Following these recommendations there is endorsed in handwriting "Approved" and what appears to be the signature of W Hambly.
43 On 3 December 1997 Mr Ford of "Land NSW, Grafton" wrote to the Plaintiffs. The letter advised that Mr Borg's application had been approved subject to survey and satisfactory agreements being reached regarding compensation. The letter also advised that "your" application is still being processed and "is currently awaiting confirmation from you to continue with your proposal".
44 On 8 December, Mr Simpson replied to the effect that he had no choice but to proceed as the road was still blocked "Tree across road, 2 extra gates - one locked, speed/drainage humps, extra dam next to road, extra building on road at N. Stacks, etc". The letter went on to specify reasons for his need for the road.
45 The documents in evidence do not include any further communication of objections by or on behalf of Mr Bagnall and Ms Stevenson to Mr Simpson's application. However a Departmental Memorandum of 13 May 1998 deals at length with the question of whether Mr Simpson's application should be granted, referring inter alia to the history of the relationship between the parties, the existence of the track, and Mr Simpson's need for the road opening. The document asserts that the only objections were by the owners of Lot 23 DP 755547, i.e. Mr Bagnall and Ms Stevenson and contains an annexure entitled "Comments on Objections by S D Bagnall and L L Stevenson" which appears to set out a number of objections. Given the nature of the document and the extent of the detail in it, it is a reasonable inference that all objections by these persons to Mr Simpson's application are there recorded. They are:-
1. There is an existing means of access from the Burrapine public road to Mr Simpson's land being lots 62 and 63 DP 755547. My clients instruct me that Mr Simpson has an option to take up a right of carriageway across his neighbour's land between his property and Burrapine Road over which he presently exercises his right of carriageway. My clients' instructions are that at his election Mr Simpson can take up a registered right of carriageway which would provide him with legal access over his current entry across this land to his property and would be a direct link to the Burrapine Road.
2. The abovementioned current means of access would involve a distance of approximately 114 metres from Burrapine Road across Lot 31 in DP 852700 to the boundary of portion 62 also owned by Mr Simpson which adjoins Lot 63. I am instructed this access is serviced by a bridge across a watercourse mainly within Simpson's land but located at the boundary of the properties which is in good serviceable condition.
3. The access route proposed by Mr Simpson's application affecting Lot 23, would involve traversing private land by way of reserved roads to a distance of approximately 1.6kms.
4. If Simpson were to take up this option for the right of carriageway across Lot 31 DP 852700 (previously part Portion 8), it would be a private right of carriageway not requiring Council approval nor any specific standard of construction. This proposed right of carriageway or access road, is across suitable terrain and provides easy access to the Applicant's property.
5. My clients also object to the fact that any road opening granted pursuant to this application, would increase traffic along the proposed reserved road and would have an adverse effect on the living conditions and the land owned by my clients. My clients' instructions are that the current reserved road runs too close to the residence on the property and would create problems in relation to dust, living environment and similar factors.
6. The application by Simpson would appear to be reliant upon the application by Borg and any approval if it were granted to Mr Borg would require considerable road works and if conditions imposed in regard to construction of a bridge or road works were not met by Mr Borg the application by Simpson may subsequently be ineffectual. At this time the objector's submission is that it would be inappropriate to grant the application to Mr Simpson until there was an existing serviceable Crown road from which he could seek such access.
7. In general the owners of Lot 23 object to the application on the basis that there is a more appropriate and more viable route to the Applicant's property than the one sought in the current application.
46 That the above is a comprehensive account of the objections of Mr Bagnall and Ms Stevenson is confirmed by a combination of 2 further letters. In a letter of 19 May to Mr Locke from the Department informing him of the Department's decision to grant Mr Simpson's application all objections other than the one I have numbered 6 were canvassed to greater or lesser extent. A letter from Mr Locke to Mr Bagnall and Ms Stevenson of 25 May raised with them the possibility of an appeal from the Department's decision but did not suggest that any objection by them had not been dealt with by the Department
47 A Departmental memorandum of 13 May 1998 comments on those objections and the merit of the application and concludes:-
Recommendation - For approval in accordance with delegation 31D.1.25
1. The claim of interest by SD Bagnall and LL Stevenson (now Bagnall) shown on Schedule "Y" be determined as valid.
2. The objection by SD Bagnall and LL Stevenson (now Bagnall) be overruled and the application by JD Simpson be allowed to proceed.
3. Subject to survey of the proposal being undertaken and to the subsequent successful compensation agreement being reached between the applicant and the valid claimants, and being approved, the lands shown by red colour diagram "B" be acquired for public road under the provisions of the Roads Act 1993.
48 I cannot identify the person who made the recommendation beyond his description of "District Manager, LAND NSW, GRAFTON". Again the recommendation was approved by Mr Hambly, the "Area Manager, LAND NSW, HUNTER/NORTH COAST".
49 An annexure to the memorandum deals at length with the 7 objections listed above. Each was considered separately. I do not regard it as necessary to repeat here all that was said in that regard but some reference is appropriate.
50 The comments in respect of objections 1 and 7 largely reflect the contents of a note of conversations with Mr Irvine the owner of the land said in the first objection to be subject to an option to take up a right of carriageway and with his solicitors. The note is dated 6 April 1998 and refers to a conversation of that day. The note proceeds:-
"Both Mr Irvine and his solicitors … explained that he (Irvine) did sign an agreement with the Simpsons to the effect that he would grant them a right of way over lot 8 DP 75547 if their current action (at that time) in the Supreme Court failed.
This action under the Inclosed Lands Act was successful in that the Simpsons obtained some form of legal agreement to gain access across the Bagnall's property.
Mr Irvine is apparently not very keen to grant them the right of way as the area involved is the only part of his property where he has access to water…
Therefore the statement No. 1 made by Solicitor Locke in his letter of 25 June 1997 is not completely correct in that it would be quite lengthy and may be very difficult for the Simpsons to gain a right of way through Mr Irvine's property."
51 The response to the second objection was that the proposed right of way would not give access to one of the lots owned by Mr Simpson. The matters quoted in the immediately preceding paragraph, if accurate, would also provide an answer to this second objection. The response to objections 3, 5 and 6 was that the section of road proposed in Mr Simpson's application was between 100 and 150 metres long only, Mr Borg's application having been approved and issues of traffic and closeness to Mr Bagnall's dwelling having been dealt with then. The response to objection 4 was that the application was only about legalising an existing practical access track in lieu of an impractical one and that issues of standard of construction did not arise unless the road was transferred to the local Council, an event regarded as highly unlikely.
52 On 19 May 1998, Mr Ford wrote to the Plaintiffs. He said that after consideration of all submissions the proposed road opening might proceed subject to firstly a survey and secondly to successful compensation agreement being reached between Mr and Mrs Simpson and affected land owners. Mr Ford recorded that the claim of interest lodged by Mr Bagnall and Ms Stevenson in respect of the lands proposed to be acquired had been accepted by the Minister and following completion and registration of the plan of survey the Simpsons would be notified to commence necessary compensation negotiations. The letter advised that the Department would arrange for the completion of a survey as shown on a diagram attached and the subsequent registration of a plan at the Titles Office and that a Departmental Surveyor was in the process of undertaking the survey in conjunction with Mr Borg's application.
53 By a letter of the same date Mr Locke was also advised of the Departments decision that Mr Simpson's application might proceed subject to survey being undertaken and to successful agreement being reached regarding compensation. The letter included an account of what the Department had been told by Mr Irvine and of other reasons for disagreement with the objections.
54 In fact instructions to a surveyor seem to have been given on or about 28 November 1997. By 23 December 1997, he was writing to affected landowners, including Mr Bagnall and Ms Stevenson and Mr H J and Mrs S G Stack, informing them of his intentions.
55 In what I have said so far, I have concentrated on the Plaintiffs' interests and specific objections raised by Mr Bagnall and Ms Stevenson. There were however other matters which the Department seems to have considered. One was that future owners (I infer of many of the lots referred to in paragraph 7 above) would have to take into account the lack of practical legal access. A second, as has been said, was the desirability of legalising existing structures built on the existing Crown Road.
56 Things then seemed to have slowed down. On 4 May 1999 the Nambucca Shire Council wrote asking "whether surveying of the above road and gazettal of the road widening as Crown Road has been completed". On 6 May the Department replied saying that drafting of the linen plan was being "finalised", copies of the registered plan would be provided as soon as practicable and also to affected parties so that negotiations for compensation could proceed or, if necessary that topic brought before the Land and Environment Court. In September 1999, a letter in materially the same terms was sent to Mr Borg. On 18 July 2000 the Department wrote to Mr Abernethy saying that sufficient time had been allocated to complete the survey "this financial year".
57 There was more litigation to which I shall refer below. Mr and Mrs Simpson lost and lodged an appeal. In anticipation that the Court of Appeal might wish to know the then current status of the road opening proposal, their solicitor wrote to the District Manager, Land and Water Conservation, Land NSW Grafton on 1 and 19 March and 10 May 2001, and telephoned on 20 August enquiring. On 21 August 2001 Mr Fish replied to the effect that the Department had limited resources, that unavoidable delays continued to be experienced and it was not expected that the necessary work would be completed until late November 2001.
58 On 5 February 2003 a Departmental memorandum from a surveyor to the "Manager Land NSW Operations Far North Coast" records that the survey of the Borg application was completed in August 1998 and the additional work required for the Simpson application was completed in November 2001. Then difficulties were encountered in the drafting of the plan and the author of the memorandum undertook the task himself. The resultant plan was forwarded with the memorandum to the Manager Land NSW Operations for the Far North Coast for appropriate action.
59 The litigation to which I referred was further proceedings in the Equity Division commenced in March 2000 by Mr and Mrs Simpson as plaintiffs and Mr S D Bagnall and Ms L L Stevenson as defendants. The Plaintiffs sought a declaration that pursuant to s4(2) of the Inclosed Lands Protection Act that the centre of the track traversing the defendants' property be deemed to be the centre of the existing Crown Road and alternatively an order pursuant to s88K(2) of the Conveyancing Act imposing an easement over that part of the defendant's property as was the site of the track.
60 In a reserved judgment of 5 October 2000 - Simpson & Anor v Bagnall & Anor [2000] NSWSC 930 - Bergin J found there was no power in the Inclosed Lands Protection Act to make the first order sought. Her Honour declined also to make the second order for a number of reasons. One was that she was 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 5 years" - at [103]. Her Honour was also not satisfied that the Plaintiffs had made any reasonable attempt to obtain an easement over that northern route - at [106]. A third reason was that, because the easement sought was over only the property of Mr Bagnall and Ms Stevenson, and not through the other properties between their's and Taylor's Arm Rd, and also that the Crown Road through some of those properties was blocked by structures, her Honour was not satisfied that the easement sought would facilitate access to the Plaintiffs' property - at [110], [114]. A fourth reason was referred to by her Honour in these terms:-
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 defendant's 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 open in this area enabling the property owners to have appropriate access along the road the better.
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 or a public road as soon as they have agreed 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."
61 The letter of 18 July referred to was one of 18 July 2000 to which, I have referred. The "northern route" referred to was across a bridge over the Taylor's Arm River at the northern border of the Plaintiffs' property with the property next door and then about 100 metres diagonally across the south-eastern corner of that property - see [31].
62 As has been said, Mr and Mrs Simpson lodged an appeal from the decision of Bergin J. Proceedings in the Court of Appeal were settled. On 14 September 2001, the Court noted the agreement of the parties embodied in the (then) unsigned Short Minutes of Order and by consent made orders 2 and 3 as set out in that document. The document provides:-
" NOTE the agreement of the parties that:
1. The Respondents shall do nothing to prevent or to obstruct the roads being gazetted in the nature of that depicted on the Plan annexed and marked in yellow and by dotted line also marked in yellow.
BY CONSENT order that
2. The appeal in the Supreme Court between the parties being No. 40844 of 2000 be dismissed with no order as to costs of the appeal.
3. The Appellants pay the costs of the Respondents of the hearing at first instance in the agreed sum of $23,519.66 with no interest to run on that sum if paid within 28 days of the date of this Agreement."
63 The Appellants were Mr and Mrs Simpson and the Respondents were Mr Bagnall and Ms Stevenson. Although the Plan referred to was not annexed to the copy of the Short Minutes of Order contained in Exhibit A before me, having regard to the way in which the proceedings before me were conducted, I have no doubt that the Plan was one that showed at least that portion of road the subject of Mr Borg's and Mr Simpson's application as passed through the lots owned by Mr Bagnall and Ms Stevenson. There were a number of copies of such a plan in evidence.
64 By the time of the Departmental memorandum of 5 February 2003 forwarding the survey plan to the Manager Land NSW Operations for the Far North Coast for appropriate action or soon after, Mr Borg had sold his land. A Mr Smith and Ms Kuhl had purchased it. On 20 May 2003 the Department wrote to Mr Smith and Ms Kuhl advising that formal approval to proceed with Mr Borg's application to open the road had been granted on 27 November 1997, that there had been delays, that the survey was now finalised but before the road opening could proceed all parties must agree to the apportionment of compensation, that the Department was prepared to make available the unnecessary sections of Crown Road earmarked for closure but that otherwise compensation was a matter entirely for negotiation between the parties. The letter went on to ask whether Mr Borg's interests in the road opening application lodged by him had been transferred to Mr Smith and Ms Kuhl.
65 The evidence does not reveal what occurred in the next 6 months but on 5 November 2003, the Department wrote to Mr and Mrs Simpson advising that following consideration of all submissions it had been decided to continue with the proposed acquisition of affected land, that the survey was complete, and that the Minister had accepted claims of interest lodged by:-
1. Mr S D Bagnall and Miss L L Stevenson
2. Mr C A Hansen and Ms L M Hansen
3. Mr N J and Ms S G Stack
4. Bowraville Aboriginal Land Council
66 The letter identified the lots each of these groups held and the areas of land involved. In the case of Mr Bagnall and Ms Stevenson the areas of land required for road opening and closing were stated to be 23,239.4 m2 and 10,001.5 m2, i.e. about 2¼ and 1 ha. respectively. The letter recorded that the acquisition of land for road purposes could not proceed until compensation had been agreed with the affected landowners and approved by the Minister Assisting the Minister for Natural Resources (Lands) and that Mr and Mrs Simpson and Mr Smith and Ms Kuhl, "the other party to the road opening" should contact the persons listed. The letter went on to say that the Department was prepared to grant the sections of Crown Road proposed to be closed and that, given that the areas of land affected were in favour of the last 3 groups listed above, monetary compensation was not necessary in their case. The situation was different in the case of Mr Bagnall and Ms Stevenson because the area of land required for a new road was greater than the area proposed to be closed. An offer was made to have the affected areas valued by the State Valuation Office. It was pointed out that if agreement could not be reached within 12 weeks, either party could refer the matter to the Land and Environment Court and that no further action would be taken in respect of the application until the matter of compensation was finalised.
67 On 24 November 2003 Mr Abernethy appears to have written to Mr and Mrs Hansen and Mr and Mrs Stack and, on 4 December to the Bowraville Land Council with a view to reaching agreement as to compensation. A copy of a letter of 25 November from Mr Abernethy to Mr Bagnall and Ms Stevenson confirms a conversation of that day including conversation to the effect that:-
"The Simpsons may not have access across your land, other than by means of the Reserve Road, until compensation has been paid 'if it gets that far' and you intend to fight 'it' all the way."
68 On 26 November 2003, Mr Stoner MP wrote to the Minister Assisting the Minister for Natural Resources (Lands) on behalf of Mr Bagnall and Mr Stack, seeking a meeting with the Minister about the road opening application. It is convenient to defer the details of what was then said.
69 On 12 March 2004, the Department asked the Area Manager of the NSW Department of Commerce to provide for each affected owner, valuations of the total areas of land to be opened and closed as an incident of the proposal.
70 On 31 May 2004, Mr Taylor of the Grafton Office of the Department wrote to the Plaintiffs' solicitor referring to a letter of 31 March and acknowledging that the interests relating to Mr Borg's road opening application had been transferred to the Plaintiffs as provided for under s73 of the Roads (General) Regulation. The letter also advised that a copy of a valuation obtained from the Property Valuation Services of the NSW Department of Commerce was enclosed and had been provided to all parties.
71 The valuation gives a large number of lot descriptions. It is not simple, or perhaps possible merely by reference to the valuation to determine which of these lots is owned by which of the landholders affected but when regard is had also to a schedule to the letter of 12 March, it is apparent that the values attributed to the lands within the property of Mr Bagnall and Ms Stevenson intended for Road Opening and Closing are $7,000 and $3,000 respectively.
72 The valuation is said to have regard to the highest and best use of the subject land allowable under its zoning and reflects a home-site value. The valuer opines that the addition of the extra Crown Road land would be of only nominal benefit. It might be noted also that the valuer asserts that in the case of Mr Bagnall and Ms Stevenson, the total area of the main holding is 113.31 ha. and that the valuer's calculation of the area to be taken for road opening is 2.31 ha, slightly more than the area referred to circa [66] above.
73 It might be convenient at this stage to observe that also in the papers in evidence was another valuation which appears to have been obtained on behalf of Mr Bagnall and Ms Stevenson. It values lot 23 which it describes as having an area of approximately 73 ha as having a value of $245,000 but of only $195,000 if 2.4 ha. were resumed for a road, due to the nuisance of the extra traffic. The valuation seems to attribute to the land proposed to be resumed, a value of $6,000.
74 As has been said, on 26 November 2003, Mr Stoner MP wrote to the Minister Assisting the Minister for Natural Resources (Lands) on behalf of Mr Bagnall and Mr Stack, seeking a meeting with the Minister about the road opening application and saying, inter alia:-
"Mr Bagnall argues that his best country is involved and that no amount of compensation in dollar terms would compensate for the loss of the intrinsic value of his property."
75 On 16 March 2004 Lorraine Stevenson and Shirley Stack, purportedly on behalf of all the residents of Apple Tree Glen, Burrapine wrote to a Mr Fenn, described as a Senior Policy Advisor and apparently at the same level and in the same building as the Minister, making a number of assertions including that there had been a number of significant changes since what was said to be the approval in 1997 of the opening of the road and seeking a meeting. On 16 April further representations were made in a letter by Stephen Bagnall and Lorraine Stevenson and in another letter apparently by Neville and Shirley Stack.
76 The persons mentioned in the preceding paragraph are not parties to these proceedings and it is unnecessary that I say more about the representations than that is a deal of evidence, beyond that emanating from the Plaintiffs, that a number of the statements made were wrong. One statement, although I have no knowledge whether this one was right or wrong, was that Mr Stoner had already assured Ms Stevenson and Ms Stack that the road opening would not proceed.
77 Between the time of Mr Stoner's letter and 18 November 2004, a number of internal Departmental memoranda were prepared and it would seem forwarded to the Minister's office or to one or more of his advisors. Some of the contents of these memoranda and the attitude of the Minister's advisors are worthy of note. A memorandum with reference No: MIN03/5237 and dated 3 December 2003, includes the following:-
1. A meeting between Mr Bagnall, Mr Stack and the Minister was identified as the issue to which the memo was addressed;
2. Some background was provided and in paragraph 2.5 it was said "it is considered that the road opening is in the best interests of all parties involved";
3. In paragraph 2.7 it was said that Messrs Bagnall and Stack had been central to the conflict with the road opening proponents, Mr Stack owns a residence which encroaches on the road and the existing road reserved within Mr Bagnall's block is impractical to construct;
4. In paragraph 2.8 it was said that both applications were approved by the Minister's delegate (subject to survey) in 1997 and "there are no grounds on which to appeal the decision";
5. In paragraph 2.9 it was said that "due to limited technical resources, completion of the survey plan was not finalised by the Department until January 2003";
6. In paragraph 3.1 it is recorded that Mr Michael Smith purchased the Borg property in 2003 and is committed to finalising the road opening. There followed reference to the topic of compensation, that all parties had been provided with a copy of the survey plan and requested to negotiate, and that compensations could be determined by agreement or the Land and Environment Court; and
7. Recommendation
4.1 That in order to maintain neutrality in the matter and to help facilitate negotiations, the Department of Lands issues instructions to the State Valuation Office to assess compensation for all affected landowners.
4.2 In the meeting the Minister re-affirm the avenues for resolving compensation.
78 The memorandum bears a notation that the contact officer is Robert Fish of the Grafton Office and, as best as I can decipher the signature, seems to be signed by a G Harding described as "General Manager, Crown Lands NSW". Spaces and the description of office holders indicate that it was contemplated that the document might be signed by or on behalf of the Director General and the "Minister (Attention: Stephen Fenn)".
79 A Memorandum of 1 April 2004 describes the issue being addressed as a letter to Stephen Fenn for Lorraine Stevenson and Shirley Stack concerning a road opening application. It referred to the memo MIN03/5237 and says, inter alia:-
"A Crown road is available for use by the public. In this instance the Department is effectively "moving" the location of the Crown Road so that the existing track will be situated within a legal road corridor."
80 This document referred to Graham Taylor of the Grafton Office as the Contact Officer, and appears to have been signed by a T (or I or J) St George above the description "General Manager, Crown Lands, NSW", by someone else whose name I can't decipher on behalf of the Director General and by another person, whose signature is also indecipherable, on behalf of the Minister.
81 Another memorandum of or about 1 July bears the references MIN04/3487 MIN04/3488 and included the following:-
1, The issue is said to be representations by Mr Bagnall and Ms Stevenson and Mr and Ms Stack;
2. In paragraph 2.2 it is said that those parties seek the Minister's approval to rescind an approval given under delegation to open a Crown road through their properties;
3. In paragraph 3.1 it is recorded that "the Department has acknowledged that there are additional avenues of access (but not necessarily legal and practical access) for relevant parties associated with the road opening at Burrapine. However, this road opening application has been negotiated and ultimately determined to resolve issues relating to the formalisation of the current access track, which is located mainly on freehold land; and to legalise building encroachments onto the existing Crown road";
4. In paragraph 3.4 the sale by Mr Borg to Michael Smith and Miss Kuhl is referred to and it is said "these current owners of Lot 115 have indicated that they no longer wish to proceed with the application commenced by Mr Borg;
5. In paragraph 3.5 that Mr and Mrs Simpson have advised that the interests relating to Mr Borg's application have been transferred to themselves as provided for in Section 73 of the Roads (General) Regulation 2000;
6. In paragraph 3.6, that Mr and Mrs Simpson gain access to the northernmost section of their property by way of an existing track located partly within the Crown road system and partly through their neighbours' freehold land. "Consequently, it does not provide legal practical access in its entirety. Legal practical access to the southern section of their property (Lot 63) would appear to be achievable only if the current application reaches fruition";
7. In paragraph 3.7, that there was a possibility of the Department being liable for compensation should the approval be rescinded;
8. In paragraph 3.10, that as shown on two identified diagrams the Stack's house currently unlawfully encroaches on a Crown road and the finalisation of the application would resolve that situation;
9. In paragraph 3.13, that "Lot 17 of the survey plan, diag(ram) B and C represent the legal position of the public road providing access to Lot 42 DP 755547 owned by Rodney John and Elizabeth Suzanne Jarmain. The road is only minimally affected by the current proposal and any action to reposition the legal road so as to be coincident with the track in use would be the subject of a separate application; and
10. A recommendation that the Senior Policy Advisor sign the attached letters.
82 The contact officer noted in that memorandum was Mr Graham Taylor described as "MPO, Crown Lands NSW Far North Coast". It seems to have been signed also by a J St George "for General Manager Crown Lands NSW" and by someone else whose name I can't decipher on behalf of the Director General.
83 The letters referred to are to Mr Bagnall and Ms Stevenson and Mr and Mrs Stack and say that the Minister would not be prepared to recommend rescission of the road opening approval. The letters are crossed through.
84 As Mr and Mrs Jarmain have not previously been referred to in these reasons, I should record that their land is situate to the south of lot 64 owned by Mr N J Stack and Mrs S G Stack. Access to their property is along a Crown Road which is an offshoot from that with which the Borg and Simpson applications are concerned. The offshoot leaves what I may call the main Crown Road just to the north of the boundary of lots 76 and 64 and, moving south, crosses the track at a point where the track is not on the site of the main Crown Road and then crosses lot 64 to and beyond the southern boundary of that lot. The evidence before me does not reveal how far the offshoot Crown Road extends although in the letter from Mr and Mrs Stack of 16 April 2004, the writers observe that without using the writers' property for access, the Jarmains would be landlocked. In that letter, Mr and Mrs Stack also observe that "the bridge and road are on my private property as it is impossible to use the crown road in its present position. … to use the crown road would necessitate building a major bridge over the river plus two other minor bridges, and use some of my private land to do this". The bridge referred to is that between lots 64 and 1 and it would thus seem that, unless Mr and Mrs Jarmain have some easement or other formal legal arrangement with Mr and Mrs Stack and with the Bowraville Local Aboriginal Land Council, they need the consummation of that part of the Borg/Simpson application as relates to lots 64 and 1.
85 Another memorandum of the 4 August 2004 from a Charlie Micali described as a Senior Ministerial Liaison Officer in the Office of the Director General and addressed to Graham Harding the General Manager Crown Lands includes the following:-
"This matter has been returned from the Minister's office because Stephen Fenn doesn't understand the mechanics nor what the proposal is trying to achieve…
Given that the original applicant has withdrawn and the affected landowners have always opposed this road opening, is there someway Lands can mediate an alternate outcome for this matter.
If this application had been lodged today it would have been refused and the applicant advised to proceed via Section 88K of the Conveyancing Act …
I have spoken to Mr Bagnall. He would like someone from the Department, but not the Grafton office, to meet him on site so that he can personally explain his position. I agreed that this could be arranged and suggested that Craig Barnes who is relatively new to the region should attend.
I also suggest that the Grafton office satisfy Craig that all of the elements of Part 12 Division 2 of the Roads Act 1993 have been properly complied with. Also is too late to continue via section 88K of the Conveyancing Act. (sic) …"
86 The next Departmental memo appears to have been prepared by the "Regional Manager - North Coast" and signed on 2 September 2004. It bears notations "Endorsed by G Harding 8/9/04" immediately above the printed words "General Manager Crown Lands NSW" and "Endorsed by M Mafchett for" immediately before the printed words "Director General" and then the date 17/9/04. ("Mafchett" is my best interpretation of the signature.) A little lower there are the printed words "Minister (Attention; Stephen Fenn) but no signature endorsed. This memorandum includes the following:-
1. The issue was again identified as representations by Mr Bagnall and Ms Stevenson and by Neville and Shirley Stack.
2. Some of the background, including the statement that practical use of the (Crown) Road is constrained in a number of locations, including the Stacks house, and a gully on the Bagnall property. There was mention also that in 2003 Borg sold his property to Smith and Kuhl who created their own access and no longer wished to proceed with Borg's application.
3. Included under the heading "Current Situation" is the statement that Stack and Bagnall would like the Minister to rescind the approval given in 1997 and a paragraph which reads as follows:-
3.3 On direction from the Director General's office the regional manager - North Coast met with Stack and Bagnall separately on August 25, 2004 and inspected the site. They advised as follows:-
* Each has received notice from the Land and Environment Court…
* Bagnall seeks to stop the Simpson's access through his property claiming it will damage his only useable land (debatable - limited potential) and that Simpson has other more appropriate access. (See blue arrows on plan.)
* Simpson's practical access to date (through portion 8) and marked blue arrow 1) has recently been blocked following a new dispute with that owner; and
* Stack claims the Department should resolve other issues relating to the access to the Jarmain property.
3.4 The Department has empathy with the situation of Bagnall. However, in the circumstances, it is not a viable option to intervene.
4. OPTIONS
4.1 Rescind the approval. This option will impinge on the approved "rights' of Simpson and will leave the Department open to litigation, at least for costs incurred. Given the evident litigious nature of Simpson it is considered this outcome is most likely to end up in costing the Department in the order of hundreds of thousands of dollars. It will also leave the Stack house unauthorised on the Crown Road and the southern creek crossing off the Crown Road.
4.2 (b) Allow the application to proceed and, later, allow Bagnall to close the new road. In the short and medium term this will also lead to the same potential litigation.
4.3 (c) Allow the application to proceed as approved. This course of action will not satisfy either Bagnall or Stack. However, it will leave the Department's/Minister's position secure.
5. RECOMMENDATIONS
5.1 It is recommended that the Senior Policy adviser sign the attached letters, if approved.
87 The last page of the document which includes paragraphs 3.4 to 5.1 was crossed through.
88 The letters referred to were drafted for signature by Mr Fenn, described as "Senior Policy Adviser, Minister for Lands", are addressed to Mr Bagnall and Ms Stevenson and Mr and Mrs Stack, and their tenor is that the Minister is not in a position to rescind the 1997 approval and the road opening application must continue. These letters also are crossed through.
89 The next Departmental Memorandum in evidence is one which names as the Contact Officer "Charles Micali, Senior Ministerial Liaison Officer" and is apparently signed by the Director General on 18 November 2004. This memorandum identified the issue as Mr and Mrs Simpson's application to open a road through the land of Mr Bagnall and Ms Stevenson and Neville and Shirley Stack and describes the current situation in the following terms:-