified under section 89 by the Court. 98 The plaintiffs must show that for the effective use or development of the plaintiffs' property the imposition of the easement over the defendants' property is reasonably necessary. 99 The test which enlivens the Court's jurisdiction under s 88K is a composite test: In the matter of an application by J J Kindervater (Derrington J, unreported, QSC, 2 August 1995 at page 3). The test also requires the plaintiffs to show that the particular use of the plaintiffs' property will not be inconsistent with the public interest; the defendants can be adequately compensated for any loss or other disadvantage which will arise from the imposition of the easement; and that they have made all reasonable attempts to obtain an easement or an easement having the same effect but have been unsuccessful. 100 The Court may take a number of matters into account in exercising its discretion whether to impose an easement. These matters include whether the reasonable necessity for the easement has arisen by reason of previous unreasonable conduct of the plaintiffs and whether the easement would impose a heavy burden on the defendants: 117 York Street Pty Limited v Proprietors of Strata Plan No. 16123 (1998) 43 NSWLR 504 at 511. 101 I have been guided by Einstein J's caution that a case must be looked at carefully to determine the effect on s 88K, of a failure to explore alternative claims against other possible defendants: Durack v De Winton (1998) 9 BPR 16,403. In that case his Honour said at page 16, 446: "One can imagine a circumstance where an owner of a land locked parcel of land had ten neighbouring properties through any of which a right of way to a public road might be obtained as a matter of necessity. To require the owner to join each of the ten owners to ventilate a s 88K application may place an intolerable burden upon such plaintiffs. I agree with the view expressed by Hamilton J in Tregoyd Gardens Pty Limited v Jervis (1997) 8 BPR 15,845 at 15,854, that it cannot be the intention of the Act that if an easement would be equally efficacious over two pieces of land, it cannot be granted over either because it cannot be said that it is necessary for it to be granted over that piece of land as opposed to the other." 102 There is no doubt that there is a necessity for the plaintiffs to have access to Taylors Arm Road through some route not only for their personal needs but for the proposed macadamia business enterprise and the transportation of cattle for agistment. Neither of these uses seem to me to be inconsistent with the public interest. 103 The test of reasonable necessity might be satisfied even when the plaintiff's land could be effectively used without the easement: 117 York Street Pty Limited v Proprietors of Strata Plan No. 16123 at 508. In this case I am satisfied that the effective use of the plaintiffs' land could be achieved without the easement, by access through the northern route, as has been the manner of ingress and egress for the last five years. 104 In 1988 the plaintiff, Mr Simpson, obviously favoured the northern route as being reasonably necessary for the effective use and development of the plaintiffs' property with a clear inference that the southern route would not provide such effective use. When Mr Brown 'closed' the northern route Mr Simpson wrote in these terms to the local Council: The Telecom, weed inspectors (pasture protection), volunteer bush fire brigade, NRCC and 6 local families all used this road from time to time. ….I cannot get cattle onto my property as I have only made a twisting and narrow bush track. In the wet the road is inaccessible or dangerous. My car is always under repair as a result of using this way. Because of this bush track no one can clearly find my property. It has ruined my pig/cattle enterprise. (Ex.1) 105 An important feature to the decision whether this composite test has been satisfied is whether all reasonable attempts have been made to obtain an easement or an easement to the same effect. The northern route would in my view be such an easement and the plaintiff, Mr Simpson, gave the following evidence: Q. Have you done anything about pursuing an easement over the Irvine land? A. No, because all my money has been spent on trying to get the Crown road, public road, without having to worry about an easement, which is more difficult. Q. The reason that you haven't done that is because you don't want to pay compensation? A It's part of it I suppose. (tr. 29)

And later: Q. Can I suggest to you that if you were able to obtain a right of way over Mr Irvine's land and if you upgraded your internal bridges, that there would be no advantage in terms of running a macadamia business from using the northern access or the blue track (the southern route)? A. Yeah, I suppose, yes. (tr. 32) 106 The access to Taylors Arm Road via the northern route is very much shorter than the southern route. It would be less costly to maintain and less intrusive than the easement being sought over the defendants' property in that there is no present animosity between the plaintiffs and the Irvines. There is no doubt that there has been, and continues to be quite a deal of animosity between the plaintiffs and the defendants and the plaintiffs and the Stacks. I am satisfied that the plaintiffs have not made any attempt, let alone any reasonable attempt, to obtain such an easement. 107 In these circumstances it is not necessary to decide the issue of whether the 1996 Deed between the Stacks and the Irvines is able to be enforced by the plaintiff Mr Simpson. 108 The lack of the defendants' willingness to facilitate the plaintiffs access through the southern route and the reason for this application has in some respects been precipitated by the plaintiffs' unreasonable conduct in the manner he has used the southern route and in the offer of $1.00 for compensation. In all the circumstances it must have been predictable that such an offer would only exacerbate the difficulties between the plaintiffs and the defendants. 109 However this aspect of the matter is not without complexity. Although Mr Simpson may have behaved unreasonably it is understandable that he would have suffered a great deal of frustration when he was denied access by people (other than the defendants) who had themselves benefited by the erection of buildings and garages over the very road upon which Mr Simpson was entitled to travel. 110 To establish reasonable necessity the plaintiffs have to show that the particular easement sought would facilitate access to the plaintiffs property. I am not satisfied that this has been established. The real problem is that this is but one area of the southern route and all that would be facilitated would be access through the defendants property. 111 Although the Consent Orders in the 1995 proceedings may ensure no impediment through the Stack property there is no binding agreement with Messrs Sessions or Hansen as to access through their property on that portion of the southern route that is the track as opposed to the Crown road. Mr Hansen gave evidence of Mr Simpson's "abusive" manner and it is clear that any consent to access would be subject to a change in Mr Simpson's conduct. 112 This is not certain and it seems to me that if Mr Simpson has a right to use the public road that will be opened by the Minister there will be no need for him to await any of his neighbours' pleasure to grant him access. However in the meantime there is no certainty of access through the Hansen property. 113 The local Council has provided Mr Hansen with advice that it has resolved that "Council acknowledge the Hansen dwelling on Portion 22 has been lawfully erected". The Council also advised that the dwelling house is a "lawful use" and the Council did not require any further development consent. The Council has no record of any building application for the erection of the dwelling, apparently on the Crown road, and advised Mr Hansen it could not issue retrospective building approval but could issue a building certificate confirming the structural adequacy of the dwelling should such an application be made. 114 It is not clear on what basis such use was resolved to be lawful in circumstances where the dwelling appears to be erected upon and impedes the use of the Crown road. In any event, in the light of this situation, I am not satisfied that an easement over the defendants land would facilitate unimpeded access to the plaintiffs' property and therefore I am not satisfied that the test of reasonable necessity is satisfied. 115 A most significant matter which precludes the plaintiff from succeeding in this application is the decision of the Minister to approve the opening of the road on the whole of the southern route, including that part of the track on the defendants' property. The only steps that need to be taken prior to the opening of that road are the registration of the plan and the agreement or determination of compensation. 116 Certainly the delay is regrettable but having regard to the letter of 18 July from the Department to the plaintiffs' solicitor it seems that the Department intends to finalise this matter within a very short time frame. It seems to me that this process should be expedited not only in the interests of the parties to this litigation but in the public interest. Buildings across the Crown road have been tolerated for years and the sooner the road is opened in this area enabling the property owners to have appropriate access along the road the better. 117 If an easement were imposed over the defendants' property a money figure by way of compensation would have to be specified: 117 York Street Pty Limited v Proprietors of Strata Plan No. 16123 unless special circumstances existed to justify no payment of compensation. This is the very matter that is to be agreed or determined by the Land and Environment Court under the provisions of the Roads Act 1993. Those steps will have to be taken once the plan is registered by the Department. 118 The fact that this land has been approved by the Minister for acquisition for the opening of a road is a weighty matter in considering whether the imposition of an easement is reasonably necessary. The plaintiffs will have the benefit of a public road as soon as they agree to or have determined the compensation under the Roads Act 1993 after the plan is registered. In the interim the plaintiffs have access through the northern route via the Irvine property. 119 Irrespective of the view I have formed as to the plaintiffs' failure to make all reasonable attempts to obtain an easement, this circumstance persuades me that an easement over the defendants property is not reasonably necessary for the effective use and development of the plaintiffs' property. 120 I refuse the plaintiffs' application for the imposition of an easement over the defendants' property. The Summons is dismissed. I will hear the parties in relation to costs should they not be able to agree upon an appropriate costs order. ***************************************

Last Modified: 01/03/2002 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.