Smith v Woodley-Beattie

Supreme Court of NSW|2009-05-08|Before: Smart AJ, Hamilton J

CITATION : Smith v Woodley-Beattie [2009] NSWSC 380

CATCHWORDS : Easements - section 88K of Conveyancing Act - satisfaction of sections 88K(1) & (2) - assessment of adequate compensation for loss or other disadvantage - grant of easement sought not likely to have same effect as to use as easement already granted to second defendant

CASES CITED : Tregoyd Gardens Pty Ltd v Jervis NSWSC Eq (unreported, Hamilton J, 25 September 1997) BC 97688, 15,845

AG Jamieson & AB Petrie (Plaintiffs) COUNSEL : AL Hill (First Defendant) EA White (Second Defendant)

Abigails (Plaintiffs) SOLICITORS : K Harrison (First Defendant) Delves & Wain (Second Defendant)

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

3569/06 Peter Christey Smith & Robyn Lynette Smith v Jennifer Woodley-Beattie and Russell John Evans JUDGMENT 1 This action concerns some relatively remote rural land at Neringla near Araluen in the Shire of Eurobodalla. The closest public road is a council road known as Araluen Road. The Duea River is nearby. The plaintiffs are the joint registered proprietors of the property known as "Woolla", being Lots 87 and 122, DP 752150 and Peter Christey Smith is the sole registered proprietor of the adjoining Lot 3, DP 752140 (collectively referred to as the plaintiffs' lands). Ms Woodley-Beattie is the registered proprietor of Lot 16, DP 861498. Mr Evans is the registered proprietor of Lot 15, DP 861498. Lot 16 has an area of about 40 hectares, much of which appears to be quite rugged. Lot 16 is to the south of Lot 15 and the plaintiffs' lands are to the south of both Lots 16 and 15. Lot 15 is the dominant tenement of the right of carriageway registered in respect of Lot 16 as the servient tenement. The plaintiffs seek that they be granted an easement over such parts of Lot 16 as identified and highlighted in orange in the following plan for rights of carriageway and an order that the defendants do all things and execute all such documents as may be necessary to effect the registration of the easement so imposed.

2 The plaintiffs sought this further relief, in the alternative: (a) a declaration that the easement over the first defendant's land does not express the true benefit to the plaintiffs' land and was executed under a common mistake.

(b) a declaration that the easement over the first defendant's land should contain a provision that the benefit of the easement pertains to the plaintiffs' land and the easement should be rectified so as to contain a provision to that effect.

(d) an order that the defendants forthwith do all things and execute all such documents as may be necessary to give effect to these orders. Order (c) should not be made on the application of the plaintiffs. 3 The plaintiffs, further and in the alternative, sought an order that the easement over Lot 16 be modified to effect the true benefit to the plaintiffs' land. 4 Mrs Dorothy Griggs, the owner of the rural property known as Yang Yally, said that in 1996 she subdivided part of the southern portion of "Yang Yally" into six lots located along the Duea River, adjoining the property on the south known as "Woolla", which consists of Lots 87 and 122, DP 752150. Her affidavit continues: "3. For many years prior to the said subdivisions the owners of 'Woolla' enjoyed unrestricted access from the public road to the north through 'Yang Yally' across its common boundary with Lot 87 in DP 752150 along the existing gravel road. Access to the six lots in the above subdivisions was also provided along the same road.

When I instructed the surveyor and solicitor who acted for me in the preparation of the subdivisions, it was my intention that a legal right of carriageway 20 metres wide be granted over the land which became registered as lot 6 in DP 858736 in favour of the property 'Woolla' along the existing road which traversed that land [Lot 6 became Lot 16].

DP 858736 was registered on 20 May 1996. Some time after the registration of this DP, it came to my attention that a mistake had been made and that the said right of carriageway registered over the said Lot 6 had been granted in favour of Lot 5 DP 858736 instead of Lot 87 in DP 752150 which adjoins the said Lot 6 to the south and which forms part of 'Woolla'.

On 12 August 1996 Lot 6 in DP 858736 became Lot 16 in DP 861498 and is land owned by Jennifer Woodley-Beattie, the defendant in these proceedings, and Lot 5 became Lot 15 in DP 861498 and is owned by Russell Evans.

Mr Evans accesses his Lot 15 via the public road to the north and the registered right of carriageway appurtenant to Lot 15 through Lot 16 terminates at the boundary of 'Woolla'.

There is no public road access available to the owners of 'Woolla' other than via the existing road through Lot 16 in DP 861498." 5 In about March 1996 Ms Woodley-Beattie entered into a contract with Mrs Griggs for the purchase of Lot 6 (now known as Lot 16 in the current DP) for $35,000. She completed the purchase on 30 August 1996. Ms Woodley-Beattie acted for herself on the purchase of Lot 16. In her affidavit of 23 April 2008 she stated: "6. Prior to purchasing my property, I carried out searches in relation to access to my property, as it was surrounded by privately owned lots and I saw from the documents I inspected:- (a) that I had access from Araluen Road (a road maintained by the local Council) then the Crown Reserve Road which crosses Neringla Farm then along a right of way in DP 265370 and then along crown road into my property … ;

(b) that the plaintiffs did not have the benefit of any legal right of way over my property [She annexed a copy of the contract of purchase executed on 2 July 1996];

(c) only Lot 5, which became Lot 15, had a right of way over my property." 6 In about September/October 1996 Ms Woodley-Beattie moved a caravan onto Lot 16. She said that after purchase of Lot 16 she realised that the position of the easement across her land in favour of Lot 15 was not located where she could confidently build her shed and, later, her house. She asked Mrs Griggs if she could have the road shifted up the gully. Mrs Griggs, the then owner of Lot 15, agreed. Ms Woodley-Beattie explained to Mrs Griggs that she (Ms Woodley-Beattie) wanted to put the track above the stand of trees so that she could build her shed and her house on the flat area of her land near the river. This involved a diversion of part of the access track. Ms Woodley-Beattie, who engaged a contractor with a bulldozer to shift the track (or part of it, more correctly), said that Mrs Griggs measured out where to put the track and directed the contractor where to put it. Mr Evans saw the track under construction. The approximate location of the shifted track (as distinct from the easement) and the land the subject of the easement are shown on exhibits D1-3 and D2-1. The shifted track extends about 35 to 40 metres across Lot 15 and joins the Crown Road at a point about 150 to 200 metres further north than the easement. Mr Evans does not want the shifted track running across his land and strongly prefers that no easement cross his land and that any easement granted runs directly off the Crown Road. 7 About 20 October 1997 Mr Evans became the owner of what is now known as Lot 15. 8 In the meantime about 18 July 1997 the plaintiffs became the registered proprietors of the Woolla property (being Lots 87 and 122). In 1992 Mr P C Smith had purchased an adjoining property known as Lot 3, DP 752140. Mr Smith said that at the time of purchasing Woolla from Vern Davis (now deceased) and his niece Myrtle Collett, the latter told him that Dorothy Griggs had said that steps were being taken to sort out the access and that Woolla would be granted legal access. After receiving that advice, Mr Smith decided to complete the purchase without further delay as he had known Dorothy Griggs and Myrtle Collett and the Davis family for many years and could rely upon them. 9 Mr Abigail, the solicitor for the plaintiffs, told them that they did not have a right of way to go from the Crown Road reserve through to their property. They did not have a right of way through Lot 3 and Lot 16. Lots 3 and 4 of the subdivision were owned by the Hodgkinsons, having been transferred to them by Mrs Griggs. The plaintiffs need access through Lot 3 to reach a public road. This need has existed for many years and at the moment is informally exercised with the permission of the Hodgkinsons. 10 The easement granted over Lot 16 and shown on the title broadly follows the access route used for many years by those who owned and lived on Woolla, their guests and others. 11 Mr P C Smith has given compelling evidence both in his affidavit and orally of the additional people who, prior to August 1996, used the access route broadly covered by the easement. They included not only Mr Smith and his wife (then the owners of Lot 3 (Cooranbene)) mostly on weekends, but employees of the Council, Telstra, New South Wales Police officers, rural fire workers, ambulance officers, other emergency workers and logging contractors. The last mentioned used a bulldozer, a portable saw mill, logging trucks for big logs and smaller vehicles for the transport of fence posts and firewood. Peter Mass, the bulldozer contractor engaged by Ms Woodley-Beattie, at that time (1996 and previously) lived near Woolla Creek and gained access through Lot 16 and Woolla. Further, the Hart brothers and the Milligan brothers regularly travelled through Lot 16 to access the property south of Woolla and Cooranbene, called Alpine, where they ran cattle and grew vegetables. 12 Mr Smith said - and I accept - that the access route broadly corresponding to the proposed easement was and continues to be used regularly by a number of local people and their invitees. He also said that Mr Evans regularly uses his right of way rather than the existing diverted track. Within the last six weeks Mr Smith's wife had used the easement route as she has difficulty in stopping her vehicle and opening and closing the gate because of the steepness of the diverted route around the gate. Mr Smith said he used the diverted track as requested by Ms Woodley-Beattie. 13 Mr Smith agreed that:

(a) Mrs Griggs gave permission for people to cross her land from the Crown road. There was no right of way in the legal sense; (b) Ms Woodley-Beattie has said that, with conditions, she was quite happy for the plaintiffs to have a right of way across the present diverted track that is being used in conjunction with the remainder of the right of carriageway the subject of the existing easement in favour of Lot 15. 14 Mr Smith stated that the conditions imposed by Ms Woodley-Beattie included:

(a) personal access to him and his wife only and not necessarily their visitors (T36); (b) not to move stock on the road other than in a truck (T36); (c) a payment by him and his wife to Ms Woodley-Beattie of $50,000; (d) not varying the surface of the existing track; (e) right of way to be fenced on both sides of the diverted track at the cost of Mr and Mrs Smith (T37); (f) withdrawal of opposition to closure of the Crown Road as sought by Ms Woodley-Beattie. 15 Mr Smith also objected to the diverted track on the ground that particularly in the area of the gate Ms Woodley-Beattie had put across it, it was dangerous. Mr Smith said on 3 April 2008 that "last year" Ms Woodley-Beattie had fenced a section of the boundary between her Lot 16 and Lot 15 and erected a gate which she insisted be kept closed even though the fence terminates about 200 metres west of the gate and stops short of the river to the east. "Last year" probably includes 2006. 16 Mr Smith said that the gate on the diverted track was on a steep incline. It is. Mr Smith did not agree that the gate at the Crown Road access point was on a steep incline. It appears to be on an incline but not a steep one. 17 Mr Smith said that when he stopped his vehicle at the gate, he turned the engine off, put the vehicle in gear and applied the handbrake. Mr Smith said that it was difficult to start a large vehicle on a steep hill that has a loose gravelly surface. The vehicle has trouble getting traction on the slippery surface. The photographs tendered in evidence support Mr Smith's contention as to the very steep and dangerous incline in the area of the gate on the diverted track. 18 In about mid 2005 Ms Woodley-Beattie applied to close the Crown Road. In about July 2005 she and Mr Smith held a conversation about access and her application to close the Crown Road. Mr Smith wanted legal access granted to Woolla. Ms Woodley-Beattie was not prepared to discuss the matter prior to the Crown Road being closed. He told her that if the plaintiffs were not first granted legal access he would have to object to the Crown Road reserve closure. 19 The plaintiffs did object to the Crown Road reserve closure and so did the Hodgkinsons. There may have been other objectors. The Crown Road reserve facilitated access to the river by not only the Hodgkinsons but also members of the public. 20 I was told that the application of Ms Woodley-Beattie to close the Crown Road reserve has not been resolved pending the decision in the present case. 21 Ms Woodley-Beattie said that in July 2006 she had a conversation with Mr Smith in which she pointed out that the plaintiffs needed access over all other properties and that Mr Smith said that they were starting with her. 22 Ms Woodley-Beattie has asserted that the only places on her property where she can construct a house are where she has her caravan and sheds presently located or a position quite close and to the right of where they are presently situated. These are relatively flat areas and thus she would avoid the need to bulldoze and level a site and possibly some clearing preparatory to building or extensive piers and foundations. Ms Woodley-Beattie wanted to build in an area close to the river. Mr Smith disagreed that the only places where she could construct a dwelling was close to the route of the easement as there were a number of relatively flat spaces in her 40-hectare block where she could build a dwelling and outbuildings, although minor clearing may be required. 23 Ms Woodley-Beattie is no longer in a position to construct or desirous of constructing a separate house. Her circumstances have changed and she now receives a disability pension, lives in Canberra and visits her property on weekends. 24 Ms Woodley-Beattie said that the diverted track reduced the noise and dust especially once the trees and shrubs grew at her caravan and shed site. She said that in 2007 someone came onto her land without her permission and cut back the trees and shrubs and widened the diverted track. She also said that since the cutting of the trees and widening of the track, the noise and dust has increased to the same level as before. The materials suggest that if an easement were granted, as sought, to the plaintiffs, it would have adverse effects on the amenity of Lot 16. 25 It appears that the building which began as a shed has been converted, completed and used as a dwelling. By letter of 19 October 2007 to Abigails, the solicitors for the plaintiffs, Eurobodalla Shire Council in regard to the legality of a building/dwelling erected on Lot 16 wrote: "A perusal of Council records show no approval for the above structure has been given. A site inspection conducted on 17 October 2007 confirmed the existence of a building/dwelling at the above property which does not satisfy Councils Exempt policy.

Consequently the structure and associated works constitute illegal development.

Council has written to the registered owner and advised them of the process required to seek approval retrospectively. However, no assurances the development will receive approval retrospectively can be given." 26 On 5 November 2007 Ms Woodley-Beattie wrote in reply to the Council's letter to her, amongst other things: "Subsequent to our telephone conversation in which you explained that my shed was not an exempt development due to its proximity to an intermittent stream, I have consulted my records. I see that Schedule 1 - Exempt developments, of the Development Control Plan states - 'Not located within 40 metres of an intermittent watercourse identified by 1:50000 topographic map held by the Land Information Centre."

The topographic feature that you have identified as an intermittent watercourse has always been referred to as "The Gully" by my children, myself and all visitors, it has two roads running across it and in the eleven years that I have owned this block of land I have never seen water running down it. It did not occur to me that the dry gully represented an intermittent watercourse and I can see that I have made an error in my interpretation of the Development Control Plan.

It is regrettable that the person who reported my building did not do so earlier. I built this shed over a period of one year beginning April 2006. Since my intention had been to erect an exempt shed, I would have welcomed the information that I had made an error.

Due to the topography and steepness of the land, as you will have seen on your inspection, there are not many places to build. Mr Peter Pritchett from Subdivisions came down there in 1997 with someone from the planning department. It was agreed that the best site for a dwelling was unfortunately located on the Crown Road that ended within my property, and I would need to apply to close and purchase that road if I wished to build there. I was proceeding to do that when I had surgery that left me permanently disabled. This held me up for some years; however, I eventually put in my application in 2005.

My intention had been to erect an exempt shed for equipment and material storage prior to my eventual Development Application For a Dwelling." 27 On 31 July 2008 Ms Woodley-Beattie lodged a development application with Eurobodalla Shire Council. She said that the Council asked her to put in a retrospective development application for a dwelling, which is what she has, in effect, today. As at the date of hearing, the Council had not indicated what course it proposes to take. 28 Mr Smith made it clear that he wants to be able to drive cattle along the easement sought on occasions. It is traditional and usual in rural areas for cattle and sheep to be driven along rural roads and rights of carriageway. Such movements should not be excessive. The stock should be kept on the easement by people on horseback and by the use of dogs. For many years cattle have been run on Woolla. Rectification 29 Counsel for the plaintiff recognised that there were considerable, if not insurmountable, obstacles confronting the plaintiffs' claim for rectification. There was no mutual mistake. Ms Woodley-Beattie never intended that the plaintiffs have an easement over her land. Counsel for the plaintiffs did not press this claim for relief. Section 88K(1) Stipulation 30 This subsection empowers the court to make an order imposing an easement if the easement is reasonably necessary for the effective use or development of other land that will have the benefit of the easement. Ms Woodley-Beattie submitted that the easement was not reasonably necessary for the effective use or development of the plaintiffs' land. Since the plaintiffs acquired Woolla in July 1997 they have had the use of the diverted track which was created prior to the completion of their purchase of Woolla in October 1997. They had been allowed to come and go without hindrance. It was further submitted that if Mr Evans or Ms Woodley-Beattie tried to stop the plaintiffs from going across Lots 15 and 16 to Woolla, each would be respectively estopped as the plaintiffs had a right of passage which was probably coupled with an irrevocable grant. It was submitted that the plaintiffs had the right to come and go and did not need a legal easement. No-one has prevented the plaintiffs from coming and going. They have been doing so for the last 11 years. There was no sufficient reason for them to want to be able to use the areas the subject of the easement granted to Mr Evans as this will be close to the place where Ms Woodley-Beattie desires to live. Consequently it will intrude on her privacy and markedly reduce some of the amenity of her occupation of Lot 16. 31 I do not agree that the present informal arrangements are satisfactory. Their terms appear to be uncertain and very limited. The diverted track is unduly steep and in my opinion unsafe for its users, especially in the area of the gate. Further, the plaintiff is not entitled to exercise the powers under Part 14 cl 1(b) of sch 8 to the Conveyancing Act in relation to it. If the diverted track was to be the subject of the grant of an easement, the powers able to be exercised by the dominant tenement owner would have to be negotiated as the conditions Ms Woodley-Beattie sought to impose were restrictive and unreasonable. Further, the plaintiffs would have to negotiate and agree on terms for their easement over Lot 15 extending from the top of the diverted track (i.e., at the northernmost point on Lot 16) to the Crown Road, a distance of about 35 to 40 metres. Mr Evans, as the owner of Lot 15, much preferred that there be no such easement across his property. 32 Convenient and safe vehicular access to a grazing property is an essential incident of modern effective use and development of the Woolla land and Lot 3. 33 I am persuaded that an easement over Lot 16 is reasonably necessary for the effective use and development of the Woolla land and of the adjoining Lot 3 now and in the future. The plaintiffs run cattle on the Woolla property, as did their predecessors. Conducting such rural operations does involve the plaintiffs, their guests, suppliers, workers and consultants travelling to and from Woolla and the public roads on occasions. The cattle may require treatment by veterinary surgeons. The plaintiffs have established the matters required by s 88K(1) of the Conveyancing Act. 34 I pass now to consider whether the requirements of s 88(2) have been satisfied. Public Interest 35 As to s 88(2)(a), use of the plaintiffs' lands (Woolla and Lot 3), being those having the benefit of the proposed easement, will not be inconsistent with the public interest. Cattle have been run on those lands for many years. This is an appropriate use. It is in the public interest for there to be no difficulty of safe access for any of those previously mentioned or the emergency services. Compensation 36 As to s 88(2)(b), the question is whether Ms Woodley-Beattie as the owner of the land to be burdened by the proposed easement can be adequately compensated for any loss or other disadvantage that will arise from the imposition of the easement. 37 The valuation evidence led by the plaintiffs was limited and none was called by Ms Woodley-Beattie. I was told at the directions hearing that it was difficult to obtain valuers and surveyors to visit and examine the relatively remote area involved in these proceedings, especially at a tolerable cost. I accept that that is so. 38 Mr T Hanrahan, a valuer, was asked to provide, and provided, three assessments of value of areas which are shown on the plan attached to his report: "A. New road access 20 metres wide on south end of Lot 15 adjoining Lot 16 for a distance of about 35 metres [estimated by Mr Evans to be about 40 metres] being about 700 square metres

B. New road access 20 metres wide on the north end of Lot 16 adjoining Lot 15 for a distance of about 84 metres, being about 1680 square metres [referred to as the diverted track] [part Lot 16]

C. Old road being existing right of carriageway on Lot 16 east end from Crown Road to the upgraded road being the continuation of the road from Lot 15 across Lot 16 to Woolla (portion 87) on the south, this being the continuation of the road from Lot 15 across Lot 16 to Woolla (portion 87) on the south, this being 20 metres wide and approximately a distance of 80 metres, being about 1600 square metres [part Lot 16] [at T45, "C" was said to be from the Crown Road to where the diverted road joins it]

1600 sqm c 70 cents = $1120" 39 As to "C", it appears from the plan that the "existing gravel road formation approximately 4 wide and variable width" does not meet the Crown Road reserve and forms but part of the right of carriageway (20 wide). 40 In his report Mr Hanrahan added: "The owner of Lot 16, in allowing for the road carriageway constructed by her to be formalised, would be entitled to $840 for loss of land ('B') and some arrangements made with Lot 15.

Should the Crown road and/or the carriageway 'C' be extinguished this would be of a much greater advantage to the owner of Lot 16 than the value of 'C' due to their proximity to the house and for environmental servicing reasons." 41 I do not think that I should proceed on the basis of "the Crown Road and/or the carriageway "C" being extinguished. 42 At T45 Mr Hanrahan agreed that he had just taken a formula of so much per square metre, measured the carriageway and said that would be the loss. Mr Hanrahan was asked if he had taken into account loss of amenity and replied that his valuation took nothing into account normally found under just terms. It was a mathematical equation. He was not asked to look at just terms aspects or anything like that. 43 At T46 Mr Hanrahan reiterated a comment in his report; namely, that moving the carriageway from the Crown Road to the west to the present alignment would probably enhance the overall value of Lot 16 and not have any adverse effect. He affirmed that no consideration was given to the normal situation of just terms. 44 Mr Hanrahan gave this evidence (T46): "Q. And if was left where it was, would there be any adjustment either way? A. There would be no adjustment at all because of the existing titles and that would not have any adverse effect on the current values." 45 I should have recorded that in arriving at the low values per square metre, Mr Hanrahan stressed that higher values were in respect of blocks that had an "inherent permit to build a house". He wrote that an identical block adjacent to Lot 16 without "an inherent permit" having a highest and best use as grazing or agricultural holding "would have a value of $40,000 with lesser saleability except to an adjoining owner". Therefore, he reasoned that the value of land only is about $1,000 per hectare. He said that the best land was between the road and the river and was probably ten times the value of the residue bush land. 46 It appears that as at 12 April 2008 he took the view that land of 40 hectares with an "inherent building permit" was worth about 21 cents per square metre and that most of this was made up of land with an "inherent permit to build a house". 47 Mr Hanrahan took the view that Lot 16 did not have "an inherent building permit". Ms Woodley-Beattie is seeking to remedy this difficulty by her application for retrospective development approval. The evidence does not enable me to assess with any accuracy her prospects of obtaining such approval. If it were given it would probably have an effect on the current or possibly the future value of her 40-hectare block. 48 There would probably also be an effect on the valuation if she levelled a site and undertook some minor clearing so there could be a building. This would be subject to council approval. See also Mr Smith's evidence as to there being alternate sites for a dwelling and also Ms Woodley-Beattie's evidence on this point. 49 If the proposed easement were granted to the plaintiffs there would probably be more people going to Woolla and more disturbance than if there was only the easement presently granted to Lot 15. Mr Evans' easement only permits his right of carriageway over Lot 16. It does not extend further. If an easement were granted over the same carriageway to the plaintiffs' land, there would be appreciably more traffic on it. 50 Mr R J Evans has stated that he does not need to use the right of carriageway created in favour of Lot 15 as a public road from the north intersects his lot 13. The right of carriageway across Lot 16 leads to the boundary of Woolla and therefore terminates in a dead end for him. 51 In his oral evidence Mr Evans pointed out (at T72) that no easement existed over Lot 15 at the moment and he would not like an easement to be granted over Lot 15 (as an extension to the northern end of the diverted track). It would put a burden on his property and devalue it, he thought. The Crown Road reserve is the only constraint on Lot 15 and an easement roughly along the existing track across Lot 15 would stop building in that area of Lot 15. Mr Evans said that he did not find out until 1998 that the plaintiffs were using the diverted track. That was when he moved onto his property. Mr Evans said that he walked down the Crown Road to the river. He used the road for recreational purposes; sometimes he goes fishing. He does not drive down. 52 Mr Evans said (T77):

"I never use the diverted track because I'm not legally entitled to it. I always use the Crown Road reserve either down to the river...at Murphy's hole and the ford or up my right of carriageway to the Woolla gate." 53 Mr Evans said that sometimes he used his right of way to go and visit the plaintiffs. 54 Mr Evans stated that if the plaintiffs paid him a reasonable amount he would be prepared to forgo his easement across Ms Woodley-Beattie's Lot 16 in favour of the plaintiffs. 55 I have referred to Mr Evans' evidence at some length because it shows that he makes little use of the right of carriageway attached to Lot 15 over Lot 16 and that there would be a major increase in its use if the plaintiffs were granted the easement they seek. 56 In Tregoyd Gardens Pty Ltd v Jervis (NSWSC, Eq, unreported, Hamilton J, 25 September 1997 (BC 97688, 15, 845), his Honour said at 15,851: "Bearing in mind that my view is that s 88K by the words 'or other disadvantage' in subs (2)(b) provides for compensation of the defendants for disturbance beyond the actual value of the proprietary right taken, I suggested to counsel that the figure of $10,000 as compensation may be appropriate. This figure I had in mind as compensating for the loss of the proprietary right taken by the grant of the easement; the disturbance effected by the carrying out of the initial work upon the defendants' land; and the more minor disturbance that would occur thereafter from time to time from the plaintiff or its successors in title entering upon the defendants' land to repair or maintain the line. The plaintiff, by its counsel, indicated that it would submit to the assessment of $10,000 compensation, as appropriate, if the easement were granted." 57 I interpolate that Hamilton J was considering a drainage line. 58 I do not have the benefit of a like concession. In the present case there are three imponderable and unknown factors; namely, whether the Crown Road reserve will be closed, whether the Council will grant retrospective development approval and whether there is another site on the 40-hectare Lot 16 where a dwelling could be built as suggested by Mr Smith and possibly also by Ms Woodley-Beattie. I do not accept the basis of Mr Hanrahan's valuation as at the present time without some assessment of these factors. Distance, remoteness of the area and the consequent costs prevented the parties calling officers from the Department of Lands - being the relevant office dealing with the closure of Crown Roads - and a council officer dealing with retrospective development application approvals who could have perhaps elucidated the factors taken into account so that the court could assess them. Such officers, I appreciate, may not have given useful evidence. 59 I do not regard the grant of the right of carriageway to Lot 15 as synonymous, in effect, with that sought by the plaintiffs. There is a likely different extent of use. I bear in mind that the plaintiffs proceeded with the purchase of Woolla after being warned of the access difficulties. They believed they could negotiate a satisfactory outcome. 60 While I would have preferred to proceed on more detailed evidence as to valuation, it is probably best to proceed on the meagre materials before the court. The cost of doing otherwise is prohibitive. 61 I am satisfied that despite all the flaws, Ms Woodley-Beattie can be adequately compensated for the grant of the easement sought. 62 If the current objections to the Crown Road closure are pressed, I do not assess Ms Woodley-Beattie's chances of obtaining a road closure as 50% or more but I do not dismiss them out of hand. I do not assess Ms Woodley-Beattie's chances of obtaining retrospective development approval as 50% or more. Nor do I dismiss them out of hand. She appears to be able to rely on substantial arguments and the Council officer suggested that she submit her application. Perhaps the applications are interdependent to some extent. 63 It would have been helpful if the court had materials before it of the cost on one of the alternate sites as to levelling the site and minor clearing or additional foundations for a dwelling. Levelling a site with a bulldozer to enable a house to be constructed without extensive foundations is quite common. 64 I have in mind compensating Ms Woodley-Beattie for the loss of the proprietary right taken by the grant of the easement to the plaintiffs, the disturbance effected by carrying out the initial work necessary upon her land, the more minor disturbance that would occur thereafter from time to time from the plaintiffs or their successors in title entering upon Ms Woodley-Beattie's land to repair or maintain the right of carriageway. I fix the figure of adequate compensation as $11,000 for any loss or other disadvantage that will arise from the imposition of the easement.

Reasonable Attempts to Obtain Easement 65 Ms Woodley-Beattie submitted that all reasonable attempts had not been made by the plaintiffs for the order to obtain the easement or an easement having the same effect. 66 By letter of 27 July 2005 the plaintiffs' solicitors wrote to Ms Woodley-Beattie. After referring to her application to close the Crown Road reserve within Lot 16, her desire to build a home near the river but not being able to do so because of the proximity of the reserved Crown Road, and to reluctantly lodging an objection the letter stated that it was desirable to settle the question of access through the valley through Lot 16 and suggested a meeting with all interested parties. The letter continued: "For my clients' part I am instructed to advise that my clients will be more than pleased to withdraw their objection provided that, at their expense, you formally agree to grant to them a registered right of carriageway along the existing access road through Lot 16 in favour of both Lots 87 and 122. My clients would also be prepared to make a reasonable contribution towards the maintenance of this road as and when required. [I interpose that the plaintiffs should bear the whole of the cost of maintaining the right of carriageway.]" 67 Ms Woodley-Beattie responded promptly to the letter. She had a long telephone conversation with Mr Abigail. He wrote to her again on 31 July 2005. Amongst other things he referred to her concern that if she granted a right of carriageway to Lots 87 and 122, the plaintiffs would subdivide their land and the traffic flow would be substantially increased. He added that the plaintiffs instructed him that they had no intention of subdividing their land. The letter also stated: "(C) Legal costs

I have been instructed to advise that Peter and Robyn would be prepared to reimburse you in respect of any reasonable legal costs you incur up to five hundred dollars ($500.00) with a solicitor of your choice in providing to you independent advice in respect of the requested right of carriageway and in meeting with them, yourself and the writer discussing the same, if such a meeting is arranged. Further, should agreement be reached with you to grant them the requested right of carriageway upon terms acceptable to you and them, they would:

(i) meet the total legal costs involved in the granting of the requested right of carriageway to them (ii) withdraw their objection to the closure of the reserved Crown Road and fully support you in your application in respect of thereof, and (iii) reimburse you for the application fee you paid for the application for closure, which you advised me was around $900." 68 Ms Woodley-Beattie misunderstood the letter in that she thought that she was being offered a total of $500 on account of costs. 69 In 2005, $500 was a reasonable starting offer, although it would not be considered so today. Ms Woodley-Beattie did not respond and say that she needed $1,000 to $1,500 to obtain advice. 70 The letter stated that the plaintiffs requested Ms Woodley-Beattie to formalise the access arrangement by granting them, on terms acceptable to her and them, the requested right of carriageway and that the plaintiffs were willing to meet with her with their respective solicitors. Nothing eventuated. 71 Mr Smith deposed to discussions with Ms Woodley-Beattie and the conditions she suggested. 72 In Tregoyd Gardens at BC 15855, Hamilton J relied on the remarks of Simos J in Coles Myer NSW Ltd v Dymocks Book Arcade Ltd (1996) 7 BPR 14,638 at 14,653-4: "Having regard to these differences between the parties, as at 26 February 1996 the position as at that date was, in my opinion (ignoring the precise contents of this letter and those affidavits which were not, as such, available on that date), that it was extremely unlikely that consensus would be reached in the foreseeable future in respect of all those differences, including the differences as to the payment of compensation to the defendant in respect of the easement for light and in respect of the possibly affected occupants. (Cf Re Seaforth Land Sales Pty Ltd's Land [1976] Qd R 190; [1977] Qd R 317 (Full Court)).

In that context, in my opinion, the whole of the circumstances considered from an objective point of view as at 26 February 1996, were such that the plaintiffs had at that time made all reasonable attempts to obtain the easement, since any further attempts were extremely unlikely to have produced consensus within the reasonably foreseeable future. The plaintiffs were not, in my opinion, required, as it were, in order to satisfy the requirements of s 88K, to continue to negotiate with the defendant by making more and more concessions to the defendant until consensus was reached to the satisfaction of the defendant. In my opinion, once it appears from an objective point of view that it is extremely unlikely that further negotiations will produce a consensus within the reasonably foreseeable future, it may be concluded that all reasonable attempts have been made to obtain the easement, provided of course that the reason for that position is not simply because the respondent has not been sufficiently informed by the applicant of what is being sought by the applicant or has not had an opportunity to consider its position and its requirements in relate thereto." 73 In my opinion, having regard to the evidence of Mr Abigail, the letters he sent and the evidence of Mr Smith, the parties were extremely unlikely, prior to the plaintiffs filing their summons, to reach consensus in the foreseeable future. I would follow the approach of Simos J. 74 I have concluded that all reasonable attempts were made to obtain the easement sought or an easement having the same effect. They were unsuccessful. 75 I am prepared to make an order generally in terms of para 5(a) of the further amended summons but I am prepared to hear the parties as to the precise terms of the orders to be made. There may be debate as to the precise terms of the easement which should be granted. 76 There will have to be an order for payment of compensation of $11,000 by the plaintiffs to Ms Woodley-Beattie. 77 The plaintiffs must pay the legal and conveyancing costs of Ms Woodley-Beattie as to the preparation, lodgement and registration of the easement. 78 I direct: (a) on or before 22 May 2009 the plaintiffs serve on the defendants short minutes of order giving effect to this judgment and setting out the terms of the right of carriageway sought

(b) on or about 1 June 2009 each of the defendants serve on the other and the plaintiffs any amendment desired or his or her own draft of the short minutes of order sought

(c) list the matter on 5 June 2009 at 9.30am to settle the short minutes and to resolve all outstanding questions including costs.

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At a glance

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Judgment (39 paragraphs)

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