Crawley v Baxter (No 2)

[2023] NSWSC 648

Supreme Court

New South Wales

Medium Neutral Citation:

Crawley v Baxter (No 2) [2023] NSWSC 648

Hearing dates:

6 – 8 April, 24 June and 21 July 2022. Further evidence and submissions filed pursuant to leave granted on 2 November 2022.

Date of orders:

16 June 2023

Decision date:

16 June 2023

Jurisdiction:

Equity

Before:

Henry J

Decision:

Order made pursuant to s 88K of the Conveyancing Act 1919 (NSW) imposing an easement for a right of carriageway over the defendant’s land.

Catchwords:

LAND LAW — easements — application for easement under s 88K of the Conveyancing Act 1919 (NSW) for right of carriageway over adjacent land — whether easement reasonably necessary for effective use of plaintiff’s rural land — where plaintiff’s land has no direct access to public road system — where vehicle access between public road and plaintiff’s land only presently practically available over defendant’s land — where evidence of long-term past use — where track created in 2016 along path of proposed easement — whether easement substantially preferable to alternative access options through conservation area — whether plaintiff made all reasonable attempts to obtain easement or easement having same effect — whether discretion to impose easement should be exercised — easement imposed — determination of costs deferred

Legislation Cited:

Conveyancing Act 1919 (NSW)

Crown Lands Act 1884 (NSW)

Crown Lands Consolidation Act 1913 (NSW)

Gloucester Local Environment Plan 2010 (NSW)

Government Telecommunications Act 2018 (NSW)

National Park Estate (Reservations) Act 2003 (NSW)

National Parks and Wildlife Act 1974 (NSW)

National Parks and Wildlife Regulations 2019 (NSW)

Real Property Act 1900 (NSW)

Roads Act 1993 (NSW)

State Environmental Planning Policy (Infrastructure) 2007 (NSW)

Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited:

117 York Street Pty Ltd v Proprietors of Strata Plan16123 (1998) 43 NSWLR 504

Arcidiacono v The Owners – Strata Plan No 17719; Arcidiacono v The Owners – Strata Plan No 61233 (2020) 104 NSWLR 199; [2020] NSWCA 269

City of Canterbury v Saad (2013) 195 LGERA 329; [2013] NSWCA 251

Community Association DP270447 v ATB Morton Pty Ltd (2019) 19 BPR 39277; [2019] NSWCA 83

Fox v Percy (2003) 214 CLR 118; [2003] HCA 22

Gordon v Lever (2018) 97 NSWLR 90; [2018] NSWCA 43

Gordon v Lever (No 2) (2019) 101 NSWLR 427; [2019] NSWCA 275

Grattan v Simpson (1998) 9 BPR 16,649

Hanny v Lewis (1998) 9 BPR 16,205; [1998] NSWSC 385

ING Bank (Aust) Ltd v O’Shea (2010) 14 BPR 27,317; [2010] NSWCA 71

Khattar v Wiese (2005) 12 BPR 23,235; [2005] NSWSC 1014

Lonergan v Lewis [2011] NSWSC 1133

Menassa v Shi (No 2) [2023] NSWSC 168

Moorebank Recyclers Pty Ltd v Tanlane Pty Ltd (2012) 16 BPR 31,257; [2012] NSWCA 445

Owners Strata Plan 13635 v Ryan (2006) 12 BPR 23,485; [2006] NSWSC 221

Property Partnerships Pacific Pty Ltd v The Owners of Strata Plan 58482 [2006] NSWLEC 709

Rainbowforce Pty Ltd v Skyton Holdings Pty Ltd (2010) 171 LGERA 286; [2010] NSWLEC 2

Shi v Abi-K Pty Ltd (2014) 87 NSWLR 568; [2014] NSWCA 293

Studholme v Rawson [2020] NSWCA 76

The Owners – Strata Plan 85044 v Murrell; Murrell v The Owners – Strata Plan 85044 (2020) 19 BPR 40,575; [2020] NSWSC 20

Watson v Foxman (1995) 49 NSWLR 315

Weissflog v Community Association DP 270159 (2022) 20 BPR 42,265; [2022] NSWSC 239

Texts Cited:

Brendan Edgeworth, Butt’s Land Law (7th ed, 2017, Lawbook Co)

Category:

Principal judgment

Parties:

Edwin Crawley (Plaintiff)
John Baxter (Defendant)

Representation:

Counsel:
J Trebeck (Plaintiff)
S Doupe (Defendant)

Solicitors:
Turner Freeman Lawyers (Plaintiff)
O’Brien Winter Partners (Defendant)

File Number(s):

2021/0080217

Publication restriction:

Nil

Judgment

1. The plaintiff, Edwin Crawley, is the registered proprietor of rural land in Copeland, New South Wales, which is located in the MidCoast Council region, close to the Barrington Tops National Park. In these proceedings, Mr Crawley seeks an order under s 88K of the Conveyancing Act 1919 (NSW) (Conveyancing Act) for the imposition of an easement over adjacent land owned by the defendant, John Baxter.

2. Mr Crawley seeks an easement in the nature of a right of carriageway over two sections of a graded track on Mr Baxter’s land which Mr Crawley claims is reasonably necessary for the effective use and development of his land. In particular, Mr Crawley says that the easement is reasonably necessary as the sections of track together with parts of a Crown Road that traverse Mr Baxter’s land form the vehicle access path between Mr Crawley’s land and Scone Road, which is part of the public road system.

3. Mr Baxter opposes the application. Amongst other reasons, he contends that the application should be refused as an easement is not reasonably necessary because Mr Crawley has alternative vehicle access options available to him, one of which bypasses Mr Baxter’s land and runs across land in the surrounding Copeland Tops State Conservation Area.

Background facts and summary of evidence

4. The following factual matters are based on the evidence, the parties’ Statement of Agreed Facts and observations from the site view which was undertaken on the first day of the hearing.

Overview of evidence

5. The evidence comprises affidavit and oral evidence from the parties and other lay and expert witnesses as well as a range of documents, including historical title searches, survey plans, topographical maps and correspondence with authorities, and footage taken from a video camera mounted on the dashboard of Mr Baxter’s vehicle (dashcam footage), all of which is contained in the Court Book (CB) and various exhibits. It also includes affidavit evidence which Mr Baxter and Mr Crawley were granted leave to rely on following an application by Mr Baxter for leave to re-open his case after judgment was reserved (Crawley v Baxter [2022] NSWSC 1493), and a letter dated 27 February 2023 which Mr Baxter was granted leave to adduce as evidence in the main proceedings during the course of an interlocutory application between the parties. In addition, the Court has been assisted by the parties’ written submissions that were supplemented by oral submissions at the hearing and further written submissions received as part of the application for leave to re-open.

6. In support of his application, Mr Crawley relies on his affidavits dated 18 December 2020 and 27 July 2021 and affidavits from: Alexander Munro, Mr Crawley’s solicitor, dated 21 December 2020, 18 March 2021, 19 April 2021, 20 August 2021, 15 March 2022, 7 April 2022 and 12 October 2022 (with the latter being filed pursuant to leave granted on 2 November 2022 and which should be taken as read); Scott Chapman, a property manager employed by the New South Wales Government Telecommunications Authority (NSW Telco), dated 22 January 2021 and 5 April 2022; Brian Kilby, the managing director at Barrington Outdoor Education, dated 16 November 2020; and Bernard Finlay, a retired explosives expert and heavy machinery operator, dated 10 October 2022 (which was filed pursuant to leave granted on 2 November 2022 and should be taken as read).

7. Mr Crawley also relies on expert evidence from: Phillip Bowden, a land surveyor, who prepared a survey plan dated 10 August 2021 (2021 CalCo Survey), a report dated 19 August 2021 and a supplementary report dated 26 August 2021; and Andrew Hood, a registered valuer, who prepared a report dated 1 April 2022 regarding the value impact on Mr Baxter’s land from the creation of the easement.

8. Mr Baxter’s case relies on his affidavit dated 21 May 2021 and affidavits from: David Baxter, Mr Baxter’s brother, dated 17 May 2021; Craig Battams, Mr Baxter’s neighbour, dated 14 May 2021; Scott Woodbury, Mr Baxter’s friend, dated 14 May 2021; Mervyn Smith, Mr Baxter’s friend, dated 14 May 2021; and Damien O’Brien, Mr Baxter’s solicitor, dated 9 September 2022 (which was filed pursuant to leave granted on 2 November 2022 and should be taken as read). Large parts of Mr Battams, Mr Woodbury and Mr Smith’s affidavits were not read.

9. Mr Baxter also relies on expert evidence from Graeme Ferguson, a registered land surveyor, who prepared a report and survey plan dated 22 June 2021 (Ferguson Survey; reproduced at Annexure B to these reasons).

10. Mr Crawley, Mr Munro, Mr Chapman and Mr Bowden were each cross-examined as were Mr Baxter and Mr Ferguson. I set out the key aspects of their evidence and my findings later in these reasons. As will appear, there is a conflict in the evidence of Mr Crawley and Mr Baxter about the circumstances in which a new track on Mr Baxter’s land was constructed by Mr Crawley in 2016. In coming to my views on their evidence, I have had regard to my notes taken during the hearing in addition to the transcript and submissions of the parties. In view of the frailty of human memory and the parties’ self-interest, I have placed more weight on the objective surrounding facts, the inherent probabilities and improbabilities of events, and the contemporaneous documents to the extent they are available: Watson v Foxman (1995) 49 NSWLR 315 at 319; Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 at [28]–[31].

The relevant land

11. Annexure C to these reasons is an Agreed Map that depicts the location of Mr Crawley’s land, Mr Baxter’s land, the surrounding land and a number of tracks and trails, including those that Mr Baxter contends are options for providing access between Mr Crawley’s land and Scone Road (Agreed Map). I refer to aspects of the relevant parcels of land and other points of interest by reference to the letters and descriptors on the Agreed Map.

12. Mr Crawley is the sole registered proprietor of two lots, being Lots 89 and 99 in Deposited Plan 753147 (Crawley Land). The Crawley Land is zoned “RU1 Primary Production” in accordance with the provisions of the Gloucester Local Environment Plan 2010 (NSW).

13. The Crawley Land is approximately 197 acres in size and lies to the east of Mr Baxter’s land. Its boundaries are marked on the Agreed Map by a thick green line except for the western boundary (being the common boundary with Mr Baxter’s land) which is marked by a thin grey line and an arrow labelled “Boundary fence”.

14. Mr Crawley and his late wife, Marion Crawley (who died on 18 February 2021), acquired their interest in the Crawley Land by way of purchase and inheritance from Mrs Crawley’s family. It is agreed that the Crawley family acquired the Crawley Land in 1945. In 1964, the ownership of Lots 89 and 99 was registered in the name of Jessie Boyd, Mrs Crawley’s mother. On 2 April 1996, the Crawley Land passed to Mrs Crawley and her sister, Jessie Burley, as tenants in common in equal shares by way of transmission. On 10 August 2001, Ms Burley transferred her half share in Lots 89 and 99 to Mr Crawley, and he and Mrs Crawley became the registered proprietors of the Crawley Land as tenants in common in equal shares. Mr Crawley became the sole registered proprietor of the Crawley Land upon the death of his wife.

15. The Crawley Land comprises land that was applied for under s 90 of the Crown Lands Act 1884 (NSW) (Crown Lands Act) and was approved and registered in Plans of Portion 89 and 99 on 14 February 1913 and 24 August 1914 respectively.

16. Mr Crawley’s family also owned Mr Baxter’s land from 1946 to 1992. During that period, the Crawley Land together with what is now Mr Baxter’s land was used by the Crawley and Boyd families for timber milling and farming operations.

17. Mr Crawley, who was 83 years of age at the hearing, currently uses the Crawley Land for beef cattle farming operations. He grazes cattle, makes hay and silage, and needs access to the public road system to transport the cattle and related products to and from his land. He also uses the Crawley Land as a camping site for children’s outdoor education camps and for the installation of radio and telecommunications facilities that are owned and operated by third parties.

18. As depicted on the Agreed Map and observed at the view, within the Crawley Land stand a house, some sheds for storage of farming equipment (Crawley Buildings) and radio and telecommunications facilities (labelled “Towers” on the Agreed Map).

19. On 10 July 2012, Mr and Mrs Crawley entered into a licence agreement with the Minister for Emergency Services to allow the installation of aerials, radio equipment, solar arrays and other infrastructure on the Crawley Land. Prior to that agreement, ultra high frequency radio equipment had been installed by the New South Wales Rural Fire Service (RFS) pursuant to an informal arrangement originally struck with Mrs Crawley’s father. The infrastructure installed provided coverage to entities such as the New South Wales State Emergency Services (SES), New South Wales Ambulance and the RFS, and comprised an RFS structure extending approximately seven metres above ground level and an SES structure extending approximately 17 metres above ground level.

20. On 23 April 2018, Mr and Mrs Crawley agreed to lease the Crawley Land to NSW Telco, the authority constituted by the Government Telecommunications Act 2018 (NSW) (GT Act) and responsible for the New South Wales government’s Critical Communications Enhancement Program (the object of which is to expand and enhance the Public Safety Network (PSN)), in relation to the installation of new PSN infrastructure (described further at [50]–[51] below).

21. Mr Baxter is the sole registered proprietor of Lots 1 and 2 in Deposited Plan 1182854 (Baxter Land). Like the Crawley Land, the Baxter Land is zoned “RU1 Primary Production”. A Crown Road (described further at [32]–[34] below) traverses Lot 1 and is excluded from the title of the Baxter Land.

22. The Baxter Land is approximately 404 acres in size and lies to the west of the Crawley Land. The north-western boundary of the Baxter Land follows Sleepy Hollow Trail down to an entrance to the Baxter Land close to Scone Road (near A) and continues to Z at which point the Baxter Land (the part comprising Lot 2 in Deposited Plan 1182854) drops below Scone Road and continues along the southern border of the yellow shading up to X.

23. The Baxter Land comprises land that was applied for under s 90 of the Crown Lands Act, approved and registered in Plans of Portion 98 and 138 on 25 August 1914 and 14 December 1921 respectively, and later subject to a Homestead Farm Grant to the Bank of New South Wales which was registered on 6 May 1941.

24. Portions 98 and 138 were transferred to Max Crawley, Mr Crawley’s father, on 19 October 1946 by transfer dealing D577770 and were the subject of a perpetual lease granted on 9 January 1976 under the Crown Lands Consolidation Act 1913 (NSW). On 25 March 1986, following the death of Max Crawley, Mr Crawley and his two brothers became the registered proprietors of Portions 98 and 138 by transmission.

25. On 18 December 1992, Mr Crawley and his brothers sold Portions 98 and 138 to Mr Baxter and his father for $125,000. On 12 February 2000, Mr Baxter’s father transferred his half share to Mr Baxter for $1.

26. On 18 December 2013, the plan of subdivision of Portions 98 and 138 (and other lands which are not relevant) was registered to create Lot 1 of Deposited Plan 1182854; it shows the route of the Crown Road running through the middle of the Baxter Land. Mr Baxter was registered as owner of the Baxter Land from 19 December 2013. Mr Baxter does not live on the Baxter Land but resides in Caves Beach, New South Wales, which is about a two hour drive from the Baxter Land. He works as a machinery operator at Mount Arthur open cut mine and was previously employed as a contractor by the Roads and Maritime Services (RMS). Mr Baxter says he purchased the Baxter Land to run a few cattle and to have a place to “get away”. He is often away for work and unable to attend the Baxter Land for periods of some months.

27. As depicted on the Agreed Map and observed at the view, within the Baxter Land (between A and M) stand a cottage and a shed (labelled “Mr Baxter’s buildings” on the Agreed Map). Mr Crawley gives evidence, which was not challenged by Mr Baxter and I accept, that in about mid-2015 he cleared and levelled the site upon which the cottage is constructed at no cost to Mr Baxter.

Surrounding land and roads

28. The Crawley Land and most of the Baxter Land is surrounded by the Copeland Tops State Forest which is part of the Copeland Tops State Conservation Area. That land is owned by the government of New South Wales, reserved as a state conservation area under the National Park Estate (Reservations) Act 2003 (NSW) and is subject to the National Parks and Wildlife Act 1974 (NSW) (NPW Act) and National Parks and Wildlife Regulations 2019 (NSW).

29. To the north of the Crawley Land, within the Copeland Tops State Conservation Area, is a trigonometric station (labelled “Trig Station” on the Agreed Map).

30. A number of trails and tracks are located within the Copeland Tops State Conservation Area, the Crawley Land and the Baxter Land. Relevant to these proceedings are the following:

1. the Copeland Trig Trail which traverses the Baxter Land, the Crawley Land and the Copeland Tops State Conservation Area. It runs from the western boundary of the Baxter Land close to Scone Road (at A) in a southerly direction (to M), then in a north-easterly direction to the Crawley Land (to G), over the Crawley Land and up to the Trig Station, and it is marked by an orange dashed line on the Agreed Map. The Copeland Trig Trail largely follows the route of the Crown Road within the Baxter Land from the western boundary of the Baxter Land (at M) but deviates where the Crown Road travels north and forms an inverted triangle (at D; labelled “Upper Triangle” on the Agreed Map) and runs in an easterly direction from that point to the boundary of the Crawley Land (just below G);

2. the Craddocks Creek Trail and Crawley’s Trail, which traverse land within the Copeland Tops State Conservation Area. The Craddocks Creek Trail runs from the west of the southern boundary of the Baxter Land at Scone Road (at X) in a north-easterly direction and joins Crawley’s Trail, which runs in a north-westerly direction to the boundary of the Crawley Land (at L). At the boundary of the Crawley Land, the trail continues as the “Huts Trail” which joins the Copeland Trig Trail at a locked gate within the Crawley Land. The Craddocks Creek Trail and the Crawley Trail are designated as “Non-Public Access Roads Management Trails” and the Craddocks Creek Trail is classed as a “Cat.9” fire trail which does not allow for public access. The Craddocks Creek Trail and the Crawley’s Trail comprise the Craddocks Creek Route that Mr Baxter submits is a viable alternative access route between Scone Road and the Crawley Land; and

3. a trail referred to by the parties as the Copeland Commons Track (labelled “Paper Road” on the Agreed Map), which runs in an easterly direction from the eastern boundary of the Crawley Land (at K) through the Copeland Tops State Conservation Area and is, in part, identified on other maps as the “Common Track” (see, for example, CB3257). The Copeland Commons Track extends some four kilometres, passes through other private land and eventually connects with Scone Road to the east of the Crawley Land.

31. Scone Road is a sealed public road that passes through the Copeland Tops State Conservation Area and runs in a south-easterly direction almost parallel to the south-western boundary of the Baxter Land. It is the closest public road to the Crawley Land and is marked by a thick orange line on the Agreed Map.

32. The Crown Road runs in a north-easterly direction from the western boundary of the Baxter Land (at M), crosses the Crawley Land and runs to the Trig Station. It is marked on the Agreed Map by two double black lines and is referred to on other plans and maps in evidence as the “Reserved Road”, “Road Res.” or the “Crown Road Reserve”.

33. Before 1926, the path of the Crown Road proceeded roughly along the current path of the Copeland Trig Trail (between D and G). On 8 July 1926, the title diagram for a portion of what is now the Baxter Land was amended such that the Crown Road proceeded along the Upper Triangle route. The title plan was endorsed with the following notation: “Plan approved for 304 ac 2 r ex rd for alteration in red see sketch with L.B. 25.290.” The “sketch with L.B. 25.290” could not be located by the parties and there is no explanation included in the title document for the alteration. The amendment changes the position of the existing and original location of the Crown Road to create the Upper Triangle section of the Crown Road; however, it is described as being “on paper only”. This is an apt description as the “Upper Triangle” and northern part of the Crown Road is currently unsuitable for vehicle access and the graded track that provides vehicle access along the path of the Copeland Trig Trail (from D to the Crawley Land), which the evidence indicates has been used for vehicle access since 1945, continues to follow the path recorded on the title diagram prior to its amendment.

31. As is demonstrated by the Agreed Map, the 2021 CalCo Survey, the Ferguson Survey and Diagram A attached to Dealing AI156396V (Annexure I to the affidavit of Mr Munro dated 7 April 2022), the Crown Road abuts the western boundary of the Baxter Land (at M) but does not connect to Scone Road. The Crown Road does not connect at the current entry point to the Baxter Land from Scone Road (at A) or any other point.

32. The land that lies between Scone Road and the south-western boundary of the Baxter Land (the land south-west of A, M and Z on the Agreed Map) is part of the Copeland Tops State Conservation Area as demonstrated by the map of the Copeland Tops State Conservation Area Plan of Management (Conservation Map; reproduced at Annexure D to these reasons) and Diagram A to Dealing AI56396V. Currently located within that land is a cleared track that runs from Scone Road (at around Z) to the boundary of the Baxter Land (at M), which I refer to in these reasons as the Z to M Track. Mr Baxter contends that the Z to M Track is an alternative access route from Scone Road to the Crown Road on the Baxter Land.

Existing access to the Crawley Land

36. Historically, there have been two routes used by Mr Crawley and his invitees for vehicle access between Scone Road and the Crawley Land, both of which involve traversing the Baxter Land.

37. The first route, which was in use until around August 2016, is along a graded track that starts from the shared public entrance at the western boundary of the Baxter Land, runs along the path of the Copeland Trig Trail (at A to M to just below G) and follows, in part, the path of the Crown Road (at M to D) (Pre-2016 Route).

38. Mr Crawley gives evidence, which I accept, that he, his family and their invitees have used the Pre-2016 Route for vehicle access to the Crawley Land for as long as he can remember, and that he and his family have never used the Upper Triangle part of the Crown Road. Based on Mr Crawley’s evidence and the matters referred to at [33] above, I reject Mr Baxter’s evidence that Mr Crawley and his family created the “deviation at the northern end” of the Crown Road (CB2405–6), which I understand to be a contention that Mr Crawley created the graded track along that part of the Copeland Trig Trail (at D to G) as a diversion from the existing “Upper Triangle” path of the Crown Road.

39. The second route, which has been in use by Mr Crawley and his invitees since around August 2016, is along a new section of graded track that runs from the shared public entrance at the western boundary of the Baxter Land (at A) in an easterly direction to meet at the junction of the Crown Road and the Copeland Trig Trail (at C) (New Track) together with that part of the Pre-2016 Route that follows the Copeland Trig Trail and parts of the Crown Road to the boundary of the Crawley Land (at D to just below G) (New Track Route).

2016: Construction of New Track and initial attempt to obtain easement

40. Mr Crawley constructed the New Track between 13 and 16 August 2016 with the assistance of his late brother, Jeff Crawley. The works involved installing drainage pipes under the road and grading and shaping the New Track to form a level access path which is approximately 350 metres long and four metres wide. Prior to constructing the New Track, there was a rough track in that area described by the parties as the “old log dump” track.

41. In late August or early September 2016, Mr Crawley installed a post and rail wooden fence and a 14 foot gate within the line of the existing boundary fence (at A) which replaced the wire and picket section of the boundary fence on the Baxter Land at the start of the New Track.

42. There is a factual dispute as to the circumstances in which the New Track and gate were installed. Mr Crawley says that he constructed the New Track at the request of Mr Baxter. Mr Baxter denies this and says that the New Track and a gate were installed without notice and his permission. I deal with this evidence at [154]–[178] below. At this point, I simply note that I prefer Mr Crawley’s evidence to that of Mr Baxter and have found that the New Track was not constructed without notice or permission from Mr Baxter.

43. On 14 September 2016, Mr Crawley obtained a survey from CalCo Surveyors Pty Ltd which is described as a “plan of proposed right of carriageway over track in use within Lot 1 DP 1182854” (CalCo Survey; reproduced at Annexure A to these reasons). The CalCo Survey identifies the two sections of track on the Baxter Land that are the subject of Mr Crawley’s easement application. The CalCo Survey was obtained after Mr and Mrs Crawley approached Turner Freeman Lawyers seeking advice regarding formalisation of legal access to their property.

44. On 29 September 2016, Narelle Bignell of Turner Freeman Lawyers spoke to Mr Baxter about a Transfer Granting Easement that Turner Freeman Lawyers had prepared which provided for an easement over two sections of track on the Baxter Land (including the New Track) to the benefit of the Crawley Land. Ms Bignell’s file note records: Mr Baxter asked Ms Bignall to email (not post) the Transfer Granting Easement to him; he said he would discuss the terms with Mr Crawley; he said he would be “up at [the] weekend” (from which I infer that Mr Baxter expected to be at the Baxter Land the following weekend); and he asked if terms could be included in the Transfer Granting Easement such that it would cease upon Mr and Mrs Crawley or their family not owning the Crawley Land and new terms for access would need to be negotiated by any new owners. In cross-examination, Mr Baxter could not recall this conversation but did not deny its occurrence (T163.47).

45. At 5.30pm that day, Ms Bignell sent an email to Mr Baxter attaching a copy of a Transfer Granting Easement and a map (which I infer was a copy of the CalCo Survey).

46. According to a file note of Turner Freeman Lawyers, which was prepared by an unknown author and is undated (although I find was likely after 29 September 2016), Mr Baxter telephoned and stated that while Mr and Mrs Crawley owned the adjoining property he did not require any restrictions but he would need something regarding shutting gates and general access in order to safeguard future owners of the Baxter Land, and he asked Turner Freeman Lawyers to draft something to that effect or to phone if they wanted further instructions.

47. Mr Crawley gives evidence, which I accept, that Turner Freeman Lawyers advised him that Mr Baxter was unwilling to sign the Transfer Granting Easement or grant the easement, Mr Baxter wished to discuss the document with Mr Crawley and his wife, he wanted to include additional terms and he did not contact Mr Crawley about those matters.

2018: NSW Telco licence and attempts by Mr Crawley to obtain easement

48. On 21 March 2018, Turner Freeman Lawyers sent a letter to Mr Baxter via email and post enclosing a draft form of the Transfer Granting Easement for a right of carriageway over the Baxter Land subject to conditions that all gates are closed and securely fastened, the surface of the carriageway is at all times maintained in good order and repair, in a clean and tidy condition and free from rubbish, and at all times the carriageway is kept free of any obstruction. That form was submitted under cover of a letter from Turner Freeman Lawyers which states as follows:

“To formalise the access over your land, and to address your concerns regarding the proper use of the carriage way, we enclose proposed transfer granting easement for your review and execution.

The transfer, in effect, provides a legal right to access lots 89 and 99 in DP 753147 over your land from the Scone Road via the existing track used by the Crawleys. We trust the conditions in annexure B meet with your approval and alleviate your concerns about gates being left open etc.

You may seek independent legal advice regarding the document if you consider it necessary. We look forward to receiving the signed transfer by return so that we may finalise this matter without further cost and delay.”

49. No response was received to that letter or to a follow-up email sent to Mr Baxter on 13 April 2018.

50. On 23 April 2018, NSW Telco entered into heads of agreement with Mr and Mrs Crawley to lease part of the Crawley Land to install new radiocommunications facilities for the “Government Radio Network” for a term of 20 years, at rent of $6,500 per annum, with the lease beginning on the commencement of NSW Telco’s works on the site and subject to NSW Telco negotiating access over the adjoining Baxter Land.

51. Prior to entry into the heads of agreement, in early 2018, NSW Telco had determined that the existing infrastructure installed on the Crawley Land was no longer suitable or sufficient to support the PSN infrastructure proposal for the Copeland Tops region. NSW Telco determined that a new single structure, being a lattice tower 20 metres above ground level, was the most suitable pathway forward and that the telecommunications for the SES, New South Wales Ambulance and RFS were to be migrated to the upgraded facility and redundant existing infrastructure would be removed.

52. On 10 May 2018, James Duncan of Visionstream Australia Pty Ltd (Visionstream), a contractor acting on behalf of NSW Telco, sent a letter to Mr Baxter advising that NSW Telco was proposing to establish a new radiocommunications facility on the Crawley Land which would include installation of a 20 metre monopole, an equipment shelter with diesel generator, new solar panels and a new fenced compound area. The letter notes that NSW Telco is required to give written notice of its intention to carry out the development to any occupiers of adjoining land and that the proposal constitutes a development permitted without consent.

53. On 16 May 2018, Turner Freeman Lawyers sent a letter to Mr Baxter stating that he had not responded to their letters and emails to date and enclosing the proposed Transfer Granting Easement for Mr Baxter’s review and execution. The letter also states that in the event Mr Baxter did not consent to the Transfer Granting Easement being registered over his land and in the absence of any reasonable objection, further steps may be taken in Court. There is no evidence of any response from Mr Baxter to that letter.

54. On 13 September 2018, NSW Telco, by its solicitors, Hunt & Hunt Lawyers, sent a letter to Mr Baxter stating that NSW Telco would like to use the Copeland Trig Trail as a means of access to the Crawley Land and seeking advice as to whether entering into an access track licence agreement was of interest to Mr Baxter. It appears that Mr Baxter did not respond to that letter.

55. On the morning of 10 November 2018, Mr Crawley drove to Mr Baxter’s house at Caves Beach to discuss with him matters of access and the proposed easement.

56. According to Mr Crawley, he knocked on Mr Baxter’s door at about 9.00am, told Mr Baxter that he wanted to speak about legal access to the Crawley Land and asked him why he was not responding to the letters that had been sent. Mr Crawley deposes that Mr Baxter said, amongst other things, that he was not signing any papers, they meant nothing to him and he put the letters straight into the bin. Mr Crawley says that he then left Mr Baxter’s house and, as of 18 December 2020, he has not spoken to him since that time.

57. Mr Baxter disputes Mr Crawley’s version of the conversation and says that Mr Crawley demanded that he consent to the right of way and said that he wanted the “road sorted out”, Mr Baxter said, “I told you not once but twice not to put that road there” and Mr Crawley again demanded that he sign the transfer to which Mr Baxter said “no”. Mr Baxter describes Mr Crawley’s approach as made in a threatening manner and denies that he used language attributed to him by Mr Crawley that would be considered threatening to Mr Crawley.

58. For the reasons set out at [169]–[175], I prefer Mr Crawley’s account of this conversation to Mr Baxter’s. Irrespective of which version is accepted, it is apparent from the evidence that the previous cordial and neighbourly relationship that Mr Crawley and Mr Baxter shared had soured by this meeting and they subsequently had little to no direct contact.

59. On 29 November 2018, Turner Freeman Lawyers sent a letter to Mr Baxter noting that he had informed Mr Crawley that he did not intend to sign the Transfer Granting Easement and that Mr Crawley was “left with little option but to seek relief from the Supreme Court of NSW”. The letter states as follows:

“We observe that by granting the easement, as you have been requested to do now on many occasions, you would suffer no loss or detriment. The track has been in use for many years with your consent. In addition, the track provides a public benefit by granting access to the radio towers maintained and operated by SES and emergency services. These factors will present a persuasive argument to the Court in favour of our clients gaining legal access to their land across your land where no other viable option exists.

In an effort to preserve what our clients consider to be a good relationship with their neighbour, we are instructed to again enclose proposed transfer granting easement for your review and execution. Please sign the document where indicated in front of a competent witness over the age of 18 years and return the original to us.

In the event the original transfer is not signed and returned to us within twenty one (21) days, and in the absence of any reasonable objection from you as to why the easement should not be granted, we are instructed to commence legal proceedings against you without further notice… we give notice to you that we intend to rely on our correspondence of the question of costs.”

2019 – 2020: Further attempts by NSW Telco and the Crawleys to obtain an easement over the Baxter Land

60. On 9 January 2019, on behalf of Mr Baxter, Baker Love Lawyers sent a letter to Turner Freeman Lawyers advising that they were seeking instructions and required copies of prior correspondence.

61. On 10 January 2019, on behalf of NSW Telco, Visionstream sent a letter to Mr Baxter requesting he contact them regarding the access sought over the Copeland Trig Trail and noting that NSW Telco was willing to contribute to his legal costs to formalise the access. Mr Baxter did not respond to this letter.

62. On 8 February 2019, Turner Freeman Lawyers sent a letter to Baker Love Lawyers attaching copies of its prior correspondence with Mr Baxter and setting out its reasons as to why the easement over the Baxter Land ought to be granted to the benefit of the Crawley Land.

63. On 7 March 2019, Mr Chapman, a representative of NSW Telco, attended a meeting with representatives of Visionstream and Mr Baxter on the Baxter Land, during which there was a discussion to the following effect:

Chapman:   [NSW Telco] would like to formalise their access over the track which cuts through your property by entering into an access licence agreement with you. [NSW Telco] will compensate you for their use of the track which cuts through your property.

Baxter:      I reject your request. I do not want third parties traversing my property. I purchased this property for privacy.”

64. On 27 March and 10 April 2019, Turner Freeman Lawyers sent follow up letters to Baker Love Lawyers seeking a response to their letter dated 8 February 2019 and confirmation as to whether they held instructions to accept service on behalf of Mr Baxter.

65. On 10 April 2019, Baker Love Lawyers responded to Turner Freeman Lawyers’ letter dated 8 February 2019 denying that the proposed easement was reasonably necessary. The letter states as follows:

“1.   The creation of the easement is not reasonably necessary for your clients to have legal access to the land as they have access to their land pursuant to an existing easement.

As your client is aware, the reference to the “track that has been used for generations” is not accurate in respect of that part of the proposed easement which travels west from the "road" to Scone Road. That part of the proposed easement was created in opposition to our client’s wishes and has only been created a relatively short time.

…

3.   We are instructed that the gates referred to were not installed at our client's insistence.

4.   As indicated above, that part of the proposed easement referred to in item 1 above has not been in use for generations.

Notwithstanding your client’s views, there are considerable issues regarding loss of amenity, including privacy, in respect of our client’s residential areas on our client’s land.

….

Our client has never consented to the creation of that part of the easement referred to in item 1 above and, as indicated, that part of the easement referred to in item 1 above has not been “used for generations”.

As your client is well aware, your client has legal access to their land.

To enable your client to utilise that legal access, it would be necessary for your client to carry out clearing to enable that access to be used. However, we are instructed that the clearing is not significant and that as your client has a legal access to their property using the existing “road” that it is not reasonable that your client seeks to impose a further access over our client’s property where such access will impact significantly on our client’s use and enjoyment of their property and which is not access which is “reasonably necessary” but is simply more convenient for your client.”

66. Pausing here, it is unclear what is meant by an “existing easement”, which is referred to at item one of Baker Love Lawyers’ letter, as there has not been an easement on title to the benefit of the Crawley Land. I presume it is a reference to the Crown Road and that the author assumed there to be “legal access” from Scone Road to the Crown Road (from Z to M on the Agreed Map). As to the reference in the final paragraph to “clearing to enable that [legal] access to be used”, while again unclear, this may be a reference to clearing a track from Scone Road to the Crown Road (from Z to M) or to clearing a track on the Upper Triangle part of the Crown Road.

67. On 19 September 2019, Turner Freeman Lawyers wrote to Baker Love Lawyers giving notice of an intended site visit to inspect “the access, track and that part of the [Crown Road] which departs from the present access available to our clients”, and seeking confirmation that instructions to accept service were held.

68. On 23 September 2019, Baker Love Lawyers sent Turner Freeman Lawyers a letter stating that they held no instructions from Mr Baxter and suggesting to contact Mr Baxter directly.

69. On 26 September 2019, Turner Freeman Lawyers wrote to Mr Baxter giving notice that arrangements had been made for Mr and Mrs Crawley, their legal representatives and advisers to inspect “the access, track and that part of the [Crown Road] which departs from the present access available to our clients” on 9 November 2019.

70. On 7 November 2019, Mr Baxter responded stating that the arrangements did not suit him as he had family members on the property who he had instructed to inform the police of any trespassers and he viewed it as an invasion of privacy.

71. The next day, Turner Freeman Lawyers responded to Mr Baxter advising that they had no intention to disturb him or his family members, they had contacted Gloucester Police advising them of the site visit and they invited Mr Baxter to reconsider his opposition to the easement. That afternoon, Mr Baxter sent another email stating that he did not give his permission to come onto his land and asserting that “[a]s for the trig trail, that is my land”. Later that afternoon, Turner Freeman Lawyers sent an email to Mr Baxter stating that they did not require his permission to access public land and that the correspondence would be produced on the question of costs.

72. On 9 November 2019, Mr Crawley and his advisors, including Mr Munro, conducted a site visit on the Baxter Land. Photographs taken by Mr Munro during that visit show that the area at which the Crown Road diverts from the Copeland Trig Trail to form the “Upper Triangle” (at around D on the Agreed Map) does not contain a cleared track suitable for vehicle access, with large logs laid in the area and extensive vegetation apparent for a distance of approximately 20 metres. The photographs show densely forested and steeply sloping areas surrounding the graded track that follows the path of the Copeland Trig Trail (between D and just below G).

66. Mr Munro gives evidence that, on this site visit, he did not observe any road or track “connecting the mouth of the Crown Road at the southern boundary of the [Baxter Land] with Scone Road”.

67. On 18 November 2019, Turner Freeman Lawyers sent a letter to Mr Baxter referring to its inspection of “those sections of the track which have been in existence for more than 100 years, the section of track added with your permission, and those parts of the track which depart from the [Crown Road]” on 9 November 2019. The letter states that having seen the “extremely steep terrain and densely forested areas… it is apparent that the track that is in use is the only practical and available access to [Mr Crawley’s] land”. Turner Freeman Lawyers propose a mediation to avoid the need for legal proceedings and state that there “may be a mutually agreeable course able to be adopted if [Mr Baxter was] willing to communicate [his] concerns” and that they intend to rely on their correspondence on the questions of reasonableness and costs. There is no evidence of any response to that letter.

68. In November 2020, Mr and Mrs Crawley provisionally executed a lease to NSW Telco allowing for the commencement of site infrastructure upgrades on the Crawley Land. It was agreed that further leases would be fully executed following NSW Telco securing a legal means of access over the Baxter Land in order to reach the Crawley Land.

69. On 10 November 2020, Mr Chapman sent an email to Mr Baxter regarding NSW Telco’s proposal to enter into a formal access agreement to traverse the Baxter Land to construct and maintain a new PSN facility on the Crawley Land.

70. The following day, Mr Chapman had a telephone conversation with Mr Baxter during which Mr Baxter indicated that he refused to entertain the offer from NSW Telco as he was “frustrated with the situation regarding the road which cuts through [his] property”. Later that day, Mr Chapman had another discussion with Mr Baxter during which Mr Chapman advised Mr Baxter that the roll out was for public safety purposes, NSW Telco’s inability to pass through the Baxter Land was delaying the programme, the Crawley Land was the only location that NSW Telco could deploy the communications site in the immediate area and that access was becoming very critical. Mr Baxter did not agree to the licence agreement at that time and said to Mr Chapman that he would think about helping him out once he had “dealt with the Crawleys”.

71. On 13 November 2020, Turner Freeman Lawyers sent an email to MidCoast Council seeking information as to the Council’s position with respect to forming access between Scone Road and the Crown Road where it meets the western boundary of the Baxter Land (at M). It appears that Turner Freeman Lawyers sent that email by way of follow-up to previous enquiries made by the Crawleys and their advisors in relation to that matter. According to Mr Crawley’s evidence, Rob Langdon, a senior surveyor at MidCoast Council, who had previously reviewed the shared entrance to the Baxter Land, advised him that MidCoast Council would not build additional access from Scone Road to the Crown Road.

72. On 2 December 2020, Robert Scott, a director of infrastructure and engineering services at MidCoast Council, sent an email to Turner Freeman Lawyers in response to its enquiry as to forming access from Scone Road to the point where the Crown Road meets the western boundary of the Baxter Land. In relation to access from the fully constructed alignment of Scone Road to the unformed section of the Crown Road on the Baxter Land, Mr Scott’s email states as follows:

“… The public road reserve of Scone road is unusually wide in this location. As a result there is a substantial lateral distance from the formed public road to the boundary with the crown road.

The lateral distance of the crown road from the formed public road and the level difference suggests that constructing a connecting access road between the public and crown road would be impractical at the least. If it were indeed physically possible the costs would be significant and other risks such as slope instability and safety would have to be overcome for use by a reasonable vehicle, suitable to service an agricultural property.

Council has no plans and would not construct a connection between the existing public road and the unformed crown road. Any construction work would be up to the resident and subject to approval of a S138 Application for works within the road reserve.”

80. Mr Scott’s email also states that: an inspection of the site reveals no evidence of any connection between the formed alignment of Scone Road within the public road reserve and the Crown Road reserve at the corner of the Baxter Land; the determination of whether access is possible is difficult and a detailed survey of the site and understanding of the minimum standard of access is required; the horizontal distance between the two points (which appear to be N and M) is around 150 metres, making the gradient of a straight line between the two points more than 50% which suggests that, at best, connection of the public road to the Crown Road would be impractical to construct; and, in his view, any access constructed in this location would either be severely limited to high capacity four-wheel-drive vehicles or would require extensive earthworks over a considerably longer length resulting in potential slope instability and risks in use.

81. Mr Scott’s email also refers to the Crawley Land being connected to a further network of road reserves to the east consisting of roughly formed trails and extensive unformed sections (which I infer to be a reference to the trails around the Copeland Commons Track), and states:

“The overall distance of this network to Scone Road and topography of this area is likely to mean that establishing formal access via this route is impractical and substantially cost prohibitive.”

2021: Commencement of proceedings, clearing of Z to M Track and further attempts by NSW Telco to gain access to the Baxter Land

82. Mr Crawley commenced these proceedings by Summons filed on 22 March 2021. The summons and affidavits in support were personally served on Mr Baxter on 23 March 2021.

83. On 30 March 2021, Mr Baxter wrote to Turner Freeman Lawyers complaining that the site visit on 9 November 2020 constituted a “blatant trespass” on his land. Turner Freeman Lawyers denied this in an email sent to Mr Baxter later that day.

84. In late March or early April 2021, works were undertaken to clear a track from the juncture of Scone Road (at Z) to the boundary of the Baxter Land close to the commencement of the Crown Road (at M), namely, works were undertaken to clear the Z to M Track. Mr Baxter accepted in cross-examination that he undertook those works (24 June T34.5). It is common ground that Mr Baxter did not have approval from NSW National Parks and Wildlife Service (NPWS) or consent under s 138 of the Roads Act 1993 (NSW) (Roads Act) to undertake those works.

85. The Z to M Track is approximately 665 metres long (from the gate near M to Scone Road), approximately three metres wide in areas and had been widened by Mr Baxter’s works at one point by almost 10 metres on the north‑eastern side and four or five metres on the north‑western side (T10.22–5). It is mostly located within the Copeland Tops State Conservation Area and encroaches on a small part of the Baxter Land by about five metres for a distance of 50 metres (2021 CalCo Survey). It is marked by an orange dashed line on the 2021 CalCo Survey and is labelled as the “Orange Track” on the Ferguson Survey.   

86. Mr Baxter deposes that the “Crown road runs all the way from Scone Road to [Mr Crawley’s] property” and the access point from Scone Road to the Crown Road is a track that has been in use since he purchased the Baxter Land although it had, until recently, some small growth over it (referring to the Z to M Track). He deposes that, since his ownership, a bulldozer was put over part of the track by RMS contractors to improve access to the gravel quarry on the track. He also deposes that this track would offer good access to the Crawley Land as it would support access by Mr Crawley, NSW Telco and other invitees.

87. In cross-examination, Mr Baxter gave evidence that he did not put the track in and “that track was always there” (24 June T30.8–11), that he used an excavator to clear the track and that he did so to make it serviceable after he had received the documents in this case (24 June T32.11–41; 24 June T33.46–50; 24 June T34.5). He accepted that the Crown Road was not marked as extending from the western boundary of the Baxter Land to Scone Road (along the Z to M Track) on the Ferguson Survey or the 2021 CalCo Survey but maintained that the Crown Road was along the track and that he had seen it marked on other maps over the years (24 June T29.11–28). Mr Baxter also said that the Z to M Track might have been pushed through by a logging company when Scone Road did not exist, suggested that Council then took it over, described the track as the only right of way into the property, that if Council say the track is unsafe then he believed it should be back to the Council to make it safe and that Mr Crawley used to use the Z to M Track (24 June T52.14–21).

88. I do not accept Mr Baxter’s assertion that the Crown Road extends from the boundary of his property down to Scone Road along the Z to M Track based on the survey plans and maps in evidence, particularly those referred to at [33] above. In my view, those documents show that the Crown Road ends at the western boundary of the Baxter Land (at about M on the Agreed Map).

89. As to the prior existence of the Z to M Track, the Conservation Map shows the location of a small quarry towards the bottom of the Z to M Track adjacent to Scone Road but no track is marked as extending north from Scone Road (or the quarry) to the boundary of the Baxter Land along the Z to M Track. The aerial satellite photographs of the area from 1967 show that Scone Road and the Copeland Trig Trail traverse the Baxter Land but do not show any track in the area in the nature of the Z to M Track. No other historical title documents, dealing plans, NPWS maps or website extracts in evidence identify or show a track along the route of the Z to M Track.

90. Mr Crawley deposes that, before Mr Baxter bulldozed the area of the Z to M Track, it was not a track but just scrub and trees, he had no knowledge of the RMS ever putting a track in where Mr Baxter had conducted the recent earthworks and that the track is steep and unsuitable for livestock and a loaded truck. Mr Crawley’s evidence that he had no knowledge of the Z to M Track before it was cleared by Mr Baxter is supported by the maps, plans and photographs taken prior to March 2021 in evidence, Mr Munro’s evidence (referred to at [73]), the correspondence from MidCoast Council (at [79]–[80]) and was not challenged in cross-examination, and I accept it.

91. Based on my observations of the Z to M Track at the view and the photographs in evidence which suggest that parts of the track may have existed for some time, I do not find that Mr Baxter created the entirety of the Z to M Track in March 2021. However, based on the totality of the evidence, I consider it likely that prior to March 2021 the track was overgrown, not in regular use and not trafficable for vehicles, that Mr Baxter likely created the track from the bitumen surface of Scone Road (at around Z) by clearing the site vegetation and conducting earthworks, and that he also removed soil grass and black wattle along the track, and so find.  

92. On 28 April 2021, Mr Baxter and his brother, David Baxter, drove a vehicle along the newly cleared Z to M Track and through the locked gate (at about M) to the commencement of the Crown Road. They also drove a vehicle along the Craddocks Creek Route. Exhibited to Mr Baxter’s affidavit are files of dashcam footage taken that day which I have viewed.

93. On 1 May 2021, Mr Crawley, Mr Munro and Mr Crawley’s Counsel undertook a site visit of the area around the Z to M Track. Photographs taken on that visit are also in evidence. Mr Munro deposes that he had not seen any track where the earthworks had been undertaken around the Z to M Track in his prior attendances in the area.

94. At the site visit on 1 May 2021, Mr Munro also walked the length of the Craddocks Creek Route. Photographs taken during this visit show that there is a locked gate at the entrance to the Craddocks Creek Trail from Scone Road and an adjacent sign that states “Authorised Vehicles Only”. Consistent with the dashcam footage exhibited to Mr Baxter’s affidavit, the photographs indicate steep, wet and rutted sections along the trail and areas where there have been landslides and large logs on the trail. The photographs also show an area identified by Mr Munro as an “[a]bandoned and exposed mine shaft adjacent to the trail”.

95. On 18 May 2021, Turner Freeman Lawyers sent a letter to Mr Scott at MidCoast Council referring to the cleared land adjacent to Scone Road (the Z to M Track). The letter states that: the track was recently constructed by a person who Turner Freeman Lawyers presumes to be Mr Baxter; Mr Crawley considers the track to be far too steep where it intersects with Scone Road for it to function as a suitable road for access to his land; Mr Crawley runs a herd of beef cattle on the Crawley Land that must be transported to saleyards in cattle trucks; and other vehicles enter and leave the Crawley Land, such as for purposes of the installation of New South Wales government telecommunications equipment. The letter requests advice as to whether Council would permit the new road constructed by Mr Baxter to continue to remain.

96. On 23 July 2021, Scott Nicholson, a manager of transport assets at MidCoast Council, sent an email to Turner Freeman Lawyers advising that Council is seeking to jointly pursue the matter with NPWS, he intends to send a letter to the owners of the land to ask if they did the works and what approvals they have, and, if no satisfactory response is received, he intends to “block… off the access and allow it to self-rehabilitate”.

97. On 22 September 2021, MidCoast Council sent a letter to Mr Baxter providing him with an opportunity to produce any approvals relied upon to undertake the works around the Z to M Track. The letter notes that if Mr Baxter has no interest in the access and/or no approvals exist, then Council in conjunction with NPWS intended to block the access point after 14 days from the letter.

98. On 9 February 2022, Mr Nicholson wrote to Mr O’Brien referring to the previous correspondence and the access to Scone Road along the Z to M Track. The letter states that NPWS has reaffirmed its position that the access is not approved in the Copeland Top State Conservation Area and must be removed, the track has not been constructed to Council’s standards and there is no record of an application under s 138 of the Roads Act or a grant for works in the road reserve. Notice was given that a joint project with NPWS was being undertaken to block the access and the works would complete on 11 February 2022.

99. That afternoon, Mr O’Brien responded to MidCoast Council by email and referred to the access as forming part of the dispute in these proceedings. The email states that the purpose of the access was to allow Mr Crawley legal access to his property, failing which the alternative was through NPWS Craddocks Creek Trail, and that an experienced local surveyor had been consulted in relation to the access.

100. Later that day, Mr Nicholson sent an email response to Mr O’Brien stating that NPWS had advised that “the access is not approved and does not provide legal access”, NPWS had specifically asked for it to be blocked, and that action would be taken to block the track with compacted soil, which could be removed if directed by the Court.

101. Photographs in evidence indicate that earthworks were undertaken at the entrance from Scone Road, at the start of the Z to M Track, which blocked vehicle access with effect from 11 February 2022.

102. On 17 February and 8 March 2022 respectively, emails were sent to Turner Freeman Lawyers by Mr Nicholson and Coralie De Angelis, a ranger of the Barrington Tops Area NPWS, which confirm that: NPWS have determined that the access from Scone Road along the Z to M Track was not approved in the Copeland Tops State Conservation Area and must be removed; the access was not constructed to Council’s standards; there was no record of any application pursuant to s 138 of the Roads Act or any grant for works in the road reserve; and advance warning was given that the date for the planned and executed work to block access was 11 February 2022.

103. After these proceedings were commenced, there were further communications between Hunt & Hunt Lawyers, on behalf of NSW Telco, and Mr O’Brien, on behalf of Mr Baxter, in relation to NSW Telco’s proposal for an access licence to be granted in its favour over the Baxter Land for the purposes of installing the new PSN infrastructure on the Crawley Land.

104. On 19 April 2021, Mr O’Brien sent an email to Hunt & Hunt Lawyers requesting that a draft access licence be provided, stating that Mr Baxter “will not oppose any access for such important infrastructure” and extending an invitation to NSW Telco to inspect the site and verify access. Mr O’Brien refers to two possible vehicle ways to access the Crawley Land, being the Craddocks Creek Route and the Copeland Trig Trail, and asserts that both roads have vehicle access. He refers to some changes to the Crown Road and an expectation that any licence agreement reached with NSW Telco will be confidential.

105. On 29 April 2021, Hunt & Hunt Lawyers sent an email to Mr O’Brien attaching a draft access licence agreement for Mr Baxter’s consideration.

106. On 10 May 2021, Mr O’Brien sent an email to Hunt & Hunt Lawyers advising that Mr Baxter had no objection to a representative of NSW Telco inspecting the Baxter Land on either Tuesday or Wednesday of that week and that the access proposed, in order of preference, is the Craddocks Creek Route and the Copeland Trig Trail. The email refers to “a short track that links Scone Road to the Crown Road which has been cleaned up recently”, which I infer is a reference to the cleared Z to M Track (referred to at [84]–[86] above). He also refers to a “northern deviation” where the road deviates from the Crown Road over the Baxter Land as being “done by the neighbours Mr Crawley some time ago”. Pausing there, for the reasons set out at [38], I accept Mr Crawley’s evidence that he did not construct the northern deviation from the Crown Road.

107. In his email, Mr O’Brien also asks whether NSW Telco has development consent or plans for the infrastructure, and requests a copy of those documents. By email dated 15 September 2021, Hunt & Hunt Lawyers advise Mr O’Brien that development consent is not required as the works to be undertaken are classified as a “development permissible without consent” pursuant to cl 114 of the State Environmental Planning Policy (Infrastructure) 2007 (NSW). Attached to the email is a copy of the “for construction” drawings for the proposed work.

108. On 21 September 2021, Hunt & Hunt Lawyers sent an email to Mr O’Brien stating that: it is NSW Telco’s preference to utilise the New Track Route as it is the most direct and suitable access route to the proposed facility; NSW Telco has received an email from NPWS (which was attached) in relation to the Craddocks Creek Trail which advised that NPWS could only license the use of trails to access telecommunication facilities if it was not feasible to use the existing means of access (which NPWS understood existed via the Copeland Trig Trail through the Baxter Land) and, in any event, the trails were not fit for use by NSW Telco because the bridges and culverts on the trails may not be capable of supporting heavy machinery, parts of the trail were steep with sharp corners and unlikely to be accessible by the proposed machinery, there was an old mine shaft that partly ran under the trail which would potentially make it unsafe and there were potential Aboriginal cultural heritage impacts as well as a threatened species impact; and NSW Telco held concerns about the legality of the road recently cleared up (the Z to M Track).

82. On 5 October 2021, Mr O’Brien sent a letter to Hunt & Hunt Lawyers with a request for further information, particularly in relation to the urgent upgrade works to be carried out by NSW Telco, past access to infrastructure on the Crawley Land and the proposed access via the Craddocks Creek Route. The email refers to information in the letter from Mr Duncan on behalf of NSW Telco dated 10 May 2018 (referred to at [52] above) and states in the last substantive paragraph:

“Our clients Feel (sic) there is some underhanded dealing that relate to the Upgrade and Access that has resulted in a range of issues. We further reiterate that any communication relating to the upgrade and access by the Telco Authority remains confidential between your client and ours.”

110. On 9 November 2021, Hunt & Hunt Lawyers sent an email to Mr O’Brien responding as follows: the recent requests for access concern the installation of a temporary solution comprising of ground equipment only and utilising the existing structures and antennas at the Crawley Land to provide support to critical frontline workers during the fire season (Temporary Solution); without access to the Baxter Land, the Temporary Solution would be flown in by helicopter; NSW Telco’s preference would be to utilise the Baxter Land for access by vehicle; they have not received any comments on the draft licence agreement; and they seek confirmation that Mr Baxter does not object to NSW Telco’s contractors traversing the Baxter Land via the New Track Route to install the Temporary Solution.

111. On 26 November 2021, Mr O’Brien sent an email to Hunt & Hunt Lawyers seeking a complete reply to his letter dated 5 October 2021 (referred to at [109] above) before seeking further instructions from Mr Baxter.

112. As events transpired, on 15 December 2021, NSW Telco commenced deployment of the Temporary Solution on the Crawley Land via helicopter. Mr Chapman says that this was done based on the information NSW Telco and Hunt & Hunt Lawyers had provided to Mr O’Brien regarding the alternative access routes on 21 September and 9 November 2021 together with the fact that the draft access licence agreement had not been addressed since issued to Mr O’Brien on 29 April 2021. Mr Chapman deposes that deployment via helicopter was at great cost.

113. In cross-examination, Mr Chapman described the works that NSW Telco had undertaken in December 2021 as a “band-aid solution” out of desperation to get a service from the Crawley Land (T109.14–5). He gives evidence that the “band-aid solution” was connected to the existing infrastructure on the Crawley Land, NSW Telco proposed to install new infrastructure and, once the new infrastructure was erected and tested, the existing infrastructure on the Crawley Land would become redundant and be removed from the site (T109.14; T111.26–9).

114. On 9 March 2022, Hunt & Hunt Lawyers sent an email to Mr O’Brien with further responses to his letter dated 5 October 2021. The email also notes that the Temporary Solution was helicoptered onto the Crawley Land and seeks a response to the proposed access licence agreement.

115. On 16 March 2022, in response to a request from Mr O’Brien for a Microsoft Word version of the draft access licence agreement and advice that he had instructions that Mr Baxter would enter into the agreement, Hunt & Hunt Lawyers sent an email to Mr O’Brien enclosing a copy of the draft access licence agreement in Microsoft Word and PDF formats.

116. On 21 and 29 March 2022, Hunt & Hunt Lawyers sent emails to Mr O’Brien seeking an update as to the status of the access agreement.

117. On 1 April 2022, Mr O’Brien sent an email to Hunt & Hunt Lawyers advising that Mr Baxter remained opposed to the installation of the tower on the Crawley Land and declined to enter into an access agreement with NSW Telco.

118. Mr Baxter deposes that he was in the process of agreeing to a licence that would allow NSW Telco to use the Baxter Land as access to the area to which they wished to travel but he formed the view that Mr Crawley had influenced them into considering only one access across the Baxter Land, rather than considering the Craddocks Creek Trail or the Crown Road.

April 2022: The view, removal and reinstatement of soil blockage across the Z to M Track, and clearing of another track

119. On 6 April 2022, the first day of the hearing, the Court conducted a view of the relevant lands and tracks in issue in these proceedings. During the view, Mr Munro took photographs which are Annexures A, E and F to his affidavit dated 7 April 2022 (Munro Photographs).

120. The view commenced at the entrance to the Craddocks Creek Trail from Scone Road (at about X on the Agreed Map) where I observed a padlocked gate and the sign described at [94] above. According to the Conservation Map, this is a “NPWS Gate”; Mr Crawley does not have a key.

121. This part of the view was carried out on foot; we walked along Craddocks Creek Trail to about 200 metres east of Y. The track was not graded or even. It was a “two-track track” that had dense forest on the sides, grass and vegetation on the hump in the middle of the two tracks, and the tracks were deeply rutted in places (Munro Photographs at Annexure A). There were steep hills and declines at the sides of some parts of the track.

122. At one point, a small boulder was identified on the track (which does not appear in the parties’ photographic or video evidence) that would likely have interfered with the path of a vehicle driving along the track. It was accepted by Mr Baxter’s Counsel that there was “always going to be a risk that rocks could fall from higher positions and find their way onto a track” (T8.2–4).

123. The view was conducted after recent heavy rains and the conditions on the track were muddy and underwater in places. I observed some areas where the track was underwater for approximately 1.5 to two meters long and four inches deep.

124. I also observed a log bridge along the track (at about Y), noting the moss-covered logs on the southern side of the bridge.

125. The next part of the view started at Scone Road, at the entrance of the track that had been cleared by Mr Baxter (at Z).

126. A large deposit of earth had been moved to the northern side of the track, making it appear that the track was accessible by vehicle from Scone Road (Munro Photographs at Annexure E). Mr Baxter accepted in cross-examination that he removed the mounds of soil that had been jointly placed by MidCoast Council and NPWS as a soil blockage at the start of the Z to M Track (as described at [98]–[102] above) before the view (24 June T46.15).

127. The view proceeded to approximately halfway along the Z to M Track. There was a steep incline at the start of the track, it appeared to have been recently graded and was of a smooth clay surface. I observed vegetation and earth mounds on the sides of the track, some of which appeared to have been pushed over from the track. It appeared that parts of the track had been widened.

128. The next part of the view was conducted from the entrance at Scone Road to the Baxter Land (at A). I observed the gate installed by Mr Crawley. According to the 2021 CalCo Survey, the gate is located just beyond the unfenced western boundary of the Baxter Land.

129. I observed five padlocks on the gate. I was informed that: one padlock was installed by Mr Crawley; four padlocks are owned by government agencies, namely, the RFS, NPWS, NSW Telco and the SES; the padlocks are arranged such that unlocking one padlock will allow the chain to be removed and the gate to be opened; and Mr Baxter was given a key to the padlock installed by Mr Crawley.

130. We then travelled along the New Track, which I observed was a smooth and even graded gravel track, to C on the Agreed Map. We travelled along the path of the Copeland Trig Trail and Crown Road to D on the Agreed Map. At this point (at approximately the start of the Upper Triangle), I observed what appeared to be another dirt track surrounded by dense forest that headed in a northerly direction.

131. In cross-examination, Mr Baxter agreed he had put a “tractor through there” to forge the track that we had observed at this spot, said he did not make the road as it had always been there, accepted that the track went for a “couple of hundred metres” and, in relation to the work he did with the tractor, said he terminated about 200 metres in from the existing road (24 June T47.15–48.21).

132. Mr Munro deposes that he had not seen any road or track in that location on his prior visits. On the day of the site visit, Mr Munro drove along the track with global positioning software (GPS). His evidence, which I accept, indicates that the cleared track diverges downhill from the GPS path of the Crown Road (the Upper Triangle section) and ends in a deeply forested area (Munro Photographs at Annexure F).

133. We travelled along the Copeland Trig Trail graded track (from X to G) and onto the Crawley Land. While on the Crawley Land, I observed the Crawley Buildings and Towers marked on the Agreed Map and the point where the Crawley’s Trail meets the southern boundary of the Crawley Land (at about L).

134. The next part of the view was conducted after travelling by vehicle to the area where the Crown Road meets the western boundary of the Baxter Land (at M). There I observed another locked gate which appears at the northern end of the “Orange Track” identified on the Ferguson Survey. I could observe the track going south from M to Z which we had earlier walked up from Scone Road (as referred to at [125]–[127] above). It was agreed that the state of the Z to M Track was generally consistent along the track, no gravel could be observed on the track and it appeared to have been recently formed.

135. We then travelled by vehicle up the Pre-2016 Route past Mr Baxter’s cottages (along the “Green Track” on the 2021 CalCo Survey and the Ferguson Survey) back to A on the Agreed Map. The track appeared to be formed but was less smooth and direct when compared to the New Track. Based on the 2021 CalCo Survey, the Ferguson Survey and the Agreed Map, parts of the “Green Track” (from A to M) are located outside of the Baxter Land and within the Copeland Tops State Conservation Area.

136. Later on 6 April 2022, after the view was finished, the soil blockage that had been installed by MidCoast Council and NPWS at the start of the Z to M Track was reinstated.

137. Mr Munro gives evidence that, shortly after the site visit, he drove to the junction of the Copeland Trig Trail and the New Track where he heard the sound of machinery coming from the direction of Mr Baxter’s cottage and saw an excavator moving past the cottage and heading towards the area marked M on the Agreed Map. Mr Munro deposes that, at approximately 2.55pm, he saw that excavator travelling down the Z to M Track and observed the operator of the excavator moving the mound of soil back onto the track where it had been placed previously. In cross-examination, Mr Baxter accepted that he was the one who put the earth mound back in place (24 June T46.9–26).

September – October 2022: Upgrade works to Craddocks Creek Trail and enquiries with NPWS

138. The following is a summary of the evidence adduced by the parties pursuant to leave granted on 2 November 2022.

139. On about 17 August 2022, Mr Baxter became aware that works had been undertaken by NPWS to the Craddocks Creek Trail. It appears from photographs he took that day that parts of the Craddocks Creek Trail were upgraded to form a compacted and smooth access path, in contrast to the two-wheel-drive track observed at the view. Mr Baxter says he was advised by a contractor for NPWS that the upgrade was undertaken so that fire trucks could access the Craddocks Creek Trail. He contends that it now appears that the upgrades provide for the possibility for vehicles to use and access the Craddocks Creek Route safely and says it is trafficable.

140. On 12 September 2022, Mr Baxter walked the Craddocks Creek Route and observed fresh tyre tracks coming from the direction of the Crawley Land and travelling down to the log bridge crossing. A photograph depicting those tracks is in evidence.

141. On 24 September 2022, Bernard Finlay, who has assisted Mr Crawley on his farm for over 15 years, walked along the Craddocks Creek Route. Mr Finlay deposes that repair works had been undertaken to sections of the Craddocks Creek Trail, which he described as earthworks, the laying of gravel to resurface eroded sections of the track and the installation of netting and earth-fill where the track had been washed and slipped away. Mr Finlay estimates that approximately 30% of the length of the Craddocks Creek Route, which is of an approximate total length of 2.9 kilometres, was the subject of recent track repairs. Photographs taken by Mr Finlay on 24 September 2022 of the upgrade works are also in evidence.

142. Mr Finlay deposes that he recognised the tyre tracks depicted in the photograph as being caused by a side-by-side all-terrain vehicle (ATV) and says that he has seen NPWS staff driving through the Crawley Land towards the Trig Station in such a vehicle. Mr Crawley owns an unregistered side-by-side ATV but says that the tracks were not made by him nor any other person driving his vehicle. Based on this evidence, I accept that the tracks were not made by Mr Crawley or by any other person driving his side-by-side ATV on his behalf.

143. On 27 September 2022, Mr Munro sent an email to Ms De Angelis, Anthony Signor, an area manager for the Barrington Tops Area NPWS, and Peter Katsamangos, a ranger of the Barrington Tops Area NPWS, requesting information about the upgrade works and the possibility of public vehicle access along the Craddocks Creek Trail.

144. On 2 October 2022, Mr Signor sent an email to Mr Munro attaching a letter that responded to Mr Munro’s request for information and included a copy of the Conservation Map. The letter states that while repairs had recently been completed on Craddocks Creek Trail for park management and incident response purposes, the trail remained classified as a park management trail and “Cat.9 fire trail”, and remained unsuitable for public vehicle access, heavy vehicles or private property access. The letter continues as follows:

“Craddocks Creek Trail is classed as a "Cat.9" fire trail on our fire trail register, meaning it is suitable for use by (typically Landcruiser-based) “Category 9” firefighting vehicles.

The area in question has numerous mapped and unmapped historic mine shafts and public vehicle access would pose a potential risk to these heritage items and public safety.

The bridges and culverts, steep sections and sharp corners on these trails may not be capable of supporting cattle trucks and farm machinery.

There are known and potentially unmapped Aboriginal cultural and historic heritage sites in the area.

There are threatened species and their habitat in the area.”

145. In response to specific questions raised in Mr Munro’s email, Mr Signor’s letter also advises as follows:

1. there was significant land slip on the Craddocks Creek Trail from recent extreme weather events which required remediation. The remediation works involved scraping clean the road surface and spreading gravel on the steep slippery section from the log bridge to improve traction in wet conditions. The works commenced in early-August 2022 and, as of 2 October 2022, had concluded;

2. in accordance with the Copeland Tops State Conservation Area Plan of Management (CTSCA PoM), the Craddocks Creek Trail is for park management purposes and not public vehicle access. No part of the Craddocks Creek Trail is open to the public for vehicle access and a key was not given to Mr Crawley to provide him with vehicle access through the locked gate to the Craddocks Creek Trail;

3. the Craddocks Creek Trail is unsuitable for access to adjoining properties and unsuitable for heavy vehicles (as set out at [144] above);

4. the land over which Craddocks Creek Trail passes is subject to conservation principles according to cl 2.2 of the CTSCA PoM which requires the area to be managed in accordance with s 30G of the NPW Act;

5. the land has been declared an “Asset of Intergenerational Significance” under the NPW Act as it protects the population of the threatened species “Craven Grey Box”; and

6. the recent works undertaken have not changed NPWS’ position with respect to the refusal to allow Mr Crawley and his invitees (including NSW Telco and any person seeking access to the Crawley Land) the ability to use Craddocks Creek Trail as a means of regular vehicle access to the Crawley Land.

Use of Crawley Land for camping

146. Brian Kilby is the managing director of Barrington Outdoor Education which is the educational arm of Barrington Outdoor Adventure Centre (BOAC). BOAC provides camps and excursions for school children throughout New South Wales.

147. Mr Kilby gives evidence that BOAC has been using the Crawley Land for camping trips for over 15 years and refers to the area used as “Crawley’s Camp”.

148. Mr Kilby deposes that BOAC offers a two day programme to schools during which, on the first day, the children walk from the Copeland Commons Track to Crawley’s Camp and, on the second day, they walk down the steps in Barrington. He describes the terrain as very steep and challenging.

149. Mr Kilby also gives evidence that one or two four-wheel-drive vehicles, and sometimes one or two 21-seater buses, are used to deliver supplies to or collect children from Crawley’s Camp. He deposes that two access tracks have been used for those vehicles which he describes as Crawley’s Trail and the Craddocks Creek Trail.

150. Mr Kilby describes Crawley’s Trail as rough, with water crossings, difficult to navigate, only accessible to capable four-wheel-drive vehicles and not always passable in wet weather in any vehicle. He says that he holds specific permission from NPWS to use Crawley’s Trail with a four-wheel-drive vehicle. He says that BOAC do not permit inexperienced staff to drive on Crawley’s Trail and the track is not accessible by bus.

151. Mr Kilby describes Craddocks Creek Trail as the road that passes over the Baxter Land and the preferred means of access to Crawley’s Camp as it is accessible in all weather conditions to their buses and other two-wheel-drive vehicles and is much easier to navigate.

152. Mr Baxter submits that the evidence of Mr Kilby is wholly irrelevant as his evidence that the Craddocks Creek Trail passes over the Baxter Land is incorrect as the trail does not cross over that property. I am not persuaded by that submission. Based on Mr Kilby’s descriptions of the navigability of Crawley’s Trail and the Craddocks Creek Trail, his assertion that one of the trails passes over the Baxter Land, the photographs and dashcash footage in evidence, my own observations at the view and Mr Crawley’s evidence in cross-examination to the effect that Mr Kilby had used the tracks across the Baxter Land to access the Crawley Land for years (T131.22–132.32), I consider it likely that Mr Kilby mistakenly referred to the Copeland Trig Trail as the Craddocks Creek Trail and have read his evidence on that basis.

Assessment of Mr Crawley’s and Mr Baxter’s evidence

153. The main factual dispute raised by the evidence of Mr Crawley and Mr Baxter is whether Mr Baxter requested Mr Crawley to construct the New Track.

154. Mr Crawley gives evidence that, in around early 2016, Mr Baxter asked him not to use the part of the Pre-2016 Route which ran past his cottage (from A to M on the Agreed Map).

155. Mr Crawley deposes as follows:

“Mr Baxter said to me, in words to the effect of, “I don't want you using this track anymore because I am going to rent my cottage out”. Mr Baxter was not aggressive or upset and we had a good neighbourly relationship at that time. It was not uncommon for us to talk when we saw each other in the paddock. I said to Mr Baxter, in words to the effect of, “Well if you don't want me driving on this track anymore, where do you want me to go?”. Mr Baxter led me down to an old log dump approximately 200m from his cottage. He kicked the ground and said to me, “Just here, but you might find it hard to get through it”. The ground he was kicking was gravel and blue metal stone. There was a track that led in to the log dump from the front gate that was partially over grown. Mr Baxter pointed in an Easterly direction and said, “You should get a level straight through there around to the quarry”. I knew what Mr Baxter was referring to as I had seen where Mr Baxter had been digging gravel out of a small quarry on the other side of the hill, East of the main gate and close to the Copeland Trig Trail. Mr Baxter said, “I could put it in at my leisure, but my tractor is broken”. I said, “No worries, Jeff will soon do that”. Mr Crawley was referring to his brother, Jeffery Crawley, who worked making roads through the Barrington Tops for the Forestry Commission for about 25 years and was an experienced bulldozer operator.”

199. I am also satisfied that the current condition of the Craddocks Creek Trail is unsuitable for vehicle access to the Crawley Land based on the dashcam footage exhibited to Mr Baxter’s affidavit dated 21 May 2021, the observations at the view, the evidence of Mr Kilby and Mr Finlay and the contents of the letter from Mr Signor at [144]–[145] above. The track is eroded in places, is vulnerable to falling trees, rock falls and ponding of water, it crosses over a wooden bridge which would not withstand heavy vehicles or machinery, it contains sharp bends and steep inclines, and it approaches an abandoned mineshaft.

200. Even if further works were undertaken to upgrade the track, similar to those performed by NPWS which Mr Baxter observed in August 2022, the surrounding terrain and features of the track, such as its length, gradients and path, lead me to conclude that there are considerable advantages to obtaining the easement sought over the Baxter Land rather than seeking to develop the Craddocks Creek Route as an alternative access by way of applications under ss 153C and 188D of the NPW Act.

201. I am also unpersuaded by Mr Baxter’s submission that it is more likely than not that Mr Crawley has not been excluded from use of the Craddocks Creek Route as an alternative access path on the basis of the requirements under the relevant legislation. I am not persuaded that any applications under that legislation would, in the circumstances of this case, be likely to be approved.

202. Section 153C(1) of the NPW Act gives the Minister the power to grant an easement over reserved land, in this case the Copeland Tops State Conservation Area, on such terms as the Minister thinks fit provided that the applicant’s land is completely or partially surrounded by reserved land and one of the following situations are established: the Minister is satisfied that it is not practical for the applicant to obtain an alternative means of access because it is not legally or physically available; the Minister is satisfied that it is practical for the applicant to obtain an alternative means of access but considers that access through the Copeland Tops State Conservation Area will have a lesser environmental impact; or the Minister is satisfied that it is practical for the applicant to obtain an alternative means of access but considers that access through the Copeland Tops State Conservation Area will assist in more efficient management of the reserved land and will have no greater environmental impact than the alternative means of access.

203. Relevantly, the Minister must not grant an easement unless satisfied that it will not have a significant impact on the environment of the area adjacent to the easement and it is consistent with the relevant plan of management: NPW Act, s 153C(2).

204. Mr Crawley may be able to satisfy the threshold requirement set out at s 153C(1)(a) of NPW Act as the Crawley Land directly adjoins land reserved under the NPW Act. However, given that the Craddocks Creek Trail passes through an area that contains known and potentially unmapped Aboriginal cultural and historic heritage sites, threatened species and has been declared as part of an “Asset of Intergenerational Significance” under the NPW Act, and there is an existing means of access through the Baxter Land, the prospect of the Minister granting such an easement seems unlikely and highly speculative.

205. Under s 188D of the NPW Act, the Secretary of the Department of Planning and Environment may authorise work to be undertaken for the maintenance or improvement of an access road but such works may only be carried out to enable the access road to continue to be used for the purpose for which the road was used before the land was vested in the Minister. The difficulty with Mr Baxter’s reliance on this provision is that there is no evidence that the Craddocks Creek Trail was used to access the Crawley Land before the land was vested in the Minister. Mr Crawley’s evidence is that he, his family and his invitees have used the Copeland Trig Trail for access to the Crawley Land for as long as he can remember, which was not denied by Mr Baxter. To the extent that Mr Kilby has used the trail for access, his evidence is that under NPWS’ licensing system he held specific permission as a commercial tour operator to use four-wheel-drive vehicles.

206. As to the Z to M Track, the evidence establishes that Mr Crawley (and Mr Baxter) does not have a legal right to use that track as an access path to the Crown Road. Access via the track, which is located within the Copeland Tops State Conservation Area, has not been approved by NPWS, has not been constructed to Council’s standards nor pursuant to an application under s 138 of the Roads Act or a grant for works in respect of the road reserve at the Scone Road entrance. As a result, access to the track from Scone Road has been blocked by NPWS and MidCoast Council. Mr Baxter’s works to clear the track to render it “serviceable” (as he described in cross-examination) and to later move and then reinstate the soil blockage installed by MidCoast Council and NPWS were not authorised.

207. I am persuaded by Mr Bowden’s evidence that the Z to M Track in its current condition is not suitable for vehicle access to the Crawley Land, particularly for large vehicles and farming equipment, due to its drainage issues, the steep gradients of up to 22%, the large dip at the entrance to the track at Scone Road (that was apparent at the view and from the dashcam footage) and the fact that the access and driveway does not align with the minimum standards prescribed by Council, as described in the letters from MidCoast Council to Mr Baxter and his solicitor dated 22 September 2021 and 9 February 2022 (see [97]–[98] above).

208. I reject the submission that the Court should put no weight on Mr Bowden’s expression of opinion as he gives no estimate of the cost of the works required. An evaluation of the alternative means of access need not involve a precise assessment of the respective advantages and disadvantages, or estimates of the costs involved in developing any such alternative. Based on Mr Bowden’s evidence that the works would require at least the installation of drainage pipes and gravel works at “considerable expense”, the likelihood of works being required to align the track “driveway” to Council standards and the fact that Mr Crawley would be required to make multiple applications and obtain various approvals to develop the Z to M Track, it is to be expected that the costs to Mr Crawley would be significant. This is particularly so given the works would likely require approval under s 138 of the Roads Act, may require approval under s 188D of the NPW Act and would also require an easement from NPWS pursuant to s 153C of the NPW Act and an easement from Mr Baxter in relation to that part of the track that encroaches on his land.

209. For similar reasons to those set out at [225]–[226] above, I am also inclined to the view that the prospects of success of an application for NPWS to grant an easement or upgrade the track would be low and that position would similarly hold in respect of an application under s 138 of the Roads Act. This is particularly as there is an existing means of access to the Crawley Land through the Baxter Land that I have found was constructed at the request of Mr Baxter, there is no evidence that the Z to M Track was used by Mr Crawley or others to access the Crawley Land prior to the Copeland Tops State Conservation Area vesting in the Minister and the correspondence from MidCoast Council indicates their concerns and those of NPWS regarding access to the track and any construction of access to the south of the Baxter Land from Scone Road to the Crown Road, which they say would be impractical to construct.

210. By comparison, in my view, there are considerable advantages to granting an easement over the New Track Route. The New Track Route is an established and effective means of vehicle access between Scone Road and the Crawley Land that can be used with no apparent environmental damage or expense other than, perhaps, the costs involved in maintaining the track and keeping it free from weeds and obstructions. The New Track does not take up a considerable area of the Baxter Land; it is 310 metres long and four metres wide and passes over less of the Baxter Land than the Pre-2016 Route that ran directly past Mr Baxter’s cottage.

211. For all of these reasons, I am not satisfied that developing the Craddocks Creek Trail or the Z to M Track as alternative means of vehicle access between Scone Road and the Crawley Land are reasonably viable options or substantially preferable to imposing an easement along the New Track Route.

212. In cross-examination, Mr Baxter gave evidence about a desire for privacy and wanting to create a “decent driveway” up to his house from the start of the New Track, close to the gate installed by Mr Crawley. However, he did not advance any cogent reason why he could not access the driveway from the New Track or make arrangements to adjust the gate (noting that it lies just outside the boundary of the Baxter Land). In those circumstances and particularly having regard to the historical use of the Pre-2016 Route and the current use of the New Track since August 2016, in my view, the presence of the easement should not restrict the extent to which the Baxter Land can be utilised other than the area of the easement itself, the impacts of which have been reflected in the valuation exercise undertaken by Mr Hood. It follows that I am satisfied that the proposed easement would not have any significant adverse impacts upon the Baxter Land, accepting that the imposition of the easement entails an interference with Mr Baxter’s proprietary rights and that this is an order that should not be imposed lightly.

213. I accept that the Pre-2016 Route is a feasible alternative access route to the proposed easement. However, the existence of two feasible courses does not render one of them to be not reasonably necessary: Shi v Abi-K Pty Ltd (2014) 87 NSWLR 568; [2014] NSWCA 293 (Shi v Abi-K) at [94], per Basten JA (Barrett and Ward JJA agreeing).

214. In any event, in the context where I have found that Mr Baxter requested Mr Crawley to construct the New Track, I am satisfied that the easement sought along the New Track Route is reasonably necessary for the continued use and development of the Crawley Land and is to be preferred to an easement in the nature of the Pre-2016 Route.

215. I also accept that, historically, access to the Baxter Land has been provided without evidence of any dispute or threat that such access would be withdrawn. However, the requirement of reasonable necessity is to be decided in light of the circumstances that exist at the time the application is being considered, which encompasses the fact that the parties have been in dispute about these matters for some years.

216. Having considered all the circumstances of the case, I am satisfied that Mr Crawley’s proposed easement is reasonably necessary for the effective use or development of his land.

Is the use of the Crawley Land inconsistent with the public interest: s 88K(2)(a)?

239. The focus of s 88K(2)(a) of the Conveyancing Act is the use of the Crawley Land, being the land having the benefit of the proposed easement. The Court must be satisfied that the use of that land will not be inconsistent with the public interest: City of Canterbury v Saad (2013) 195 LGERA 329; [2013] NSWCA 251 at [48], cited with approval in Weissflog at [74].

240. Mr Baxter does not contend that the use of the Crawley Land will be inconsistent with the public interest (24 June T71.13–21; T256.32–5).

241. In my view, there is no evidence that suggests that the use of the Crawley Land with the easement would be contrary to the public interest. The easement forms part of a solution that is required for reliable and effective access to the public road system and it enables the Crawley Land to continue to be used for the farming purposes it has been used in the past. The public interest is also served by the Crawley Land being used for purposes relating to the installation and maintenance of emergency services telecommunications infrastructure and camping expeditions. I am satisfied that the requirement of s 88K(2)(a) of the Conveyancing Act has been met.

Can Mr Baxter be adequately compensated: s 88K(2)(b)?

242. The question of whether Mr Baxter can be adequately compensated requires the Court to focus on whether he will suffer any loss or other disadvantage from the imposition of the proposed easement. If he will, and he cannot be compensated, then no easement can be granted: Moorebank Recyclers v Tanlane at [233].

243. Mr Baxter does not dispute that he can be adequately compensated for any loss or other disadvantage that will arise from the imposition of the easement (24 June T71.12–3; T256.37–45).

244. Based on the valuation evidence from Mr Hood, I am satisfied that Mr Baxter can be adequately compensated for any loss or disadvantage that will arise from the imposition of the easement. Mr Hood identifies the monetary compensation that could be provided for the loss, blot of title, disturbance and inconvenience. I deal with the quantum of compensation that should be paid later in these reasons.

Have all reasonable attempts been made: s 88K(2)(c)?

245. The principles applicable to s 88K(2)(c) of the Conveyancing Act are summarised in Rainbowforce v Skyton by Preston CJ of the NSW Land and Environment Court at [128]–[131]:

“The easement referred to in s 88K(2)(c) is the easement the applicant has applied to the court to impose. An easement having the same effect as that easement can be in respect of the same land but is not limited to that land; it can also be an easement over other land having the same effect as the easement over the land the subject of the application.

Reasonableness is a matter of degree and the relative disadvantages, convenience and costs of the alternative easements are relevant considerations.

…

In order for an applicant for an order to make all reasonable attempts to obtain an easement:

(a)      the applicant for the order must make an initial attempt to obtain the easement by negotiation with the person affected and some monetary offer should be made;

(b)      the applicant for the order should sufficiently inform the person affected of what is being sought and provide for the person affected an opportunity to consider his or her position and requirements in relation thereto

(c)      the applicant for the order is not required to continue to negotiate with a person affected by making more and more concessions until consensus is reached to the satisfaction of the person affected; and

(d)      the whole of the circumstances are to be considered from an objective point of view; once it appears from an objective point of view that it is extremely unlikely that further negotiations will produce a consensus within the reasonably foreseeable future, it may be concluded that all reasonable attempts have been made to obtain the easement.” [citations omitted]

246. The assessment of all reasonable attempts is to be made at the time the Court is considering the application: Studholme v Rawson [2020] NSWCA 76 at [83] (Studholme v Rawson); and The Owners – Strata Plan 85044 v Murrell; Murrell v The Owners – Strata Plan 85044 (2020) 19 BPR 40,575; [2020] NSWSC 20 at [478].

247. Mr Baxter accepts that Mr Crawley has made all reasonable attempts to secure the easement on the Baxter Land (T256.5–16). I am also satisfied of that matter.

248. The correspondence from Turner Freeman Lawyers to Mr Baxter in 2016, 2018 and 2019 demonstrates that Mr Crawley made various attempts to obtain the easement over the New Track Route over the Baxter Land prior to commencing these proceedings, including making a without prejudice offer to pay Mr Baxter money for the grant of the easement (see, for example, CB3222–4) and attending a mediation (which was refused), and that his attempts to obtain that easement were unsuccessful.

249. Mr Baxter submits that Mr Crawley has not discharged his onus in respect of making all reasonable attempts to obtain an easement having the same effect as that which is sought in these proceedings by reason of his failure to make applications under ss 153C and 188D of the NPW Act and s 138 of the Roads Act in relation to the Craddocks Creek Option and the Z to M Track.

250. Mr Baxter relies on the evidence of Mr Crawley and Mr Munro to the effect that no application was made under s 138 of the Roads Act concerning the “road” along the Z to M Track nor any application for an easement or licence under s 153C of the NPW Act in relation to the Craddocks Creek Route. He submits that by failing to make an application under s 153C of the NPW Act, Mr Crawley has not made all reasonable attempts to obtain an easement having the same effect by use of the alternative methods of access to the Crawley Land in the context where he says the evidence indicates that Mr Kilby uses the same trails to access the Crawley Land.

251. Mr Crawley submits that he did not need to make those applications and prove they were refused in order to satisfy the Court that he has made all reasonable attempts to obtain an easement. He points to the speculative outcome of any such application, referring to the criteria that needs to be satisfied under s 153C of the NPW Act and the lack of realistic prospects of success of any application under s 138 of the Roads Act having regard to the views expressed by MidCoast Council in December 2020 (as set out in the letter at [79] above).

252. It is common ground that no formal applications were made of the type referred to by Mr Baxter. This was conceded at the hearing and confirmed by Mr Munro in cross-examination (T145.30–42). However, as Mr Munro explained at the hearing, while no formal applications were lodged, there were discussions held with NPWS staff and written communications (some of which are set out above) regarding whether or not access would be permitted to Mr Crawley to use Crawley’s Trail and the Craddocks Creek Trail as access to the Crawley Land, and that he understood from his dealings with MidCoast Council that that they had no plans to and would not construct a connection between Scone Road at Z (at the start of the Z to M Track) (140.5–10).

253. In a context where I have found that the Z to M Track and the Craddocks Creek Route are not currently viable alternative access paths, where there is a low likelihood of any required application succeeding and there are considerable advantages to granting an easement over the New Track Route rather than developing the alternative paths advanced by Mr Baxter having regard to the comparative topography, terrain and costs involved, I do not accept Mr Baxter’s submission that Mr Crawley was obliged to lodge formal applications with the relevant authorities to satisfy the requirements under s 88K(2)(c) of the Conveyancing Act. Mr Crawley may satisfy the requirement to make all reasonable attempts to obtain an easement having the same effect as the proposed easement where the alternative means of access proposed suffers from manifest or substantial disadvantages, as I have found that they do in this case: Property Partnerships Pacific Pty Ltd v The Owners of Strata Plan 58482 [2006] NSWLEC 709 at [56]–[57].

254. The enquiries made on Mr Crawley’s behalf with the relevant authorities were not perfunctory and the issues identified with the alternative access paths satisfy me that Mr Crawley was not required to pursue formal applications as part of his reasonable attempts to obtain an easement having the same effect. The statute does not require all attempts to obtain an easement to have been exhausted, just those that are reasonable having regard to the relative disadvantages, convenience and costs of the available alternatives.

255. As to Mr Baxter’s reliance on the evidence of Mr Kilby, in my view, this is misplaced given my finding that Mr Kilby has been using the Copeland Trig Trail (at [152] above) and given Mr Kilby’s evidence that he has a permit from NPWS that enables him to use Crawley’s Trail with a four-wheel-drive vehicle (as described at [150] above), which would not be suitable for Mr Crawley and his invitees to use for regular and ongoing vehicle access between Scone Road and the Crawley Land.

246. In the circumstances of this case, I consider that all reasonable attempts have been made by Mr Crawley to obtain the easement the subject of this application or an easement having the same effect, and that these attempts have been unsuccessful.

Should the Court exercise its discretion to grant the easement?

257. Where, as in this case, Mr Crawley has established reasonable necessity and the other factors in s 88K(2) of the Conveyancing Act, the Court retains a discretion as to whether it should grant the easement sought: Weissflog at [49]; and Community Association DP270447 v ATB Morton Pty Ltd (2019) 19 BPR 39277; [2019] NSWCA 83 at [147].

258. The approach to the exercise of the Court’s discretion was explained in Rainbowforce v Skyton at [134] as follows:

“The discretion is to be exercised having regard to the purpose of the section, which Brereton J in Khattar v Wiese at [60] summarised as “facilitating the reasonable development of land whilst ensuring that just compensation be paid for any erosion of private property rights”, referring to the Second Reading Speech, Legislative Council, 4 December 1995: see also Property Partnerships Pacific Pty Ltd v The Owners of Strata Plan 58482 at [58], [59].”

259. Like the assessment of reasonable necessity, the discretion to grant an easement needs to be considered having regard to the circumstances which existed at the time of the hearing: Moorebank Recyclers v Tanlane at [96].

260. As a discretionary factor that weights against the grant of the easement, Mr Baxter submits that the Court should take into account the fact that Mr Crawley was involved in the transfer of the Baxter Land to Mr Baxter and must have been aware that no provision was made for a right of carriageway over the Baxter Land to Scone Road to the benefit of the Crawley Land. Mr Baxter submits that Mr Crawley “now seeks to reverse to his benefit what he, himself, agreed under contract in December 1992”.

261. Mr Baxter’s submissions also relied on the principle, expounded by Young J (as his Honour then was) in Hanny v Lewis (1998) 9 BPR 16,205 at 16,209–10; [1998] NSWSC 385 (Hanny v Lewis), as follows:

“However, the section does not exist for people to build right up to the boundary of their property or to build without adequate access and then expect other to make their land available for access.”

262. While acknowledging that the case does not concern “build[ing]”, Mr Baxter submits that the principle expounded by his Honour stands as s 88K of the Conveyancing Act does not exist for a person who engages in a contract to sell their land which does not provide adequate access to then later expect the other party to make their land available for access.

263. Mr Crawley may have been aware that no provision or allowance of a right of carriageway by way of easement benefitting the Crawley Land and burdening the Baxter Land was incorporated when the Baxter Land was transferred to Mr Baxter and his father in 1992. However, at that time, he and his wife did not have any proprietary interest in the Crawley Land as it was then owned by Mrs Crawley’s mother. Further, in cross-examination, Mr Crawley gave evidence that he raised the matter with his solicitor at the time (who is now deceased) but it was not included in the transfer document (T123.4–5).

264. As to the principle in Hanny v Lewis, Mr Crawley has not built up to his boundary or built anything without adequate access. The easement is required because the Crawley Land is effectively landlocked and has no direct access to the public road system. Mr Baxter may have allowed Mr Crawley and his family to access the Baxter Land on an informal basis for many years to enable them to have a route through to Scone Road. However, it is apparent that circumstances have changed since the transfer in 1992, with tensions having arisen in what was previously a friendly neighbourly relationship.

265. In that context, I do not consider the fact that no provision was made for a right of carriageway at the time of the transfer in 1992 to weigh heavily against the exercise of the discretion to impose the easement which, based on all the evidence, I have found to be reasonably necessary for the effective use and development of the Crawley Land.

266. Thus, having considered the matters advanced by Mr Baxter in opposition to the easement, I am not persuaded that the Court should withhold the relief sought by Mr Crawley. In all the circumstances, and having regard to the underlying rationale of the power under s 88K of the Conveyancing Act, I am satisfied that it is appropriate to exercise the discretion and make an order imposing the easement sought by Mr Crawley.

What amount of compensation should Mr Crawley pay to Mr Baxter for the loss or other disadvantage that will arise from the imposition of the easement: s 88(4)?

267. The assessment of the quantum of compensation to be paid is to be determined by reference to the loss or other disadvantage incurred by Mr Baxter as a result of the easement rather than the benefit obtained to Mr Crawley: 117 York Street at 515–7.

268. The amount of compensation will ordinarily be comprised of the diminished market value of the Baxter Land (including what is sometimes called the “hope value”, being the potential use to which the Baxter Land could have been put), the associated costs caused to Mr Baxter and an amount for insecurity and loss of amenities less any compensating advantages (if any):  Moorebank Recyclers v Tanlane at [234]–[235]; Lonergan v Lewis [2011] NSWSC 1133 at [52]; and Khattar v Wiese at [66].

269. Mr Crawley adduced evidence in the form of a report from Mr Hood, a registered valuer, who was not cross-examined.

270. Mr Hood’s assessment adopts a “piecemeal” approach to valuation by reference to the area of the sections of the Baxter Land comprised by the easement, being 2,720 metres squared. He ascribes a value of $0.30 per metre squared based on an underlying land value of $816 and allows a diminution in value due to the presence of the easement of 50%, coming to a figure of $408. Mr Hood considers that the easement will have a beneficial effect on the current use of the property by virtue of the improved road corridor through the Baxter Land but recognises that the easement will be a “blot on title” and provides for a nominal amount of $3,000 for that head of loss.

271. Overall, Mr Hood assesses the total amount to be $3,500 (exclusive of GST; rounding up from $3,408).

272. Mr Baxter did not lead any valuation evidence and made no submissions directed to that issue. Based on Mr Hood’s evidence, I am satisfied that $3,500 (exclusive of GST) would be an appropriate amount to be paid to Mr Baxter for the loss or disadvantage that will arise from the imposition of the easement.

Conclusion and orders

273. For the above reasons, I will grant Mr Crawley’s application for the easement over the Baxter Land under s 88K of the Conveyancing Act.

274. Mr Crawley’s Amended Summons seeks an easement for a right of carriageway over the portions of the Baxter Land described in the Amended Summons, as set out at [191] above, on the terms specified in Part 1 of Schedule 8 of the Conveyancing Act. I am satisfied that those terms are appropriate and am prepared to make an order to that effect.

275. I will also make an order that Mr Crawley pay compensation to Mr Baxter pursuant to s 88K(4) of the Conveyancing Act in the amount of $3,500, in accordance with my findings at [272] above.

276. Mr Crawley’s Amended Summons seeks an order that Mr Baxter execute and deliver to Mr Crawley a dealing in the form approved under the Real Property Act 1900 (NSW) setting out particulars of the easement imposed by the Court under s 88K(1) of the Conveyancing Act in favour of Mr Crawley over the Baxter Land. It is not clear why Mr Baxter should be ordered to execute and deliver to Mr Crawley a dealing. Mr Crawley should be able to prepare the necessary documents and forms in relation to registration of the easement by the Registrar General (for example, the “Request” (Form 11R)) with an order from the Court and may not require execution by Mr Baxter (Menassa v Shi (No 2) [2023] NSWSC 168 at [27]–[38]). Mr Crawley should, in my view, be ordered to pay the costs of doing so. I will also direct Mr Baxter to execute any dealing or form, if required, to enable the easement to be registered.

277. As the parties wished to be heard on the question of costs, I have deferred determination of that issue. I note, however, that the cases indicate that generally Mr Crawley would be ordered to pay Mr Baxter’s costs of the application in accordance with s 88K(5) of the Conveyancing Act. Merely putting Mr Crawley to proof in respect of the various elements contained in s 88K of the Conveyancing Act does not, of itself, provide any basis for an adverse costs order against Mr Baxter. It also appears that the better view is that rejection of an offer made under Uniform Civil Procedure Rules 2005 (NSW), r 20.26, and in accordance with the Calderbank principles is unlikely to operate without qualification in proceedings under s 88K of the Conveyancing Act: Shi v Abi-K at [98]; Studholme v Rawson at [175]–[176] and [186]–[187].

278. For these reasons, I make the following orders and directions:

1. Pursuant to s 88K(1) of the Conveyancing Act 1919 (NSW), order that an easement for a right of carriageway be imposed on the defendant’s land comprised in Lot 1 in Deposited Plan 1182854 for the benefit of the plaintiff’s land comprised in Lot 89 in Deposited Plan 753147 and Lot 99 in Deposited Plan 753147 on the terms and to the effect of the particulars of the easement set forth in the following Schedule and over the portions of the defendant’s land referred to in the Schedule and depicted on the Survey Plans annexed and marked A and B to these orders.

SCHEDULE

LAND BENEFITTED (CF Conveyancing Act 1919 (NSW), ss 88K(3) and 88(1)(a)): The land owned by the Plaintiffs being Folio Identifiers Lot 89 in DP753147 and Lot 99 in DP753147.

LAND BURDENED (CF Conveyancing Act 1919 (NSW), ss 88K(3) and 88(1)(b)): Part of the land owned by the Defendant being Lot 1 in DP 1182854, being:

(a)   The constructed road approximately 4m wide and 350m long identified with the letter “C” by black dashes and red dots on the attached plan of proposed right of carriageway prepared by Calco Surveyors Pty Ltd and dated 14 September 2016 (which plan is annexed hereto and marked “A”),

AND

(b)   Part of the track in use identified by black dashes only also identified with the letter “C” on the attached plan marked “A”, and more particularly, part of the blue track identified by the blue dashes between points X and Y on the plan prepared by Graeme Ferguson dated 1 July 2021 (also attached and marked “B”), being the part of the track in use shown as intersecting with the boundary between Lot 1 in DP 1182854 and Lot 89, to the north-west of Lot 1 in DP 1182854.

PERSONS IF ANY HAVING THE RIGHT TO RELEASE, VARY OR MODIFY THE EASEMENT (CF Conveyancing Act 1919 (NSW), ss 88K(3) and 88(1)(c)): Nil.

PERSONS IF ANY WHOSE CONSENT TO RELEASE, VARY OR MODIFY THE EASEMENT IS STIPULATED (CF Conveyancing Act 1919 (NSW), ss 88K(3) and 88(1)(d)): Nil.

TERMS OF EASEMENT: Right of carriage way in terms of Part 1 of Schedule 8 of the Conveyancing Act 1919 (NSW).

2. Pursuant to s 88K(4) of the Conveyancing Act 1919 (NSW), order that the plaintiff pay compensation to the defendant for the imposition of the easement under Order (1) (Easement) in the sum of $3,500 within 7 days from the date the defendant provides to the legal representative of the plaintiff directions as to payment.

3. Order the plaintiff to prepare all necessary documents and forms in relation to registration of the Easement by the Registrar General and bear the costs of preparing those documents and obtaining registration of the Easement by the Registrar General.

4. Direct the defendant to execute any dealing or forms required to be executed by him in relation to registration of the Easement by the Registrar General.

5. Direct the parties to file and serve brief written submissions on costs by 30 June 2023 if no agreement on costs is reached by that day, together with any affidavit evidence relied on in support of their submissions, with the issue of costs to be dealt with on the papers without a further oral hearing.

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ANNEXURE A

ANNEXURE B

ANNEXURE C

ANNEXURE D

Decision last updated: 16 June 2023