Tout v Johnson

a) Lay evidence

1. Eight affidavits made by the plaintiff were read in her case. A considerable amount of the evidence is either not relevant or only of peripheral relevance to the issues that arise on the s 88K application. What appears in the following paragraphs is a distillation of the principal aspects of the plaintiff's evidence insofar as it bears upon those issues.
2. The plaintiff deposed in her first affidavit (dated 25 November 2019) that she has lived her whole life at the property. She further deposed that in order to access her property she has to use Figtree Valley Road, and that she has never used any alternate road to access her property. She deposed that previous owners of Lot 57 had permitted the plaintiff to use the road over Lot 57 over many years. The plaintiff gave further evidence in this affidavit about the events in September to November 2019, that are referred to above, and which culminated in the defendants preventing the plaintiff from using the road on Lot 57. The plaintiff deposed that it was impossible to get her car out of her property using any other route, and that the road was the only access for trucks making deliveries of water and feed. A quote the plaintiff obtained for the construction of a new access road is annexed to the affidavit. The quoted price was $178,200. The plaintiff deposed that she could not afford that much for a new road.
3. In her second affidavit (dated 12 March 2020), the plaintiff conceded that Lots 82 and 13 "can be accessed from Costigans Road", but said that Lot 116 where her residence is located "cannot be accessed and there is no other road from Costigans Road onto my properties other than Figtree Valley Road". She added that she believed that the cost of putting in such a road would be prohibitive. I have watched the two videos that were exhibited to the affidavit (MT-1 and MT-2). The videos were taken from inside a vehicle travelling along Costigans Road (MT-1) and Figtree Valley Road (MT-2). MT-2 was taken before the creek crossing on Lot 57 was washed away. The plaintiff says that the geography of the area as shown in parts of MT-2 demonstrates "why it is not practical or feasible to build a road that travels solely through [Lot 13]".
4. The plaintiff's third affidavit (dated 29 May 2020) is largely a response to the affidavits that had recently been made by each of the defendants. There is little in the affidavit that is of significance to the s 88K application, but I note that the plaintiff states that she would be prepared to pay fair compensation for a "statutory easement". In answer to suggestions that she can access her home on Lot 116 through either or both of Lots 13 and 82, the plaintiff again stated that "it is not possible to access my home from Costigans Road" and using Figtree Valley Road across Lot 57 "is the only practical way for me to get to my house from Costigans Road". The plaintiff added: The other options for me to build a road are not practical for reasons previously given. Finally, the plaintiff refers to her need to transport horses. She deposed that she did that using a twin axle double horse float that is pulled with a large four-wheel drive ("4WD"). She also referred to a "six horse ridged cattle truck". The plaintiff deposed that she requires a suitable road for safe transport of her horses and for cattle and feed trucks to safely enter and exit her property.
5. The plaintiff's fourth affidavit (dated 9 November 2020) and her fifth affidavit (dated 11 March 2021) are concerned with enquiries that were being made about what approvals may be required in relation to the construction of an access road. Documents annexed to the fourth affidavit indicate that if the road crossed a "third order stream" then a controlled activity approval would be required, and there may also be a need for a development approval. In her fifth affidavit, the plaintiff expressed concern about the costs associated with any development approval. A report of Doherty Smith & Associates, Consulting Surveyors, is annexed to this affidavit. The author of the report was not called to give evidence. I note that the report identifies a potential alternative access route for Lot 116, and that a view is expressed that a development consent would be required for its construction.
6. The plaintiff's sixth affidavit is dated 6 April 2021. It was made after the creek crossing on Lot 57 was washed away, and after the defendants effectively closed the Lot 57 portion of Figtree Valley Road to the plaintiff. It is apparent that the affidavit was principally made for the purpose of a Notice of Motion for contempt the plaintiff was about to file. However, it should be noted, in relation to the s 88K application, that the plaintiff deposed that since the section of the road on Lot 57 was washed away it was not possible to drive any vehicle across that portion of the road (and see the photograph of the area at Exhibit C-3 page 733). It should also be noted that the plaintiff gave evidence that from that time her car and horse trailer were left adjacent to Costigans Road, about 1km from her home, and she travelled between those places on horseback, with some difficulty. Reference is also made to an incident where the plaintiff needed the first defendant's assistance to help her cross a creek on her property in her 4WD.
7. In her seventh affidavit (dated 20 April 2021), the plaintiff deposed that she would be prepared to pay for the road to be repaired where it had been "washed out". The plaintiff deposed that she had never before seen the road damaged like that. By reference to some photographs of a creek on the plaintiff's property (probably Lot 13) the plaintiff deposed that the creek was an "Order 3 stream" and that it "cannot be crossed by anything other than my tractor when it is not raining". The plaintiff continued: Even when the Stream is at its driest I cannot cross it with my four wheel drive and definitely not with my horse/cattle truck. … It is impossible to cross the Stream when it is wet in any vehicle. The plaintiff went on to express her concern about the costs of building an alternative access to her property, and the ramifications of lodging a development application in relation to a new access for her property.
8. In the plaintiff's eighth affidavit (dated 26 August 2021 but not sworn until 30 August 2021) she denied that she had "all weather access" to her property. She said that in recent months she had been using her tractor and 4WD to get in and out of her property, moving between Costigans Road and her residence "across my paddocks and through the creek". She further deposed: You cannot get a truck or car into my house paddock even when it's dry. You can't get through the creek. When it's wet you can only use the tractor and if it's been raining and there is water in the creek nothing can get through. I have been able to take my "Clerk of the Course" pony out by leading it beside my four wheel drive. I leave my horse float on the northern side of the creek. I leave my tractor near the creek so I can use it to pull my four wheel drive out when it gets bogged. On one occasion after going to the races at Taree I got my horse trailer across the creek. I achieved that by attaching the tractor to the front of my four wheel drive which had the horse trailer attached to it and getting dragged through the creek. This is the occasion that is videotaped by Mr Johnson. He didn't video my creek crossing. It took me over an hour to get from Costigans Rd to my residence on that night. I had to drag everything through the creek because my pony had hurt herself at the races that day. It's the only time I have attempted it.
9. Three affidavits made by the plaintiff's solicitor, Mr Lindeman, were also read. It is not necessary to refer at this point to any aspect of those affidavits.
10. The expert evidence adduced by the plaintiff is referred to in the next section of these reasons.
11. I turn now to the lay evidence adduced by the defendants.
12. The defendants read six affidavits made by the first defendant, Mr Johnson, and three affidavits made by the second defendant, Ms Williams.
13. In his first affidavit (dated 27 April 2020) Mr Johnson asserts that the plaintiff has access to her home on Lot 116 through either or both of Lots 13 and 82, both of which have a frontage to Costigans Road. Mr Johnson went on to describe "an old entry way" that runs from Costigans Road to Lot 116 that is "still visible". This is apparently a reference to a track that runs off Costigans Road into Lot 13 after passing for a short distance through Lot 12. Mr Johnson then refers to a "much shorter access route available" but it is not clear from his description what that route is. Mr Johnson, who has experience in road construction, went on to express his view that a grader or small bulldozer could "cut a decent track" on the plaintiff's property within one or two days, and that a culvert or hardwood log bridge could be installed over the creek crossing. Mr Johnson also provided an estimate of the likely cost.
14. Mr Johnson's second affidavit (dated 28 July 2020) concerns enquiries he made about planning approval requirements for the construction of an access track over Lot 13. One of the documents annexed to the affidavit is an email from an officer of the local Council in which it is stated that "general access tracks for farms do not require a DA but you will require an application if you are interfering with drainage paths or streams".
15. Mr Johnson's third affidavit (dated 7 December 2020) is concerned with creeks and streams that run across the plaintiff's property. Mr Johnson deposed that the plaintiff currently uses crossing points where culverts exist, and that those points could readily be used for access to the plaintiff's house. A photograph of one such point is annexed to the affidavit. Mr Johnson deposed that the creek beds are usually dry for about 9 months of the year and are traversable at most points.
16. In his fourth affidavit (dated 19 April 2021) Mr Johnson deposed that the part of Figtree Valley Road that traverses Lot 57 (which Mr Johnson refers to as the Access Track) "is of no utility to the operation of the farming enterprise that Jodie and I run together, rather it takes up a considerable area of arable land on the most fertile part of our property". Mr Johnson went on to describe the damage caused by the heavy rain in late-March 2021, and certain works that are proposed to rehabilitate the area. He later expresses the view that the site is not an appropriate one for a creek crossing to be constructed. Exhibited to the affidavit (see Exhibit BCJ-3) is some video footage recorded by Mr Johnson on 15 April 2021 which includes images of the damaged area (as do some of the photographs annexed to the affidavit). There are also some photographs showing vehicles (a tractor and a 4WD utility) driving across what seems to be parts of Lot 13. Mr Johnson also describes the incident when he assisted the plaintiff to get her horse float across a creek on her property. He said that this occurred on 26 March 2021, "the day after the worst of the floods". Some video footage of this event is also exhibited to the affidavit as part of Exhibit BCJ-3. The video extends to footage taken later that day of the defendants travelling in their utility across the plaintiff's property. Mr Johnson also refers to an occasion on 14 April 2021 when he and Ms Williams observed a tractor travelling from Costigans Road through to a point near Lot 116. Mr Johnson goes on to state that he has observed the plaintiff entering and exiting her properties, both before and after the rains, without using the Access Track. He deposed that he has observed the plaintiff drive vehicles, with a horse float attached, "to the Costigans Road side of her creek crossing". Mr Johnson deposed that he has on numerous occasions observed the plaintiff, and visitors to her property, use another route which runs from the entry to Lot 116 and across Lot 82 before entering Lot 13 and continuing to Costigans Road. This route is depicted in a video taken by Mr Johnson using a dashboard camera whilst driving along it on 16 April 2021.
17. Mr Johnson's fifth affidavit (dated 11 August 2021) has numerous video files exhibited to it (see Exhibit BCJ-4). These include footage of the plaintiff towing her horse float, and footage of Mr Johnson driving in his utility on the plaintiff's property from Costigans Road to a point just beyond the creek crossing. There is also aerial footage taken from a drone that shows, amongst other things, some dams that had recently been constructed on Lot 13, and tracks (including a newly made section) running from near Lot 116 to the creek crossing on Lot 13. It should be noted that two of the new dams are located between that creek crossing and the portion of Figtree Valley Road that traverses Lot 13. Mr Johnson deposed that the walls of these dams form part of an "access track section across Lot 13 leading to Costigans Road". He further deposed that he has observed the plaintiff and others traversing between Lot 116 and Costigans Road "via these newly constructed works". It appears that construction of the new section of track, and the new dams, took place in May 2021.
18. Mr Johnson's sixth affidavit (dated 26 August 2021) has further video files exhibited to it (see Exhibit BCJ-5). This includes footage of Mr Johnson driving his utility across Lot 13 to Lot 116 at night and then returning to Costigans Road. The footage includes images of Mr Johnson driving across the wall of one of the dams. The affidavit also contains details of various measurements taken by Mr Johnson on 26 August 2021 in relation to the dams and tracks on the plaintiff's property. These measurements were taken for the purpose of providing information to an expert witness, Mr Sinclair, who was unable to visit the property due to travel restrictions imposed for public health reasons. Some further video footage taken by Mr Johnson on this occasion is also contained in Exhibit BCJ-5.
19. Ms Williams' first affidavit (dated 27 April 2020) is concerned with certain events that occurred in the period from about August to December 2019. These events are not in my view of significance to the plaintiff's s 88K claim.
20. Exhibited to Ms Williams' second affidavit (dated 19 April 2021) is a file containing video footage (Exhibit JGJ-1). The footage was taken by Ms Williams on 14 April 2021. It includes images of a tractor being driven off Costigans Road into the plaintiff's property, and proceeding across the property, including it seems, across the creek on Lot 13, and through to a point near the gate to Lot 116.
21. In Ms Williams' third affidavit (dated 11 August 2021 under the name Jodie Johnson) she confirms that she recorded some of the video footage that is contained within Exhibit BCJ-4. I have watched the various items of video footage that are exhibited to the affidavits of the defendants.
22. I will refer later to aspects of the evidence given in cross-examination by Ms Tout and Mr Johnson. Neither Mr Lindeman nor Ms Williams was required for cross-examination.

(b) Expert evidence

1. The plaintiff relied upon a report of Hopkins, Surveyors, Civil Engineers and Planners. The report, dated 2 July 2021, was jointly authored by Mr Daniel Baker (a registered land surveyor), Mr Michael Mowle (a chartered civil engineer) and Mr Andrew Lister (a registered planner). The letter of instructions, issued by the plaintiff's solicitors to Mr Baker, posed the issue for the plaintiff as whether it was feasible or possible (taking into account cost, terrain/topography and legal/environmental requirements) to build a road which would travel upon the plaintiff's land parallel to Lot 57, being the shortest route available. It was noted that the plaintiff had instructed that "to construct an entirely new road (from the main road) that only goes through her property, would be prohibitively expensive and may require certain development or governmental approvals in any event". Eight questions were then posed.
2. The Hopkins report provides a response to the questions asked, but it does not seem to be the case that all aspects of the questions have been addressed, at least in direct terms. In any event, the report includes the following: 1. The land is zoned RU2 Rural Landscape in the Port Macquarie Hastings Council Local Environmental Plan 2011 and roads & associated works are permissible within the zone with consent. I note the expert report by Doherty Smith & Associates dated 2021-02-04 and concur that any earthworks, and therefore any road construction work, will require development consent from Port Macquarie Hastings Council by way of a Development Application (DA). 2. The reports which could be expected to be required as part of the DA would be: Statement of Environmental Effects Biodiversity Assessment Report Flora and Fauna study Koala Assessment Bushfire Assessment Report Archaeological/Cultural Heritage Assessment Civil Engineering Design, Survey and stormwater analysis will be required to determine the location of the roadway and creek crossings for the DA and a subsequent Construction Certificate Application submitted to Council if DA consent was obtained. 3. An estimate of fees to prepare and obtain all the reports and submit the relevant applications to Council referred to above would be approximately $69,500 + gst and could take 6-8 months to obtain all necessary approvals prior to any construction works starting on site. Council will consider all the above documents when determining the DA as well as the responses from the relevant government agencies it is referred to including NSW Rural Fire Service and Natural Resources Access Regulator. … 5. After a desk top review of the largest crossing, we feel that the crossing infrastructure required for the creek would potentially consist of a 3x600� piped culvert with a concrete causeway over the top or similar, but this is subject to final civil design and stormwater analysis and approval by Council and Natural Resources Access Regulator. 6. All civil construction costs to be provided by others, and Council application and referral fees are additional to any cost estimates we have provided above. 7. Without any record or knowledge of the track and creek condition prior to any weather event we are unable to comment of [sic] the current condition of the creek and dams and cannot comment of the legality of rebuilding the track in its current location. But in terms of requiring consent to rebuild, the State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 applies in the case where it was deemed a state of emergency and the required development standards are satisfied under Subdivision 15AA Emergency work and repairs of the above State Environmental Planning Policy. The authors of the report noted that they had not attended the site.
3. The authors gave their evidence concurrently. They each confirmed that having read the two reports of Mr Sinclair (an environmental and planning consultant called to give evidence by the defendants), they did not wish to change their opinions.
4. In cross-examination, Mr Baker confirmed that in addition to the materials referred to in the letter of instructions, the report of Doherty Smith & Associates had been provided by the plaintiff's solicitor. He agreed that no plan of any road, or even an indication of where a road might traverse, was provided, aside from the reference in the instructions to a road running parallel to Lot 57. Mr Lister agreed that the $69,000 figure was a rough estimate for the cost of reports, and that it might change to a minor degree depending upon the particulars of the proposed road.
5. Mr Lister said that he would not be able to assume that a new road would involve only minor earthworks under the local environmental plan because they had not done extensive site investigation or investigated a proposed route. Mr Lister did not agree that if it were only minor earthworks none of the listed reports would be required. He said that, without a specific route identified, "we can at least see there would be some native vegetation likely to be impacted and at least one, if not two, stream crossings as well". Mr Lister went on to say that even if water crossings were already in place, if approval had not been obtained there is likely to be a need to obtain a retrospective approval.
6. By reference to Exhibit C-2 page 321, Mr Mowle identified the location of what is described in the report as "the largest crossing". (It is the crossing where the yellow dotted line turns - on the page - sharply to the right.) Mr Mowle said that he was not aware that the plaintiff had constructed a track between that crossing and the intersection of the four lots (13, 57, 82 and 116). Mr Mowle said that the plaintiff might need to obtain an approval in respect of that work. One of the witnesses (the transcript is not clear as to which) said in effect that if the other track in that area had existed for a long time and had "continuing rights approval" it could be maintained without a need for further approval. He said that this would be the position with Figtree Valley Road.
7. Mr Mowle said that whether a water crossing with a depth of 500mm would require a concrete causeway in order to provide all weather access would depend upon "the size of the stream and the flows during a storm event". When shown Figure 5 in Mr Sinclair's report of 29 August 2021, Mr Mowle expressed the view that the crossing there "needs to be formalised in some way or other to provide all weather access for the property owner in a storm event", because even if a minor storm it would be unsafe to cross. He added that a formalised crossing would not require constant maintenance. Mr Mowle agreed that the same applied to the creek crossing on Figtree Valley Road (on Lot 57), and even more so if that crossing was 1.7m deep. In re-examination, Mr Mowle said that in either case an analysis and design work and then construction of a formalised crossing would be required. Mr Mowle went on to explain that it was understood that Figtree Valley Road enjoyed continuing use rights so would not require a development approval; but a creek crossing on Figtree Valley Road may well require a controlled activity permit which would be the same as any creek crossing in Lot 13. He added that it was understood there is no legal access through Lot 13 and a new road would require a new DA.
8. The plaintiff also called evidence from Mr Michael Collins. He has considerable experience in the earthmoving industry, and has been involved in the construction of roads (including working with engineers and planners in relation to design). He made two affidavits, dated 2 July 2021 and 30 August 2021. Mr Collins prepared a quotation for an alternative access road from Costigans Road to the plaintiff's residence. The quotation, which is annexed to his first affidavit, is for $238,013.76 (excluding GST). The quotation is not detailed, but it is possible to discern that the subject road was to be 1.2km in length, have six 50m passing bays, and a concrete weir over a crossing. No plans for sketches of the road were provided, and it is difficult to ascertain the proposed route with any precision. Mr Collins deposed that he did not exactly follow the route indicated in the video produced by Mr Johnson. It appears from Mr Collins' second affidavit that the video he was referring to is the dashboard camera video taken on 16 April 2021 that is part of Exhibit BCJ-3. Mr Collins explained in his second affidavit that the route he chose comes off Figtree Valley Road rather than Costigans Road, crosses the creek about 50m north of where Mr Johnson crossed, and follows a different route over the final 350m in order to avoid some steep terrain at the southern end of the proposed road near the plaintiff's residence. The chosen route is depicted on an aerial photograph that is annexed to Mr Collins' second affidavit. Mr Collins also produced a more detailed version of his quotation (Exhibit B). This version provided for six 100m passing bays.
9. Mr Collins deposed that it would be possible to build something much cheaper, but he believes that this would significantly compromise the safety of people using the road. In cross-examination, Mr Collins drew a distinction between a rural access track and a rural access road. He made it clear that his quotation was for "a properly constructed road to a development application approval". Mr Collins maintained that there was a need for a road "in order for people to pass over that terrain in all weather conditions" and in a safe manner.
10. Lastly, the plaintiff called evidence from a registered valuer, Mr Jeff Rogers, on the question of compensation for the easement sought to be imposed.
11. Mr Rogers assessed the appropriate compensation to be $27,092. That figure is made up of: 1. $7,313 for market value of easement - based on an easement area of 1,950m2 at $5 per m2, less a 25% reduction; 2. $18,779 for injurious affectation - based on 5% of the unimproved value of the defendants' 150.234 hectares of land at $2,500 per hectare; and 3. $1,000 for blot on title.
12. Mr Rogers differed from the valuer called by the defendants, Mr James Flanagan, who assessed the appropriate compensation to be $102,875. There were four essential differences. These were: 1. the easement area - Mr Flanagan said it was 5,200m2, the difference being explained by the assumed width of the easement; 2. the question whether the amount for injurious affection should be based upon the improved or unimproved value of the defendants' land. Mr Flanagan said it should be based on the value including improvements; 3. Mr Flanagan included an amount of $34,375 in respect of the "severed area", being the area on Lot 57 between Figtree Valley Road and the boundary with Lot 13; and 4. Mr Flanagan also included an amount of $13,000 for fencing along the side of the easement.
13. The evidence of the valuers, including the evidence given by them in cross-examination, is further dealt with later in these reasons.
14. As mentioned earlier, the defendants called evidence from an environmental and planning consultant, Mr Ian Sinclair. Mr Sinclair prepared two reports dated 18 August 2021 and 29 August 2021.
15. For the purposes of his first report, Mr Sinclair received a letter of instructions from the defendants' solicitors dated 28 July 2021, and a supplementary letter of instructions dated 13 August 2021. Numerous questions were posed for Mr Sinclair in relation to what approvals may be necessary for access tracks for rural properties (including where stream crossings are involved), and as to the adequacy of existing tracks on the plaintiff's land. Whilst Mr Sinclair was provided with a great deal of information, including the extensive video footage taken by Mr Johnson, Mr Sinclair was not able to attend the site.
16. In his first report of 18 August 2021, Mr Sinclair stated (at paragraph 19): From my viewing of the video footage discussed above, it is my opinion that the track as constructed from the drainage line to the gate at lot 116 is a good access track and would be trafficable via a two-wheel drive vehicle and that the landform from the drainage line to the existing track at the northern end of lot 13 is suitable for the construction of a new track. I will confirm this when I inspect the site. For this reason, I see no reason why this cannot become the permanent access to the Plaintiff's property and it does away with the need for a right of carriageway over lot 57. I note that the cost to repair the crossing over the third order stream on Lot 57 as well as upgrading the access track would be much more expensive than completing the access to go over the two dams. That evidence (and certain other parts of Mr Sinclair's report) was admitted on the basis that it was not to be treated as opinion evidence that is based on any engineering expertise of experience of road building.
17. Mr Sinclair went on to consider, by reference to the applicable local environmental plan, the question whether a development approval would be required for the construction of an access track on the plaintiff's land. Mr Sinclair did not provide a definitive answer to what he evidently considered was a complex issue. He stated (at paragraph 33): The answer to the question would also be different if it was a new access track or the upgrading of one that had been used in the past. If it was a new access track that was crossing some drainage lines, on steep land and also through areas of native vegetation, it probably would require a DA. However, if it was for the upgrading of an existing track in the same general area, it would not as the concept of continuing use would apply. He continued (at paragraph 38): However, it is important to note that the Plaintiff has constructed an access track that crosses a drainage line, is over steep land and also is within vegetation so I believe that she should continue to use that access. I also note that the above discussion has shown the ambiguity and complex nature of the requirement for development consent for a rural access track. However, whether it requires development consent or not is now not relevant because an access track has been constructed that seems to be adequate for a two-wheel drive vehicle to provide access from Costigans Road through the Plaintiff's land to her dwelling on lot 116. The matter of whether she also needs to have access through lot 57 now seems to be irrelevant. I also do not believe that she has no other options reasonably available to her to access her dwelling. On the contrary, it seems to me that she has constructed an access that is more than reasonably available to her.
18. On the question of required consents where an access track crosses a stream, Mr Sinclair said (at paragraphs 48 and 49): A Controlled Activity Approval is required under the provisions of the Water Management Act, 2000. This approval is required from WaterNSW for all works on waterfront land. This includes the bed or bank of a perennial or intermittent watercourse which contains a natural channel. Approval is also required for any works on land with [sic] within 40m of the waterfront land. (See also paragraphs 94, 96 and 103-104.)
19. Mr Sinclair's second report, dated 29 August 2021, contains a useful aerial photograph at Figure 1 upon which various streams, dams and tracks are identified. The report includes various comments and observations in respect of Lot 13 based upon the video footage made available to Mr Sinclair. These include: The track [the existing track, also known as Figtree Valley Road] has a gentle slope down to the gate into lot 57. The landform on the southern side is not much higher than the track which would easily facilitate a new access track being constructed over it to link to the two dams and the existing third order stream crossing. It is my opinion that the construction of an access track in this location would be "earthworks of a minor nature" referred to in cl 7.2(1)(b) of Port Macquarie Hastings LEP 2011 and would not require development consent. I say this because is it [sic] will not lead to detrimental impact on existing drainage patterns and soil stability in the locality. I note that the dams have already been created and this would not be included in this assessment because they have already been constructed to allow vehicles to travel over the dam walls. … Dams two and three [the two dams constructed on Lot 13 between Figtree Valley Road and the creek crossing] have evidence of vehicles crossing them and are wide enough to allow for vehicles to use them to access the property. I have provided a screen shot from the video footage taken on 3 August to show the width of the dam wall and that it is level with the surrounding land to enable vehicular access. This is shown as Figure 2. Also shown [are] the vehicular tracks leading from dam 3 to dam 2 as well as the drainage pipe and the original track down the hill from Costigans Rd. The video footage also shows evidence of vehicular access at the existing access road from Costigans Rd to lot 57. … There are now two tracks from the third order stream crossing to the gate at lot 116. I have shown them on Figure 7 and were taken as a screen shot from the video of 8 August and they are as follows: The existing track that heads in a south westerly direction after the crossing and then winds up through the trees to the top of the hill then winds back down to enter the gate to lot 116. The new track that has been constructed in May 2021 and which takes a more direct route to the gate at lot 16 [sic]. The report contains various photographs of these two tracks at Figures 7-11 and 13. I note that Mr Sinclair expressed the view that the construction of the new access track would "trigger the need for a development application" pursuant to the local environmental plan.
20. The report concludes with a summary that includes the following: In summary, the Plaintiff has had the access through lot 57 destroyed by flooding which made the access through lot 57 closed. The Plaintiff then used an existing access onto Costigans Rd to gain access to the dwelling on lot 116. This included using a natural creek crossing and a track that wound its way through trees to the gates on lot 116. It is my opinion based on the video footage I have viewed that this access track is adequate to provide access to the dwelling on lot 116 by vehicles that may normally access the property. I note that a horse float is parked on the western side of the third order stream and I have observed this being taken up the access track to Costigans Rd. The Plaintiff has constructed three new dams on the property - two of which are wide enough to be accessed by vehicles. In addition, a new access track has been constructed from the third order stream to provide a more direct access to the dwelling house on lot 116... All that is needed is to construct a new access track from the third order stream crossing in a northerly direction, over the two dams that have been constructed to link with the existing access to Costigans Rd…
21. In cross-examination, Mr Sinclair said that he could not recall doing any work in the Port Macquarie council area. He accepted that there was no existing track between the creek crossing on Lot 13 and the existing track [Figtree Valley Road] on Lot 13, but he noted that the dam walls had vehicle tracks going over them. He said that he believed that the construction of a track between those points would involve only minor earthworks. Mr Sinclair confirmed that building a crossing over the creek would require a development consent and also a consent under the Water [Management] Act. He said that there might be a need for a retrospective approval in relation to the existing creek crossing and also the newly constructed track in the area between the creek crossing and Lot 116. Mr Sinclair also suggested that a development consent may have been required for the construction of the dams.
22. Mr Sinclair accepted that if a track was to be constructed from Figtree Valley Road and across the creek crossing on Lot 13 (so as to meet up with one of the tracks already in existence), a statement of environmental effects would be needed. He did not agree that a biodiversity report would be needed unless the track was "going through the trees on the southern part of Lot 13". He was of the same view in relation to a flora and fauna study. Mr Sinclair said he would need more information before expressing a view about the need for a koala assessment, or an archaeological/cultural assessment. Mr Sinclair said that he did not believe that a bushfire assessment report would be required. He said that whether a civil engineering design would be required in respect of the creek crossing would depend upon an assessment of "the amount of the water and the permanency of that water going through the crossing". However, based on the video evidence of the stream in April 2021, Mr Sinclair suggested that there would not be a need for "full civil requirements" in respect of a crossing there.

Evidence given in cross-examination by the plaintiff and the first defendant

1. In cross-examination, the plaintiff confirmed that a new track had recently been constructed from near the entrance to Lot 116 to the creek crossing on Lot 13. She confirmed that the construction of this track, together with three dams on Lot 13, cost $6,000. Later, she said that the track needs more gravelling and rolling work done to it. She said she is not planning to have that work done. The plaintiff said that she has only used this track twice, and it was perfectly serviceable on those occasions. She seemed to agree that there was no reason why that track could not be extended past the dams to Figtree Valley Road, but this is not clear, and another answer she gave was to the contrary.
2. The plaintiff denied that the dams have culverts or bridges across the top of them, but accepted that the dam walls have vehicle crossings on them. Later in her cross-examination, she accepted that tracks over the dams could be clearly seen in certain video footage taken from a drone. She denied, however, that she had been driving vehicles over those tracks, and she denied that it was feasible to drive a motor vehicle over those tracks. The plaintiff also denied that it was feasible to construct a track from Figtree Valley Road towards one of the dams (Dam 3). When pressed further about vehicles passing over tracks over the dams, the plaintiff agreed that a tractor or 4WD vehicle (including her utility) could go over but not a two-wheel drive vehicle ("2WD").
3. The plaintiff did not agree that the land between the creek crossing and Figtree Valley Road, past the two dams, was not very hilly or scrubby, although she later agreed that the land to the north of one of the dams (Dam 3) is very flat and devoid of trees.
4. The plaintiff agreed that since about March 2021 she had been entering onto Lot 13 from Costigans Road at a point to the west of one of the dams (Dam 2), in order to access Lot 116.
5. The plaintiff was asked about the creek crossing on Lot 13. She agreed that she is currently using the crossing. The plaintiff said that it is necessary to have a 4WD to be able to cross it. She said that she cannot get her cattle truck in or out [across the creek] even in dry conditions. The plaintiff later gave evidence about an occasion when she tried to cross in her 4WD whilst towing a horse float. The plaintiff said that she needed to hook a tractor on to the 4WD to tow it through the creek. With reference to 4WD vehicles, the plaintiff said that the crossing was fine in dry weather but she cannot get in or out in wet weather.
6. The plaintiff was asked about her affidavit of 12 March 2020 (paragraph 6) which referred to being able to access Lots 13 and 82 from Costigans Road. The plaintiff confirmed that is correct. It was put to her that it followed that Lot 116 can be accessed from Costigans Road. The plaintiff answered: Yes. But it's the cost. The plaintiff denied that it was both practical and feasible to build a road that travels solely through Lot 13.
7. The plaintiff confirmed that she was currently using "the old track" (as opposed to the recently constructed track) to get to and from Costigans Road. I note in this context that the plaintiff pointed out that this track runs across Lot 12 before meeting Costigans Road.
8. The first defendant accepted that the creek on Lot 57 could be suitably crossed with a pipe or boxed culvert, subject to the qualification that significant repairs to the surrounding environment would be required.
9. The first defendant denied that the dam walls were not part of any track. He said that they are definitely designed to traverse the gullies there, and were not simply dam walls. Later he said that he had never seen dams built with a pipe culvert like that. The first defendant said that he had seen people drive over the side of the dams, including himself.
10. The first defendant was asked about the track he refers to as the all-weather access track. (This is the old track that runs from the creek crossing on Lot 13 to near the entry to Lot 116.) The first defendant denied that part of this track was not suitable for use in wet weather.
11. The first defendant did not agree that in order to create a safe, useable creek crossing on Lot 13 there would need to be a 3x600� piped culvert with a concrete causeway over the top. The first defendant said that the area was extremely hard with rock, and so shallow that this would not be warranted, although it was an option "if you wanted to do that". The first defendant described the crossing as very comfortable and one he would have no problem driving his truck through. He said the crossing was about 5.5m from one bank to the other.
12. The first defendant said that at the creek crossing on Lot 57 the width was about 3.5m. He further said that the creek on Lot 57 has very high walls and is subject to all of the rainfall, whereas the plaintiff's creek (on Lot 13) is "more of an extended drainage line". In re-examination, the first defendant gave evidence that the creek on Lot 57 was 1.7m deep, and the crossing on Lot 13 was about 500ml [sic - mm] deep.

Legal principles

1. Section 88K of the Conveyancing Act provides: 88K Power of Court to create easements (1) The Court may make an order imposing an easement over land if the easement is reasonably necessary for the effective use or development of other land that will have the benefit of the easement. (2) Such an order may be made only if the Court is satisfied that - (a) use of the land having the benefit of the easement will not be inconsistent with the public interest, and (b) the owner of the land to be burdened by the easement and each other person having an estate or interest in that land that is evidenced by an instrument registered in the General Register of Deeds or the Register kept under the Real Property Act 1900 can be adequately compensated for any loss or other disadvantage that will arise from imposition of the easement, and (c) all reasonable attempts have been made by the applicant for the order to obtain the easement or an easement having the same effect but have been unsuccessful. (3) The Court is to specify in the order the nature and terms of the easement and such of the particulars referred to in section 88(1)(a)-(d) as are appropriate and is to identify its site by reference to a plan that is, or is capable of being, registered or recorded under Division 3 of Part 23. The terms may limit the times at which the easement applies. (4) The Court is to provide in the order for payment by the applicant to specified persons of such compensation as the Court considers appropriate, unless the Court determines that compensation is not payable because of the special circumstances of the case. (5) The costs of the proceedings are payable by the applicant, subject to any order of the Court to the contrary. (6) Such an easement may be - (a) released by the owner of the land having the benefit of it, or (b) modified by a deed made between the owner of the land having the benefit of it and the persons for the time being having the burden of it or (in the case of land under the provisions of the Real Property Act 1900) by a dealing in the form approved under that Act giving effect to the modification. (7) An easement imposed under this section, a release of such an easement or any modification of such an easement by a deed or dealing takes effect - (a) if the land burdened is under the Real Property Act 1900, when the Registrar-General registers a dealing in the form approved under that Act setting out particulars of the easement, or of the release or modification, by making such recordings in the Register kept under that Act as the Registrar-General considers appropriate, or (b) in any other case, when a minute of the order imposing the easement or the deed of release or modification is registered in the General Register of Deeds. (8) An easement imposed under this section has effect (for the purposes of this Act and the Real Property Act 1900) as if it was contained in a deed. (9) Nothing in this section prevents such an easement from being extinguished or modified under section 89 by the Court.
2. The principal concept is whether the easement sought to be imposed is reasonably necessary for the effective use or development of the land that will have the benefit of it. An important statement of the relevant principles is found in the decision of the Court of Appeal in Moorebank Recyclers Pty Ltd v Tanlane Pty Ltd (2012) 16 BPR 31,257; [2012] NSWCA 445 at [154]-[159]. The Court of Appeal there stated: The requirement that the easement be reasonably necessary for the effective use and development of the land means something more than mere desirability or preferability over the alternative means available: Rainbowforce supra at [76]. However, reasonable necessity does not mean absolute necessity. The correct approach to the question, in our opinion, was stated by Hodgson J (as his Honour then was) in 117 York Street supra as follows: "It is clear that 'reasonably necessary' in s 88K(1) does not mean 'absolutely necessary', and thus that the requirement may possibly be satisfied even when the plaintiff's land could be effectively used or developed without the easement. In my opinion: (1) the proposed easement must be reasonably necessary either for all reasonable uses or developments of the land, or else for some one or more proposed uses or developments which are (at least) reasonable as compared with the possible alternative uses and developments; and (2) in order that an easement be reasonably necessary for a use or development, that use or development with the easement must be (at least) substantially preferable to the use or development without the easement. The first of those requirements may seem contrary to a statement by Hamilton J in Tregoyd Gardens (at 14) that the Court 'is not to judge upon the reasonableness of the particular development'. However, that statement is qualified by the words 'at least in this case'. If there are some possible reasonable uses or developments of the land for which a proposed easement is not reasonably necessary, then it seems to me that the easement cannot be 'reasonably necessary for the effective use or development' of the land, at least unless there is some proposed use or development, for which the proposed easement is reasonably necessary, which is itself a reasonable use or development. It may be that the particular use or development would need also to be preferable to the alternatives; but whether or not that is so, it would in my opinion certainly need to be at least reasonable." (at 508-509 citations omitted) In Rainbowforce supra, Preston CJ of the Land and Environment Court, gave a relatively wide meaning to the concept of effective use and development (at [72]) stating that if use or development of land for some planning purpose such as residential, commercial or industrial cannot be achieved without the creation of the easement, the easement is reasonably necessary for such use or development to be effective. To the extent that Preston CJ was suggesting that subject to the other matters which he stated required consideration, an easement would be reasonably necessary for the effective use and development of the land if it was required for any proposed development, regardless of the development's desirability or economic effect, the proposition, with respect, is too wide. That approach would not take adequate account of the word effective. Equally, we do not believe, as suggested by Moorebank, that it is necessary to show that the easement is necessary to achieve the highest and best use of the land. In a case such as the present, where the easement is said to be necessary for the commercial development of the land, it is sufficient in our opinion to show that the proposed development is one which is appropriate to the area in which the land is situated and is at least an economically rational use of the land. That in our opinion is consistent with what was said by Hodgson J in 117 York Street supra in the passage which we have cited above (see also Lonergan v Lewis [2011] NSWSC 1133 at [22]). That is not to say that an easement will always be granted in these circumstances. As we have indicated the authorities have established that the concept of reasonable necessity requires consideration of the effect of the grant of the easement on the servient tenement: O'Shea supra. Further, it is correct in our opinion, that the greater the burden on the servient tenement, the stronger the case needed to justify a finding of reasonable necessity: Rainbowforce supra at [77]; Khattar v Wiese supra at [27]; Woodland v Manly Municipal Council, supra at [12]; Lonergan v Lewis supra at [22]. As we indicated earlier (par [131]) in Bloom v Lepre supra, Young J stated that where the effect of the easement was to sterilise the servient tenement insofar as the person's own development or use is concerned, the Court is not necessarily quite so favourable to the application. We would put the proposition more strongly. If the effect of the imposition of an easement was to effectively preclude a reasonably available development or use of the servient tenement appropriate to that land, then it would require a strong case of reasonable necessity before the easement would be imposed. The determination of whether an easement is reasonably necessary for the use or development of the land also involves consideration of the alternative methods by which such use or development could be achieved. That is implicit in the concept of reasonable necessity. In the present case it involves the consideration of whether there is alternative access to give effect to the development. None of the factors to which we have referred above can be considered in isolation from the others. Ultimately the question of whether an easement is reasonably necessary for the use or development of the land will be determined by an evaluation of those factors in conjunction with each other. (See also Gordon v Lever (2018) 97 NSWLR 90; [2018] NSWCA 43 at [90]; Gordon v Lever (No 2) (2019) 19 BPR 39,915; [2019] NSWCA 275 at [35]-[42].)
3. In Khattar v Wiese (2005) 12 BPR 23,235; [2005] NSWSC 1014 Brereton J (as his Honour then was) stated at [27] that "[t]he authorities repeatedly point to the confiscatory nature of s 88K as requiring firm proof of the reasonable necessity for the easement, and that the court bear in mind that property rights are valuable rights not lightly to be taken away".
4. Reference should also be made to the decision of the Court of Appeal in ING Bank (Australia) Ltd v O'Shea (2010) 14 BPR 27,317; [2010] NSWCA 71 where Giles JA (with whom Campbell JA agreed) said at [48]-[49]: "Reasonably necessary" is a composite phrase, in which the necessity is qualified so that it must be a reasonable necessity. Necessity is quite an absolute concept. The qualification is not of the use or development, so that it must be reasonable, although no doubt reasonableness of the use or development comes into reasonable necessity for that use or development. It is of the necessity. A qualification which did no more than reduce the necessity to a less absolute level is unlikely, and if that were intended some other word could have been used such as "convenient". Qualification whereby the necessity must be reasonable is apt to, and in my opinion does, permit regard to matters beyond the relatively absolute necessity for the effective use or development of the dominant tenement. It calls for an assessment of that necessity having regard to all relevant matters, according to the criterion of reasonableness. The impact of the easement on the servient tenement, and the fact that ordering an easement detracts from the property rights of the owner of the servient tenement, are matters readily to be taken into account in that assessment. It is difficult to see how reasonable necessity for an easement for the use or development of a dominant tenement, as distinct from necessity, can be arrived at without regard to the effect on the enjoyment of the servient tenement and on the property rights of the owner of the servient tenement. (See also Moorebank Recyclers Pty Ltd v Tanlane Pty Ltd (supra) at [115]-[117] and Gordon v Lever (supra) at [91].)
5. The requirement of reasonable necessity is to be assessed by reference to the circumstances as they exist at the time of the hearing (see Gordon v Lever (supra) at [89]; Gordon v Lever (No 2) (supra) at [40]).
6. If the Court concludes that the imposition of an easement is reasonably necessary within the meaning of s 88K(1), the Court can proceed to make an order imposing the easement, but only if satisfied of the matters set out in s 88K(2). Even then, the Court retains a discretion as to whether to proceed to make the order (see Khattar v Wiese (supra) at [2]). In the present case, there was no real controversy concerning the requirements of s 88K(2). The central focus rested upon the question of reasonable necessity. It was part of the defendants' case in that regard that the plaintiff failed to adduce evidence that was sufficient to ground the imposition of an easement in the form that was ultimately pressed. Here, reference should be made to Gordon v Lever (supra) where Sackville AJA, with whom McColl and White JJA agreed, said at [97]-[98]: This emphatic language of s 88K(3) makes it clear that the court lacks power to make an order imposing an easement unless the terms of the easement are specified in the order itself. The purpose of the statutory requirement is to ensure that an easement imposed in the exercise of the power conferred by s 88K(1) will be registered in a form that includes all particulars of the easement, as envisaged by s 88K(7). Those particulars may have a marked impact on the respective rights and obligations of the owners of the dominant and servient tenements. For example, an easement of carriageway that entitles the dominant owner (or those acting with his or her authority) to "pass and repass at all times and for all purposes" is likely to have a very different impact on the servient owner then an easement of carriageway that can be used only in limited specified circumstances or at nominated times. When s 88K of the Conveyancing Act is read as a whole it is evident that the reference to "an easement" in s 88K(1) is to an easement the "nature and terms" of which are specified by the Court. This follows from the conferral of power on the Court to make an order imposing an easement, coupled with the requirement that the Court is to specify in the order the nature and terms of the easement. The terms include any limitation on the times or circumstances in which the easement "applies". In the case of an easement of carriageway, the relevant terms will include any constraint on the times or circumstances in which the owner of the dominant tenement can use the carriageway. (See also Moorebank Recyclers Pty Ltd v Tanlane Pty Ltd (supra) at [99] and Studholme v Rawson (2020) 19 BPR 40,293; [2020] NSWCA 76 at [44]-[46].)

Summary of submissions

1. As part of her closing submissions, the plaintiff advanced a form of orders for the imposition of a right of carriageway over Lot 57 for the benefit of Lots 13, 82 and 116, subject to certain terms and conditions. The claimed right of carriageway follows the route of Figtree Valley Road and has a width of 6m. In addition to the terms of the right of carriageway itself, the terms and conditions provide for the plaintiff to have the right, after having obtained necessary consents, to enter up on Lot 57 with appropriate machinery in order to construct over the watercourse on Figtree Valley Road a causeway or crossing capable of carrying a gross weight of 30 tonnes. Under the terms and conditions the plaintiff would also have the right to carry out any necessary upgrade of Figtree Valley Road leading to and from the crossing, and repair and maintain the crossing from time to time. The costs associated with the carrying out of works would be the responsibility of the plaintiff.
2. The plaintiff submitted that the easement is reasonably necessary for the effective use of her home on Lot 116. Numerous matters were advanced in support of that proposition. It was put that there is no existing track or road from Lot 13 or Costigans Road to the plaintiff's home on Lot 116. It was submitted that the video evidence (including of the so-called all-weather access track) shows that there is nothing more than "a makeshift pathway created by cutting some grass and/or vehicle tracks". It was also submitted that there was no track associated with the dam walls of the dams that had been built on Lot 13. The plaintiff further submitted that it is necessary to traverse at least one wide creek bed in order to travel through to Lot 116 from Lot 13. Reference was made to the evidence given by the plaintiff as to the practical difficulties associated with travelling across her own land (see, for example, her 6 April 2021 affidavit at paragraph 9; her 20 April 2021 affidavit at paragraph 7; and her 26 August 2021 affidavit at paragraphs 3 to 7) in particular when using the cattle truck or towing the horse float. This was compared to the relative ease with which the plaintiff travelled through Lot 57 on Figtree Valley Road using all types of vehicles before the road was damaged in March 2021. Reference was also made to evidence given by the plaintiff about her health.
3. The plaintiff submitted that in a practical sense there is no acceptable alternative to the existing track through Lot 57. It was put that even if the proposed access route through Lot 13 was achievable (that is, able to be approved and built) it would be prohibitively expensive, in the order of $300,000. The plaintiff relied upon the evidence of Hopkins and Mr Collins in this regard. The plaintiff submitted that the mere fact that an alternative means of access exists does not preclude an order being made under s 88K.
4. It was submitted that repairing the crossing on Lot 57 carried with it a considerable advantage over the alternative. The plaintiff pointed to Mr Johnson's acceptance that the crossing could be repaired, and reference was made to the evidence which suggested that as Figtree Valley Road was an existing access track, the only approval required would be in respect of the crossing. The plaintiff submitted that use of Lot 116 with the easement was substantially preferable to its use with the alternative.
5. The plaintiff submitted that the proposed easement would not be a great burden on Lot 57. It was said that it involved only a narrow strip of land and did not sterilise or preclude the reasonable use of the lot. It was submitted that it would have no effect on the capacity of the defendants to otherwise use their land.
6. In relation to compensation for the imposition of the easement, the plaintiff submitted that there was no reasonable basis for Mr Flanagan's inclusion of $13,000 for the cost of fencing, nor his assessed reduction in the value of the "severed area" of $34,375. It was also submitted that as the easement would be a considerable distance from the residence on Lot 1, little or no compensation should be given for injurious affection. It was submitted that Mr Rogers' approach to injurious affection (which is based on the unimproved value of the land) should be preferred.
7. The defendants submitted that the plaintiff has failed to discharge her onus of showing that the easement sought is reasonably necessary. The defendants submitted that the plaintiff failed to provide any particularity in respect of the easement sought, and did not adequately address the competing alternative access routes to Lot 116.
8. It was put that the plaintiff's evidence amounted to no more than assertions of convenience and historic use, rather than necessity by reference to the competing factors arising from the alternative routes. The defendants submitted that the plaintiff did not adduce evidence sufficient to enable a comprehensive assessment of the alternatives. The defendants further submitted that the plaintiff failed to adduce clear and particularised evidence in support of the form of easement ultimately sought.
9. The defendants also criticised the terms of the proposed easement as imprecise and uncertain. It was pointed out, for example, that no survey of Figtree Valley Road had been conducted, and there was no expert evidence as to the appropriate width of the easement, apart from some evidence given by the valuers. It was further submitted that there was a lack of evidence to support aspects of proposed order 5, which sets out the terms and conditions of the proposed easement. For example, it was submitted that no evidence had been adduced from an engineer concerning the proposed causeway or crossing. The defendants further submitted that the terms of the proposed order themselves failed to include all particulars of the easement as required by s 88K. It was submitted that the plaintiff's claim could be dismissed on these grounds even before consideration of the question of reasonable necessity.
10. However, on that question, the defendants submitted that as a matter of fact there is an existing access track on the plaintiff's land, between Costigans Road and Lot 116, which the plaintiff currently uses. The defendants submitted that a recently constructed section of track provides an alternative between Lot 116 and the creek crossing on Lot 13. The defendants further submitted that there is an "alternative access track" that extends south from Figtree Valley Road on Lot 13 to the creek crossing. It was submitted that where this alternative crosses watercourses, dams have already been constructed by the plaintiff, and in such a way as to allow 4WD vehicles to traverse the dam walls. As for the creek crossing on Lot 13, the defendants submitted that it is traversable, at least in a 4WD vehicle.
11. The defendants submitted that either of these access tracks are adequate for access to Lot 116. It was submitted that even if it were accepted that work must be done to improve the creek crossing on Lot 13, it seems that similar or more substantial work would be needed on the crossing on Lot 57. The defendants submitted that the same type of consent would be needed in relation to both of those crossings.
12. The defendants submitted that it was not possible on the evidence to determine what approvals might be needed for any further works on Lot 13.
13. It was further submitted that Mr Collins' estimate of the cost of an access road did not establish any relevant costing in relation to the "alternative access track". It was further put that the relative costs of access across the plaintiff's land and access across Lot 57 have not been proven.
14. The defendants submitted that the plaintiff had failed to show there was a "considerable advantage" in an easement over Lot 57 compared to the access that is available to her on her own land. It was submitted that the proposed easement would have a significant effect upon the amenity of the defendants' property, and in particular the extent to which Lot 57 can be utilised for pasture growth, grazing and stock management.
15. Finally, the defendants submitted that if there was a need to assess compensation, the approach of Mr Flanagan should for various reasons be preferred to that of Mr Rogers. It was noted that only Mr Flanagan conducted an inspection of the property.

Determination

1. The central issue is whether the proposed easement is reasonably necessary for the effective use or development of the land that will have the benefit of it, namely, Lots 13, 82 and 116. Those three lots, which may be generally referred to as the plaintiff's land, are rural lots located about 70km west of Port Macquarie. So, too, are Lots 57 and 1 which together constitute the defendants' land. The lots are located in a relatively remote area. The closest public road, Costigans Road, is an unsealed dirt road.
2. All of the lots are used for rural purposes, including the grazing of cattle. The plaintiff also has horses on her land. The lots are also used for residential purposes. The plaintiff's land has a residential dwelling on Lot 116; the defendants' land has a residential dwelling on Lot 1.
3. There is no suggestion that any aspect of the use made by the plaintiff of her land is not a reasonable use of the land. It may be accepted that in addition to use for residential purposes, the plaintiff's use of the land involves the management of cattle and horses, and on occasions requires animals to be transported to and from the land. There would also be occasions when deliveries would need to be made (e.g. of feed or water) using large vehicles or trucks. It is clear that the effective use of the land requires suitable access to and from Costigans Road. As noted earlier, Costigans Road runs generally to the west of Lot 13, and it cuts across the lot near its north-western corner.
4. It is necessary to consider the extent to which access to and from Costigans Road presently exists in relation to the plaintiff's land.
5. There is no doubt that Figtree Valley Road currently provides access to and from Costigans Road for Lot 13. Figtree Valley Road runs off Costigans Road at a point just north of Lot 13. It enters Lot 13 and runs in a generally south-easterly direction across it (for about 350m) until it meets the boundary of the defendants' Lot 57. It is clear that Figtree Valley Road in that area provides suitable access for road vehicles generally.
6. There is currently a second means of access to and from Costigans Road for Lot 13. This is the track that runs off Costigans Road at a point to the west of Dam 2. This track passes across Lot 12 for a short distance (perhaps about 50m) before entering Lot 13. It proceeds in a generally easterly direction before turning towards the south-west, and it then proceeds to the creek crossing. Once past the creek, the track continues through to the entrance to Lot 116. (This section of the track is what Mr Johnson refers to as the all-weather track.) The plaintiff agreed in cross-examination that she had been using this means of access to Lot 116 since March 2021, when Figtree Valley Road became impassable. It should be noted that between the creek crossing and the entrance to Lot 116 there is an available alternative route using the track that was constructed in May 2021.
7. Video evidence adduced by the defendants establishes to my satisfaction that the track between Costigans Road and Lot 116 can be readily traversed, including at the creek crossing, in a 4WD utility. In this regard I refer in particular to the Dash Camera Footage of 26 March 2021 and of 16 April 2021 (being parts of BCJ-3), and the Departing Tout Property to Costigans Road video taken on the night of 16 August 2021 (being part of BCJ-5). The footage of 26 March 2021, taken shortly after a period of extremely heavy rain, shows parts of the track to be wet and muddy. The condition of the track appears to be much firmer in the 16 April 2021 video. The video taken on 16 August 2021 shows the vehicle passing over the wall of one of the dams (Dam 3) before proceeding to Costigans Road.
8. The existing track thus seems to provide at least 4WD vehicle access between Costigans Road and Lot 116, even shortly after a period of heavy rain. As mentioned, this route passes for a short distance across Lot 12. There is no evidence concerning the ownership of Lot 12. Neither is there evidence as to whether any arrangements exist to allow the plaintiff to make use of that short section of the track. However, if the plaintiff was to be impeded from using that section, it would be open to her to take a different route from the creek crossing on Lot 13 to Costigans Road. In my view, the evidence establishes that it is possible to continue in a generally northerly direction from the creek crossing, past Dam 3 and then Dam 2, to Figtree Valley Road which can then be used to access Costigans Road. I am satisfied from the video evidence (including the drone video which shows tyre markings on this route, and the 16 August 2021 footage of Mr Johnson driving over one of the dam walls) as well as the plaintiff's evidence about wheel marks where she has been driving north of one of the dams on Lot 13, that this route is able to be used by at least 4WD vehicles such as the utility used by the plaintiff.
9. This route seems to have only been used in recent times, and probably infrequently. It cannot be described as a well-worn track. Nevertheless, it presents as a viable alternative. The lack of trees and what appears to be gently sloping terrain in that area seems conducive to the carrying out of works, relatively minor in scope, to improve or upgrade this alternative route. The plaintiff accepted in cross-examination that the land to the north of Dam 3 is very flat and devoid of trees. I cannot accept the plaintiff's evidence that it is not feasible to construct a track using a grader from Figtree Valley Road towards Dam 3. Neither can I accept her evidence that it is not feasible to drive a motor vehicle over the tracks on the dam walls. I note that the plaintiff later conceded that 4WD vehicles (including her utility) could drive over the wall of Dam 3. I think it is likely that a development consent would be required for works to improve or upgrade this track, even if such works could be described as "earthworks of a minor nature". As I read cl 7.2 of the local environmental plan, development consent is required for any earthworks unless the work is exempt development or is ancillary to other developments for which development consent is given (see cl 7.2(2)). It is doubtful that the range of reports suggested by Hopkins would be required given the open nature of the land over which the track passes.
10. However, the creek crossing on Lot 13 appears to create particular difficulties for the plaintiff. She says that she is unable to get her cattle track across the creek. She also says that she is unable to tow her horse float across the creek. In order to avoid having to tow the horse float across the creek the plaintiff parks the float on the Costigans Road side of the crossing. Presumably she is able to tow it from that point to Costigans Road, and from Costigans Road to that point. This is supported by some of the video footage in Exhibit BCJ-4 (the Tout Departure file).
11. The difficulties or limitations associated with the creek crossing on Lot 13 no doubt cause inconvenience. Nevertheless, there is no reason to think that these problems would not be able to be solved or minimised by the undertaking of works to enhance the crossing.
12. Unfortunately, little evidence was adduced in the nature of an assessment of what might be required in that regard, and how much it might cost. The Hopkins report referred to a "desk top review" that suggested the required infrastructure would potentially consist of a 3x600� piped culvert with a causeway or similar over the top. In cross-examination, one of the authors of the report, Mr Mowle, said that whether a concrete causeway would be required if the crossing had a depth of 500mm would depend on the size of the stream and the flows during a storm event. When shown a photograph of the crossing area Mr Mowle did not agree that a concrete causeway was not required, and went on to say that the crossing would need to be "formalised in some way or other" to provide all-weather access in a storm event. I note that the more detailed version of Mr Collins' quotation includes an amount of $24,000 for a concrete weir and other amounts for water pipes. However, it appears that Mr Collins' proposed road would not pass over this particular crossing.
13. The state of the evidence does not allow the Court to reach any firm conclusions about what works may be required at the creek crossing in order that it would readily accommodate, for example, cattle trucks of the type owned by the plaintiff and vehicles towing a horse float of the type owned by the plaintiff, or the likely cost of such works. It may be accepted, however, that construction works of that character would require a development approval from the Council and a controlled activity approval under the Water Management Act 2000 (NSW). The cost of obtaining such approvals may itself be significant. That would depend in part upon the number and types of reports that would need to be submitted in conjunction with the applications. The evidence of Hopkins shows that numerous reports could be required although, having regard to Mr Sinclair's evidence, I think that this would depend upon the details of the proposal submitted.
14. In summary, the plaintiff currently has at least 4WD vehicle access between Costigans Road and the entrance to Lot 116 across her land (Lot 13). The plaintiff has availed herself of this access route since March 2021. If the plaintiff was impeded in using this route, which passes through Lot 12 for a short distance, it would be open to the plaintiff to use an alternative route for part of the way, that is, from the creek crossing on Lot 13 to Costigans Road via Figtree Valley Road. That alternative route is suitable for at least 4WD vehicles and, as far as the evidence goes, it seems amenable to improvement or upgrading if required. The quality of the current access is constrained to a degree by the creek crossing on Lot 13. This crossing seems to create difficulties for some vehicular movements, such as the towing of a horse float. Expert evidence has not been adduced as to the nature and extent of the inadequacy of the creek crossing. Neither has such evidence been adduced as to what works could be done to overcome or minimise the problems, and the likely costs of such works. So, whilst the quality of the vehicular access between Costigans Road the plaintiff's land is presently constrained to a degree, the Court is not in a position to reach properly based conclusions about how the deficiencies may be overcome or minimised.
15. The plaintiff could have adduced expert evidence directed to the problems associated with the creek crossing, but did not do so. The plaintiff's efforts in that regard were instead directed to establishing how much it would cost to obtain approval for and then construct a new road across her land to Lot 116. The contemplated new road is the subject of the quotation prepared by Mr Collins. The road includes the following features: 1. it has a length of 1.2km. Annexure A to Mr Collins' affidavit of 30 August 2021 shows the proposed route as running from Costigans Road (it seems along Figtree Valley Road for about 300m) all the way into Lot 116; 2. it follows a route that crosses the creek on Lot 13 about 50m away from the existing creek crossing, and follows a new route over its final 350m; and 3. it includes six passing bays, each being 100m in length and 1m in width.
16. Mr Collins made it clear in cross-examination that his design was for a properly constructed road, not an access track. That might explain the overlap between the proposed road and Figtree Valley Road; that is, the proposal may involve an upgrading of that approximately 300m section of Figtree Valley Road.
17. I do not consider that a road of this nature is required to afford adequate vehicular access between Costigans Road and Lot 116. In my opinion the evidence shows that apart from some works to enhance the creek crossing, the only works that may be required may be some work to improve or upgrade the route from the creek crossing north to Figtree Valley Road. Again, there is little evidence of what may be required and how much it would cost, but the absence of trees and the apparently gently sloping terrain suggests that only relatively minor works of this nature would be required.
18. The plaintiff submitted that Mr Collins was adamant that what he proposed was necessary in order to build something suitable for all purposes and all vehicles and "to meet council requirements". I do not think his evidence went so far. One answer he gave in cross-examination was that the basis of his quotation was a properly constructed road "to a development application approval". I do not regard that as a statement that the Council would require a road of that standard, and thus would not approve something less. In any case, Mr Collins did not profess to have expertise that would enable him to give an opinion to that effect. Insofar as Mr Collins said that there was a need for such a road to be constructed, it is evident that he considered it necessary so that cattle trucks could traverse the land. However, the evidence does not suggest that cattle trucks are unable to use Figtree Valley Road, so it is difficult to see why it would be necessary to build a road to a higher standard. Even if the proposed road is not intended to be of a higher standard than Figtree Valley Road, I am not convinced on the available evidence that it is necessary that cattle trucks (or indeed other types of trucks) be able to pass further into the plaintiff's land beyond Figtree Valley Road. That road extends into Lot 13 from Costigans Road for a distance of at least 300m.
19. An important plank in the plaintiff's case is that it would be prohibitively expensive to achieve a situation where adequate access for Lot 116 was provided across only the plaintiff's land. The conclusions I have reached, as set out above, undermine that part of the case. The evidence before the Court does not allow me to properly assess the cost of carrying out particular works that are truly necessary to achieve such access (including the cost of obtaining any necessary approvals for such works). I am therefore unable to conclude that it would be prohibitively expensive to achieve adequate access for Lot 116 using only the plaintiff's land.
20. Another important aspect of the plaintiff's case is that repairing the crossing on Lot 57 is considerably advantageous when compared to the alternative of achieving access over only the plaintiff's land. A similar difficulty arises here because there is little evidence of what works would be required in order to repair the crossing on Lot 57 so as to make that part of Figtree Valley Road trafficable again. It may be accepted, in general terms, that it could be repaired by the installation of a suitable culvert. Mr Johnson accepted as much in cross-examination. However, the detail of what would be required is lacking. The evidence in this regard, and the evidence in relation to the creek crossing on Lot 13, suggests that works of a roughly similar nature would be required. It seems that in either case a development approval and a controlled activity approval would be required. If anything, the evidence concerning the greater depth of the creek bed on Lot 57 indicates that the scope of the works required there would likely exceed the scope of works required on Lot 13 and likely cost more to construct. Of course, the potential need to improve some of the existing tracks on Lot 13 also has to be factored in, but again the evidence is limited. The evidence of the $6,000 cost of the construction of the new track and the dams in May 2021 suggests that these costs might be relatively modest, and I note that Mr Collins said that it would be possible to build something a lot cheaper than his proposed road.
21. The lack of evidence in relation to the repairs of the crossing on Lot 57 is also significant because the very terms of the proposed easement would confer rights upon the plaintiff to enter the defendants' land and carry out substantial works. The terms envisage construction of a causeway or crossing "certified by an appropriately qualified engineer to be capable of carrying a gross weight of 30 tonne". No evidence was adduced from an engineer about what type of crossing would be required. Mr Mowle is a civil engineer but he was not asked to give evidence on this matter. It is a matter that calls for engineering expertise. In cross-examination, Mr Mowle referred to a need to assess "the size of the stream and the flows during a storm event" and in re-examination he referred to a need for "analysis and design work" prior to construction. A similar point can be made about the lack of engineering evidence concerning any "necessary upgrade" of the road as envisaged under the terms of the proposed easement. The state of the evidence thus makes it difficult for the Court to assess reasonable necessity in relation to the proposed easement.
22. I have not overlooked the fact that the plaintiff sought the opinion of Mr Collins in relation to the cost of repairs to Figtree Valley Road on Lot 57. In his first affidavit of 2 July 2021, Mr Collins said that Mr Johnson had on two occasions actively prevented him from inspecting the site. However, Mr Collins makes no further mention of the matter in his second affidavit of 30 August 2021. Mr Johnson, in his affidavit of 11 August 2021, provided an account of his interactions with Mr Collins. On this account, the question of access was left by Mr Collins on 24 June 2021 on the basis that he would sort it out through the plaintiff's solicitor, and Mr Johnson then heard nothing further about it. In cross-examination, Mr Johnson refuted the suggestion put to him that he had denied Mr Collins access. Mr Collins was not asked about the matter in his cross-examination. I am inclined to think that Mr Johnson's account is reasonably accurate. It is likely that on 24 June 2021 he told Mr Collins that the time had passed under the orders of the Court so he (Mr Collins) would need to speak to the plaintiff's solicitor about getting the orders changed. It is also likely that Mr Collins said something about having the plaintiff's solicitor sort it out. I was not taken to any evidence of further requests for Mr Collins to have access to Lot 57. In any case, as I have said, the matter is one that calls for engineering expertise.
23. In considering the question of reasonable necessity, regard must also be had to the effect the proposed easement would have on the servient tenement (Lot 57). The portion of Figtree Valley Road that passes over Lot 57 is no longer required for access to the lot and is not used for that purpose. Mr Johnson accepted, however, that he occasionally drove on that section. He said that he goes everywhere on his property. Mr Johnson also gave evidence that this section was of no utility to the operation of the farming enterprise, and rather takes up a considerable area of arable land. Mr Johnson said it was in the most fertile part of the property. That evidence was not challenged and it seems consistent with some of the photographic and video evidence. Apart from the area that would be included within the easement itself, I think that the presence of the easement would restrict the extent to which the land near the easement (notably the area between Figtree Valley Road and the boundary with Lot 13) could be utilised or managed as pastures. This matter is reflected in the valuation exercise undertaken by Mr Flanagan, which includes a component for a diminution in the value of the "severed area". In cross-examination, Mr Flanagan cited maintenance tasks such as slashing and ploughing that would be made more difficult in that area due to the presence of a road. In my opinion the proposed easement would have an effect upon the servient tenement that may be described as substantial, not minor or trifling, albeit that the loss or disadvantage that would arise could be adequately compensated for by an award of monetary compensation (see s 88K(2)(b)). If an award of compensation was made, it would be in the sum of $89,875 (see [113] below).
24. Regard must also be given to the fact that imposition of the easement necessarily entails a reduction or constriction of the property rights of the defendants, and that this is something that ought not lightly be imposed upon them.
25. Viewing the circumstances of the case overall, I am not satisfied that the plaintiff has shown that the easement she seeks is reasonably necessary for the effective use or development of her land (including Lot 116). In my opinion it is clear that the plaintiff's land can be effectively used or developed without the proposed easement. That in itself does not dictate that the easement is not "reasonably necessary" within the meaning of s 88K(1). However, when regard is had to the evidence of the alternatives that seem to be available, I do not think that the plaintiff has shown that the use or development of her land with the easement is at least substantially preferable to the use or development of the land without the easement. That is particularly so in circumstances where the evidence adduced is in various respects deficient, such that it is not possible for the Court to undertake a proper assessment of the relative costs of use or development with and without the easement. When regard is further had to the effect the proposed easement would have upon Lot 57, and the concomitant detraction from the property rights of the defendants, I think that the Court must conclude that the plaintiff has failed to satisfy s 88K(1) in respect of the proposed easement. It follows that the plaintiff's claim under s 88K fails.
26. If, contrary to that conclusion, s 88K(1) had been satisfied, the Court would have been satisfied of the three matters specified in s 88K(2). As for compensation pursuant to s 88K(4), I would have assessed the appropriate amount as $89,875. I would have arrived at that amount by reference to the evidence of Mr Flanagan, whose approach I generally accept as suitable. In particular: 1. having regard to Mr Flanagan's evidence concerning his measurements of parts of Figtree Valley Road, I think that the easement area should be measured on the basis that the easement is 8m wide rather than the 3m suggested by Mr Rogers; 2. it seems to me logical to base the amount for injurious affection upon the improved value of the defendants' land, as stated by Mr Flanagan. Mr Rogers seemed to concede as much in cross-examination; and 3. I think that the effect of the easement upon the "severed area" warrants compensation in the order of the amount suggested by Mr Flanagan, which is based on a 25% diminution in value. However, I would not have awarded the further amount suggested of $13,000 for the cost of fencing along the side of the easement. I do not think that the evidence supports a conclusion that expenditure of that type would be necessary, or likely to be incurred, if the easement was imposed.

Conclusion

1. The plaintiff's Statement of Claim will be dismissed. I will hear the parties further on the question of costs. In the first instance, this will be by way of brief written submissions. The question of costs is probably suitable to be dealt with on the papers. However, if any party considers that a further oral hearing is required, the reasons for that should be included in the written submissions, for which the Court will make directions.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 14 October 2021