Swann & Anor v Spiropoulos & Ors; Von der Heyde v Spiropoulos & Ors [2006] NSWSC 860 | Case summary

4 I will first describe the site that is relevant to the arriving at, and leaving of the site of the proposed easements. Travelling from Mullumbimby one can travel along formed roads until one gets to a road which is marked "RR" at the easternmost end of the land which is shown on the map. That road has been constructed until it meets the north ridge. Thereafter, it only exists on paper. The site of that road has been investigated by an engineer, in the portion where it runs in a westerly direction, who has reported that the grades are too steep for it to be approved as an access road. The Byron Shire Council (which is the relevant Local Government Authority for the area) when asked, has refused to spend any money on the opening of the paper road. 5 In the road shown on the map, at the point marked A, it is possible to turn left, and enter what is in practice a one lane track capable of taking a vehicle. That track traverses, first, some land which is owned by Karu-Kali Pty Limited. Then, it comes to the northernmost point of the boundary of Lot 2 in DP627619, and continues to travel just south of the northernmost boundary of Lot 2, until it reaches Maori Creek. There, there is a bridge, which the road crosses. Then the road continues west, until it reaches Lot 1 in DP627619, and crosses it. Lot 1 is owned by Mr and Mrs Spiropoulos, who were originally the first and second defendants in these proceedings. 6 From the westernmost boundary of Lot 1, the road then continues along the southernmost boundary of some land owned by Karu-Kali. Then, it enters Lot B in DP412402. Lot B is owned by the third defendant in the proceedings. The track continues for some 75 metres across Lot B, and then it continues to traverse, in turn, Lot 121 and Lot 123 in DP755722, coming to an end slightly inside the easternmost boundary of Lot 125 of DP755722. In the course which it follows from where it crosses the bridge over Maori Creek within Lot 2 and DP 627619, the road runs, in broad terms, along the floor of the valley, and somewhat to the south of Maori Creek. Lot B - Attributes and Creation 7 The third defendant's land, Lot B, has an area of 6 acres, zero roods, one and a quarter perches or in metric 2.43 hectares. It was created by the registration of file plan 412402 in 1958. The land which lies to the east of Lot 121 had formerly been contained in portion 91 of the relevant parish. File plan 412402 subdivided portion 91 into four lots, A, B and C, and a residue lot. Lot B is the westernmost of those lots that were created. Lot C is a very small lot, of only eight and a half perches, which lies on the northern side of the easements created by file plan 412402, and immediately to the east of the northernmost part of Lot B. When file plan 412402 was created, it proceeded in a sensible conveyancing way to create easements in favour of Lots A, B and C over the residue lot within portion 91. 8 Lot C has always been in the same ownership as Lot A. The unusual location of Lot C is such that there is a narrow strip of land immediately to the south of it, which still remains in the ownership of Karu-Kali. It is, in part, over that narrower strip of land that the access track runs over Karu-Kali's land before it enters Lot B. 9 While the northernmost boundary of Lot B is defined by surveying marks, it appears from the evidence that those surveying marks are closely proximate to the southernmost bank of Maori Creek. 10 In broad terms, as one goes south, within Lot B from Maori Creek, the land rises, steeply in some places. 11 File plan 412402 not only shows the rights of way which were created at the time of registration of that file plan. It also shows "track" continuing across Lot B, on the site of the access road, through into Lot 121. 12 In 1972, the residue portion of portion 91 was further subdivided to create Lots 1, 2 and 3 in DP558858, Lot 3 in that DP is now the land owned by Karu-Kali. 13 The effect of the subdivisions which I have earlier outlined is that the benefit of easements over any part of the former portion 91 was not granted to Lots 121, 123 or 125. That situation has been remedied at least to some extent during the last fifteen years but that process is incomplete. 14 The third defendant has asserted in evidence that the site of the road is the only completely flat area within her land. 15 That is not quite right, because while the road is flat for many practical purposes, measurements of the grades as one travels along the portion of the access road located in Lot B shows that it has grades ranging from 4 per cent to 14 per cent. 16 As well, somewhat to the south of the site of the old access road there is an area (approximately at the place where the word "option" appears in the expression "option vi" in the plan which is Annexure 10 to an affidavit of Mr Alderson) where the third defendant has had a bulldozer flatten the land. That site was an intended future house site. A valuer, Mr Frogley has described that as being "the most practical dwelling site" on Lot B. However, no building has actually taken place even in the most preliminary way on that intended house site. 17 Even further south of Lot B there is a further area where the grade flattens out somewhat which could also be, with further engineering work, a possible house site. History of Local Land Use 18 The area within the valley is known as Coopers Lane. It is so named because it went through land that was occupied (as at 1908, and possibly earlier) by William Edward Cooper. In 1912 notice of intention to resume land along the site of the access road to which I have referred was gazetted, but that resumption did not proceed to the next stage, of actually resuming the land. 19 Settlement in the valley has occurred from at least 1908. In the early years of settlement, there was timber-getting with bullock teams to bring logs out. At some stage before World War I, Mr Cooper sold some land - fairly imprecisely defined by the evidence - at the western end of the valley to some Chinese people. They built a house on what is now Lot 125, and planted fruit trees and vines there. A track ran from the reserved road to their house, which has become known in the area as the Chinaman's House, from at least 1912. It was the only means of access into the valley. 20 Around the time of World War I banana farmers moved into the area for a time before Bunchy Top affected their productivity. There was also some cattle grazing in the area from at least the 1920s onwards. In the period between the First World War and Second World War it appears that the valley was somewhat more closely settled than it is now. In particular various Italians lived there growing bananas, there was an Aboriginal family who lived close to the western end of the valley, and other people lived there as well. 21 One resident, Mr William Bower, recalls that when he was first married in the 1940s he lived in the house known as the Chinaman's House and the road was big enough to take a large truck up, with a place where you could pass on. He recalls that there would have been eight or ten vehicles using the road each day and that there would have been about fifteen growers living in the valley. 22 Over the period from, I would infer, at least 1912, the various residents of the valley used as the only access road to the land up to and including Lot 125 the access road which ran along the floor of the valley. In general, they travelled on a horse or by horse drawn vehicle although some of them had motor vehicles. Some of them had motorbikes, some had pushbikes, some walked. Particularly during the latter stage of the second World War usage of the road by motor vehicles became infrequent because of the rationing of petrol, but after that ceased, usage by motor vehicles increased again. 23 On Lot B there was erected a shed which was used as a banana packing shed. To enable it to fulfil that function it was constructed immediately adjacent to the site of the access track. It lies on a fairly narrow strip of land between the access road and Maori Creek, at a distance of certainly no more than 20 metres from Maori Creek, and possibly less than that. It is made of timber, with a galvanised steel roof, and is set on concrete block piers. 24 Since she has purchased the property, the third defendant has upgraded the shed. It has never received council approval to be used as a dwelling, but that does not seem to be an uncommon event in the Byron Shire, for rural dwellings. The Plaintiff's Land 25 The present owner of Lot 125 is Mr Victor von der Heyde. The present owners of Lot 123 are Ms Silvia Roberts and Ms Melinda Swann. Mr von der Heyde is the plaintiff in one of the actions I am hearing, and Ms Roberts and Ms Swann are the plaintiffs in the other. 26 Mr von der Heyde's mother acquired the whole of Lots 121, 123 and 125 in 1973. She gave all three lots to him in 1977. He has had ongoing contact with the property in the years since then. He lived there for some years, from 1973 to 1977, and since then has lived there sporadically, at least until events which I will later come to. 27 In June of 1984 Mr von der Heyde registered a deposited plan which created easements over Lot 121 and Lot 123 in favour of Lot 125, and also over Lot 121 in favour of Lot 123. Those easements ran along the site of the old access track. 28 In 1985 Mr von der Heyde sold Lot 121 to Mr Robert Szelag. Mr Szelag continues to be the registered proprietor of Lot 121. He has been informed of these proceedings, but does not wish to take part in them. 29 In 1988 Mr von der Heyde sold Lot 123. Through some intermediate transfers, it has come to be held by Ms Swann and Ms Roberts. 30 The first and second defendants in this case, who originally opposed the grant of easements over Lot 1, have now settled that litigation. That settlement occurred when orders were made on 12 July 2006. Those consent orders were ones whereby the first and second defendants agreed to grant the easements sought, for a total sum of $70,000, inclusive of costs. Thus, the present situation is that it is only the 75 metres of the third defendant's land which is preventing the plaintiffs from using the entire length of the old access track. Use of Access Road After Third Defendant Purchases Lot B 31 It was in 1994 that the third defendant purchased Lot B. Fairly soon after she had purchased it, the Third Defendant wrote to Mr von der Heyde's then tenant, foreshadowing that she would decline permission to use the access road. 32 In the course of 1995 Mr von der Heyde met the third defendant, and asked whether she would consider accepting compensation for an easement. She said at that stage that she was not interested in compensation because she did not intend to grant an easement. 33 The Third Defendant has, over the years, changed her attitude to the granting of an easement from time to time. Sometimes she has been prepared to grant an easement with compensation, but at other times she has expressed opposition to it in principle. 34 In 1996 she told Mr von der Heyde that she would grant an easement if there was an independent assessment showing that an alternative route coming down from the north ridge was not a viable option. Thereupon, Mr von der Heyde engaged Geolink, who are engineers, planners and landscape architects, to prepare a report. That report examined three different options for obtaining access to portions 121, 123 and 125. Two of the options considered were different routes for connecting the existing right of way, that Lot 125 and Lot 123 had within Lot 121, to the road reservation at the north ridge. Geolink concluded that each of those routes was too steep to be practical and that: "It is doubtful that any responsible public authority would countenance the proposal for its potential to induce significant damage and degradation to the Maori Creek catchment." 35 The third option involved skirting the dwelling site on Lot B by going further south within Lot B, and then meeting up with the existing right of way in portion 121. Geolink concluded that that option was not practical either, and that the only practical way of maintaining access which they could see was to use the site of the existing access tracks. 36 In August of 1996, at a time which I would infer was after that report had been received, there was a meeting between Mr von der Heyde and his then solicitor with the third defendant. The solicitor explained briefly the powers of the Court under section 88K, to which the Third Defendant said she would give an easement for each of Lots 121, 123 and 125 if she received $6,000 from each of the owners. Mr von der Heyde at that stage was not in a position to speak for the other owners, and so that proposal did not advance. 37 There then arose, in November of 1996, a proposal from the Third Defendant that a different access route again should be considered. This road is referred to as the "Hoop Pine Route", because it passes through an area in which there are Hoop Pine trees. That route was not investigated in any detail at that stage. 38 In August of 1997 Mr von der Heyde obtained a valuation appraisal from DV Cochrane and Co Valuers. It concerned appropriate compensation for the grant of an easement by the Third Defendant in favour of Lot 125. That valuer came up with a figure of $5,000. 39 His report is in evidence before me, but I can place no reliance on his view because of three different factors. Firstly, the evidence does not comply with the expert's code of evidence. Secondly, the process by which the figure of $5,000 was arrived at amounts, so far as I can see, to nothing more than plucking a number out of the air. Thirdly, his understanding was that due to the history of the titles, all three of portions 121, 123 and 125 had an actionable right to obtain access over Lot B without paying any compensation whatever. In the proceedings before me neither plaintiff has sought to make a case that there was an easement by prescription, or an easement which had been omitted or misdescribed in the Torrens Title Register. Thus this fundamental assumption in the Cochrane valuation has not been made out. 40 The question of compensation for an easement has been discussed periodically between the Third Defendant on the one hand, and either Mr von der Heyde, or the owners of Lot 123, on the other. One occasion was in 1997 or 1998 when the Third Defendant told Ms Roberts and her then husband that, "I am open to a good offer of compensation." 41 At various times in 1998 Karu-Kali was pressed for permission to grant an easement along the Hoop Pine route. Karu-Kali have been asked for this easement on several occasions, but have consistently refused it. 42 In February of 1998 the owner of Lot 2 in DP627619 transferred a right of carriageway 6.035 wide over that deposited plan for the benefit of Lot 125, for a consideration of $1,000. In November of 1999, the owner of Lot 2 transferred a similar right of carriageway for the benefit of Lot 123, for a further $1,000. Each of these rights of way was on the site of the existing access track over Lot 2. That right of way granted over Lot 2 is within view of the cottage constructed on that land, but the evidence does not disclose how close it is to that cottage. 43 In May of 1998 a community meeting was organised which was intended to be attended by various people who were interested in whether the access road was formalised as an easement. At that meeting the Karu-Kali representatives again declined to give an easement to enable the Hoop Pine route to proceed. 44 I accept that at that meeting the Third Defendant said to Mr von der Heyde that she probably paid less than she otherwise would have for her property, because of the existence and use of the road. However, even if that statement were true, it does not seem to me that it bears in any way upon any question which the Court ought consider for the purpose of section 88K. 45 Insofar as valuation considerations enter into section 88K, the appropriate question is what compensation should be paid, now, for the grant of an easement. Whether the person over whose property the easement is granted had a good bargain or a bad bargain when they first acquired that property does not matter. 46 At that meeting, there was also discussion of the risk of fire in the valley. Some parts of the valley are designated as bush fire prone areas. The access route along the floor of the valley provided the only practical means by which fire fighting vehicles could get into, or further west than, Lot B. The Third Defendant at that stage agreed to the road west of her property being worked on, to enable a bush fire truck to use the road, but she specified that no work should occur on the section of the road crossing her property. 47 That work was placed in hand soon afterwards, in the course of which some gravel came to be placed on or near the Third Defendant's property, and she forthwith prohibited the work from continuing. 48 After that event, and at least by 1999, she placed a stake in the middle of the road which prevented access to Lots 123 and 125 by means of the pre-existing track. Since 1999 there has been no vehicle access at all to Lots 123 and 125. Anyone who wants to get there needs to walk. They have done so by walking across Karu-Kali's land, and Lot 121. 49 In March of 2000 Mr von der Heyde obtained a further valuation, from Mr Neale Frogley. He valued the compensation for the easement in favour of Lot 125 at $15,000. While his valuation is in evidence, I simply do not follow his methodology. He lists sales of various lots of land, apparently lots with freehold title, in the area, gives the date of sale, price of sale, area, and a brief description of any improvements, and then simply says, in effect, that he values the compensation for the easement at $15,000. None of the supposedly comparable sales on which he relied involved the grant of an easement, and no indication was given of by what process of reasoning he got from a price for the sale of freehold land to the value of an easement. Though his report contains some useful descriptive material, I do not rely on it at all as a valuation. 50 In May of 2002 Karu-Kali transferred rights of carriageway 6.035 metres wide over its land for the benefit of Lots 123 and 125. That was done for a price of $4,000 in respect of Lot 125, and a further $4,000 in respect of Lot 123. The site where the easement ran in Karu-Kali's land was along the line of the existing access track, but that is a location which is not adjacent to any dwellings. 51 On 16 June 2002 there was a meeting between Mr von der Heyde and the first, second and third defendants, to enable further consideration to be given to the practicability of using the Hoop Pine route. 52 Mr von der Heyde had a GPS system with him and took various waypoints using that instrument, and also marked various trees so that the route could be identified. He undertook to investigate the practicability of the route. 53 The next day, 17 June 2002, there was a meeting between the first defendant, the plaintiffs, and two of the Karu-Kali shareholders. At that meeting the Karu-Kali shareholders reiterated that they would not permit a new access road through their property. 54 That left the plaintiffs in a situation where, even assuming the Hoop Pine route was practical, they would need to get a section 88K order against either Karu-Kali, or the defendants in the present cases, to be able to obtain access to their land. 55 In the course of 2004 the Chinaman's House fell off its stumps and partially collapsed and has now become practically unusable. It has not been possible to repair it because materials to repair it cannot be brought in by carrying them by hand. There has also been some vandalism and theft from Lot 125. 56 In September of 2004 a report was obtained from Mr Alderson. He is an engineer presently in private practice and was the shire engineer at Byron Shire over a period from at least 1986 to 1993. He examined a total of nine options for obtaining access to Lots 123 and 125. Those nine options included all of the options which anyone had ever put forward as being a way in which access might be obtained to those lots. To assist him he engaged the services of Dr Barbara Stewart, who is an ecologist, to assess the environmental impact of the various options. 57 He concluded that all of the options apart from the existing access route had grades which were not satisfactory for vehicular access to the properties. As well, Dr Stewart's report found that five of the alternative routes which were considered were unsatisfactory because they passed through an area in which there was a threatened flora species, the Fragrant Myrtle, such that approval for development of the routes was unlikely. She found that another two of the routes had drainage issues, which made them undesirable. Her overall conclusion was that all route options other than the existing access track "will result in ecological impacts that are likely to be unacceptable to authorities". 58 According to Dr Stewart's report, even to obtain permission to use the existing access track through Lot B, the relevant statutory authorities would require an eight point test to be undertaken and an assessment made of the significance of impact on matters of national environmental significance. However, Dr Stewart was of the view that "no significant impact can be anticipated as a result of these tests, and as long as adequate precautions are taken in any roadworks a determining authority would be unlikely to object to this route on ecological grounds". 59 The report of Mr Alderson found that all of the options which he considered, apart from the existing access route, had grades which were not satisfactory for vehicular access. 60 I am satisfied, by the evidence of Mr Alderson and Dr Stewart, that the only practicable route by which vehicular access can be provided to Lots 123 and 125 is along the site of the existing access track. Legal Tests for Section 88K 61 In deciding whether to grant an easement under section 88K, the appropriate tests to consider are whether (a) the easement is reasonably necessary for the effective use or development of the plaintiff's land; (b) the use of the plaintiff's land in accordance with the easement will not be inconsistent with the public interest; (c) that the grant of the easement can be adequately compensated for; (d) that all reasonable attempts have been made by the plaintiff to obtain the easement but those attempts have been unsuccessful; (e) if the answer to each of those four questions is yes, whether the Court should exercise its discretion to impose an easement; (f) what compensation, if any, should be required; and (g) is there any reason why the costs should not be paid by the plaintiff: Hanny v Lewis (1998) 9 BPR 16,205; Khattar v Wiese [2005] NSWSC 1014. Reasonably Necessary for Effective Use 62 The first of those questions focuses on what is reasonably necessary for the use or development of the plaintiffs' land rather than anyone else's land. There are substantial practical difficulties which arise in the use or development of the land of each of the sets of plaintiffs from the absence of an easement. Lot 125 has been, at least in some parts, farmed continually since about 1930. An area of 4 acres on Lot 125 has been leased by farmers since Mr von der Heyde's mother purchased the property in 1973. In 1990 Mr von der Heyde leased that area to two men, for farming, for five years with an option of a further three years. They did not exercise that option, stating as their reason the third defendant's intention to stop access. Since the lease expired in 1995 the area they leased and the internal road to it has become completely overgrown. 63 Lot 123 has on it a small cabin. It was occupied for a period of time. Since April of 1999 both lots have not been occupied. 64 It is not an effective use of resources for them to be left landlocked, where no use can be made of them at all, for practical purposes. Given the location of Lots 125 and 123, and modern conditions of life, nothing short of providing vehicular access would be adequate for the effective use or development of those lots. The bushfire prone nature of the valley also creates another reason why vehicular access is needed for effective use or development of the land. There are some walking tracks which are known as the old banana tracks which wind up from Lot 125, generally heading in a southern direction, towards the scree near the cliffs, and then head roughly east, leading to the southern boundary of portion 123, and then join an area referred to as "the banana area" on the southern section of Lot 121, which can in turn lead one by foot to Coopers Lane south. However, it is hardly realistic to expect people to walk out from a bushfire, nor to live in a location where they cannot be reached by fire fighting vehicles. Not Inconsistent With Public Interest? 65 The grant of an easement is not inconsistent with the public interest. The absence of environmental impact of this route, by comparison with the others, weighs somewhat in favour of the grant of the easement running along the valley floor rather than anywhere else, but given that, on engineering grounds, having an easement anywhere else is not practicable, I do not place particular weight on that factor. 66 The zoning of Lots 123 and 125 is such that one residential dwelling can be built on each lot. I accept that it is consistent with the public interest that a development consistent with zoning be able to occur. 67 The third defendant submits that the public interest includes the interest of those who are further to the east than her in the valley. She says that, if an easement were granted over her property, then that would increase the traffic over those lots, with consequent extra need for maintenance of the road and bridge. I do not accept that that is a factor which is relevant to the public interest, given that each of those people, whose land lies to the east of the third defendant's land, has already granted to the plaintiffs an easement, which will permit the plaintiffs, if they are able to get access through the third defendant's property, to use their land. This is a situation where I would regard the action of the people to the east of the third defendant in granting those easements as being a legitimate exercise of their own freedom of decision making, and that the public interest favours them being able to do that if they want to. Some Practical Difficulties which Arise from the Grant of the Easement 68 While title to the land over which the easement is sought would not be lost to the third defendant, there would still be an inhibition on the activities which the owner of Lot B could carry out on the area of the easement. The area of the proposed easement is a total of 455 square metres. 69 However, the significance of the grant of the easement is not adequately ascertained by measuring areas. The site of the proposed easement runs very close indeed to the cabin. The cabin is one which has decks on the western and northern side. The entrance to the cabin is on the western side. Thus, vehicles using the access road would be visible from the deck in front of the entrance, from the entrance, and most probably from inside the cabin as well. 70 There is a garden on the northern side of the access track which runs for a short distance to the west of the cabin. Vehicles would also be able to be seen by anyone in this back garden. It is inevitable also that vehicles would be able to be heard from inside the cabin and its immediate surrounds. There would be an inevitable loss of privacy, and a loss of the feeling of total seclusion, that the cabin presently has, arising from vehicles passing by. There is a possibility of some dust arising from the vehicles travelling along the road, if it is not sealed. Other Questions Relevant to Grant of Easement 71 If the easement is granted, there would be an inhibition on the ability of the third defendant, or anyone else who might come to own Lot B, to develop the proposed building site, because it would be necessary to pipe any services which needed to connect to the creek under the road. There may be a need to create fencing, if there were to be young children in the vicinity of the access track. It may be necessary to improve the ability to lock up the existing cabin, and the area underneath it (which is presently standing open, on concrete piers) to improve the security of the inhabitants. All of this is predictable. 72 For many years there was a thick screen of cow cane along the access road, which provided good privacy for the cabin and the back garden, but that screen has been removed. Even though Dr Stewart is of the view that cow cane is not a desirable plant to use in the area, there are several native species available which in her view could provide an effective vegetation screen. 73 At present, there is only one formed car park which is off the access track, and located within Lot B. Even though the land which lies immediately to the east of that car parking space looks, from photographs, to be comparatively flat and able to be cleared if one went to a little trouble, I am not satisfied that that land to the east of the present car parking space does not lie within Lot C. There is another space, which is towards the western end of Lot B, which does seem able to provide practical car parking off the site of the right of way, but its distance from the house would provide an inconvenience. 74 If the access road were to be granted there would be a need for periodical maintenance of the road. This would involve both re-graveling or re-bitumening the road surface itself, and the cleaning out of swales at the side of the road. 75 There is a further problem, which emerged in the course of the evidence of Mr Alderson. The fact that the land within Lot B rises to the south, as one goes from the proposed access road, means that there are problems of protecting the access road from run-off drainage. To be able to adequately protect the road from that run-off drainage, in Mr Alderson's view it would be necessary to construct two swales on the bank to the south of the road, and maintain them. Those swales would lead run-off water from the slope immediately to the south of the access road to two places where there are existing pipes or culverts under the access road, which could conduct the water to the creek. The third defendant has agreed that, if the work involved in those swales was done solely at the cost of the plaintiffs, and they paid an additional $3,000 compensation, she would regard that as adequate. 76 If anyone ever were to resume living on Lot 123 or Lot 125, it would be necessary for a new house to be constructed on each of those lots. That construction activity would necessarily generate traffic while it was occurring. 77 At one stage, the third defendant was requesting that there should be a sealing of some type placed on the road immediately outside the cabin. She suggested, at one stage, that concrete strips could be used. I accept Mr Alderson's view that that would not be an appropriate engineering solution, because of the risk of there being scouring of the land inside the concrete strips. 78 An alternative solution which she has put forward is that there be a bitumen surface to the road, in the part that runs outside the cabin, and for some distance on either side. The evidence relating to this is little more than the third defendant's wish. I am not persuaded by the evidence that any such bitumenising of the surface is necessary. 79 While the road which presently is in existence is just a one lane track, and the proposal of the plaintiffs is that it should not in future be any more than a one lane track with occasional passing bays, they seek the grant of an easement 6.035 metres wide. All the easements which have been granted leading from the public road up to Lot B are 6.035 metres wide. The easements leading on over Lot 121 and Lot 123 are even wider. Mr Alderson's evidence, which I accept, is that the relevant specification for provision of an access track in a fire prone location would require a four metre width for the road itself, with one metre clear on each side. That gives a total width, according to him, of six metres. 80 In all the circumstances, it seems to me that there is some undesirability in having the road changing in width, and the extra .035 metres which is sought is not substantial. 81 The plaintiffs propose, as a condition of the grant of the easement, that they be responsible for the maintenance and periodical re-graveling of the site of the right-of-way. The condition which is imposed is - as I understand what is sought - one which would make Mr von der Heyde, under the terms of any easement which were granted to him, fully responsible for the maintenance of the easement, and would also make Ms Roberts and Miss Swann, under the terms of the easement granted to them, fully responsible for the maintenance of the easement. 82 In my view, that is the correct way of structuring the situation. If an easement is granted, the third defendant should not be prejudiced by any squabbles between the plaintiffs about who is to pay for maintenance, nor by any impecuniosity of any of them. 83 The appropriate way to proceed is to impose an obligation on Mr von der Heyde to pay the totality of the cost of maintenance and periodical re-graveling, and also to place an identical obligation on Ms Roberts and Ms Swann. One would then leave the lot-owners to sort it out between themselves how that cost is borne, through the operation of the equity of contribution, which ought result in Mr von der Heyde bearing half of the cost, and Ms Roberts and Ms Swann together bearing half of the cost. 84 A possibility which the third defendant has been concerned about is that subdivision might occur in Lots 123 or 125. The present zoning of the various proposed dominant tenements is such that they could not be subdivided, under the present planning regime, to accommodate more than one principal dwelling. The announced plans of the Byron Shire Council are that no consideration will be given to any increase in density of population in this area for, at the minimum, ten years. Thus, there must be a possibility that subdivision might become possible after that time. However, it is a speculative possibility, and if there is a change in the zoning, it is a change in zoning which could well affect Lot B, as well as the other lots. If greater density of settlement were permitted, that change might well itself bring benefits to Lot B. 85 The prospect of there being greater traffic on the road through a future subdivision of Lots 123 and 125 is so remote that it is not possible to assess an appropriate amount of compensation in relation to it. Possibility of Providing Compensation 86 I accept that it is possible to provide adequate compensation for the grant of the easement. The very fact that the third defendant was on occasions willing to grant an easement for compensation is indicative of that. As well, the sorts of disadvantages which the opening or reopening of the access road would bring with it are, inherently, the sort of things which can be adequately compensated for. The question of what is the appropriate amount of compensation is a different matter, which is dependent upon the evidence which is presented in the instant case. Reasonable Efforts to Obtain Easement? 87 I am also satisfied that there have been efforts made, over the years, by the plaintiffs to obtain the grant of an easement. There has been continuing discussion with the third defendant - though occasionally at fairly lengthy intervals - and the commissioning of the expert reports which I have earlier mentioned shows, in my view, a responsible approach to seeking an alternative way of obtaining access which would not involve impinging on the third defendant's property. I am satisfied that all reasonable attempts have been made by the plaintiff to obtain the easement but those attempts have been unsuccessful. Grant of Easement Appropriate? 88 I am also satisfied that, taking into account all the matters I have mentioned in this judgment, it is appropriate to order the easement be granted. Quantum of Compensation 89 I turn to the question of valuation. I have earlier mentioned the easements which have been granted over Lot 2 in DP627619, and by Karu-Kali, and by the first and second defendants. 90 There are three reports before me which were prepared by valuers who intended them to be used as evidence. The first of them is a report from Mr Egan, who was a valuer engaged by the plaintiffs, but who has unfortunately died since he prepared his report. He took into account the price paid for acquisition of rights of way over Lot 2, and over the Karu-Kali land as setting "a reasonable limit to the price a "Vendor" will accept for the effect to their Proprietary Interest, disturbance and future maintenance". He assesses the loss of proprietary interest at $2,000, and disturbance at $10,000, making a total of $12,000. This is done on the assumption that all ongoing maintenance is the responsibility of the dominant tenements. 91 In my view, the process of reasoning which Mr Egan has engaged in is less than persuasive, and I simply cannot see where he got his figures from. 92 Mr Allsopp is a valuer who was engaged by the defendant. He was not available for cross-examination, but, in circumstances which I outlined in an earlier judgment in this case, I permitted his evidence to be read. He proceeds on the assumption that the road surface will be sealed for 100 metres either side of the house. 93 His methodology was to consider three sales of freehold acreage in the vicinity, and three sales of the freehold of what I might call incomplete parcels of land. For the three freehold sales he subtracted what he took to be the value of the improvements on the property without saying how he arrived at the value of the improvements. 94 One of the three sales of freehold of incomplete parcels of land was the purchase of the freehold of some 1573 square metres of a "paper road" for $17,500. Another was a boundary adjustment between neighbours, for a land value of $32,500 for 1866 square metres. The third was what one might call a boundary adjustment relating to 2.02 hectares for $75,000. That third sale was unusual, in that the purchaser owned 0.101 hectares of land, and acquired the much larger area of land to add to it. 95 Notwithstanding its appearance of consulting comparable sales, Mr Allsopp's valuation gives the reader no clue as to how the figures are used. It sets out a total compensation of $65,000, in relation to each of the proposed easements - that is, $130,000 compensation in all. This is broken down into elements of: Blot on the title, $10,000; disturbance (involved in creation of the right of carriageway arising from noise of machinery, ingress/egress difficulties or even denial of access for short periods during construction, and destruction of existing vegetation of upgrading of access) $5,000; injurious affection for compensation (consists of loss of quiet enjoyment from extra vehicles traversing the area, inconvenience in parking, inconvenience in potentially meeting other vehicles on a one way drive and loss of privacy) $50,000. 96 The method by which these figures are arrived at is completely unconvincing. There is simply no reason given as to why a particular number of dollars has been chosen, rather than some other number of dollars. He is, in my view, filling a function little different from that of a juror stating, by reference to the general knowledge that everyone in the community has, what in his view figures for general damages should be. Expert evidence must have a better basis than that, if it is to be of any weight. 97 The third report is that of Mr Large. It was given after Mr Allsopp's report. Mr Large inspected the three sales of freehold property that Mr Allsopp had relied on, and the second of the sites of sales of incomplete parcels. For the third of the freehold sales, he took the view that the value of the improvements had been understated by Mr Allsopp, but he was no more forthcoming than Mr Allsopp had been about why it was that he took that view. 98 For the first and third of the incomplete parcel sales, he calculated that they showed a rate per square metre of $3.71, and took the view that the appropriate rate for the land value of a right of way was 30 percent of that amount, or $1.11 per square metre. 99 Mr Large derived a rate per square metre of the land value, for each of those sales, which he then (bearing in mind that they were all sales of freehold) discounted to 30 percent of that amount, to find the value for a right of way. He concluded that the right of way value shown by the six sales was as follows: Sales Section L Rate/m2 overall 30% discounted ROW value 1 $4.59 $1.38 2 $12.61 $3.78 3 $0.78 $0.23 Sales Section N 4 $11.13 $3.34 5 $18.76 $5.63 6 $3.71 $1.11

Swann & Anor v Spiropoulos & Ors; Von der Heyde v Spiropoulos & Ors

At a glance

Court

Decision date

Before

Source

Judgment (11 paragraphs)

Cases Cited (4)

Cited By (8)