BARRETT-LENNARD v River Wind Pty Ltd
[2019] WASC 125
•18 APRIL 2019
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL
CITATION: BARRETT-LENNARD -v- RIVER WIND PTY LTD [2019] WASC 125
CORAM: CURTHOYS J
HEARD: 11 - 15 MARCH 2019
DELIVERED : 18 APRIL 2019
FILE NO/S: CIV 1126 of 2017
BETWEEN: SANDRA KAYE BARRETT-LENNARD
Plaintiff
AND
RIVER WIND PTY LTD
Defendant
Catchwords:
Easement - access - Substantial interference - Cattle grids - Gates and fences - Gates left open - Locked gates - Maintenance of easement - trespass
Legislation:
Transfer of Land Act 1893 (WA) - Ninth Schedule
Result:
Plaintiff's claim dismissed
Defendant's counterclaim for injunctive relief and declaratory relief successful
Category: B
Representation:
Counsel:
| Plaintiff | : | Mr J C Yeldon |
| Defendant | : | Mr J M Healy |
Solicitors:
| Plaintiff | : | Pacer Legal |
| Defendant | : | Bailiwick Legal |
Case(s) referred to in decision(s):
Alvis v Harrison (1990) 62 P & CR 10
Brodsky v Willi [2018] QDC 1
Fermora Pty Ltd v Kelvedon Pty Ltd [2011] WASC 281
Harris v Flower (1904) 74 LJ Ch 127
Kitching v Phillips [2011] WASCA 19
Lawton v Ward (1697) 1 Ld Raym 75, (1697) 91 ER 946
Peacock v Custins [2001] 2 All ER 827; [2002] 1 WLR 1815
Perpetual Trustee Company Ltd v Westfield Management Ltd [2006] NSWCA 337
Pullen v Smedley [2017] NSWSC 1721
Russell v Pennings [2001] WASCA 115
Staley v Pivot Group Pty Ltd [No 6] [2010] WASC 228
Trewin v Felton [2007] NSWSC 851
Westfield Management Ltd v Perpetual Trustee Co Ltd [2007] HCA 45; (2007) 233 CLR 528
CURTHOYS J:
Introduction
The principal issue in this case concerns the scope of the rights conferred by an easement. The terms of the easement, registered as D676652, appear in exhibit 1, page 9 (the Easement).
The Easement confers a right of carriageway over Lot 2726, owned by River Wind, to property owned by Sandra Barrett‑Lennard.
In simple terms the question is do the rights conferred by the Easement permit Sandra Barrett‑Lennard, the owner of Lot 200, and her servants, agents, workmen and visitors, the dominant tenement, to use the Easement on Lot 2726, the subservient tenement, to travel across Lot 200 to other lots owned by her, and particularly the homestead Lot 192. Sandra Barrett‑Lennard contends that it does. River Wind contends that it does not.
The court has concluded that Sandra Barrett‑Lennard, and her servants and agents, workmen and visitors are not permitted to use the Easement as a means of accessing lots other than Lot 200.
As River Wind's submissions note there are four broad issues for determination in this matter:
(1)the proper construction of the Easement;
(2)whether there has been substantial interference with rights under the Easement by way of installation of gates, cattle grids and locks and other activities by River Wind;
(3)whether Sandra Barrett‑Lennard has maintained the Easement in accordance with its terms; and
(4)whether there has been trespass by Sandra Barrett‑Lennard and her servants, agents, workmen and visitors in using the Easement for an impermissible purpose.
The Easement
Sandra Barrett‑Lennard is the registered proprietor of Lot 200 on Deposited Plan 302098 being the whole of the land comprised in Certificate of Title Volume 1733 Folio 669 (Lot 200).
River Wind Pty Ltd is the registered proprietor of Lot 2726 on Deposited Plan 89951, being the whole of the land comprised in Certificate of Title Volume 1269 Folio 621 (Lot 2726).
In broad terms, Lot 2726 is bordered by the Brand Highway on its eastern side and by Lot 200 on its western side.
Lot 200 has a registered easement on its title. The Deed of Easement (Transfer D676652) grants a right of carriageway over Lot 2726. Lot 200 is the dominant tenement and Lot 2726 is the subservient tenement. The effect of the Easement is to permit access from Brand Highway across Lot 2726 to Lot 200. Sandra Barrett‑Lennard, and her servants, agents, workmen and visitors have been using the Easement to access not only Lot 200 but other lots owned by her.
There is no dispute between the parties that by reason of transfers of title they have succeeded to the respective obligations under the Easement.
The terms of the Easement incorporate the Ninth Schedule of the Transfer of Land Act 1893 (WA), which at the relevant time read:
Together with full and free right and liberty to and for the transferee hereunder and to and for the registered proprietor or proprietors for the time being of the land hereby transferred or any part thereof and his her and their tenants servants agents workmen and visitors to go pass and repass at all times hereafter and for all purposes and either with or without horses or other animals carts or other carriages into and out of and from the said land or any part thereof through over and along the road or way or several roads or ways delineated and coloured brown on the said map.
Before turning to the terms of the Easement it is important to identify the 'said land' referred to in the Ninth Schedule. The 'land hereby transferred' is the subservient tenement. Accordingly 'the said land' referred to must also be the subservient tenement. There is no other land referred to in the Ninth Schedule which could be 'the said land'.
For ease of reference the present owners and the relevant land have been incorporated within square brackets in the terms of the Easement.
The terms of the Easement are:
MAXWELL HARRIS [River Wind] of Gingin via Beermullah, Western Australia, contractor ('the Grantor') being registered as the proprietor for the time being of an estate in fee simple in the land hereinafter described in Part 1 of the Schedule hereto [Swan Location 2726 the whole of the land comprised in Certificate of Title Volume 1269 Folio 621] subject to the encumbrances notified hereunder doth HEREBY TRANSFER AND GRANT unto ERIC JOSEPH HARRIS of Beermullah via Gingin, Western Australia, farmer ('the Grantee') and its transferees successors in title and assigns as appurtenant to the Grantee's land more particularly described in Part 2 of the Schedule hereto [The Northern Moiety of Swan Location 1732 the whole of the land comprised in Certificate of Title Volume 1048 Folio 860 (now Lot 200)] hereto a right of carriageway in terms of the Ninth Schedule of the Transfer of Land Act 1893 (as amended)
[ie from the Ninth Schedule]
together with full and free right and liberty to and for the transferee [Sandra Barrett‑Lennard] hereunder and to and for the registered proprietor or proprietors for the time being of the land hereby transferred [the Easement on Lot 2726] or any part thereof and his her and their tenants servants agents workmen and visitors to go pass and repass at all times hereafter and for all purposes and either with or without horses or other animals carts or other carriages into and out of and from the said land [the Easement on Lot 2726] or any part thereof through over and along the road or way or several roads or ways delineated and coloured brown on the said map] over that portion of the Grantor's [River Wind's] land [Lot 2726] delineated and coloured brown on the map annexed hereto and marked with the letter 'A' ('the Carriageway Area').
AND IT IS HEREBY AGREED by the parties hereto (to the intent of binding themselves and their respective assigns transferee and successors in title) as follows:-
1.The Grantee [Sandra Barrett‑Lennard] shall bear the costs of the repair maintenance and upkeep of the right of carriageway hereby created (including any gate or cattle grid situated on or appurtenant to the Carriageway Area) except where such costs shall have been definitely ascertained to have been occasioned by some act default omission or neglect on the part of the Grantor [River Wind] or the servants or agents of the Grantor [River Wind] in which case the costs of the necessary repairs maintenance of replacement shall be borne by the Grantor [River Wind] PROVIDED FURTHER THAT in the event of any dispute or difference arising between the Grantor [River Wind] and the Grantee [Barrett‑Lennard] concerning the interpretation of this clause such dispute or difference shall be referred to a single arbitrator under the provisions of the Commercial Arbitration Act 1985 and for the purposes of Section 20 of that Act the parties agree that each of them shall be entitled to its own legal representation at such proceedings.
2.The Grantee [Sandra Barrett‑Lennard] shall:
(1)Keep all gates (if any) to and from the Carriageway Area closed.
(2)Keep all cattle grids (if any) servicing the entrances to and from the Carriageway Area free of debris.
It should be noted that there appears to be an element of duplication in the Easement in the incorporation of the Ninth Schedule.
Beermullah Farm
Sandra Barrett‑Lennard is also the registered proprietor of a number of other lots: 2591, 829, 830 and 192.[1]
[1] Statement of claim par 1; defence par 1.
Sandra Barrett‑Lennard and her husband, became the registered proprietors of Lots 200, 2591, 829, 830 and 192 on 19 February 1988.[2] The title to these lots passed to Sandra Barrett‑Lennard by survivorship.
[2] Statement of claim par 22.
A partnership, comprising Sandra Barrett‑Lennard, her son, Philip Barrett‑Lennard and his partner, Sally Calder, conduct a farming business on Lots 200, 2591, 829, 830 and 192. The farm is known as 'Beermullah Farm'. The farm is used for raising cattle.[3]
[3] Statement of claim pars 6 and 7.
The buildings that relate to Beermullah Farm, including the farmhouse and sheds, are all on Lot 192.[4]
[4] Exhibit 12 [13].
There are cattle yards on Lot 200. The partnership uses the Easement to access those cattle yards.
The partnership also uses the Easement to access other lots comprising Beermullah Farm for farming purposes, for example the delivery of feed for the cattle.
Sandra Barrett‑Lennard, the partnership, various contractors and visitors use the Easement to access those other lots. The homestead is on Lot 192.[5] It is typically accessed by travelling from Brand Highway, across the Easement, across Lot 200 and then into Lot 192 and then in reverse to travel back to Brand Highway.[6]
[5] Statement of claim par 8.
[6] Exhibit 12 [22] ‑ [24], exhibit 1 [12] ‑ [14].
Beermullah Farm
Rex Cooper is a director of River Wind.
River Wind conducts a farming business on Lot 2726. The farm is known as 'Beermullah Springs'. The farm is used for raising cattle.[7] Lot 2726 is used for both grazing and breeding Black Angus cattle. In October 2017 there were 59 breeding cows and calves and 43 heifers on Lot 2726.[8]
[7] Statement of claim par 12.
[8] Exhibit 29 [29].
A diagram of the layout of the lots that constitute 'Beermullah Farm' and 'Beermullah Springs' appears in exhibit 29 REC‑11.
Lot 200 and Lot 2726
Lot 200 is approximately 100 acres. There is a set of cattle yards on Lot 200.[9]
[9] ts 42, 11 March 2019.
When Sandra Barrett‑Lennard and her husband purchased Lot 200:
(a)there was a cattle grid at each end of the Easement;
(b)there was a gate at one side of each cattle grid;
(c)the gate at each end followed the boundary line fences; and
(d)there was no other gate on the Easement.[10]
[10] Exhibit 13 [22] ‑ [26].
It is not in issue between the parties that:
(a)the Easement runs approximately 590 m from Brand Highway to Lot 200;
(b)at the Brand Highway end the Easement is 10.68 m wide;
(c)at the Lot 200 Beermullah Farm end of the Easement, the Easement is 11.19 m wide;
(d)a roadway is located on the Easement and is on average approximately 5 m wide (the Roadway);
(e)currently there is a cattle grid and a gate situated directly over the cattle grid at the Brand Highway end of the Easement;
(f)the gate was installed over the cattle grid by a previous owner of Lot 2726, Ian Collard, in or around 2008;[11]
(g)currently there is a set of double gates adjacent to the gate and cattle grid at the Brand Highway end of the Easement;
(h)currently there is a gate at the Lot 200/Beermullah Gate end of the Easement, which runs along the boundary line; and
(i)currently there is a gate and fencing midway along the Easement which was installed by Ian Collard in 2008.[12]
[11] Statement of claim par 27.
[12] Exhibit 1 [21].
A survey of the Easement, the Roadway, fencing and the gates appears in exhibit 19 WMS2.
Westfield Management Ltd v Perpetual Trustee Company Ltd
In Westfield Management Ltd v Perpetual Trustee Co Ltd,[13] the High Court considered the construction of an easement (the Westfield easement) the terms of which were set out at [15] of the judgment:
Full and free right of carriageway for the grantee its successors in title and registered proprietors for the time being of an estate or interest in possession of the land herein indicated as the lots benefited or any part thereof with which the rights shall be capable of enjoyment and every person authorised by it, to go, pass and repass at all times and for all purposes with vehicles to and from the said lots benefited or any such part thereof across the lots burdened. (emphasis added)
[13] Westfield Management Ltd v Perpetual Trustee Co Ltd [2007] HCA 45; (2007) 233 CLR 528 (Westfield).
The Westfield litigation concerned the terms of the Westfield easement which conferred a right of way by means of a vehicle ramp under the servient tenement (Glasshouse). Perpetual was the registered proprietor of the servient tenement 'Glasshouse'. The dominant tenement was Skygarden. Westfield had acquired additional sites identified as Imperial Arcade and Centrepoint. Each of those sites was on a separate title. At the time of the creation of the easement in 1988, all four parcels of land were in separate ownership.
Imperial Arcade adjoined Skygarden, and Centrepoint adjoined Imperial Arcade. Both Imperial Arcade and Centrepoint fronted the Pitt Street Mall. Westfield proposed to redevelop all three sites. Westfield wished to utilise the right of way under Glasshouse conferred by the Westfield easement so as to enable vehicular access to not only Skygarden but also to Imperial Arcade and Centrepoint.
The High Court held that the terms of the Westfield easement did not authorise Westfield to access Imperial Arcade and Centrepoint, ie land which did not form part of the dominant tenement - Skygarden.
The High Court stated:
The most recent edition of Gale on Easements 17th ed (2002), p 334 [9‑27] states: 'The general rule is that a right of way may only be used for gaining access to the land identified as the dominant tenement in the grant.'
…
At this stage in the reasons it is important to remark that care certainly must be taken lest the statement in Gale on Easements set out above be elevated to the status of a 'rule', whether of construction or substantive law. What the statement does provide is a starting point for consideration of the terms of any particular grant. The statement is consistent with an understanding that the broader the right of access to the dominant tenement granted by the easement, the greater the burden upon the proprietary rights in the servient tenement [25] ‑ [29].
The High Court further stated:[14]
This form of words has an affinity to that which, since the commencement in 1931 of the Conveyancing (Amendment) Act 1930 (NSW) (the 1930 Act), has been the effect given by s 181A of the Conveyancing Act [With Sch 8, Pt 1] to the creation of a right of way using the expression 'right of carriageway'. Section 181A extends to dealings under the RP Act (s 181A(4)). The meaning given to the expression 'right of carriageway' by the statute may be varied by the instrument in which it is used (s 181A(3)). The words otherwise read in by the statute are as follows:
'Full and free right for every person who is at any time entitled to an estate or interest in possession in the land herein indicated as the dominant tenement or any part thereof with which the right shall be capable of enjoyment, and every person authorised by that person, to go, pass and repass at all times and for all purposes with or without animals or vehicles or both to and from the said dominant tenement or any such part thereof.'
The phrases 'to go, pass and repass at all times and for all purposes … to and from the said dominant tenement ["lots benefited"] or any such part thereof' appear in both the statute and the Instrument. However, for the Easement the activities permitted with respect to the servient tenement (Glasshouse) are 'across the lots burdened', an expression not found in the statutory formulation. This expression is apt to describe entry from King Street, and passage across the Glasshouse site of the servient tenement to reach Skygarden as the destination. What is significant for the present dispute is that the Easement does not also speak of activities 'across' rather than 'to and from' the dominant tenement (Skygarden).
In that regard, Hodgson JA, who gave the leading reasons for judgment in the Court of Appeal, remarked [2007] NSW ConvR 56‑170 at 56,175 [65]; (2006) 12 BPR 23,793 at 23,811:
'Although the words "to and from [the dominant tenement] or any such part thereof" do not exclude the possibility that the right should extend to going to the dominant tenement and then going across it to further land, and then returning across the dominant tenement and then going from it across the servient tenement, the words tend to suggest that it is access to and from the dominant tenement that is the purpose of the [E]asement, and not access to further land reached only by going across the dominant tenement. Certainly, if it had been intended that the grant extend to the authorisation of others to go across the dominant tenement to further properties, the words "and across" could readily have been added.' (emphasis in original)
We agree [16] ‑ [18].
[14] See also Harris v Flower (1904) 74 LJ Ch 127; Alvis v Harrison (1990) 62 P & CR 10; Peacock v Custins [2001] 2 All ER 827; [2002] 1 WLR 1815, 1824; Lawton v Ward (1697) 1 Ld Raym 75, (1697) 91 ER 946; Perpetual Trustee Company Ltd v Westfield Management Ltd [2006] NSWCA 337 [24] ‑ [54]; Trewin v Felton [2007] NSWSC 851 [17] ‑ [54]; Staley v Pivot Group Pty Ltd [No 6] [2010] WASC 228; Kitching v Phillips [2011] WASCA 19 [40] ‑ [61]; Fermora Pty Ltd v Kelvedon Pty Ltd [2011] WASC 281 (all cited in the defendant's submissions).
Issue 1 – Proper construction of the Easement
Evidence cannot be admitted to establish the intention or contemplation of the parties to the grant of the easement (Westfield [45]).
The terms of the Westfield easement considered by the High Court in Westfield are similar to the terms of the Easement.
The relevant paragraphs are set out below:
Westfield Easement
Full and free right of carriageway for the grantee its successors in title and registered proprietors for the time being of an estate or interest in possession of the land herein indicated as the lots benefited or any part thereof with which the rights shall be capable of enjoyment and every person authorised by it, to go, pass and repass at all times and for all purposes with vehicles to and from the said lots benefited or any such part thereof across the lots burdened.
The Easement
a right of carriageway … together with full and free right and liberty to the transferee … to go pass and repass at all times hereafter and for all purposes and … into and out of and from the said land [Lot 2726] or any part thereof through over and along the road or way or several roads or ways delineated and coloured brown on the said map.
It should be noted that the Westfield Easement did not follow the language of the 1930 NSW Act which referred to the dominant tenement, ie the lots benefited. Rather, it referred to the lots burdened which is the formulation in the Ninth Schedule in the Transfer of Land Act (WA).
Sandra Barrett‑Lennard correctly submits that the terms of the Westfield easement are different to the terms of the Easement. It does not follow from that that the decision of the High Court is not instructive in the interpretation of the Easement.
There is no relevant difference between the expression 'full and free right of carriageway' and 'a right of carriageway … together with full and free right and liberty'.
The words 'to go pass and repass' are identical.
The words 'for all purposes' are identical.
Since the terms in Westfield referred to above were found not to confer a right to proceed beyond the dominant tenement the right conferred, if any, must arise by reason of the use of the expression 'to and from the said lots benefited' across the lots burdened in the Westfield easement and the expression 'into and out of and from' in the Easement.
The phrase 'into and out of and from' in the Easement relate to the subservient tenement, ie the lots burdened.
Sandra Barrett‑Lennard at par 31 of her submissions stated:
It is necessary to keep in mind the 'expansive terminology' in the Ninth Schedule is for the benefit of the plaintiff' and note the plaintiff's rights work in both directions of travel end to end because of the words 'through over and along'. The plaintiff submits once this is kept in mind, the words 'into and out of and from' explicitly suggest the plaintiff is permitted to go into and out of and from the carriageway in both directions. There is no destination identified. The words 'through' must be read in the context of the width of the Carriageway Area granted. There is no cause for confining the plaintiff coming into the easement from any place and then heading to Brand Highway, and vice versa.
Sandra Barrett‑Lennard's submissions relied on the phrase 'expansive terminology' that appears in Kenneth Martin J's judgment in Staley v Pivot Group Pty Ltd [9]. His Honour's comments need to be read in the context of the legal principles he set out in his judgment which are set out below. His Honour's comments as to 'expansive terminology' were in the context of the defendant's argument which sought to make a distinction between a 'grant' and a 'reservation' a distinction which his Honour rejected.
Sandra Barrett‑Lennard's submission that the 'expansive' terminology is for the benefit of the grantee are not supported by his Honour's judgment.
As Sandra Barrett‑Lennard's submissions correctly state, in par 31, 'the words "into and out of and from" explicitly suggest she is permitted to go into and out of and from the carriageway in both directions'.
The reason that the submissions are correct is because the phrase 'into and out of and from' relates to the Easement on Lot 2726, the servient tenement. They do not relate to the dominant tenement, Lot 200, except in so far as the phrase 'into and out of and from' relates to access to Lot 200 and the Brand Highway by the Easement.
Where Sandra Barrett‑Lennard's submissions are incorrect is where she states there 'is no cause for confining the plaintiff coming into the easement from any place and then heading to Brand Highway, and vice versa'. That proposition does not follow from the earlier sentences in par 31 of the submissions.
The construction of the expression 'into and out of and from the said land …' must be read with what follows, ie 'through over and along the road or way or several roads', ie the lots burdened. The phrase does not refer to leaving the dominant tenement, ie Lot 200, other than by the lots burdened, ie subservient tenement Lot 2676.
As the High Court held in Westfield, in order for the construction contended for by Sandra Barrett‑Lennard to be accepted the words 'across the dominant tenement', or words to that effect, would need to have been used. There are no such words in the Easement.
Even if phrases 'into and out of and from' in the Easement had referred to the dominant tenement it would still have required the use of the word 'across', or words to that effect, to support Sandra Barrett‑Lennard's construction.
The court finds that on a proper construction of the Easement access to lots other than Lot 200 is not permitted by the terms of the Easement. Accordingly, River Wind's construction is correct and Sandra Barrett‑Lennard's construction is rejected.
Sandra Barrett‑Lennard also submitted:
However, the defendant submits and pleads a construction of the deed of easement which would curtail the plaintiff's use of the easement and allow the plaintiff to only use the easement to access Lot 200 when the homestead of the plaintiff's farm is on Lot 192, and when Lot 200 is but one title comprising the plaintiff's much larger farm.
Common sense should dictate this is a ridiculous proposition to advance.
River Wind submitted:
The plaintiff's construction would see the extension of the positive rights of entry onto Lot 2726 afforded to Lot 200, to other parcels of land not contemplated by the express terms of the grant. Given that the Easement affords title by registration under the Torrens system there is no place for the implication of additional rights or privileges to Lot 200 as posited by the plaintiff.
The plaintiff's construction of the meaning of 'carriageway' by reference to the ninth schedule would see the terms of the grant of easement being mere creatures of transmogrification depending upon who the owners may be from time to time of the parcels of land abutting a dominant tenement. As forewarned by the High Court in Westfield v Perpetual at [24] such a construction of the terms of an easement would see a corporeal right extending to some owners of the dominant land in circumstances where that owner owned at the time of the grant or subsequently [28] ‑ [29].
At [24] of Westfield the High Court stated:
It should be added that if the construction of the Instrument urged by Westfield were accepted, and the grant extended to permit use of Glasshouse to pass across Skygarden to other parcels of land, then a further question would arise. This would be whether a grant in those terms would be appurtenant to Skygarden in the sense of the authorities, or be but a personal advantage accruing to Westfield as the present owner of Skygarden. It is unnecessary to determine such a question. This is because the Easement, upon the proper construction of the terms of the grant, does not extend to user of the type for which Westfield contends.
As is evident from the High Court's statement at [24] common sense does not dictate that River Wind's proposition is ridiculous. Such polemical submissions do not serve to advance an argument.
The lots comprising Beermullah Farm are presently held by the same family however this may change in the future. As such, it cannot be said that the use of Lot 200 to access the other areas of the Beermullah Farm is appurtenant to the dominant land. If Sandra Barrett‑Lennard's submissions were accepted a purchaser of land would not know the extent of the burden on the servient tenement from inspection of the Register. It would require clear words in an easement to support Sandra Barrett‑Lennard's contention. There are no such words in the Easement.
An easement of necessity?
In par 17(b)(iv) of the statement of claim Sandra Barrett‑Lennard pleaded an easement of necessity. No evidence was led to support the existence of an easement of necessity nor was it pursued in argument. No evidence was led that the lots other than Lot 200 were landlocked in the relevant sense. In fact the evidence was that only three of the lots that constitute Beermullah Farm, Lots 830, 192 and 200 are landlocked.[15] It will undoubtedly be extremely inconvenient to use other access points, and is likely to be expensive, but that does not warrant a finding of an easement of necessity.[16]
[15] Exhibit 12 [19].
[16] Russell v Pennings [2001] WASCA 115 [28] ‑ [31].
Although Sandra Barrett‑Lennard asserts that Lots 380, 192 and 200 are landlocked[17] in fact since those lots are held by Sandra Barrett‑Lennard in common with other lots they cannot be said to be landlocked. Lots 380, 192 and 200 are not landlocked as long as common ownership in the lots continue. The other lots owned by Sandra Barrett‑Lennard are not landlocked in any sense.
[17] Exhibit 12 [19].
There are alternative access roads to Lot 192.[18] The fact that Sandra Barrett‑Lennard might have to create roads, or to resurface existing roads, to access Lot 192 across other lots owned by her does not mean that Lot 192 is landlocked in any relevant sense.
[18] See Exhibit 21 [23] IBC1.
It is also difficult to see how an easement of necessity could be said to exist when the owners of Lot 200 and Lot 2726 entered into the Easement on its terms.
Undoubtedly if the Barrett‑Lennards had their time again the Easement would have been differently drafted so as to provide for access across Lot 200. However, a bad bargain does not give rise to an easement of necessity.
Issue 2- Has there been substantial interference?
Before turning to consider whether there has been substantial interference with the rights of easement it is instructive to refer to the judgment of Brereton J in Trewin v Felton [8]. His Honour stated:
Each party criticised the other as having acted unreasonably. While it is regrettable that there cannot be some give and take and accommodation between neighbours, ultimately the function of the law is to provide rules governing their relations to the extent that they are unable to agree. Each party has sought to rely on what it understands to be its strict legal rights. Ultimately, this dispute must be resolved according to the legal rights of the parties, and not according to whether either or both have acted unreasonably. Although in construing the easement there is a question as to what is reasonable user of the easement, the concept of reasonable user is quite distinct from whether either party has acted reasonably or unreasonably. It is conceivable that the reasonableness of a party's conduct might bear on credit in some circumstances, but ultimately nothing turns on credit in this case. Accordingly, I propose to determine what are the legal rights of the parties, and not whether either or both have acted unreasonably.
It appears that the failure to close the gates on the Easement has driven much of the animosity in this case.
Although the Barrett‑Lennards had legal advice to the effect that they could leave the Mid Way Gate open, the reality is that they have neighbours and they have to get on with them.
Having regard to the time consequences alone for the Barrett‑Lennards of not being able to use the Easement to access Lot 192 closing the gates on the Easement must seem in retrospect a small price to pay.
There were credibility disputes about whether the parties had acted unreasonably. There were few credibility disputes about whether there had been substantial interference. The court has adopted the same approach as his Honour, ie, to determine the legal rights of the parties and not whether either or both have acted unreasonably.
Before turning to the facts of the parties' respective use of the Easement it is important to identify the nature of the rights conferred by an easement. The principles are set out in the judgment of Brereton J in Trewin as follows [29] ‑ [30]:
That the dominant owner is not entitled to insist on an easement remaining unfenced, nor on access however extensive it may please, and that the manner in which the dominant owner has designed and used its land is not decisive, is illustrated by Butler v Muddle (1995) 6 BPR 13,984, in which Young J (as his Honour the Chief Judge then was) said:
'…
The general proposition that a right of way is not the equivalent of ownership was made clear by Rath J in Saggers v Brown (1981) 2 BPR 9329, 9331, where he said, citing authority, "at the outset it is to be observed that there is a distinction between ownership of land giving rights to the soil and to every inch of the soil and the rights of enjoyment conferred by the grant of a right of way".'
The limits imposed by the requirement that user be reasonable - and in particular that the widest words of grant did confer a right to unlimited access from a right of way to any and all parts of the dominant land ‑ were also adverted to in Carlson v Carpenter (1998) NSW ConvR 55‑848, in which Cohen J said (at 56,639):
'There was argument before me as to whether the plaintiffs, assuming that they had the benefit of the whole of the right of way, were entitled to insist on exercising that right not only at the main entrance to the house but also at the rear of the land by way of access to the double garage. One of the aspects of a right of carriageway is that it may not be used unreasonably by the person having the benefit of it, notwithstanding its wide wording, as in the statutory form above. This means that, dependant on the circumstances, the owner of the land having the benefit of the right of carriageway is only entitled to exercise that right by having reasonable access. There is accordingly no right to unlimited access from the right of way to any part of the land having its benefit unless in the circumstances of its grant that was taken to have been intended. See Pettey v Parsons [1914] 2 Ch 653; Saggers v Brown (1981) 2 BPR 9329; Butler v Muddle (1995) 6 BPR 13984.'
The relevant principles are also comprehensively set out in the judgment of Kenneth Martin J in Staley [93]:
The principles applicable to easements in the nature of private rights of carriageway, and the related law of public nuisance, by reason of an interference with the utilisation of easements rights, were not seriously in controversy as between the parties at the trial. I will therefore set out only a brief summary of some of the more important and relevant principles - derived mostly from the parties' respective written submissions, and which reduce down to the following essentially uncontroversial propositions.
(1)Subject to the rights of the dominant owner, a servient landowner retains full dominion over servient land. The dominant owner holds only such rights as are expressly or by necessary implication found in the terms of the relevant grant or reservation. The servient owner retains all ownership rights, except for the rights inconsistent with a dominant owner's exercise of rights conferred under the terms of the grant or reservation: see Zenere v Leate (1980) 1 BPR 9300, 9304 (McLelland J); Markos v O R Autor Pty Ltd [2007] NSWSC 810; (2007) 13 BPR 24,487 [57] (Austin J).
(2)A grant of a private carriageway, ordinarily speaking, confers only a right to reasonable use by the grantee, in common with others: Clifford v Hoare (1874) LR9CP 362, 371; applied in Timpar Nominees Pty Ltd v Archer [2001] WASCA 430 [41] (Kennedy J); Trewin v Felton [2007] NSWSC 851; (2007) 13 BPR 24,579 [30] (Brereton J), referring to Carlson v Carpenter (1998) NSW ConvR 55 848, 56,639 (Cohen J).
(3)If a servient owner acts inconsistently against a reasonable exercise of a dominant owner's rights, in a manner which causes substantial interference to the dominant owner, such conduct can amount to an actionable nuisance, which a court may restrain by injunction (an injunction being, of course, ultimately a discretionary equitable remedy): Finlayson v Campbell (1997) 8 BPR 15,703, 15,707 (Young J); Clifford v Dove [2003] NSWSC 938; (2003) 11 BPR 21,149 [11] (Bryson J); Trewin v Felton [73] (Brereton J).
(4)In an exercise associated with interpreting the terms of a grant or reservation that is the basis of an easement holder's rights, evidence of mutually known surrounding circumstances, at the time the easement was created, will not be admissible. The only admissible evidence is that necessary to make sense of terms or expressions identified in the property register, such as surveying terms, or abbreviations which appear on a plan: see Westfield Management Ltd v Perpetual Trustee Co Ltd [2007] HCA 45; (2007) 233 CLR 528 [37], [39], [42], [44] ‑ [45]. To the extent that there is a suggestion in earlier authorities (cf Timpar Nominees [34], [37]) that a broader category of evidence eliciting surrounding circumstances would be admissible, the 2007 High Court decision in Westfield is to the contrary.
(5)The permissible use of an easement right could change with changes in the nature of the use of the dominant tenement, if the terms of the grant are sufficiently broad: Westfield [42]; Timpar [37].
(6)What constitutes reasonable conduct by a dominant owner in relation to a right of carriageway, is essentially determined by reference to the express terms of the grant or reservation: Berryman v Sonnenschein [2008] NSWSC 213 [19] (Einstein J); Butler v Muddle [1995] 6 BPR 13,984, 13,987 (Young J); Sertari Pty Ltd v Nirimba Developments Pty Ltd [2007] NSWCA 324; (2008) NSW ConvR 56 200 [11] ‑ [16] (Handley AJA).
(7)A term will be implied in a grant or reservation of an easement, to the effect that the dominant owner has such ancillary rights as are reasonably necessary to the effective and reasonable exercise and enjoyment of the rights expressed: Westfield [23]; Zenere v Leate [9305]; Jones v Pritchard [1908] 1 Ch 630, 638 (Parker J).
(8)An ancillary right, deriving from the terms of a grant or a reservation of a right of carriageway, is the right to carry out such work on the servient land as is reasonable necessary to create or to maintain relevant vehicular access to the dominant land: Timpar [43]; Mantec Thoroughbreds Pty Ltd v Batur [2009] VSC 351 [90] ‑ [94] (Habersberger J); Clifford v Dove [30] ‑ [31] (Bryson J).
(9)Notwithstanding that the terms of a grant may be expressed as 'for all purposes', a carriageway must not be used to unreasonably interfere with the lawful use of the servient land by others: Jelbert v Davis [1968] 1 WLR 589, 595; cf Westfield [21] ‑ [22].
(10)In the case of private carriageway rights, an obstruction is not actionable unless it is substantial. There must be a real and substantial interference with the enjoyment of the carriageway: Pettey v Parsons [1914] 2 Ch 653, 662 (Lord Cozens Hardy MR); applied by Burchett AJ in Dresdner v Scida [2003] NSWSC 957; (2003) 12 BPR 22,629 [21].
(11)In Dresdner, gates were unilaterally installed by a servient owner across each end of a carriageway, in conjunction with signs reading 'Private Property'. On those facts (it being a question to be determined by reference to the circumstances of the individual case) Burchett AJ held that there was a real and substantial interference with the enjoyment of rights of carriageway that was sufficient to sustain an action in private nuisance, together with declaratory and (permanent) injunctive relief. As to the general permissibility of gates, however, compare Trewin v Felton [20], [25], [29].
(12)For the purpose of assessing arguments of private nuisance, the issue of reasonableness, in terms of the degree of interference, is to be assessed using common sense, taking account of all relevant factors in each case, including the ideas of reasonable people, the nature of the location of the land, as well as the character, duration and time of the interference and the effect(s) of the interference: Oldham v Lawson [No 1] [1976] VR 654, 655 (Harris J).
(13)Because a complaint of private nuisance raises a cause of action in tort, actual damage must usually be proved. This is subject to an exception, however, where the interference is with an easement, or to a right of access: Walsh v Ervin [1952] VLR 361, 364, 370 (Sholl J), as explained by Balkin RP The Law of Torts (3rd ed, 2004) at 474 ‑ 475. The exception is grounded conceptually on the proposition that an easement holder has an absolute legal right to the enjoyment of the easement rights, so that any infringement of that right will imply damage, although the extent of the damage may only be nominal.
(14)The usual remedies for private nuisance are in damages, or injunction. In appropriate circumstances declaratory relief may be available: see Mantec Thoroughbreds Pty Ltd [128] ‑ [129], where Habersberger J granted limited declaratory relief.
(15)In the case of rights of carriageway, for any proposed declaration to be of utility, it may need to be (carefully) framed by reference to precise survey documentation, or engineering plans: see Mantec Thoroughbreds Pty Ltd [94], [129], referring to Lawrence v Griffiths (1987) 47 SASR 455 (as explained earlier in Mantec Thoroughbreds Pty Ltd [90], [93]).
In Trewin Brereton J dealt with the issue of fencing and gates. He stated:
In the case of such an easement running alongside a boundary of the dominant land, so that the length of it contiguous to the dominant land is greater than necessary for a single point of access, questions may arise as to the number and extent of access points to which the dominant owner is entitled on the one hand, and the entitlement of the servient owner to fence the easement on the other. In my view, the prima facie position is that (1) the servient owner is entitled to fence the right of way in order to secure its property along the whole boundary, but not so as to interfere with reasonable user of the right of way by the dominant owner through gates at such points as meet the dominant owner's reasonable requirements; and (2) the dominant owner may have access through gates at a number of places, and may determine from time to time the points of access, which may vary over the years; but (3) the dominant owner is not entitled to have the easement remain unfenced [19].
Generally there is no obligation on a servient owner to maintain the full width of the easement throughout, so long as there is no substantial interference with reasonable exercise of the right of way. Thus in Powell v Langdon, while Roper J held that a gate and low wall erected by the servient owner on a right of way over a strip of land 20 feet wide, leaving an opening of 8 feet 2 inches, was a real and substantial interference, notwithstanding that it was passable, because it constrained manoeuvrability, his Honour nonetheless thought that a 10 foot opening would have been sufficient. But in my view, the gateposts at the point at which they are located reduce the width of the right of carriageway below that of ordinary convenience for its users. Accordingly, the gateposts are an actionable obstruction [78].
… It is not an actionable obstruction for the servient owner to fence off a part of the easement, which is not required for the reasonable exercise of the right of way [Powell v Langdon, in which Roper J was of opinion that a fence erected along part of the right of way so as to effectively excise 5 of its 20 foot width from that available for users for part of its length, in order better to secure the privacy of a cottage on the servient tenement, would not be an actionable obstruction]. Similarly, in the current configuration of the access arrangements, I do not think it would be an actionable obstruction to gate the last 5 metres for the purposes of enhancing the privacy of the home on Lot 2, so long as the Trewins can open the gate, although it may be otherwise if the access points were reconfigured so as to include one from the last 5 metres [80].
As has been seen, generally speaking, a servient owner may erect a gate across a right of way, provided that it is not a substantial obstruction and is left unlocked [Pettey v Parsons; Gohl v Hender; Powell v Langdon, 139; Deanshaw v Marshall]. In Johnstone v Holdway [1963] 1 QB 601, the servient owner erected a gate with a spiked chain and combination lock to exclude members of the public, but offered the dominant owner the combination for the lock. The dominant owner's suit for a mandatory injunction to remove the spiked chain failed, the Court of Appeal holding that there was no substantial interference with the right of way: the dominant owner had the means of access through the gate [81].
In Trewin Brereton J also set out what constitutes an actionable obstruction of a right of way. He stated [73]:
Whereas in the case of a public highway any appreciable obstruction is an actionable nuisance, in the case of a private right of way the obstruction is not actionable unless there is 'a real substantial interference of the enjoyment of the right of way' [Clifford v Hoare (1874) LR9CP 362; Sketchley v Berger (1893) 69 LT 754; Pettey v Parsons, 662; Powell v Langdon, 139 (Roper J)].
It is also important to note what Brereton J said in Trewin concerning the actionable obstruction of a carriageway:
However, while there may be an actionable obstruction even though no one is in fact obstructed, there must be something that would have the effect of hindering passage if anyone wanted to pass [Ewing Phosphate Company v Driver (1903) 23 NZLR 108, 111 (Williams J)]. In this context, it is also important to bear in mind all the circumstances, including the rights of the servient owner and other persons entitled to use the way. It is not to be overlooked that the servient owner is entitled to do as it pleases on the servient land, so long as it does not interfere with reasonable use of the right of carriageway [85].
In assessing the impact of any alleged, obstruction of the carriageway it is important that actual incidents of difficulty in accessing the carriageway be identified. Theoretical concerns are of little assistance in identifying actionable obstruction.[19]
[19] Staley [100] (Kenneth Martin J).
The pleaded acts of substantial interference
It is important to have regard to the acts of substantial interference actually pleaded by Sandra Barrett‑Lennard. Although the evidence strayed outside the pleadings there was no application to amend. The pleaded acts are:
Brand Highway Gate
27.In or around 2008, Ian Collard installed a cattle gate directly over the cattle grid at the Brand Highway end of the Easement (Brand Highway Gate).
28.The plaintiff has requested that the defendant remove the Brand Highway Gate.
29.The gate is a substantial and unreasonable interference with the plaintiff's use of the Easement, in the circumstances where a cattle grid already operates to stop the cattle escaping from Lot 2726 and presents an unnecessary safety hazard to users of the Easement.
Particulars
The plaintiff will lead lay and opinion evidence on this issue.
(a)People entering the Easement via the Brand Highway Gate, including large farming vehicles, are required to get out of their vehicles and walk over and balance on the top of the cattle grid to latch and unlatch the Brand Highway Gate before accessing the Easement.
(b)Due to the gaps in the cattle grid, walking over the cattle grid is a safety hazard particularly, at night and in wet weather.
(c)The cattle grid in situ is sufficient to restrain the Cattle from leaving Lot 2726.
30.Despite the plaintiff's request to Ian Collard, and his successor in title, the defendant, to remove the gate or fill in the cattle grid, it remains on the Easement.
31.Between 3 October 2016 and 11 October 2016, and from 9 January 2017 until approximately 5 February 2017, the defendant substantially and unreasonably interfered with the Easement by causing the Brand Highway Gate to be chained and padlocked and not providing a key.
Particulars
(a)On or around 3 October to 8 October 2016, the defendant caused the Brand Highway Gate to be chained and locked.
(b)On 8 October 2016, Philip Barrett‑Lennard removed the lock from the Brand Highway Gate.
(c)On 10 October 2016, the defendant caused the Brand Highway Gate to be re‑chained and locked.
(d)On 10 October 2016, Philip Barrett‑Lennard removed the lock from the Brand Highway Gate.
(e)On 11 October 2016, the defendant caused the Brand Highway Gate to be re‑chained and locked.
(f)On 11 October 2016, Philip Barrett‑Lennard removed the lock from the Brand Highway Gate.
(g)On 9 January 2017 to on or about 5 February 2017, the defendant caused the Brand Highway Gate to be chained and locked.
(h)On or about 5 February 2017, pursuant to consent orders made by the parties on 3 February 2017, the defendant provided the plaintiff with a key for the lock on the Brand Highway Gate.
(i)Save for on or about 5 February 2017, at no time has the defendant provided the plaintiff with a key to the locks it has caused to be placed on the Brand Highway Gate.
32.On or about 10 January 2017 until approximately 5 February 2017, the defendant substantially and unreasonably interfered with the Easement by causing a sign to be placed on the Brand High Way Gate stating 'No Entry'.
33.In late 2014, the defendant substantially and unreasonably interfered with the Easement by causing the double-gates at the Brand Highway end of the Easement to be locked.
Particulars
(a)The defendant locked the double gates and failed to provide the defendant with a key.
(b)The defendant ran an electric cable run across the gates which prevented the gates from being opened.
(c)On or about 23 March 2017, the defendant removed the lock and the electric cable from the double gates.
34.As a result of the defendant's conduct referred to in paragraphs 31, 32 and 33 above, the plaintiff, her tenants, servants, agents, workmen and visitors were denied the ability to pass and repass on the Easement at all times, in accordance with the terms of the Easement.
Midway Gates and Midway Fence
35.In or around 2008, the previous registered proprietor of Lot 2726 installed approximately an 80 m fence line (Midway Fence) - in the middle of the Easement (from the Brand Highway Gate) to meet a set of double gates down the Easement (Midway Gates).
(a)On 4 April 2017 the defendant installed one additional posts to the Midway Fence in the Easement and an additional support for the Midway Gates (Fence Posts).
(b)The actions pleaded in paragraph 35(a) and 35(b) herein were in breach of the terms of the Deed.
Particulars
(a)The Midway Gates and Midway Fence and Fence Posts on the Easement are not countenanced by the terms of the Deed.
(b)The Midway Gates and Midway Fence and Fence Posts reduces the terms of the width of the Easement from over 10.67 metres to 4 metres.
(c)The Midway Gates prevent the plaintiff from maintaining the Roadway using her machines because the Roadway cannot be properly graded using them because of the Midway Gate and Midway Fence and Fence Posts, because the grader cannot turn around on the Roadway, grade the shoulders of the roadway for drainage slope and by reason of the presence of the Midway Gates and Midway Fence and Fence Posts is prevented from doing so.
36.The Midway Gates and Midway Fence still remain on the Easement.
36.From about July 2014, the defendant has advised the plaintiff that the Mid Way Gate is required to be shut at certain times.
37.The defendant has caused the Midway Gates to be shut on multiple occasions.
Particulars
(a)In December 2016, the Midway Gates were shut on: 1; 2 (twice); 4; 5; 8; 9; 10; 11 and 28; and
(b)On many occasions throughout April, May and June 2017.
38.By causing the Midway Gates to be shut the defendant has substantially and unreasonably interfered with the plaintiff's use of the Easement.
Particulars
The plaintiff repeats the particulars given in paragraph 35 herein.
39.As a result of the defendant's conduct referred to in paragraph 38 above, the plaintiff, her tenants, servants, agents, workmen and visitors were denied the ability to pass and repass on the Easement at all times, in accordance with the terms of the Easement.
Beermullah Gate
40.In or around October or November 2014, the plaintiff installed a gate at the Beermullah end of the Easement (Beermullah Gate).
41.Between 3 October 2016 and 11 October 2016 and from 9 January 2017 until 5 February 2017, the defendant substantially and unreasonably interfered with the Easement by causing the Beermullah Gate to be chained and padlocked.
Particulars
(a)On or around 3 October to 11 October 2016, the defendant caused the Beermullah Gate to be chained and locked.
(b)On 8 October 2016, Philip Barrett‑Lennard removed the lock from the Beermullah Gate.
(c)On 10 October 2016, the defendant caused the Beermullah Gate to be re‑chained and locked.
(d)On 10 October 2016, Philip Barrett‑Lennard removed the lock from the Beermullah Gate.
(e)On 11 October 2016, the defendant caused the Beermullah Gate to be re‑chained and locked.
(f)On 11 October 2016, Philip Barrett‑Lennard removed the lock from the Beermullah Gate.
(g)On 9 January 2016 until about 5 February 2017, the defendant caused the Beermullah Gate to be chained and locked.
(h)On or about 5 February 2017, pursuant to consent orders made by the parties on 3 February 2017, the defendant provided the plaintiff with a key for the lock on the Beermullah Gate.
(i)Save for on or about 5 February 2017, at no time has the defendant provided the plaintiff with a key to the locks it has caused to be placed on the Beermullah Gate.
43.On or about 10 January 2017 until about 5 February 2017, the defendant substantially and unreasonably interfered with the Easement by causing a sign to be placed on the Beermullah Gate stating 'Stop Authorisation Required to Enter'.
44.As a result of the defendant's conduct referred to in paragraphs 42 and 43 above, the plaintiff, her tenants, servants, agents, workmen and visitors were denied the ability to pass and repass on the Easement at all times, in accordance with the terms of the Easement.
Bob Cat
45.On or about 9 January 2017, the defendant substantially and unreasonably interfered with the Easement by causing:
(a)the Brand Highway Gate and the Beermullah Gate to be chained and padlocked without providing a key to the plaintiff as per paragraphs 31(g) and 42(g) above;
(b)an approximate 10 m x 2 m x 0.6 m trench to be dug on the Easement in front of the Beermullah Gate (Trench); and
(c)a bobcat was parked in the Trench.
46.On or about 5 February 2017, pursuant to consent orders made by the parties on 3 February 2017, the plaintiff organised for the Trench to be filled in.
47.As a result of the defendant's conduct referred to in paragraph 45 above, the plaintiff, her tenants, servants, agents, workmen and visitors were denied the ability to pass and repass on the Easement at all times, in accordance with the terms of the Easement.
Physical Obstructions of the Easement
48.In October 2016, Rex Cooper, the director and shareholder of the defendant, substantially and unreasonably obstructed the Easement by physically preventing the plaintiff, her tenants, servants, agents, workmen and visitors, from accessing and using the Easement.
Particulars
(a)In October 2016, Rex Cooper obstructed Sally Calder, the daughter in law and tenant of the plaintiff, from using the Easement by parking his quad bike in front of her vehicle on the Easement.
(b)On or about 10 October 2016, Rex Cooper:
(i)parked his vehicle in front of the Brand Highway Gate preventing Sally Calder's vehicle from entering the Easement for approximately 1.5 hours; and
(ii)after removing his vehicle from the Easement, Rex Cooper interfered with Sally Calder's use of the Easement, by:
(A)flashing his vehicle's high beans at her; and
(B)driving close and fast to Sally Calder's vehicle,
while Sally Calder was parked on the Easement.
(c)On 11 October 2016, Rex Cooper parked his vehicle in front of the Brand Highway Gate preventing access to the Easement.
(d)On 2 October 2016, Rex Cooper caused a contractor and bobcat to be present on the Easement for the purpose of digging up the Easement.
49.As a result of the defendant's conduct referred to in paragraph 48 above, the plaintiff, her tenants, servants, agents, workmen and visitors were denied the ability to pass and repass on the Easement at all times, in accordance with the terms of the Easement.
It is important to note that there is no specific plea that the cattle trucks which access the cattle yards on Lot 200 have encountered any problems in access via the Easement. In fact Philip Barrett‑Lennard's evidence is that semi‑trailer trucks access Beermullah Farm via the Easement.[20]
[20] Exhibit 1 [53(b)].
Sandra Barrett‑Lennard does not plead that the opening and closing of the Brand Highway Gate and Beermullah Gate constitutes a substantial interference with the Easement.
In answer to Sandra Barrett‑Lennard's claim that River Wind has substantially and unreasonably prevented Sandra Barrett‑Lennard, her tenants, servants, agents, workmen and visitors, from accessing and using the Easement River Wind submitted:
1.the Easement only permitted access to Lot 200;
2.the Easement expressly contemplated in its terms that there may be gates and cattle grids installed across the Easement (clause 2 of the Deed);
3.at all material times, Ms Barrett‑Lennard, her tenants, servants, agents, workmen and visitors had alternative access points to Beermullah from other gazetted roads adjacent to Beermullah;
4by reason of the above matters:
(a)any claim by Sandra Barrett‑Lennard in respect to substantial and unreasonable interference with accessing and using the Easement is limited solely to the purpose of accessing Lot 200;
(b)no claim for substantial and unreasonable interference is maintainable in respect to using the Easement as part of the means to access Lot 192 or other parts of Beermullah.
The court notes that it has grouped the alleged acts of substantial interference somewhat differently to the pleaded case for ease of analysing the evidence.
General observations regarding substantial interference of the Easement
Before turning to the alleged acts of substantial interference it is important to note that many of Sandra Barrett‑Lennard's claims of substantial interference fall away upon the construction of the Easement that the court has found, namely, that the Easement does not permit travel across Lot 200 to the other lots that form the balance of Beermullah Farm.
It is not in dispute that Sandra Barrett‑Lennard, her partners, and their servants, agents, family and friends have frequently used the right of carriageway to travel across Lot 200 to other lots on Beermullah Farm and particularly to Lot 192 the Homestead Lot.[21]
[21] See, for example, exhibit 12 [23] ‑ [24].
Philip Barrett‑Lennard's evidence of the consequences of the alleged obstruction was:
48.When Rex blocks the Easement, both by the previous padlocking, and currently, with both the padlocking and the Trench, it cuts off access to our home and farm business.
53.Therefore, Rex blocking the Easement has the following consequences (amongst others):
(a)we cannot get our cattle trucked in or out to Beermullah. Instead I recently took cattle across paddocks, through three gates, onto Nine Mile Swamp Road and then through someone else's Farm, this takes about 2½ ‑ 3 hours as opposed to about 10 minutes usually, see more info below at [55] to [60];
(b)our suppliers of feed for our livestock and fertiliser for our pastures cannot get in because they come on semi‑trailer trucks, see [61] to [62] below;
(c)most of the visitors for the business such as tradesman, contractors and agents cannot access Beermullah;
(d)most family and friends cannot come and visit;
(e)emergency services vehicles (eg. ambulance/fire) would not be able to access the Farm should they be needed (due to the lack of 2WD access across the paddocks), this is extremely concerning if we ever had medical issues with anyone on the Farm or our family, or there was a fire on the property;
(f)to take our children to the school bus stop twice per day when school starts on 1 February 2017. The bus stop is just near the entrance to the Easement on Brand Highway and would mean taking them across the paddocks and out Nine Mile Swamp Road every time, at great extra time, distance and disruption; and
(g)it is the same consequence to go into town, or any time I, or my family, need to leave Beermullah.
55.Some specific examples of the above consequences are two occasions recently, when my mother and her friend came to visit and when I could no longer delay taking the cattle off Beermullah. These two examples show the direct consequences, and difficulties caused by, the Easement being blocked off.
56.Due to the access difficulties, my mother and her friend, and one livestock agent are the only visitors I have had since Rex blocked off the Easement. Usually as it is holiday time, we would have many people popping in and out to visit us including our children's friends, and far more people coming related to the business.
57.On 16 January 2017, my mother and her friend came to visit me at Beermullah. To get to the house they entered via a gate on Nine Mile Swamp Road and tried to drive across the paddocks. However, they had to give up when the ground got too boggy. I went and picked them up about halfway in my 4WD and brought them back to the house. Even with my vehicle, which was a lot more appropriate, we had to drive very slowly because it was rough. Then I had to take them back when they left. It is also a much more inconvenient and long way round to get to the property, even if there was decent access, which there is not. Basically, it is a whole lot of mucking around and is extremely inconvenient.
58.The other example is that on 12 January 2017, I needed to move 54 cattle off Beermullah to fulfil a contract. Usually our contractor comes and we load them straight onto the contractor's truck in the cattle yards and down the Easement. Once loaded, that trip takes about five minutes.
59.Instead, this time as we could not use the Roadway on the Easement it took me somewhere between 2½ to 3 hours to take them a 5.5 km journey across the paddocks, due west from the house, through the Farm for about 2 km, and out on to and along Nine Mile Swamp Road for about 1.5 km, and finally through a co‑operative neighbour's property about 2 km to their cattle yards so that we could load the cattle onto trucks (Wayne Fewster - who you can see on the diagram Attachment PBL 1). However, I have no surety that Wayne Fewster will continue to allow me to use his cattle yards to load any future cattle as it is a major imposition.
60.I have only had to do this once since the Easement has been blocked. However I am going to have to take cattle off Beermullah again in another couple of weeks. So the problem is urgent.
61.Another problem that is becoming urgent is that very soon I am going to need to get more cattle feed onto Beermullah. Due to the size of the semi‑trailer that brings it, the Easement is the only way to get that feed into the feedlot on Beermullah.
62.I need to have virtually daily access to Beermullah for its daily operation. The cattle need to be attended to at an absolute minimum of every two days to ensure they have sufficient feed and water.
63.Similarly, another issue that is going to become urgent, is that my children start school in about a week in Gingin and will return to Beermullah. Then they will need to be dropped off and picked up twice per day.[22]
[22] Exhibit 1.
The access that is permitted by the Easement relates, at best, only to paragraphs 53 (a), 55, 56 (to the extent they relate to the cattle on Lot 200), 58, 60 and 62 as set out in the previous paragraph. To the extent that cattle are pastured on Lot 200 access via the Easement would be permitted but not to access cattle on other lots. Visits by family and friends, attending school and going to, or from, town are irrelevant since they primarily relate to Lot 192.
The evidence of the use of the Easement to access Lot 200, as distinct from the other lots that form part of Beermullah Farm, was that it was used monthly by trucks to deliver or pick up cattle from the cattle yards on Lot 200 and for the inspection of cattle for sale by stock agents. Philip Barrett‑Lennard's evidence was:
13(c)our cattle carting contractors use it regularly throughout the year to deliver or pick up cattle that are being purchased or sold. The cattle numbers vary between seasons but it usually ranges between 250 and 600 per season. This year [2017] we bought 304 cattle and will sell over 400;
13(e)Our livestock agent and his buyers regularly use it when visiting, including inspecting the cattle for sale. They do this both when we are present and independently.[23]
[23] Exhibit 1 [13].
Philip Barrett‑Lennard gave oral evidence of one trucking contracting, Wayne Fewster, accessing the cattle yards on Lot 200. He attended approximately once per month.[24]
[24] ts 40, 11 March 2019.
Mr Cooper's evidence was that he has seen Mr Fewster using the Easement to cart cattle to and from the cattle yards on Lot 200. Mr Fewster was using a Kenworth 6 wheeler with an approximately 28 foot tray.[25]
[25] Exhibit 29 [44].
It follows that the relevant evidence is confined to the narrow issue of whether there has been substantial interference with the use of the Easement to access the cattle and the cattle yards on Lot 200.
Before turning to consider the alleged acts of substantial interference there are a number of matters on which it is useful to make findings.
The effectiveness of cattle grids
There are cattle grids at each end of the Easement.
Philip Barrett‑Lennard asserts that the gates over the cattle grids at each end of the Easement are unnecessary because a cattle grid by itself is sufficient to prevent cattle leaving Lot 2726. River Wind asserts that cattle grids are not sufficient.
The first issue to resolve is the effectiveness of the cattle grids.
There is conflicting evidence as to the effectiveness of the cattle grids, without gates.
Philip Barrett‑Lennard's evidence was that cattle grids are effective to stop cattle crossing and leaving either end of the Easement. He concludes that gates over the cattle grid are therefore unnecessary to stop cattle escaping Lot 2726.[26] Sandra Barrett‑Lennard gave similar evidence.[27]
[26] Exhibit 1 [27], [30].
[27] Exhibit 13 [30].
Philip Barrett‑Lennard is unaware of any sheep or cattle escaping from the Brand Highway Gate.[28]
[28] Exhibit 1 [29].
Sandra Barrett‑Lennard led evidence from an expert, Craig Power.[29] His evidence was that a gate was not required in addition to a cattle grid. He based this conclusion on the following matters:
(a) it is not specified by Main Roads;
(b) he observed 2 properties without a gate on the cattle grid;
(c) it is not specified by the British Standard.
[29] Exhibit 18.
None of these matters are relevant to a finding as to whether or not a gate is required on a cattle grid. There is no evidence that either the Main Roads or the British Standard are accepted or appropriate standards in Western Australia for assessing whether a gate and a cattle grid should be utilised. Mr Power found two other properties with a gate over a cattle grid. The evidence relates to whether other properties have a gate over a cattle grid is therefore equivocal.[30]
[30] See also ts 93 ‑ 94, 12 March 2019.
Mr Power goes on to conclude that there is no benefit to having a cattle grid and a gate and that a cattle grid is preferable to a gate. Mr Power's conclusions are based on the premise that cattle grids are always effective to prevent cattle straying. The court has found below that the cattle grids on the Easement are not always effective to prevent cattle straying. Mr Power has proceeded on an incorrect premise and the court does not accept his evidence on this point.
Mr Power is not an expert on cattle grids.[31]
[31] ts 92 ‑ 93, 12 March 2019.
Mr Power's evidence is irrelevant in concluding whether a gate is necessary over a cattle grid or whether it is a standard or unusual practice.
Ian Collard owned Lot 2726 from May 2007 until 2014 when he sold it to River Wind Pty Ltd.[32]
[32] Exhibit 21 [80].
Prior to Ian Collard's ownership of Lot 2726 he had seen the previous owner's sheep stray onto Brand Highway.[33]
[33] Exhibit 21 [92], exhibit 22 [11].
Ian Collard gave evidence that his cattle had crossed the cattle grid at the Beermullah end of the Easement into Lot 200 on approximately 10 ‑ 15 occasions between 2007 and 2014.[34]
[34] Exhibit 22 [13].
Ian Collard was an independent witness with recent knowledge of Lot 2726 by virtue of his ownership of Lot 2726. The court accepts Ian Collard's evidence that cattle grids alone were not effective to prevent stock straying from the ends of the Easement. The court rejects Mr Barrett‑Lennard and Sandra Barrett‑Lennard's evidence that the cattle grids were effective by themselves to prevent cattle straying.
There was evidence concerning the effectiveness of cattle grids and the use of wings. Sally Calder's evidence was that you cannot shut a gate if a cattle grid has wings.[35] The court is not satisfied that the use of wings provided an adequate substitute for gates in circumstances where there is a risk of stock straying from Lot 2726, or into Lot 2726 from Lot 200.
[35] ts 65, 11 March 2019.
The reasons for installing the gates on the cattle grids
Ian Collard installed the gate on the cattle grid at the Brand Highway end of the Easement, in about 2007 ‑ 2008, because he was concerned about his cattle escaping Lot 2726 onto Brand Highway and potential theft of his cattle from Lot 2726. The purpose of the gate was both to prevent cattle escaping and also to deter people from coming onto Lot 2726.[36]
[36] Exhibit 21 [90] ‑ [97].
Mr Power's report concluded that:
[A gate left open] would be an unacceptable risk to the owner from the economic loss of cattle and being potentially liable for damage and injury events caused by stray cattle on the public road.
Rex Cooper is concerned both at cattle escaping onto the Brand Highway and causing injury or death to both the highway users and the cattle. He is also concerned about his cattle breeding with the cattle on Beermullah Farm.[37]
[37] Exhibit 29 [34], exhibit 29 [78] ‑ [79], [85].
The consequence of cattle straying onto Brand Highway from Lot 2726 are potentially catastrophic if a vehicle collides with them. Although of a lower order, the death or injury of cattle from being hit and killed or injured, or lost due to straying, is a proper concern of a landowner who farms cattle on that land. Loss to theft is also a proper concern.
Given the risks arising from straying it was not unreasonable for River Wind to adopt a 'belt and brace' approach to prevent that risk by using a gate and a cattle grid.
Although the risk of cattle straying into and from Lot 2726 into Lot 200 is of a lesser order than stock straying onto the Brand Highway it was a reasonable reaction to the risk to seek to install a gate to prevent the cattle interbreeding.
Accordingly, it was reasonable to install gates in association with the cattle grids so as to prevent cattle from Lot 2726 straying on to the Brand Highway or onto Lot 200.
Is it a practice to leave gates as they are found on a farming property?
The overwhelming evidence is that it is the practice of farmers to leave gates as they are found on a farming property, ie., if they are open they should be left open and if they are closed they should be re‑closed.[38] That practice accords with common sense.
[38] Exhibit 21 [174] ‑ [177], exhibit 24 [88], exhibit 26 [62], exhibit 27 [12(i)-(j)], exhibit 28 [25].
Were gates left open?
Philip Barrett‑Lennard's evidence is that since October 2015 he and his family have always shut the Brand Highway Gate and instructed anyone visiting their farm to do so.[39]
[39] Exhibit 1 [34].
Philip Barrett‑Lennard's evidence is that apart from a period of approximately two weeks in September 2015 he has always shut the new Beermullah Gate that was installed in October of November 2014.[40]
[40] Exhibit 1 [35].
Ian Collard's evidence is that during the time he owned Lot 2726 each of the three gates on the Roadway over the Easement were left open on numerous occasions.[41]
[41] Exhibit 21 [123].
Mr Cooper's evidence was that he found the Beermullah Farm Gate left open on numerous occasions and some of those occasions are recorded in his diary.[42] Mr Cooper also gave evidence that he found the Mid Way Gate open on numerous occasions and recorded some of those occasions in his diary.[43] The evidence of Philip Barrett‑Lennard and Ms Calder is that they left the Mid Way Gate open.
[42] Exhibit 29 [140] ‑ [141].
[43] Exhibit 29 [126] REC‑5.
Mr Cooper has recorded some of the occasions when he found the gates open. The court accepts that Ian Collard is an independent witness. The documentary evidence and Mr Collard's evidence satisfy the court that the gates were left open by users of the Easement on numerous occasions.
The Brand Highway Gate (statement of claim pars 27 ‑ 30)
If an owner of land decides to install gates over a cattle grid they will be permitted to do so unless the gates over the cattle grid constitute a substantial interference with the Easement.
Sandra Barrett‑Lennard asserts that it is dangerous to balance on the cattle grid while opening the Brand Highway Gate.[44]
[44] Exhibit 13 [33].
Sandra Barrett‑Lennard's principal complaint in relation to the Brand Highway Gate is that the gate is positioned over the centre of a cattle grid and that means people have to walk across the cattle grid to open the gate.[45]
[45] Exhibit 1 [30].
Craig Power gave evidence as to the safety of the gate on the cattle grid at the Brand Highway end of the Easement.[46] He concluded that the cattle grid had spaces of between 180 mm and 200 mm between the grid beams. The Australian Standard is 45 mm. In his opinion this posed a foreseeable risk of a trip and fall. His opinion is that particles and water on the smooth steel beams which constitute cattle grid pose a risk of a slip. Together these pose a risk for persons walking on the grid to open and close the gate.
[46] Exhibit 18.
The risk of an injury to a person opening or closing the gate on the cattle grid requires a consideration of competing interests. There has been a gate over a cattle grid since 2008, ie more than 10 years. The evidence is that no one has suffered any injury whilst opening and closing the gate on the cattle grid.[47] While the absence of an injury is not evidence of an absence of risk, it is proper to consider 'how real is the risk?'
[47] ts 56 ‑ 57, 11 March 2019.
Mr Power's investigation was based on a wide range of users including relatives, friends and contractors.[48] Many of the persons who previously accessed the Easement, such as family and friends, will no longer be able to access the Homestead Lot, Lot 192, or any other lots, other than Lot 200, via the Easement. This is likely to lead to a different type of user of the Easement. In future, users of the Easement will be limited to persons accessing Lot 200, for example, stock agents and cattle truck drivers, who might be expected to be familiar with the hazards of cattle grids and familiar with opening and closing gates.
[48] ts 94 ‑ 95, 12 March 2019.
The court accepts that there is a degree of risk in placing the gate over the cattle grid. However, the risk is not such as to constitute a substantial interference with the Easement.
The Mid Way Gate and the Mid Way Fence (statement of claim pars 35 ‑ 36)
Sandra Barrett‑Lennard's pleading in relation to the Mid Way Gates, the Mid Way Fence and the Fence Posts are pleaded in par 35 of the statement of claim. The pleading is somewhat confusing but essentially it appears that two issues are pleaded:
(a)that the terms of the Deed do not permit the Mid Way Gates, the Mid Way Fence and the Fence Posts to be installed; and
(b)that the effect of the Mid Way Gates, the Mid Way Fence and the Fence Posts is to reduce the width of the Easement from 10.67 m to 4 m which prevents Sandra Barrett‑Lennard from maintaining the Roadway using her machines because the Roadway cannot be properly graded using them because of the Mid Way Gate and Mid Way Fence and Fence Posts, because the grader cannot turn around on the Roadway, grade the shoulders of the roadway for drainage slope and by reason of the presence of the Mid Way Gates and Mid Way Fence and Fence Posts is prevented from doing so.
Condition 2 of the Easement provided:
2.The Grantee [Sandra Barrett Lennard] shall:
(1)Keep all gates (if any) to and from the Carriageway Area closed.
(2)Keep all cattle grids (if any) servicing the entrances to and from the Carriageway Area free of debris.
Condition 2 is a condition about maintaining the gates and cattle grids. It says nothing about limiting the installation of gates or cattle grids on the Easement to a gate or a cattle grid. It says nothing about installing other gates or cattle grids or fences on the Easement.
If an owner of land decides to install a paddock, and associated gates, over part of an easement they will be permitted to do so unless the paddock, and associated gates, constitute a substantial interference with the easement. A landowner does not need to look for a right to install fencing and gates to create a paddock because that right stems from ownership, a right which is only limited by avoiding a use which amounts to a substantial interference with the easement.[49] It is not correct to say that the Easement does not countenance the Mid Way Gate and the Mid Way Fence.
[49] Pullen v Smedley [178].
Although Sandra Barrett‑Lennard has pleaded a 'substantial interference' with the Easement by the Mid Way Gate and fencing, in fact what the plea amounts to is some sort of interference with the maintenance condition in the Easement, in that the Roadway cannot be properly granted so as to comply with the prescribed condition.
The Mid Way Fence Posts were added to the Mid Way Fence.[50] They do not need to be considered separately from the Mid Way Fence.
[50] Exhibit 2 [13], PBL 11, exhibit 29 [107] ‑ [108].
It is not pleaded that the Mid Way Fence or Gates obstructed access to Lot 200 which is the plea that one would expect if it were a plea of substantial interference. Further, there is no plea that the maintenance of the Easement has been affected to such a degree as to cause it to be unsafe to proceed along the Easement to Lot 200. Not only are these matters not pleaded but there is no evidence to support such a plea even if it had been made.
Ian Collard's evidence was:
141.In mid‑2007 I began building stockyards in the smaller paddock on Lot 2726. My Intention was to sort and work cattle in the yards and hold some of my cattle in the smaller paddock. I also intended to grow perennial grass in the smaller paddock when there were no cattle in the smaller paddock. I planted perennial grass on the smaller paddock in or about spring 2008.
142.I knew that I would need to leave the grass for at least 12 months to establish itself. When I inspected Lot 2726 I saw that due to areas of wind erosion, grass would be hard to grow in this paddock. However I decided that I wanted to make use of the area, and required grass in the paddock if cattle were to be held there.
143.The yards were completed in or about September 2007. I have indicated where the stockyards were built on the diagram annexed at IBC-1.
…
145.I decided that the area on which I built my stock yards would be the most appropriate area, as it provided the best access for vehicles, I considered other areas within Lot 2726, however, they were either too wet in the heavy rain, or too sandy in the summer. The Brand Highway gate was there, and provided easy access to the stockyards. Vehicles could drive from the Brand Highway entrance and straight to the stock yards.
…
148.Between in or about 2007 and on or about 21 July 2014, I used the smaller paddock to:
(a)hold cattle; and
(b)grow perennial grass when I was not holding cattle in there.
149.I, therefore, required the double gates to be closed:
(a)To keep cattle in the holding paddock; and
(b)To keep cattle out of the holding paddock, even when there were no cattle in the smaller paddock, to prevent my cattle eating the perennial grass.
Mr Collard's evidence concerning the Mid Way Gate and the Mid Way Fence was:
20.… The Easement Road passes through 2 paddocks on Lot 2726 which are separated by a fence. The Easement Road passes through a gate between the two paddocks (Middle Gate [also referred to as the Mid Way Gate]). … the smaller of the two paddocks contains the stock yards for Lot 2726 (Yard Paddock).
…
23.I use the small Yard Paddock to sort and manage my cattle and to hold some of the cattle. It is important that once I have separated my cattle (for example bulls from heifers & cows) that they are contained within the Yard Paddock and are prevented from being mixed in with the other cattle. For this reason, when cattle are in the Yard Paddock, the Middle Gate must remain closed.[51]
[51] Exhibit 28.
Rex Cooper's evidence is that he also uses the Yard Paddock as a hospital paddock and to hold newborn calves. When there are no cattle in the Yard Paddock he grows perennial grass there.[52] He also uses the Yard paddock for holding cattle after they have been sorted.[53]
[52] Exhibit 29 [116] ‑ [117].
[53] Exhibit 28 [23].
The court accepts Mr Collard's evidence as to his reasons for placing the paddock and associated Mid Way Fence and Mid Way Gate over the Easement.
Philip Barrett‑Lennard's evidence on the impact of the Mid Way Gate, Fence and Fence Posts on the maintenance of the Easement is not entirely consistent.
In Philip Barrett‑Lennard's first affidavit his evidence was:
The Roadway [on the Easement] has been built up from the surrounding low lying ground. It has drains down each side and a culvert underneath to allow water to escape. It has approx. 100 mm of compacted gravel on top of it so that all vehicles (including heavy trucks) can use the roadway in all condition. The current gravel was added in June 2010 by a local road building contractor it was compacted to a high standard. We maintain the roadway by grading it approximately once per year.[54]
[54] Exhibit 1 [30(h)].
The evidence in the first affidavit does not indicate that grading is an issue in relation to the Mid Way Gate and the Mid Way Fence.
In Mr Barrett‑Lennard's subsequent affidavit[55] his evidence was:
[55] Exhibit 2.
14.A variety of reasons, such as, rainfall and the use of heavy farm vehicles up and down the easement, impact the track on the easement and require that I repair and maintain it.
15.I do so regularly on an as and when needed basis.
16.This includes a grading of the whole easement approximately once per year, through to maintenance of sporadic pot holes that appear, to a major 'shape' of the track which often requires extra gravel to be brought on and the track effectively 'reshaped/rebuilt'.
17.This 'shaping' is a very large undertaking. The last time that I organised that was in around 2008.
18.As the easement is the access way to our entire farm, the track needs to be maintained well for all our vehicles and visitors to be able to safely and easily access the farm.
19.How we do so is as follows.
20.Approximately once per year, major maintenance work is undertaken. This is when I grade the easement, or organise someone else to grade it. Grading basically means that a vehicle called a grader is driven along the easement, smoothing out all the corrugations.
21.This usually occurs around once a year and can be at varying times, although not usually summer or autumn.
22.I used to do the grading myself with our farm ute and grader.
23.However, on the last two occasions, in 2016 and 8 August 2017, I have had to organise our neighbour local contractor, Wayne Fewster, to do the grading. He did it with his tractor and three‑point linkage grader blade.
24.When I was doing the grading, because of the turning circle required with my ute and grader, and the presence of the Midway Fence, I could not turn around solely on the easement. This meant I had to go onto River Wind's farmland to turn the ute and grader around. I had discussions with Rex where he told me (words to the effect) that he was not happy with me doing that. So I stopped doing the grading myself and got Wayne to do it.
25.Wayne can do it with his grader because the grader is attached to the tractor, so the turning circle is less, and he can do it on the easement.
26.Last year I organised Wayne to grade it in March or April. It was just before we had a local event on with a large number of cattle breeders coming to the farm, so there was going to be a lot of people and vehicles (approximately 40 people from memory).
27.This year, I organised Wayne to do it on 8 August 2017.
28.Every now and then, the track will need a major overhaul. This is referred to as shaping the track.
29.When that is required, I organise a larger road grader to come in and reshape the track. Gravel is brought in, compacted, and the track built up and reshaped. The last time I organised that was about 2008.
30.As regards ongoing maintenance, a recent example is that on 24 July 2017, Sally and I drained and filled some potholes on the easement.
31.The aim of that maintenance work was to drain and fill in pot holes on the easement, especially at the eastern end of the easement where River Wind has added an adjoining track with no drainage.
32.The potholes had formed because:
(a)the Midway Fence position restricted grader access to allow the reshaping; and
(b)the River Wind track drains water onto the easement.
33.Sally and I also cleared the culvert of some sand that had formed at the entrance to the culvert. We needed to do so because in Summer River Wind's cattle sit in the drain feeding the culvert, killing the grass, which subsequently allows loose sand to wash into the culvert in winter.
34.While conducting maintenance of the easement on 24 July 2017, Sally and I also filled in a depression that was under the gate at the Beermullah end of the easement.
35.This depression arose when River Wind dug up the easement (on approximately 7 July 2017) and buried an electrical wire. The wire had been left exposed on the easement from 4 February 2017. As far as I am aware, River Wind did not add any new gravel after digging up the easement and burying the electrical cable, so a depression was left behind.
36.The Midway Fence prevents me organising the first approximate 80 m of the Brand Highway end of the easement to be shaped. This means it is not able to be maintained to the same standard as the rest.
37.This is because the position of the Midway Fence prevents the shaping being done in that area. The Midway Fence sits on the shoulder of the road and does not allow a grader to properly construct a drain and shoulder. See Attachment PBL 9, page 11, photos 7 and 8.
38.Due to this, the current position of the Midway Fence causes problems and deterioration of the track as per the attached photographs.
Philip Barrett‑Lennard's subsequent affidavit suggests a more substantial problem with an inability to grade the Roadway with a large grader.
In a subsequent affidavit, Mr Barrett‑Lennard went on to give evidence that 'the road over the easement is in good condition and regularly maintained'. He described it as excellent as at 31 January 2017.[56] He exhibits a photograph of the Roadway taken on 31 January 2017.[57] The photograph appears to show a smooth gravel road surface.
[56] Exhibit 3 [59] ‑ [61].
[57] PBL 14.
Finally, Mr Barrett‑Lennard's oral evidence was:
It has been maintained with regular grading, but not with a large road grader. But the large road grader is to shape it up. It's in good shape. It just occasionally needs a light grade to take some of the corrugations out, which that's what has happened.[58]
[58] ts 53, 11 March 2019.
The evidence is that Philip Barrett‑Lennard is able to maintain the Roadway on a regular basis by an annual grade with a small grader.
A large grader has not been used since 2008. Philip Barrett‑Lennard's oral evidence is that the Roadway in in 'good shape'. The evidence is that a large grader has not been used in over 10 years and that there is no need to use a large grader in the short term.
The amount of maintenance required to date is because the Easement has been used to access the entire farm. The amount of traffic that will pass over the Easement will be limited to vehicles accessing Lot 200 - in contrast to the higher volumes of traffic that used the Easement to access not only Lot 200 but other lots belonging to Sandra Barrett‑Lennard and, in particular, Lot 192.
Even had substantial interference been properly pleaded the starting point is that a landowner is entitled to erect a fence across part of a right of way and to erect gates across a right of way provided that it is does not substantially interfere with the use of the Easement.
An assessment of substantial interference requires a balancing act between a landowner's use of their land and the use of the Easement.
Given that the Roadway has not been shaped in over a decade and that there is no evidence of any present need to shape the Roadway the position of the Mid Way Gate and the Mid Way Fence does not constitute a substantial interference with the Easement.
Although it was not pleaded, Mr Barrett‑Lennard gave evidence that wide loads of up to 5.5 m and towed agricultural implements up to and exceeding 7.5 m in width can legally be transported on the Brand Highway.[59]
[59] Exhibit 4 [6] ‑ [7].
The fact that these wide loads can be towed on the Brand Highway as a maximum width does not mean that the Easement has to accommodate them.
Philip Barrett‑Lennard also gave examples of a 'wide load' that might be required from time to time: a seed drill, a bulldozer, an excavator, a 'transportable' building for worker's accommodation or an office and a fibreglass swimming pool. The last two items would be for Lot 192 - not Lot 200.[60] Ms Calder accurately described those examples as 'tossing up ideas'.[61]
[60] Exhibit 4 [5].
[61] ts 76, 11 March 2019.
The unrealised possibility of wide loads accessing the Easement is not sufficient to make a finding of substantial interference.
There is no evidence that Philip Barrett‑Lennard had attempted to access the Easement with these suggested wide loads and encountered problems.
Philip Barrett‑Lennard goes on to say that 'the current entrance [the Brand Highway Gate] is too narrow and does not allow Double Road trains to safely enter the Easement'.[62] Philip Barrett‑Lennard does not explain why it is unsafe.
[62] Exhibit 4 [11].
Mr Power's report referred to triple road trains.[63] There is no evidence that triple road trains access the Easement. One would have expected that if double road trains presented a problem Mr Power would have dealt with it in his report.
[63] Exhibit 18, page 12 of 31.
Philip Barrett‑Lennard also states that double road trains are required to enter Beermullah Farm from time to time to transport cattle, hay, pellets, lime sand and road building materials (eg. gravel and limestone).[64] Philip Barrett‑Lennard has not distinguished between access to Lot 200 and Lot 192. One assumes, based on the fact that the buildings are all on Lot 192, that hay and pellets would principally be going to Lot 192. Philip Barrett‑Lennard has given no evidence as to what the actual frequency is. The fact that double road trains have apparently used the Easement 'from time to time' without any access problems being identified by Philip Barrett‑Lennard suggests that there is no real problem. Certainly there is insufficient evidence for this court to conclude that there is substantial interference with the Easement.
[64] Exhibit 4 [12].
An adjustment to the width of the Brand Highway entrance gate to accommodate double road trains is a matter that should have been pleaded and required expert evidence.
Shutting the Mid Way Gates (statement of claim pars 37 ‑ 40)
Philip Barrett‑Lennard's evidence is:
24.The problem with the Mid Way Gates continued after Rex Cooper bought Lot 2726 in July 2014. Rex also insisted that the Mid Way Gates be shut at all times, and regularly shut them, blocking the Easement. This meant that people driving through the Easement had to stop, get in and out [of] the car (twice) to open and then shut the Mid Way Gates. For a feed supplier in a semi‑trailer it is a significant interference.
25.It is a hindrance for anyone using the Easement to have to get out of their own cars, trucks and other vehicles to latch and unlatch the Mid Way Gates. I quite often have to go down and meet vehicles coming up the Roadway to open the Mid Way Gates and let them through, as it is time consuming and inconvenient for large trucks to do so themselves.[65]
[65] Exhibit 1.
Philip Barrett‑Lennard gave evidence of a friend getting wet because he had to open and close the three gates when it was raining.[66] The obvious solution is for the friend to have an umbrella. The fact that someone may have got wet opening and closing the gates cannot amount to substantial interference with the Easement. In any event, the friend had used the Easement to access the Homestead Lot - Lot 192.
[66] Exhibit 2 [50] ‑ [51].
Philip Barrett‑Lennard's evidence was:
(a)from October 2015 to date he has always left the Mid Way Gate open;[67]
(b)from 1 December 2016, Rex started to close the Mid Way Gate again. They were closed, at least, between 1 and 12 December 2016.[68]
[67] Exhibit 1 [36].
[68] Exhibit 1 [39 (c)].
Mr Cooper's evidence is that it takes approximately two minutes to stop his car, open the Mid Way Gate, drive through and close the gate.[69]
[69] Exhibit 29 [109].
The inconvenience to drivers of feed trucks is irrelevant since the evidence is that those trucks were accessing Lot 192, which is not permitted by the terms of the Easement.
River Wind was entitled to use Lot 2726 for its cattle raising activities provided it did not constitute a substantial interference with the Easement.
A closed gate does not amount to blocking the Easement if the gate can be opened.
In Pullen v Smedley[70] a declaration was sought that leaving the gates open amounted to an unreasonable use of the right of way. No such relief is sought here. Nevertheless, what Ward CJ held is instructive:
In the present case, the Pullens know that the Smedley property is used for the grazing of cattle and know that from time to time cattle may be grazing either on the right of way or in paddocks through which the right of way crosses, and they know that gates on the Smedley property are used for the purpose of the management of the cattle (and of the Smedleys' concern that the gates be kept closed to prevent cattle straying). I am of the view that opening closed gates in the exercise of their rights of access and then leaving them open on the right of way amounts to an unreasonable use by the Pullens of the right of way for them (absent a sufficient reason or excuse for leaving the gates open ‑ such as a medical emergency or, say, if the gate were to be left open only for a very brief period of time when there were no cattle observed on the rights of way).
In other words, absent pressing circumstances that on a particular occasion may give rise to a reasonable excuse for the gates to be left open, I consider that it is incumbent on the Pullens, as part of their reasonable use of the right of way, to leave the gates on the right of way as they find them when passing through (open, if the gate was open on arrival at the gate; closed, if the gate was closed on arrival at the gate). Any other conduct on their part in a rural area where the right of way crosses paddocks in which cattle are known from time to time to graze would in my view be unreasonable.
Having the benefit of the easement does not equate to ownership of that strip of land. The Pullens' conduct in deliberately leaving gates open along the right of way; in demanding that there be no cattle on the right of way or grazed in unfenced paddocks from which they could have access to the right of way; and in the manner in which they have argued this case, suggests that they think otherwise [254] ‑ [256].
[70] Pullen v Smedley [2017] NSWSC 1721.
Unless the installation of the Mid Way gate was otherwise a substantial interference with the Easement the Barrett‑Lennards were obliged to leave the gate as they found it.
Philip Barrett‑Lennard's evidence about the burden of opening and closing the Mid Way Gate is vague. By comparison, Mr Cooper's evidence is that it takes about two minutes.
Cattle truck drivers access Lot 200 only about once per month. Accordingly, the need for a driver to open and close the Mid Way Gate, or even all three gates, would not be frequent in the context of Sandra Barrett‑Lennard's use of Lot 200.
Philip Barrett‑Lennard might use the easement more frequently to check on cattle but given that the Homestead is on Lot 192 it is probable that he would access Lot 200 from Lot 192 to check on the cattle. In any event, even if Philip Barrett‑Lennard used the Easement daily the opening and closing of the gates, including the Mid Way Gates, would not constitute a substantial interference with his use of the Easement.
In Pullen v Smedley [223] Ward CJ described the need to open and close gates as an inconvenience rather than a substantial interference with the Easement. That is an apt description of the facts of this case.
Philip Barrett‑Lennard gave evidence of the potential danger of cattle milling around a gate. That is true of any gate on any property. He went on to say that this is particularly so for people who have no experience with cattle, for example friends that come from Perth with their families.[71] As friends from Perth will no longer be able to access the Easement the risk is minimal. It does not amount to a substantial interference with the Easement. River Wind is entitled to pasture cattle on Lot 2726 and to divide it into paddocks, with associated fences and gates, to manage the cattle.
[71] Exhibit 2 [45] ‑ [48].
Although each case turns on its particular facts, it is instructive to note that Ward CJ in Pullen v Smedley at [231] held that the potential for encounters with the cattle is something that largely goes to inconvenience rather than to interference with use of the road as an accessway. As to any fear of cattle or their presence on the carriageway, Ward CJ observed that it must be remembered that this is a rural property.[72] In that case, her Honour observed that '[o]ne may be sympathetic to Mrs Pullen's fears or concerns (and Mrs Smedley accepted that she was) but those cannot reasonably be permitted to dictate the manner in which the Smedleys operate their farm'. The same considerations apply to cattle milling at the gate.
[72] Pullen v Smedley [233].
The court does not find that the need to open and close the Mid Way Gate constituted a substantial interference with a reasonable user of the Easement.
The locked double gates at Brand Highway (statement of claim pars 33 ‑ 34)
The double gate at Brand Highway sits alongside the cattle grid with the gate over it. The locked double gate does not prevent access to the Easement via the cattle grid entry to the Easement.
Sandra Barrett‑Lennard's case does not make clear how the locking of the double gates constitutes a substantial interference with the Easement. Her evidence was that these gates were used when (a) stock or (b) large mining company vehicles needed to pass through. The need to move stock arose when the original owner of Lot 2726 also owned land on the other side of Brand Highway. Sandra Barrett‑Lennard recalls approximately two occasions during the early years of farming at Beermullah that mining vehicles required access to Beermullah.[73] Beermullah was purchased by the Barrett‑Lennards in 1988, some 30 years ago. The Barrett‑Lennards do not own land on the other side of Brand Highway.
[73] Exhibit 13 [32], [34] ‑ [35].
Rex Cooper's evidence is that he did not place the electric cable over the double gate and at no time has River Wind electrified the wire running across the double gate. Rex Cooper's evidence is that the wire does not prevent the gate being opening.[74] There is no evidence that the wire is electrified. The court accepts Rex Cooper's evidence.
[74] Exhibit 29 [101].
There is no evidence of substantial interference to the Easement arising from locking the Brand Highway double gates or the electric cable.
Preparations for the realignment of the cattle grid at the Beermullah Gate
What appears to have precipitated these proceedings was River Wind's attempts to realign the cattle grid with the gate at the Beermullah Farm end of the Easement. The realignment of the cattle grid involved both removing the cattle grid from its position and digging an excavation to replace the cattle grid in alignment with the gate.
In order to understand these events it is useful to set out some history and correspondence between the lawyers for the parties.
It is convenient to deal with the preparations for the realignment of the cattle grid as one despite the fact that it is pleaded as several separate incidents. It should be seen as substantially one act with a number of elements. There were two attempts to realign the cattle grid, first, in October 2016, and secondly, in January 2017.
The paragraphs of the statement of claim relating to the realignment of the cattle grid are pars 31, 32, 41 ‑ 47 and 48(d).
In 2014, a new gate was inserted at the Beermulla Farm end of the Easement. The new gate ran along the boundary between Lot 200 and Lot 2676. The cattle grid at the Beermullah Farm end of the Easement was not exactly on the boundary. Accordingly the gate and the cattle grid were misaligned.[75]
[75] ts 43 ‑ 45, 11 March 2019.
Rex Cooper's evidence was that there was barbed wire between two posts with two further posts attached over the Beermullah Farm cattle grid.[76] The gate was erected to replace the barbed wire on the Beermullah Farm cattle grid for the safety of the cattle and people using the Easement.[77]
[76] Exhibit 29 [53(e)].
[77] Exhibit 28 [22] ‑ [23].
Rex Cooper's evidence is that he sought to undertake works at the Beermullah Farm end of the Easement to align the gate and the cattle grid.
By letter dated 3 October 2016 River Wind gave notice of its intention to lock the gates due to the breach of the terms of the Easement by the Barrett‑Lennards in using it for access to lots other than Lot 192 and other matters including a failure to close the Brand Highway Gate and the Beermullah Farm gate.[78]
[78] Exhibit 15, pages 25 ‑ 26.
Rex Cooper's evidence is that he placed chains and padlocks on the Beermullah Farm Gate and the Brand Highway Gate on 3 October primarily as a safety precaution because he wanted to alert people to the realignment of the cattle grid. He also placed the locks because of his concern that the gates had been left open repeatedly.[79]
[79] Exhibit 29 [140] ‑ [145].
Philip Barrett‑Lennard's evidence was:
[F]rom 3 October 2016 to 11 October 2016 and from 9 January 2017 to the date of this affidavit, Rex has caused the gates at both ends of the Easement to be chained and padlocked shut. More detail on this is set out below at [40] to [42]. Rex has never provided any keys or other ways of opening the padlocks, effectively entirely blocking our use of the Easement and access to Beermullah every time he padlocks the gates.[80]
[80] Exhibit 1 [39(a)].
Philip Barrett‑Lennard's evidence was:
Regarding the initial chaining and padlocking in 3 - 11 October 2016:
(a)Sally and I were away between 3 and 8 October 2016, and in that period two of our contractors could not get into our Farm because of the padlocks. I know this because they told me.
(b)When we returned, in order to get in and out of the Farm I had to break the chains with a bolt‑cutter.
(c)I had to do so on Saturday, 8 October 2016 at around 10.30 am.
(d)Then they were put back up again, I cut the chain again on Sunday, 9 October 2016, at around 2.00 pm.
(e)Then they were put back up again, so on Monday 10 October, around midday, I broke the chain again.
(f)The padlock re‑appeared again and on Tuesday, 11 October I broke the chain again at around 5.00 pm that day.[81]
[81] Exhibit 1 [40].
Philip Barrett‑Lennard did not identify who the contractors were or what task they were undertaking.
On each of these occasions Mr Barrett‑Lennard was using the Easement to access the Homestead, Lot 192, and not Lot 200.[82]
[82] ts 33, 11 March 2019.
Mr Cooper's evidence was that he locked the gates because he was concerned about his cattle and about the security risks with people accessing Beermullah Farm through Lot 2726.[83]
[83] Exhibit 29 [144].
Mr Cooper does not live on Lot 2726. The security of River Wind's stock is a legitimate concern. River Wind was entitled to lock the gates. However, if it chose to lock the gates it was required to provide a key to the Barrett‑Lennards to enable the gates to be unlocked so that the Easement could be used to access Lot 200, and only Lot 200.
Although the Barrett‑Lennards were in breach of the terms of the Easement in accessing lots other than Lot 200, the Easement entitled them to access Lot 200. Locking the gates prevented them accessing Lot 200.
Even the locking of a gate is not necessarily a substantial interference. If there is good reason for having a lock, such as the interests of security, substantial interference will not be found if the dominant owner is given a key.[84]
[84] Pullen v Smedley [212].
River Wind's actions in locking the gates between 3 October 2011 and 11 October 2011 without providing a key to Sandra Barrett‑Lennard did constitute a substantial interference with the Easement. The works to realign the cattle grid were not scheduled to commence during this period.
Although River Wind's actions constituted substantial interference the court does not find it necessary to order injunctive relief because River Wind has since offered to provide a key.
The court notes that if the Brand Highway Gate is locked it should not be necessary to lock the Beermullah Farm Gate.
River Wind gave notice of its intention to undertake works to install the cattle grid at the Beermullah Farm end of the Easement by letters dated 12 and 26 October 2016, 6 and 13 January 2017.
The letter of 12 October 2016[85] from Bailwick Legal (River Wind's lawyers) to Cullen Macleod (Sandra Barrett‑Lennard's lawyers) gave notice of:
(a)the removal of the existing cattle grid;
(b)the construction of a new trench aligned parallel to the boundary fence and overlapping both lots;
(c)the placement of a solid and non‑portable cattle grid atop the trench; and
(d)such other sundry works as might be necessary.
[85] Exhibit 29 [84] REC‑34.
The letter also noted that passage along the Easement would be completely inhibited during the works.
On 26 October 2016 a further letter was sent by Bailiwick Legal[86] responding to a letter from Cullen MacLeod containing a proposal. That proposal was rejected. Notice was given that works would commence on 27 October 2016 and River Wind engaged a contactor to carry out the work.
[86] Exhibit 29 REC‑5.
Philip Barrett‑Lennard's evidence was:
[O]n Thursday, 27 October 2016 at around 7.45 am, Rex brought an excavator onto the Easement in front of the Beermullah Gate (#3). He told Sally and I that he was going to dig up the Easement with an excavator and that there would be a trench there indefinitely. The engine of the excavator was running and they were ready to start digging. Sally and I pleaded with Rex and his contractor to not start excavating. He stopped when we agreed to meet with our respective lawyers in Perth within a day or so.[87]
[87] Exhibit 1 [39(b)].
The works did not proceed on that date because the parties went to mediation. Mediation did not resolve the issues.[88]
[88] ts 46, 11 March 2019.
Since the works did not proceed in October 2016 it cannot be said that River Wind's actions at this time constituted a substantial interference with the Easement other than in locking the gates.
On 6 January 2017 Bailiwick Legal gave notice that River Wind intended to proceed with the works.[89] The works commenced on about 9 January 2017 by digging a trench. Once the trench had been dug Mr Cooper placed the excavator in the trench.[90]
[89] Exhibit 29 REC‑36.
[90] Exhibit 29 [159].
Rex Cooper's evidence is that he placed chains and padlocks on the Beermullah Farm Gate and the Brand Highway Gate on 9 January 2017 primarily as a safety precaution because he wanted to alert people to the realignment of the cattle grid. He also placed the locks because of his concern that the gates had been left open repeatedly.[91]
[91] Exhibit 29 [140] ‑ [145].
Rex Cooper parked the excavator in the trench as a safety precaution to alert anyone trying to use the Easement that there was a trench there.[92]
[92] Exhibit 29 [159].
Signs were put up on the gates that stated 'Temporary works in progress'; 'River Wind Pty Ltd - Please keep gate shut at all times' and 'Stop - Authorisation required to enter'. Rex Cooper's telephone number was on two of the signs. Rex Cooper's evidence was that he placed the signs on the gate so that if anyone sought to use the Easement they would be aware that works were being undertaken.[93] He also placed locks on the gates for safety reasons.[94]
[93] Exhibit 29 [153] ‑ [157] REC‑37.
[94] Exhibit 29 [143].
Rex Cooper's evidence is that he placed the 'No Entry' sign so that if any visitors came to use the Easement they would be aware that works were being carried out.[95]
[95] Exhibit 29 [100(b)].
Philip Barrett‑Lennard's belief was that River Wind intended to create a trench to disrupt passage along the Easement.[96] This shows the level of animosity between the parties. The court does not accept that that was Rex Cooper's intention.
[96] ts 49, 11 March 2019.
Philip Barrett‑Lennard's summary of his evidence was:
[O]n or about 9 January 2017, Rex chained and padlocked the Brand Highway Gate and the Beermullah Gate ie at each end of the Easement and dug a trench 10 m x 2 m x 0.6 m in size at the Beermullah Gate end of the Easement (Trench). He has also caused a bobcat to be parked in the Trench. This prevents me filling the trench in with my loader.[97]
[97] Exhibit 1 [39(d)].
Philip Barrett‑Lennard's further evidence was:
42.Regarding the latest padlocking, Trench and bobcat:
(a)On 10 January 2017, I saw that just in front of the Beermullah Gate the defendant had caused the Trench to be dug. It cuts right across the Easement.
(b)At the Brand Highway entrance gate, he has caused signs including a 'No Entry' sign to be put on the gate, and at the other (our end) gate, he has put signs including 'Stop Authorisation Required to Enter.'
(c)At the Brand Highway gate the defendant also caused padlocks to be put on the gate that are so large that I cannot cut them off with bolt cutters.
(d)A copy of some photographs that I took on 10 January 2016. Attached and marked PBL 6 are true copies of those photographs.
(e)On 11 January 2017, Cullen Macleod wrote to the defendant's solicitors and requested that the defendant remove the padlocks and fill in the Trench. Attached and marked PBL 7 is a true copy of that letter.
(f)On 13 January 2017, Cullen Macleod received a response to their letter of 11 January 2017 and no resolution was achieved. Attached and marked PBL8 is a true copy of that letter.
(g)As at 24 January 2017, the position has remained as depicted in the attached photos. I will confirm this state of affairs one way or another immediately prior to any hearing.
43.Other than in the letter from Rex's solicitors on 13 January 2017, Rex has never offered us a key to any of the padlocks, including the latest ones. The padlock and chain that is now in place at the Brand Highway entrance is so big that I am unable to cut it with bolt cutters as I did with the previous padlocks.[98]
[98] Exhibit 1.
On 13 January 2017 Bailiwick Legal wrote to Cullen MacLeod offering alternative access to Lot 200 and offering to provide a key to the locks on the gates.[99]
[99] Exhibit 29 REC‑38.
On 3 February 2017 the parties consented to an injunction preventing further work, preventing the use of padlocks and authorising Philip Barrett‑Lennard to fill in the trench.[100]
[100] Exhibit 29 REC‑39.
It is significant to the question of interference that the works were commenced in January 2017 during a period when the Barrett‑Lennards were on holiday. The works were commenced at a time that was likely to cause the least inconvenience. Philip Barrett‑Lennard came back from holidays to take photos and start the proceedings. Sally Calder and the children were not returning till the end of January.[101]
[101] ts 75, 11 March 2019.
The terms of the Easement did not prevent River Wind undertaking work on the Easement. As Brereton J stated in Trewin, 'the servient owner is entitled to do as it pleases on the servient land, so long as it does not interfere with reasonable use of the right of carriageway' [85].
The cattle grid at the Beermullah Gate did not align with the gate. River Wind was entitled to correct the alignment.
River Wind gave notice to Sandra Barrett‑Lennard of its intention to realign the cattle grid. The fact that the parties were unable to reach agreement on the actual scope or cost of the works to align the cattle grid did not mean that River Wind could not carry out the works.
The carrying out of the cattle grid realignment was not a substantial interference with the Easement. The works were only temporary whilst the cattle grid was realigned with the gate. Obviously while the works were undertaken the Easement would not be accessible. However, the question is whether the works were reasonable. The court finds that they were reasonable.
There is no evidence that during the relevant period any cattle were to be picked up from or delivered to Lot 200. Nor is there any evidence that any stock agents were prevented from accessing Lot 200. In any event, even had there been such evidence, it was a reasonable use of the Easement to carry out those works.
Accordingly, the steps taken by River Wind to
(a)lock the gates;
(b)place signs;
(c)excavate the trench; and
(d)to place the excavator in the trench
all constituted part of the works or legitimate safety precautions. It takes little effort to imagine what might have happened if a vehicle using the Easement had not had adequate warning of the works.
Once again, the Barrett‑Lennards cannot complain that they were denied access to lots other than Lot 200 because the Easement did not permit access to any Lot other than Lot 200.
The personal exchanges (statement of claim pars 48 ‑ 49)
The matters pleaded at pars 48 ‑ 49 of the statement of claim can essentially be described as personal exchanges between Sally Calder and Rex Cooper.
There is no evidence that Sally Calder was using the Easement other than as a means of going to or from the Homestead Lot, Lot 192. For example, Sally Calder's evidence was that on 7 November 2017 when an incident with Mr Cooper occurred she was heading home having dropped the children off at the school bus stop.[102] Other examples are picking the children up from the bus stop and taking the children home after music lessons and going to the shop.
[102] ts 70, 11 March 2019.
The terms of the Easement did not authorise the use of the Easement to access Lot 192. Accordingly, the question of substantial interference does not arise since Sally Calder should not have been using the Easement.
It is, therefore, unnecessary to resolve the credibility issues between the parties relating to these paragraphs. In any event, the conduct would not amount to substantial interference. It was purely temporary. It represented a person, or persons, acting unreasonably.
A number of other matters were raised in evidence but not pleaded. For example alleged power pole speed humps.[103] In fact, the power poles belonged to Western Power. Mr Cooper's evidence is that he never intended to use the poles as speed humps. His evidence is that he moved them to enable Western Power to collect them more easily.[104] The court accepts Mr Cooper's evidence. No speed humps, of any sort, were ever installed. Even if pleaded, one threat to install power poles would not amount to substantial interference.
[103] Exhibit 1 [45] ‑ [49].
[104] Exhibit 29 [137].
Issue 3 - Has Sandra Barrett‑Lennard maintained the Easement in accordance with its terms?
River Wind pleads that Sandra Barrett‑Lennard has failed to maintain the Easement by failing to grade the track and fix the culvert installed under the Easement to divert water runoff.[105]
[105] Counterclaim [44] ‑ [46].
Mr Collard's evidence concerning the state of the Easement relates to a period between about 23 May 2007 and in or about 2014. Those dates are too long ago to be useful to the court in assessing the present state of maintenance.
Rex Cooper's evidence is that since River Wind purchased Lot 2726 he has observed minimal maintenance on the Easement and significant corrugation.[106] Rex Cooper has exhibited a photograph that shows corrugation. That photograph was taken on 9 January 2017.[107] Rex Cooper has expanded on his evidence concerning the state of the Easement.[108]
[106] Exhibit 29 [248] ‑ [249].
[107] REC‑46.
[108] Exhibit 30 [30].
Some collection of water and pot‑holing on gravel roads seems inevitable.
Philip Barrett‑Lennard's evidence concerning the state of the Easement is set out above.
Mr Power's evidence is that as at 14 July 2017 the road appeared to be adequately maintained with no significant safety issues. Some minor matters of maintenance were identified but there is no evidence that Sandra Barrett‑Lennard will not cause that to be attended to.[109]
[109] Exhibit 18, page 14 of 31.
The court is not in a position to make a finding as to whether the Easement has been properly maintained. Some corrugations seem to be an inevitable feature of gravel roads. It is unclear to what extent that represents a lack of maintenance in accordance with the terms of the Easement.
Rex Cooper refers to the culvert in his evidence.[110] It is not clear to the court from Rex Cooper's evidence as to what he requires by way of maintenance on the part of the Barrett‑Lennards.
[110] Exhibit 29 [269] ‑ [273].
The court is not persuaded that Sandra Barrett‑Lennard has failed to maintain the Easement in accordance with its terms.
River Wind seeks the cost of replacing the cattle grid at the Beermullah Gate. It is not clear who removed the cattle grid or when it was removed. It appears to have been in situ as at 12 October 2016 but it was not there by 10 January 2017.
The court is not prepared to make an order that the cattle grid be installed beneath the Beermullah Gate because that might involve making an order relating to the Ms Barrett‑Lennard's property Lot 200. The terms of Easement do not permit the making of such an order. There is nothing to prevent River Wind installing a gate on the boundary and associated cattle grid at the Beermullah Gate provided it is on the Easement. The court does not have sufficient information to fashion orders for the placement of the cattle grid at the Beermullah Gate.
Issue 4 - Trespass and damages by the plaintiff
It is not in issue that Ms Barrett‑Lennard's partners, tenants, servants, agents, workmen and visitors have passed and repassed over the Easement and accessed not only Lot 200 but also other parts of Beermullah.
That conduct in using the Easement to access lots other than Lot 200 is, and was, in breach of the terms of the Easement. Such conduct occurred without the licence or consent of River Wind and amounts to a trespass to Lot 2726.
River Wind alleges that Sandra Barrett‑Lennard in entering onto Lot 2726 and permitting her tenants, servants, agents, workmen and visitors to pass and repass over the Easement to lots other than Lot 200 has caused River Wind to suffer loss and damage.
The alleged loss is said to have arisen from Rex Cooper travelling to Lot 2726 each day to ensure that the gates are closed.[111] Rex Cooper attended at Lot 2726 every day or second day in any event. The court is not persuaded that the costs of his attending are a proper measure of damages for trespass.
[111] Exhibit 29 [302] ‑ [309].
No issue arose as to whether or not Sandra Barrett‑Lennard is vicariously liable in trespass for the actions of tenants, servants, agents, workmen and visitors.[112]
[112] Trewin v Felton [93].
It is impossible to say who has left the gates open. On most occasions it is likely to have been Philip Barrett‑Lennard and Sally Calder.
Sandra Barrett‑Lennard appears to visit the farm infrequently. The evidence is not clear as to how often she visits Beermullah. The court accepts that when she does she uses the Easement to access Lot 192, apart from on one occasion when the cattle grid works were being carried out and the Easement was blocked.
River Wind is entitled to some damages for trespass which the court fixes at $5,000 as a minimal figure.
Proposed orders
The court proposes the following orders:
1.Sandra Barrett‑Lennard's claims are dismissed;
2.Sandra Barrett‑Lennard pay River Wind damages for trespass of $5,000;
3.a declaration that the Easement only permits access by Sandra Barrett‑Lennard, her tenants, servants, agents, workmen and visitors to and from Lot 200;
4.Sandra Barrett‑Lennard, her tenants, servants, agents, workmen and visitors be restrained from using the Easement to access Lot 2591, Lot 829, Lot 830 and Lot 192; and
5.Sandra Barrett‑Lennard pay River Wind's costs of the action to be taxed.
The court directs the parties to file a minute, or minutes, to give effect to these reasons. The court will hear from the parties as to the terms of the orders.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
THE HONOURABLE JUSTICE J Curthoys
18 APRIL 2019
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