Bradshaw v Griffiths

Case [2016] QCA 20

SUPREME COURT OF QUEENSLAND

CITATION:

Bradshaw v Griffiths [2016] QCA 20

PARTIES:

JAN LAUREL BRADSHAW
(appellant)
v
PETER GRIFFITHS
(respondent)

FILE NO/S:

Appeal No 6931 of 2015
SC No 12194 of 2013

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:


Supreme Court at Brisbane – [2015] QSC 176

DELIVERED ON:

12 February 2016

DELIVERED AT:

Brisbane

HEARING DATE:

24 November 2015

JUDGES:

Fraser and Gotterson and Morrison JJA
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1.   The appeal be allowed.

2.   Orders 1, 3 and 5 made on 25 June 2015 are set aside to the extent that they granted a statutory right of user in respect of Road D as depicted in plan number 213025-2 annexed to those orders, and ordered compensation in the sum of $35,000.

3.   The parties are to submit a revised order in accordance with these reasons.

4.   The parties have leave to make such submissions as they are advised on the question of the costs of the appeal, to be filed and served within 21 days of today.

CATCHWORDS:

REAL PROPERTY – EASEMENTS – PARTICULAR EASEMENTS AND RIGHTS – RIGHT OF WAY – where the respondent owned a large cattle property called Stuart Downs – where the respondent subdivided this property creating Laurel Downs – where the respondent kept Stuart Downs but sold Laurel Downs – where before the subdivision, there was a gravel road (Road A) leading from the respondent’s homestead and cattle yards, down through what became Laurel Downs, to the nearest public road – where the appellant purchased Laurel Downs many years later – where the respondent continued to use Road A by informal agreement with the appellant – where the respondent constructed a new gravel road (Road D ) some time later, which also went through Laurel Downs – where for the next 22 years the appellant permitted the respondent to transport cattle via Road D, using it for that purpose about five times a year – where the appellant and the respondent fell out – where the appellant denied the respondent permission to cross Laurel Downs – where the respondent started proceedings seeking a statutory right of user for Roads A and D pursuant to s 180 of the Property Law Act 1974 (Qld) – where the respondent succeeded in obtaining those orders from the learned trial judge – whether an easement should have been granted – whether only one easement should have been granted, rather than both

Property Law Act 1974 (Qld), s 180

117 York Street Pty Ltd v Proprietors of Strata Plan 16123 (1998) 43 NSWLR 504; (1998) 98 LGERA 171, cited
Griffiths v Bradshaw [2015] QSC 176, related
Kent Street Pty Ltd v Council of the City of Sydney [2001] NSWSC 268, considered
Lang Parade Pty Ltd v Peluso [2006] 1 Qd R 42; [2005] QSC 112, considered

COUNSEL:

D G Clothier QC for the appellant
C Jennings…

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AGLC
Bradshaw v Griffiths [2016] QCA 20
Case
[2016] QCA 20
Decision Date

CaseChat Overview and Summary

In the case of Bradshaw v Griffiths, Mrs Bradshaw appealed against the orders made in the trial judge's decision that granted Mr Griffiths statutory rights of user over two roads, Roads A and D, on her property Laurel Downs. The primary issue before the court was whether the trial judge erred in finding that both roads were reasonably necessary for the effective use of Mr Griffiths' property Stuart Downs, and whether Mrs Bradshaw's refusal to grant the easements was unreasonable. The court was also required to determine whether any easement should have been granted at all and if only one easement should have been granted, which one it should be.

The court found that while both Roads A and D were critical to the use of Stuart Downs as a grazing property, the trial judge's conclusion that both roads were reasonably necessary was not erroneous. However, the court held that the compensation for the easement over Road A should be $25,000, not the $35,000 determined by the trial judge. The court found that the impact of the easements on Mrs Bradshaw was minimal, and her refusal to grant the easements was unreasonable.

The court allowed the appeal in part, setting aside the orders that granted a statutory right of user in respect of Road D, and ordered compensation in the sum of $25,000. The parties were given the opportunity to submit a revised order in accordance with these reasons and to make submissions on the costs of the appeal.

The ratio of the decision is that the trial judge's findings as to the importance of Roads A and D, and the comparison with the proposed road, were correct. The court held that both Roads A and D are critical to the use of Stuart Downs as a grazing property, and the proposed road could be used, but it would be inferior and more costly. The court also found that the impacts of the statutory rights of user on Mrs Bradshaw would be minimal.

Orders

Orders of the court

1. The appeal be allowed.

2. Orders 1, 3 and 5 made on 25 June 2015 are set aside to the extent that they granted a statutory right of user in respect of Road D as depicted in plan number 213025-2 annexed to those orders, and ordered compensation in the sum of $35,000.

3. The parties are to submit a revised order in accordance with these reasons.

4. The parties have leave to make such submissions as they are advised on the question of the costs of the appeal, to be filed and served within 21 days of today.

Background

Background to the litigation

Mrs Bradshaw seeks to appeal from the orders. The issues raised by the appeal are:(a)whether the learned trial judge erred in finding that:(i)both easements were “reasonably necessary” in the interests of the effective use of Stuart Downs; and(ii)Mrs Bradshaw’s refusal to grant the easements was unreasonable in all the circumstances;(b)whether any easement should have been granted; and(c)whether only one easement should have been granted rather than both, and if so, which one.Background to the use of the roads A brief synopsis of the facts is set out in paragraphs [1] to [7] above. A fuller understanding is necessary to consider the grounds of appeal. Much of what follows is taken directly from the reasons below,[1] as the factual controversy was quite confined. The map attached as Annexure “A” to these reasons permits a full understanding of the properties, their use and the roads in question.[1]Griffiths v Bradshaw [2015] QSC 176, [1]-[18]. Stuart Downs is a Crown leasehold grazing property located near Wandoan in central Queensland. It has been held by Mr Griffiths since 1968. In 1972, Mr Griffiths subdivided the property into what are now known as Stuart Downs and Laurel Downs. Laurel Downs is leased from the Crown by Mrs Bradshaw. It was sold by Mr Griffiths in 1974, and resold by those purchasers to Mrs Bradshaw in 1989. Mrs Bradshaw and her husband live on Laurel Downs. Mr Griffiths and Mr Bradshaw first met at boarding school more than 50 years ago. The Griffiths and Bradshaw families have been neighbours for decades. Laurel Downs has an extensive frontage to Red Range Road, running roughly east/west. It is a gravel road connecting to the west with other roads to Wandoan, and to the east with Chinchilla. Laurel Downs is to the north of the road. South of Laurel Downs, on the opposite side of Red Range Road, is another property called Red Range, which Mrs Bradshaw’s husband has owned for many years and was originally leased by his grandfather in 1936. Stuart Downs is not landlocked. It has a road frontage to Red Range Road at the far eastern end of the property. The homestead on Stuart Downs is at the western end.[2] Relatively close to the homestead are the original cattle yards (the old yards).[3][2]Point D on the map.[3]Point C on the map. In 1972 there was an existing road (Road A) between the homestead on Stuart Downs and Red Range Road. The length of Road A from the homestead to Red Range Road is about 5.5 kilometres.[4] After the subdivision that created Laurel Downs about 2.2 kilometres of Road A crossed Laurel Downs.[5] It is used by the Bradshaws and the Griffiths. Some of it is maintained by the local Council.[4]Points D to A on the map.[5]Points B to A on the map. When Stuart Downs was subdivided in 1972, Mr Griffiths was asked by his solicitors to consider the question of access to a public road from each property. He was advised that “both blocks must have access to roads”. Mr Griffiths says that at the time, he thought that he could simply continue to travel across Laurel Downs over Road A, and that any government requirement that Stuart Downs have access to Red Range Road could be met by its having road access on the frontage at the eastern end of the property. At that time, access to (the new) Stuart Downs from Red Range Road was by three roads, Road A and two others which are not presently relevant.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

The learned trial judge held that the financial impact of an easement over Road A was $25,000. There was no challenge to that finding. The compensation for the easement over Road A should be $25,000.Conclusion and orders For the reasons given above, the appeal succeeds in relation to the easement granted over Road D, but fails otherwise. The form of the orders granting the easements was not a matter agitated on the appeal. It follows that the orders below should be set aside only to the extent that they deal with Road D, and the amount of compensation is to be $25,000. The parties should be given the opportunity to address the question of costs, and to present an agreed form of order to reflect these reasons. I would propose the following orders:1.The appeal be allowed.2.Orders 1, 3 and 5 made on 25 June 2015 are set aside to the extent that they granted a statutory right of user in respect of Road D as depicted in plan number 213025-2 annexed to those orders, and ordered compensation in the sum of $35,000.3.The parties are to submit a revised order in accordance with these reasons.4.The parties have leave to make such submissions as they are advised on the question of the costs of the appeal, to be filed and served within 21 days of today.

Ratio Decidendi

Legal Principle Established

The learned trial judge made a number of findings as to the importance of Roads A and D, and the comparison with the proposed road:(a)neither Road A nor Road D is absolutely necessary in the interests of the effective use in any manner of Stuart Downs; the proposed road could be built but at a substantial cost, between $60,000 and maybe over $100,000;[40] (b)both Roads A and D are critical to the use of Stuart Downs as a grazing property; the proposed road could be used, but the road linking the new yard, the homestead and the old yard is not wide enough for B-double trucks;[41](c)the proposed road would disadvantage Mr Griffiths in several respects, compared with the use of Roads A and D; the drive from the homestead to the public road would be several times longer in distance and in time; the disadvantages in those respects are understated if described as matters of mere inconvenience;[42] and(d)the new road is more likely to be closed after rainfall, particularly because of its different soil.[43][40]Reasons [59].[41]Reasons [61].[42]Reasons [60].[43]Reasons [61].Consideration of both easements versus only one The learned trial judge held that both easements should be granted, not just one. His Honour’s reasons for the conclusion are expressed in these paragraphs:[44]“[67] In this case, of course, two easements are sought. Mr Griffiths must make out a case for each to be granted in order to obtain both easements. I have considered whether the grant of one easement would put paid to the reasonable necessity for the other. But I have concluded that in each case the reasonable necessity criterion has been satisfied. If Road A but not Road D could be used, Mr Griffiths would have to widen at least the road between the homestead and the new yard in order to accommodate B-double trucks. This would still be an inferior road for transporting cattle from the new yard. Again, the impact or otherwise from imposing an easement for Road D must be considered and it is minimal. The use of Mr Griffiths’ property with Road D would be “substantially preferable” to its use without it, even with Road A.[68]Similarly, it is practically necessary in the relevant sense for the Griffiths’ property to have the use of Road A in addition to that of Road D. Without Road A, there would be the difficulties in travel to and from the homestead and the old yard. Again, there is the minimal impact of the use of Road A to be considered here.”[44]Reasons [67]-[68].Impact on Mrs Bradshaw The learned trial judge held that the impacts of the statutory rights of user on Mrs Bradshaw, in respect of both Roads A and D, would be minimal.[45] Relevant to that were these findings:(a)any impact upon the value of Laurel Downs was minor and could be compensated;[46](b)the potential for cell grazing techniques to be used on Laurel Downs would not be significantly affected by the imposition of these two easements; Mrs Bradshaw had not yet divided her property into paddocks for that purpose, and if and when it was, it could be done around the two roads;[47](c)other concerns about the imposition of these roads were not of a nature or extent which would place a significant burden upon her or another owner of Laurel Downs; in that respect his Honour found that “Road D is used, usually, about five times per year” and “Road A is used two or three times a week”;[48] and(d)Mrs Bradshaw’s longstanding consent to the use of Roads A and D demonstrates how little is the impact of that use upon her enjoyment of Laurel Downs; the extent of that impact would not be significantly different if that use was pursuant to easements created under s 180.[49][45]Reasons [66].[46]Reasons [63].[47]Reasons [64].[48]Reasons [65]. I have earlier referred to the fact that this finding is at odds with that made as to the frequency of use of Road A, at Reasons [34].[49]Reasons [66].The statutory test under s 180 of the Property Law Act 1974 (Qld)