Fenwick v Wambo Coal Pty Ltd (No. 3)
[2011] NSWSC 788
•29 July 2011
Supreme Court
New South Wales
Medium Neutral Citation: Fenwick v Wambo Coal Pty Ltd (No. 3) [2011] NSWSC 788 Decision date: 29 July 2011 Before: White J Decision: Stand the proceedings over to a convenient time for counsel for the plaintiff to bring in short minutes of order consistent with these reasons.
Catchwords: REAL PROPERTY - easements - right of carriageway - whether defendant contractually bound to grant a registered easement to provide for relocation and extension of existing right of way - where registered right of way gave plaintiff access over defendant's land to public roads leading to nearby town rendered impassable by defendant - where plaintiff gave only partial assent to proposal for relocation and extension and no confirmation or suggestion that agreement had been made - no offer or acceptance leading to contract for relocation and extension of right of way - no consideration for variation of right of way - no contract for grant of extended right of way
REAL PROPERTY - easements - right of carriageway - equitable estoppel - whether defendant estopped from denying that plaintiff and his successor in title are entitled to extension of existing right of way - where registered right of way gave plaintiff access over defendant's land to public roads leading to nearby town rendered impassable by defendant - where defendant induced plaintiff to assume or expect that he would be entitled to use relocated and extended right of way - where plaintiff both acted on assumption that he was entitled to use relocated and extended right of way by using it and abstaining from taking steps in enforcing his entitlement to use existing right of way to obtain access to public roads leading to nearby town - all necessary elements of equitable estoppel satisfied - defendant estopped from denying the plaintiff is entitled to relocated and extended right of way - terms of extension of easement should follow terms of registered easement
REAL PROPERTY - easements - right of carriageway - who is entitled to use right of way - whether grant of easement to grantee and "his agents servants and workmen" extends to grantee's invitees and licensees - words in grant mentioning persons entitled to use the easement illustrative and not restrictive
REAL PROPERTY - easements - right of carriageway - obligation to maintain - whether defendant under obligation to install or maintain a crossing over a creek on part of the route of the right of way - where defendants had installed culvert bridge crossing, subsequently removed it and blocked access to crossing - no evidence as to condition of creek at site of crossing and whether crossing as trafficable as it was prior to construction of culvert bridge - defendant interfered with the creek crossing by construction of culvert bridge and its subsequent removal of the bridge and re-contouring of the creek - defendant required to take all steps necessary, including obtaining approval, for the construction of a vehicular crossing at least as adequate as crossing that existed before culvert bridge constructedLegislation Cited: Water Management Act 2000 (NSW)
Real Property Act 1900
Limitation Act 1969Cases Cited: Baxendale v North Lambeth Liberal and Radical Club Ltd [1902] 2 Ch 427
Brambles Holdings Limited v Bathurst City Council [2001] NSWCA 61; (2001) 53 NSWLR 153
Waltons Stores (Interstate) Limited v Maher [1988] HCA 7; (1988) 164 CLR 387
Greek Macedonian Club Limited v Pan Macedonian Greek Brotherhood NSW Limited [2007] NSWSC 92
Legione v Hateley [1983] HCA 11; (1983) 152 CLR 406
Grundt v Great Boulder Proprietary Gold Mines Limited [1937] HCA 58; (1937) 59 CLR 641
Pacific National (ACT) Limited v Queensland Rail [2006] FCA 91
Hoath v Connect Internet Services Pty Ltd [2006] NSWSC 158; (2006) 229 ALR 566
EK Nominees Pty Ltd v Woolworths Limited [2006] NSWSC 1172
Fenwick v Wambo Coal Pty Ltd [2011] NSWSC 176Texts Cited: Peter Butt, Land Law, 6th ed (2010) Law Book Co
Peter W Young, Clyde Croft and Megan Smith, On Equity (2009) Lawbook CoCategory: Principal judgment Parties: Ronald Wayne Fenwick (Plaintiff)
Wambo Coal Pty Ltd (formerly known as Wambo Mining Corporation Pty Ltd) (Defendant)Representation: M J Heath (Plaintiff)
A R Spencer with C O Gleeson (Defendant)
Sneddon & Partners (Plaintiff)
Maddocks Lawyers (Defendant)
File Number(s): 2009/291521
Judgment
HIS HONOUR : These proceedings concern a right of way over the defendant's land. The defendant, Wambo Coal Pty Ltd ("Wambo"), owns and operates a mine in the Hunter Valley. The plaintiff, Mr Ronald Wayne Fenwick ("Mr Fenwick"), owns a farm adjacent to and south of Wambo's mine. Mr Fenwick claims to be entitled to the use of two rights of way over Wambo's land called in these proceedings " the northern right of way " and " the southern right of way ". On 13 December 2002 Mr Robin Hopps, then the environmental liaison project manager of the defendant wrote to Mr Fenwick and said:
" To confirm our recent discussions I would like to confirm that your right of way has been relocated away from open cut activities to an alignment closer to Wollombi Brook, as per the attached plan. "
A copy of the attached plan is Annexure A to these reasons.
Mr Fenwick's property is shown as FP178612 lying immediately to the south west of the pink line described as " Existing Right of Way FP110084 2-2 ".
The plaintiff does not have a registered easement described in the attached plan as " Right of Way Extension to Warkworth " coloured blue. Mr Fenwick contends that Wambo is contractually bound to grant a registered easement to provide that right of way, or is estopped from denying that he and his successors in title are entitled to that right of way. Wambo denies that Mr Fenwick is so entitled, but in final submissions made an open offer to give Mr Fenwick (but not his successors in title) a licence to use the route described in the plan as " Right of Way Extension to Warkworth " whilst reserving the right to vary that route to provide access to Warkworth.
By a letter dated 23 October 2008 Wambo denied that Mr Fenwick was entitled to cross lot 83 on DP 548749 and claimed that that lot was not encumbered by a right of way. That is to say, it denied that Mr Fenwick was entitled to the northern right of way over lot 83.
Wambo has denied Mr Fenwick access to the northern right of way at the crossing of South Wambo Creek (called Wambo Creek on the plan in Annexure A).
It was only on the second day of the hearing that Wamo belatedly admitted that Mr Fenwick was entitled to the northern right of way. It still contends he is not entitled to a right of way (as distinct from offering Mr Fenwick a licence) that extends beyond lot 83.
The plan in annexure A shows the northern right of way crossing two creeks. The crossing of the southern creek (South Wambo Creek, but called Wambo Creek on the plan) is presently impassable by vehicle. It is also impassable by foot as Wambo has built fences to block passage. Mr Fenwick claims that Wambo is obliged to reinstate the crossing of South Wambo Creek.
Wambo contends that the only persons entitled to use the right of way are Mr Fenwick and his agents, servants and workmen. It denies that tradesmen or visitors are entitled to use the right of way. The logical consequence of its argument would be that Mr Fenwick's wife or family could not use the right of way.
The principal issues are:
(a) who is entitled to use the right of way;
(b) whether Wambo is obliged to grant Mr Fenwick a right of carriageway along the route described on the plan as " Right of Way Extension to Warkworth ";
(c) if so, what are the terms of the easement, in particular, does Wambo have the right to vary the route;
(d) whether Wambo is obliged to reinstate the crossing of South Wambo Creek; and
(e) whether Wambo is liable to pay damages for interfering with the right of carriageway, and, if so, in what amount.
Background facts: creation of the rights of way
The northern and southern rights of way were granted to Mr Fenwick's predecessor in title, Mr Reginald Allen, on 13 January 1915. Prior to 13 January 1915, Mr Allen and Mr Frank McDonald were entitled as tenants-in-common to lots 8-14, 16, 17, and 19-22 of DP 3030. On 13 January 1915 they partitioned their holding. Mr McDonald became the sole registered proprietor of the northern lots in DP 3030, namely lots 8, 9, 21 and 22, and Mr Allen became the sole registered proprietor of the southern lots, namely lots 10, 12, 14 and 20, and parts of lots 11, 13, 16 and 19 of DP 3030. Annexure B to these reasons is a copy of the plan of lots 1, 2, 3, 7-14, and 16-23 in DP 3030 made on 4 September 1893.
The northern and southern rights of way were created on 13 January 1915 in favour of Mr Allen on the partitioning of the land owned by him and Mr McDonald. Of present significance is that the northern lots subject to the northern right of way were lots 8 and 9 of DP 3030. The rights of way granted to Mr Allen on 13 January 1915 by Memorandum of Transfer A154688 were in the following terms:
"... the transferors [Messrs McDonald and Allen] HEREBY GRANT to the transferee [Mr Allen] as owner for the time being of the land hereby transferred or any part thereof a right of way for himself his agents servants and workmen in common with the Transferors their agents servants and workmen on foot horseback or in vehicles over Lots 8 and 9 on Deposited Plan 3030 to the road leading from Bulga to Warkworth and also a similar right of way to the said road over the residue of Lots 11 and 13 and over Lot 17 of Deposited Plan by the nearest practical route from the south eastern boundary of the part of Lot 11 hereby transferred: Such respective rights of way to continue only until proper roads of access to the before mentioned road from Bulga to Warkworth shall be formed and dedicated and to be in such position or positions as the owners for the time being of the lands through which the same are reserved shall reasonably determine Provided that in the event of any dispute arising as to the reasonableness of the position of such rights of way or roads of access or any of them such dispute shall be settled by arbitration in accordance with the provisions of the Arbitration Act of 1902. "
In 1925 Mr Allen transferred to Mr Archie Frost the land of which Mr Fenwick is now the registered proprietor. That property is called Farm 3 and is shown on the plan in annexure B. The Memorandum of Transfer to Mr Frost included the following reservation and grant:
" This is the annexure marked 'B' mentioned and referred to in the Memorandum of Transfer made between Reginald Charles Allen and Archie Gordon Frost dated the twenty first day of October 1925.
RESERVING thereout to the Transferror [sic] and all persons authorised by him an easement of right of way as appurtenant to Farm 4 being the residue of the land comprised in the said Certificate of Title to the South or South West or West of the land hereby transferred and every and any part or parts thereof for the Transferror and the owners and occupiers for the time being of the said Farm 4 and every and any part or parts thereof and his and their servants and workmen and all persons authorised by him and them in common with the Transferree [sic] with or without labourers carts carriages and other conveyances laden or unladen horses or other animals at all times over and upon a strip of land not exceeding half a chain wide following the course of the existing track from the said Farm 4 leading through Farms 2 and 1 (being the residue of the land comprised in the said Certificate of Title lying to the North, North East and East of the land hereby transferred) to the rights of way granted by Instrument No. A. 154688 TOGETHER with by way of grant and not reservation an easement of right of way as appurtenant to the land hereinbefore transferred and in common with the Transferror and the owners and occupiers for the time being of the balance of the lands comprised in the said Certificate of Title and every and any part or parts thereof and all persons authorised by him and them or any of them and any other persons to whom similar rights have been or may be hereafter granted for the Transferree and the owners and occupiers for the time being of the lands hereinbefore transferred and every or any part thereof and his and their servants and workmen and all other persons authorised by him or them with or without carts carriages and other conveyances laden or unladen horses and other animals at all times in over and upon the strips of land not exceeding half a chain wide following the course of the existing tracks running through the adjoining lands known as Farms 2 and 1 and leading to the rights of way created by the said Instrument No. A. 154688 and TOGETHER ALSO with the benefit in common with the Transferror and others as aforesaid the rights of way granted by such Instrument No. A. 154688. Such rights of way being a means of access to and from the land hereinbefore transferred and the road from Bulga to Warkworth. "
The property called Farm 4 is also shown on the plan which is Annexure B to these reasons. On 8 December 1948 a Mr Cecil Brosi became the registered proprietor of Farm 4. That property was also subdivided. The current registered proprietors are descendants of Mr Brosi and a Ms McLaughlin. The certificate of title to Farm 4 records that it is entitled to the right of way over Farm 3 created by memorandum of transfer B278943 dated 21 October 1925 and is also entitled to the right of way over lots 8 and 9 in DP 3030 created by transfer A154688.
The owners of Farm 4 have been given notice of these proceedings, but have not appeared.
Omission of northern right of way on Wambo's subdivision
On 16 October 1970 the then registered proprietors of lots 8, 9, 21 and 22 in DP 3030 and of Farm 1 entered into a contract for the sale of that land to Wambo. Wambo became the registered proprietor of that land on 17 February 1971. On 28 January 1971 Wambo prepared a plan of subdivision for lots 8,9, 21 and 22 of DP 3030. The subdivision created lots 82 and 83 of DP 548749 and created a right of carriageway over lot 83 in favour of lot 82. The plan of subdivision omitted reference to the existing rights of way. On 17 September 1971 new certificates of title were issued for lots 82 and 83. The certificates of title for those lots failed to record that the lots were burdened by the right of way created in 1915.
Obliteration of road leading to Warkworth from the northern boundary of lot 83
The Bulga to Warkworth Road referred to in memorandum of transfer A154688 appears (for part of its length) on DP 3030 running from a point west of Wollombi Brook in the vicinity of Bulga (that is about due east from what is now Mr Fenwick's property), and then travelling in a north-easterly direction crossing the brook and then continues in a northerly direction along the boundary of lot 21, thence northwest to Wollombi Brook, thence from west of Wollombi Brook in a north-westerly direction separating lots 7 and 8 to the northern boundary of lot 8. From there, there were council and Crown roads leading to Warkworth. Mr Hopps deposed that the north-westerly section of that road which separated lot 8 from lot 7 was closed in 1971. A handwritten notation on a document produced on subpoena from the Department of Lands also shows that part of the road as having been closed. Mr Hopps also deposed that the northern right of way had never been defined to a fixed location or route, but tracks had been used and changed over time according to changes in the mining operations conducted by Wambo and improvements to the tracks. Those tracks led to the northern boundary of what was lot 8 of DP 3030 (and which became lot 83) where it connected to Crown and council roads that led to the village of Warkworth. That road leading to Warkworth became known as the Wambo Mine Road, as it provided access to the Wambo Mine from Warkworth.
The road leading from the northern boundary of lot 8 to Warkworth were lots 5 and 6 in DP720705. They are not shown on the plan of DP 3030 (although the map does refer to the road to Warkworth without delineating it). In 1987 Wambo applied for the closure of the road. Mr Fenwick objected on the basis that closure of the road would terminate his access along the right of way to Warkworth. By a letter to the Lands Office dated 20 October 1987, Wambo asserted that Mr Fenwick had no right of way through that part of Wambo's property. It gave no reason for that assertion. It did not maintain it at the hearing. Eventually, on 4 September 1989, Wambo's application to close the roads, being lots 5 and 6 of DP 720705, was refused.
Hale's crossing, which appears on the map that is Annexure A, was built in the early 1990s to provide an alternative access to Warkworth. From at least 1998, when travelling north over Wambo's land to obtain access to Warkworth, Mr Fenwick used the road leading to and across Hale's crossing. This passed over lot 7 in DP 3030 and lot 10 in DP 113343. He had no right of way over those lots, but Wambo made no complaint about his using that route.
Although the council and Crown roads, being lots 5 and 6 of DP720705, had not been closed, they ceased to be passable by at least 1997 because Wambo constructed a washery area and extended the mine in that area. Mr Hopps said that all traffic came through Hale's crossing, and it would not have been possible to use the council roads along lots 5 and 6 (T216). This was so notwithstanding that Wambo had previously applied for closure of those roads, but its application had been refused.
On 13 December 2000 Mr Hopps advised the Department of Lands that the site of the Crown road in lots 5 and 6 of DP 702705 had been covered by slurry ponds, overburden disposal areas, and coal stockpile areas for a considerable number of years. A small portion of the road had been replaced by a mine access road to Warkworth village, but it had been closed by a locked gate for security reasons for some years (2/368).
South Wambo Creek Crossing
Immediately to the north of Mr Fenwick's property is a property now owned by Wambo known as Farm 2. It was formerly owned by a Mr Harris who sold it to South Wambo Pastoral Co Pty Limited in 1978. The property was acquired by Wambo on 10 March 1992. Between about 1995 and 2003 Mr Bryan Atkins leased the homestead on the farm. He was employed as a geologist at the Wambo coal mine. An access road was built in about 1991 connecting Mr Fenwick's property to the South Wambo Road (also called Wambo Road). This was the southern right of way.
Prior to 1998 there was no built road travelling north. Mr Fenwick gave evidence that there was a number of crossings of South Wambo Creek on what he called the Harris property. At different times he gave evidence of there being between four or five, or between seven and eight crossings. Prior to the construction of a made road over South Wambo Creek in 1998, Mr Fenwick predominantly used one of two crossings which were about 30 metres apart, near where a culvert bridge was ultimately installed. Mr Fenwick gave evidence, which I accept, that both crossings were partial gullies that went down and met the creek, that work was done from time to time in grading the crossings, and some gravel was put in to assist the crossing either by Mr Harris or by Mr Fenwick's stepfather.
Before a culvert bridge was erected over South Wambo Creek, Mr Fenwick crossed the creek in a four-wheel-drive vehicle. He said it was possible, depending on the competency of the driver and the condition of the creek at the time, to cross South Wambo Creek safely in a two-wheel drive vehicle. He negotiated the crossing in an Austin 1800 motor vehicle which had been improved to be in rally condition.
In the 1950s South Wambo Creek was a continually flowing stream that would only dry up in some areas for short periods of extreme drought. When asked about the condition of the creek in the 1990s, Mr Fenwick said that about two or three times a year, for some years, it flowed to a depth of about 24 feet. It rarely dried up completely. It was usually a continual flowing stream, but passable except after a flood.
Mr Atkins deposed that the South Wambo crossing was not easy as the approach to the creek and the crossing itself were not graded, nor filled and contained no gravel. He said that some ballast may have been used to provide traction for the crossing immediately prior to 1998, although he did not believe that to be the case. He said that the South Wambo crossing consisted of a shallow embankment on the south side that became steeper on the north side. The north bank of the crossing was about three to four metres above the creek and the incline was very steep. He said that the crossing was always boggy and he needed a four-wheel-drive vehicle to cross the creek. In his affidavit he said that he used the route north of the access road irregularly either to get to work if he had time, or to access drilling sites in the southern area of the Wambo mine. Prior to a road being constructed across the South Wambo Creek Mr Atkins crossed the creek to go to the Wambo mine about once or twice a week. The rest of the time he went to the mine using Wambo Road and the road from Bulga.
The effect of this evidence was that the creek could be crossed in a four-wheel drive vehicle, except when the creek was in flood. Crossing in a two-wheel drive was problematic, and depended on the competency of the driver, the level of the creek and the type of vehicle.
In 1997 Wambo applied to Singleton Council for development approval for the drilling of bore holes south of South Wambo Creek to its underground mine to fill the underground workings with a concrete mix. The proposed development also required the construction of a concrete batching plant. After approval was obtained this plant was constructed on the southern side of Wambo Creek. The filling of the underground workings was expected to take place over a period of about 40 days. To proceed with this work Wambo also sought and obtained council approval for the construction of a crossing at South Wambo Creek that allowed the passage of heavy trucks. It constructed a haul road across the creek leading north to the mine. Concrete box culverts were installed in the creek bed and the road ran over the culverts. Development consent was obtained on 10 March 1998. It was a condition of the consent that " The private right of way giving access to properties further up the South Wambo Creek shall be maintained in its current condition. Any damage to the right of way shall be reinstated immediately and the road kept in a safe and trafficable condition ". The crossing and the haul road were duly constructed. The work for which the crossing and road were built was completed in 1998.
Negotiations for the grant of a new right of way
On 20 December 2000 Mr Atkins, then environmental co-ordinator with Wambo, advised Mr Fenwick that it would be closing its mining and ancillary operations between 22 December 2000 and 2 January 2001, and that during that time all entry points to the mine's site would be closed and locked. He asked Mr Fenwick to use the public road system if he wished to access Warkworth or the Jerry's Plains Road.
Mr Fenwick objected. He asserted his entitlement to use the right of way. On 9 February 2001 Mr Fenwick met with Mr Hopps to discuss the right of way. Mr Hopps told Mr Fenwick that if Mr Fenwick were entitled to a right of way then arrangements needed to be formalised in relation to his having access over Hale's crossing. He also said that it was Wambo's intention to remove the culvert bridge at South Wambo Creek to effect repairs to the creek. He said that the bridge would not be reinstated. Mr Fenwick said that he expected the crossing to be as trafficable as it was before. Mr Hopps understood Mr Fenwick to be saying that before the culvert bridge was erected, there was a gravelled crossing, and the crossing should be restored to that condition. It was Mr Fenwick's recollection that at all times he had asserted that Wambo was required to retain the culvert bridge crossing.
On 12 February 2001 Mr Fenwick asserted to Wambo that the culvert bridge should be retained.
Mr Hopps obtained a report from a surveyor, a Mr Cant, in relation to the right of way. In 2001 he forwarded a letter to Mr Fenwick dated 7 March 2001. It is probable that the letter was not sent until after 23 July 2001. The letter attached a plan of a proposed route for a right of way. That route was as shown on the later plan sent on 13 December 2002 which is Annexure A to these reasons, save that it followed what on that plan was described as " old northern right of way ", rather than the route described as " new right of way ". The letter of 7 March 2001 stated as follows:
"Dear Ron
We have completed our research into the right of way issue and have come to a position on this matter.
The facts appear to be as follows:
You have two rights of way across Wambo property - one to connect with the Wambo Road (to the south) and another to the north as far as old Lot 8, DP3030 which used to provide access to Warkworth via crown or council roads.
The position of the right of way across old Lots 8, 9 and 10 has never been defined and maps and aerial photographs over time show a variety of tracks have been used.
The Bulga to Warkworth road, which the right of way accessed, was closed through Lot 8 in 1971 and the crown and council roads to Warkworth were rendered impassable some years ago. The land title to those roads also indicates that they were not practically trafficable.
Wambo wishes to resolve the above issues and proposes the following:
As the landowners we propose that the existing track shown on the attached map in red is to be the right of way through Lots 8, 9 and 10.
The southern right of way is as per the existing track, shown in green through our land.
In order to facilitate your access to Warkworth we propose that you use the current mine access road through Lot 7 DP3030 across the Hales Bridge and then across Lot 10 DP113343 to connect with a Council-owned road which connects to the Golden Highway - this is shown in blue on the attached plan.
Assuming you are agreeable to this then we would propose to close and then purchase the lands occupied by the old crown and council roads which are no longer trafficable.
With regard to the section of our proposed route which occupies the recently (1998) built mine service road, which is now no longer required, it will be necessary to remove the crossing over South Wambo Creek to effect further creek repairs. It is proposed at this time not to replace the culverts but it is our intention to retain a creek crossing in this area which will be more trafficable than the former crossing which you indicate was used for access prior to the construction of the mine service road.
With regard to future requirements it may be necessary sometime in the future to relocate this proposed route of the right of way to enable mining operations in the area.
In that case it would be our intention to provide an agreeable alternative to the standards of the right of way prior to the installation of the mine's service road as required by the Development Consent for the Underground Fill Project.
In regard to access along these routes, some of which comprise part of the operating mine, for safety reasons you are informed that in general, NSW road rules apply with an additional provision that you must give way to mine site vehicles (that is unregistered equipment not normally allowed access to state roadways) which have poorer lines of sight and braking distances than registered vehicles. This paragraph is based on your use of the right of way for the purpose of accessing the Golden Highway at Warkworth. As discussed with R Hopps recently, should you have a need for others to use the forementioned route through the mine site (indicated in purple) it would be necessary, for safety reasons, for you to inform others of the requirements and advisable for you to contact the mine. In addition we will inform you if we become aware of any abnormal hazards to be avoided along this section of the router we propose for your use.
We trust the above is satisfactory in formalising the right of way across our property as the current situation of the location of the right of way not being formally documented is unsatisfactory."
Mr Hopps had received legal advice on the draft of the letter to Mr Fenwick. Wambo's then solicitor advised that if Mr Fenwick agreed to the proposal, formal land title documents should be prepared to remove existing easements noted on the titles that were not relevant, to create the proposed new easements, and to have uncertainty in relation to the terms of the easements clarified. That sensible advice was not followed in the letter sent to Mr Fenwick. Instead, Wambo proposed that the terms of the letter should be satisfactory in formalising the right of way.
Mr Fenwick gave only partial assent to the proposals in Mr Hopps' letter of 7 March 2001. His reply to the letter is undated. After asserting his entitlement to the two right of ways and complaining about attempts by Wambo in 1998 to deny that entitlement, Mr Fenwick said:
" As previously advised, we have held agreed rights of way through the mine site since before the mine existed. From time to time these tracks have been altered as needed. Changes to fences, creek crossings and mining operations have induced change over the years. The road closure you refer to in 1971 appears to have happened without us knowing of it, but that would not have affected our accesses as we would have needed to divert around the workings and would have connected using tracks that later became access for workers at the mine. This situation varied again with the closing of the road and diversion through Hales crossing.
On most occasions it only took simple communication between management and us.
We did appeal against closure of a section of road because it appeared to be happening outside normal means with implications detrimental to us.
We have not needed written agreement on this matter prior to times of which you are aware. Regards your suggested positioning of the rights of way, which are in fact the actual routes in use:
To Bulga accessing Wambo Road as varied and used since approximately 1975 and
To Warkworth accessing the Golden Highway as varied and used since 1998.
I find no objection to the routes suggested.
I do not agree with the latter comments regarding the removal of the culverts at some future time. They form what is the current ROW and should be at the least retained. If at a later time they need to be removed for remedial creek work, there will be need to keep the right of way functional to traffic as available now, during the works period with reinstatement to no lesser standard than at present. If the time comes for this to occur, then reasonable notice and discussion will be required.
I am available for further negotiations on the rights of way if the needs arise. "
Mr Fenwick did not respond to Mr Hopps' advice that Wambo proposed to close and then purchase lands occupied by the old Crown and council roads if Mr Fenwick were agreeable to the proposal that he obtain access to Warkworth using the current mine access road through lot 7, across the Hale's bridge and then across lot 10. Nor did he comment on Mr Hopps' reservation of a right to relocate the proposed route of the right of way in the future to enable mining operations in the area of the proposed route. Nor did he comment on the stated requirement that the mine would need to be informed if persons other than Mr Fenwick proposed to use the right of way. He rejected Wambo's claim that it could remove the culverts at South Wambo Creek.
Mr Hopps gave evidence that he believed that when he wrote the letter of 7 March 2001 he expected that Wambo would have to remove the culvert crossing in order to effect repairs to the creek, but that its preferred option was to repair the creek without removal of the crossing. It was his recollection that the crossing did not have to be removed (T208-209). It was Mr Fenwick's recollection that the culverts were removed, but were subsequently reinstalled. The approaches to the crossing were also graded so that the road became or remained trafficable. Hence, the issue in relation to the removal of the culvert crossing raised in Mr Hopps' letter of 7 March 2001 ceased to be an issue.
On 16 July 2002 Wambo wrote to Mr Fenwick as follows:
" Wambo Mining Pty Ltd is applying to both the Singleton Shire Council and the Department of Land and Water Conservation to close the roads under their control shown on the attached plans. The roads we are seeking approval to close are described as Lot 5, Lot 6 DP 72070, Watt Street and Parmeter Street.
Lot 5 and 6 have not been passable for many years and cross through an operational area of the mine. Watt Street forms a small section of the mine access road, while Parmeter Street is surrounded by Wambo land and will be land isolated by the closure of Watt Street.
Wambo made a previous attempt to close these roads in 1987 at which time you lodged an objection on the grounds that these roads formed part of your right of way to Warkworth Village.
As previously discussed in our letter of 7 March 2001, an alternate access has been offered via the current mine access road through Lot 7 DP3030 across the Hales Crossing Bridge and then across Lot 10 DP113343 to Watt Street, which connects to the Golden Highway.
... "
The roads proposed to be closed were the Crown and council roads which formed Wambo Mine Road leading north-east from the northern boundary of lot 83, and Watt Street and Parmeter Street, which were council roads on the eastern side of Wollombi Brook. These were the same Crown and council roads as were referred to in Mr Hopps' letter of 7 March 2001. Mr Fenwick did not respond to the letter. Wambo did not proceed with its application to close the roads until March the following year.
Mr Fenwick pleads that during the course of 2002 Wambo proposed and he accepted a variation of the right of way in the form of a relocation and extension of a portion of the right of way. Particulars of that alleged agreement are as follows:
" The proposal and confirmation of its acceptance by the plaintiff was set out in a letter dated 13 December 2002 from Mr Robin Hopps, Environmental Liaison Project manager, to the plaintiff. The letter attached a drawing being drawing number ROW291102 which contained inter alia a designation for the right of way and the proposed relocation of the right of way ('the relocated right of way') and a proposed extension to the right of way. ('the extension to the right of way'). "
The consideration for the agreement is pleaded as being the forbearance by Mr Fenwick of an entitlement to enforce the terms of the right of way for so long as Wambo continued to provide for the use of the relocated right of way and its extension.
Mr Hopps sent Mr Fenwick a letter dated 13 December 2002 which stated as follows:
"To confirm our recent discussions I would like to confirm that your right of way has been relocated away from open cut activities to an alignment closer to Wollombi Brook, as per the attached plan.
The description of lots crossed by the Right of Way remains as per my previous letter.
Two locked gates have been provided, as well as the right of way to restrict unauthorised entry by others. I can confirm that the new right of way can be relocated easily to retain an access way on the Wollombi Brook side of the open cut working shown in the December 1991 Wambo Expansion project plans prepared for the 'Planning Focus' process.
... "
The attached plan is the plan which is Annexure A to these reasons.
Neither Mr Hopps nor Mr Fenwick gave evidence of the content of the discussions said to have been confirmed by the letter of 13 December 2002. That is not surprising given the lapse of time. It could not be expected that either man would have a genuine recollection of words spoken in 2002.
It was not until October 2008 that Wambo resiled from the position it took in the letter of 13 December 2002. It then denied that Mr Fenwick was entitled to a northern right of way.
Mr Fenwick's evidence, read without objection, was as follows:
" 86. The culmination of my various meetings and discussions with Mr. Hopps was when I received a letter from Wambo Coal dated 7 March 2001. Doc 26 is a true copy of that letter. I do not know precisely when I received this letter. I do not know why the drawing attached to the letter was dated 7 June 2001.
87. I recall I responded to Doc 26 , my response was forwarded promptly after receipt of Doc 26 . I do not [now] recall why no date is indicated on my response. Doc 27 is a true copy of my letter of response.
...
90. In 2002 Wambo further discussions took place between myself and Mr. Hopps from Wambo Coal relating to the Right of Way. The [culmination] of those discussions was a letter that I received from Wambo Coal. Doc 30 is a true copy of a letter I received from Wambo Coal dated 13 December 2002 with enclosure.
91. I accepted the terms of Doc 30 in so far as it varied Doc 26 . Provided that that part of the Right of Way was to be relocated as set out in Doc 30 attached to the letter of 13 December 2002 I was prepared [to] abide by the proposed relocation ('the relocated right of way').
...
93. Following receipt of the letter of 13 December 2002 and the plan attached Doc 30 I was prepared to allow the future possible open cut activities of the mine to go ahead without taking particular steps to enforce the Right of Way to the extent that the open cut activities would have interrupted or inhibited the use of the Right of Way.
94. I did not take any enforcement steps because I accepted the relocated right of way as I believed it to be the agreement reached from the negotiations to which I referred to earlier leading to initially Doc 26 and then Doc 30 . I was and I am still willing to abide by the terms of the relocation of the Right of Way as set out in Doc 26 and Doc 30 .
95. At no time either during the negotiations with Wambo Coal representatives or after the letter of 13 December 2002 did I understand from anything said or done by them, that Wambo Coal might wish to change or reserve to itself the opportunity to further relocate or deny me access to the relocated right of way without further negotiation with me. Had I had any such an indication I would not have agreed to the proposed relocation and I would have sought to enforce the Right of Way if I had had such an indication from Wambo Coal. "
Mr Hopps did not take issue with Mr Fenwick's assertion that he accepted the terms of the letter of 13 December 2002, insofar as it varied the terms of the letter of 7 March 2001. In cross-examination Mr Hopps was asked about the discussions referred to in the letter of 13 December 2002. He gave the following evidence:
" Q. And those discussions related to coming to a final position with Mr Fenwick about the definition of the right of way?
A. Yes. It was confirming discussions about where it should now be and that reflected the use of all the tracks that were in existence.
Q. But not only where it should be but that was where he was confined to using it?
A. Yes, that's correct.
Q. Whatever Wambo's view was about what the right of way actually was, it was now to be located in the position set out in the diagram attached to this letter?
A. That's correct.
Q. As far as you were concerned at the conclusion of those discussions, the matter had been resolved between you and he?
A. With regards to the relocation to that new position or the relocated piece of road, yes. "
Mr Hopps did not accept that all matters between Wambo and Mr Fenwick had been resolved, as the letter of 7 March 2001 proposed that Wambo would have to close the council roads and that had not happened. He accepted that there was an agreement with Mr Fenwick that the route of the right of way was defined and that it was agreed that Mr Fenwick would be confined to that route. Mr Hopps also said that the final part of the right of way shown in the attached plan did not belong to Wambo and Wambo could not give him access to that unless Mr Fenwick agreed to the closure of the road. Mr Hopps was referring to council roads to the east of Wollombi Brook, but accepted that if that road were not closed, it was a public road which Mr Fenwick would in any event be entitled to use (T211-212).
Mr Fenwick's denial of any binding agreement
Wambo sought access to Mr Fenwick's property to undertake noise and water monitoring tests. On 15 December 2003 Mr Fenwick advised Wambo that he would not permit access to Wambo's staff to his land until Wambo was prepared to undertake the monitoring in accordance with what Mr Fenwick said were the procedures required by current consent conditions. He listed a number of matters of apparent dispute between him and the company and observed that little agreement had been reached during the preceding year in relation to the matters on the list. One of the items listed was " Right of Way ". In response to that letter Wambo wrote to Mr Fenwick on 24 December 2003 disagreeing with his assertion that the list of outstanding matters had not been substantially reduced. Wambo said that it had worked with Mr Fenwick in the previous 12 months to resolve numerous issues. It provided a response to each of the issues listed by Mr Fenwick. In relation to the issue of " Right of Way " Wambo responded as follows:
" The situation on the right of way is as per letter sent to you in 2002. "
Mr Fenwick agreed that this was a reference to the letter Mr Hopps had sent him in December 2002 (T165). Mr Fenwick responded on 29 December 2003 as follows:
" 6 Right of way
Your response ' The situation on the right of way is as per letter sent to you in 2002. ' is indicative of the dictatorial attitude of [Wambo] . This is ridiculous. It is our right of way, as it has been since the property was purchased by my grandfather. The only changes that have been made regard location of the ROW. I would expect that the issue of the ROW is resolved suitably in the very near future. "
Mr Fenwick was unable to explain why he accused Wambo of having a dictatorial attitude when it stated that the situation on the right of way was as per its letter of December 2002. Clearly he did not consider that the parties had reached an agreement on all issues concerning the right of way. Nonetheless he accepted that changes had been made concerning its location. Wambo submits that Mr Fenwick's correspondence indicates that he did not consider that there was a binding agreement in relation to the definition or extension of the right of way.
Objections to Wambo's attempt to close Wambo Mine Road
Wambo applied to close the Wambo Mine Road on 6 March 2003.
On 13 August 2003 Singleton Council sent to Mr Fenwick a copy of a plan of the proposed road closures and invited him to make a written submission. The proposed road closures included the Wambo Mine Road (lots 5 and 6 of DP 720705). By a letter received by Singleton Council on 18 August 2003 Mr Fenwick objected to the proposed road closures. He said that the sections of the road proposed to be closed appeared to form part of the road system to which he had a right of way. He said:
" I totally object to any planned closure of the roads on the ground that my access to Warkworth would be jeopardised ... I will not approve the closures until Wambo have provided me with suitably guaranteed assurances that my right of way will be maintained ".
On 1 June 2004 the Department of Lands gave notice to Mr Fenwick that the Minister Assisting the Minister for Natural Resources (Lands) proposed to consider the closing of the same roads that had been the subject of notice from the council the previous year. On 7 June 2004 Mr Fenwick replied to the Department objecting to any attempt to close those roads. In his letter to the Department Mr Fenwick said:
" ...
In 2003 both of these sections of roads were being applied for closure by Council, my objections to this were sent to your office and Council and were based on the objections in 1987.
To date neither the Mine nor Council have attempted to bring this pending closure to my notice nor have they attempted to negotiate an alternative path to us.
Our rights of way have always been agreed rather than dedicated despite several attempts made to have these dedicated. Advantages of this arrangement are rationally derived and more suitable than changing to dedicated. Wambo have yet to have any discussion simply direct their intent [sic]. It is only recently that Wambo were aware of our rights of way and to date have made three attempts to bluff us out of our rights and several attempts to lock us out. I was aware in February this year that their legal representatives were looking into our right of way claim again, possible to find a stealth approach to denying our access, such as close the roads, move the administration building, provide access to the new administration building without suitable links for our present right of way. Any link provided would be 'satisfactory' to their and their contractors opinions [sic] , similar to the condition of the current track.
Wambo Mining and Singleton Council have on two previous occasions attempted to close these roads knowing that these roads are of specific interest to us and our access rights through rights of way as stated within our deeds of transfer from the original purchase of our property by my grandfather, Mr A G Frost. On these occasions Wambo have attempted to close these roads without discussions with us.
What is called Wambo mine road is actually part of what was the road from Warkworth to Bulga, shown and discussed on our deeds. Our access to Singleton was initially via Warkworth, with this being substantiated from old records of residents and voting records, over the right of way to Warkworth. At times where passage was difficult through creek levels, access would be via the Bulga portion of the road.
During the late 1950's road upgrading to Bulga was achieved by the transfer of roads within the Pike property. This improved road was to be the more travelled road to Singleton, Bulga, Broke and Sydney, with the other road being mostly used for Warkworth links and what is now the Golden Highway.
Wambo Mining are aware that if our right of way is to be changed, there needs to be mutual agreement to the new location. To close of [sic] the end link to the Golden Highway will require locating a new link. Wambo has not shown any intent to a mutual solution rather what appears to be a stealth means to take away our rightful means of access to Warkworth with the assistance of the council.
Until the company have negotiated a reasonable alternative to us to our current situation with the right of way as it stands I cannot approve of the closure of the roads. If the situation arises to the contrary I will notify you of any such arrangement. I would advise you to ignore any assurances from either Council or Wambo that we have reached agreements. "
Wambo relies upon this correspondence as also showing that Mr Fenwick did not believe that he had reached any concluded agreement with Wambo in relation to the right of way. It does not dispute that as a result of its mining operations having made access impossible along the roads it sought to have closed, the only means for Mr Fenwick to obtain access to Warkworth using the northern right of way is currently along the route specified in Mr Hopps' letter of 13 December 2002, including the extension over land that was not subject to the right of way when created in 1915.
It does not appear that approval was ever given to the closure of the roads in question. There was no evidence that the Minister had approved the closure of the roads. Nonetheless, Wambo's mining operations have had the practical effect of closing the roads to any traffic.
Years later, on 3 September 2008, Singleton Council forwarded correspondence to the Department of Lands, including copies of Wambo's letters of 7 March 2001 and 16 July 2002 which it described as " confirming the Right of Way and providing a safe trafficable access through their properties ". The council officer concerned told the Department of Lands that " Council forwards this documentation to the Department confirming Wambo Coal's acknowledgment and provision of the Right Of Way through their property ." Mr Fenwick obtained a copy of the letter from Singleton Council after he received information in December 2008 about a proposed road closure.
Closure of crossing over South Wambo Creek
The next significant event was a flood in June 2007. This washed away the approaches to the causeway that crossed South Wambo Creek over the culverts. After the flood Wambo fenced off the road leading to the approaches to the culvert bridge both to the north and south. Both by reason of the fences and the effect of flooding, the crossing became impassable. V-notch shaped weirs had been installed in the creek. These had also suffered significant damage from the flood. The banks of the creek had been eroded and there was a large amount of concrete lying in and around the creek bed. Work to repair the creek or to reinstate the crossing required approval under Pt 3 of Ch 3 of the Water Management Act 2000 (NSW). Prior to a site visit on 19 November 2007, Mr Bragg of Wambo met with Dr Philippa from the Department of Water and Energy regarding the proposed application under the Water Management Act . During the meeting, Dr Philippa criticised the construction plan of the box culvert river crossing and advised that if Wambo was simply to repair the current structure it was probable that the crossing would be destroyed in a future flood. He advised that he would support a box culvert design provided it include specified design features, but said the Department would prefer to see a bed level crossing, or a bridge. At the site visit on 19 November 2007 Dr Phillipa confirmed that the culvert bridge needed to be removed and the creek rehabilitated.
On 11 January 2008 there was an internal meeting of employees of Wambo including the then general manager, Mr Sullivan, and a Ms Sarah Bailey. Ms Bailey had been appointed in October 2007 to the position of Environment Specialist. They decided not to reinstate a crossing at South Wambo Creek because of the cost. The minutes of the meeting record that the crossing was a shorter route for members of the community travelling to their properties compared to Wallaby Scrub Road, but apart from convenience there was no substantial argument for reinstating the crossing. Wallaby Scrub Road was accessible through the southern right of way.
Ms Bailey subsequently concealed this decision from Mr Fenwick and misled him as to Wambo's intentions. Wambo subsequently denied that Mr Fenwick was entitled to the northern right of way, without any plausible legal basis. I infer from these later events that Wambo's management then perceived this to be an opportunity to deny Mr Fenwick access along the right of way.
On or about 13 February 2008 Wambo applied to the Department of Water and Energy for a controlled activity approval under Pt 3 of Ch 3 of the Water Management Act . The proposed works included:
" Using an excavator to remove the two existing concrete culverts. The excavated creek bed material will be set aside during the removal of each concrete culvert and replaced back into each void. The profile of the creek will be shaped back to pre-existing creek bed profile. It is not anticipated that additional clean fill material will be required.
...
An excavator will be used to undertake minor re-shaping works to re-profile the creek banks. Once the final grade of the banks has been achieved, approximately 150-200mm of topsoil material will be spread across the bank batters, and hand seeded with grass species local to the area for stabilisation. The entire re-shaping works will be surveyed controlled to achieve the correct final grade of the banks. "
Wambo is required to hold regular meetings with members of the community. These are called Wambo Community Consultative Committee meetings. A meeting was held on 25 February 2008. At the meeting Mr Fenwick asked what was happening with respect to the South Wambo Creek crossing. Ms Bailey said:
" There are other items with higher priority. I will have to follow up on it at a later date. I don't believe it will be reinstated in the short term due to other more pressing items. "
She did not tell Mr Fenwick that Wambo's management had decided not to reinstate the creek crossing.
Mr Fenwick was concerned about the delay in effecting repairs to the crossing. He sent an email to Ms Bailey on 14 March 2008 from which it appears that Mr Fenwick thought the delay in making repairs to the crossing was linked to Wambo's having further thoughts as to whether he was entitled to a northern right of way. He wrote:
" As per our recent discussions regarding the company's withdrawal from the repairs to the ROW crossing damaged during the flooding of June last year, the attached two pages should be sufficient to show the company should be aware of the existence and status of the ROW. The previous letter mentioned referred to the relocation from the original position which was from Warkworth to the Homestead (known as Wambo Road) and from the homestead to the northern right of way as shown.
It is important to note that neither change was in accordance with the legal guidelines related to right of way but were company dictation. The title deeds of our land indicate these two rights of way exist until the proper build and dedication of two specific roads are in existence. The land titles held by the company would also have these indicated. We have had to prove this on at least three occasions to managers and legal advisors.
These documents and others should be within company files but are regularly 'lost' to waste our time in effecting what is rightfully our entitlements.
The crossing was installed and became portion of our right-of-way during the 9, 9A longwall applications, was removed for 'sealing' of the creek and re-instated afterwards. Each of these took little time as usage was also required by the mine and mine staff.
There were similar documents related to fences and road/tracks including the portion sealed in front of the harris house.
Hope this assists in ensuring the crossing is restored as was assured in June last year and we see the roads repaired to a suitable standard soon. We have been denied access via this ROW for longer than is considered reasonable considering the directions recently shown by the company to other projects. "
On 1 May 2008 Mr Fenwick sent a further email to Ms Bailey complaining about the delay and restoring the crossing. He said:
"ROW:
There are two major problems. The first is the failure/delays in restoring the crossing that was damaged during June last year, despite assurances made as to the urgent priority and need to have it done properly. We have seen all sorts of excuses ranging from Permit requirements to whether or not we have this ROW. The first excuse has no credibility considering the speed in which the Brosi crossing and Dam with clearing were approved. The second was simply a time wasting exercise as the company deeds show these ROWs and the legal side prefer to do nothing to find this. Fortunately my deeds actually show them clearly. "
Mr Fenwick's concerns and complaints were justified.
The Department of Water and Energy approved Wambo's application to carry out rehabilitation work to the South Wambo Creek on 1 May 2008. The minutes of a further meeting of the Wambo Coal Community Consultative Committee held on 23 June 2008 record the following:
" South Wambo Creek Crossing
RF: How far are we with this?
SB: The permit has been received, we need to organise contractors to complete the rehabilitation works, I will give you an update when contractors are available."
Ms Bailey did not disclose that the permit received was not for a crossing of the creek, but for rehabilitation work to the creek and that no permit to repair the crossing or to install a new crossing had been sought.
Wambo's denial that northern right of way existed
On 23 October 2008 Wambo wrote to Mr Fenwick denying that he had a right of way over lot 83 in DP 548749. It forbad Mr Fenwick from entering that lot and said that " in these circumstances " Wambo did not intend to repair the South Wambo Creek crossing. The letter was in the following terms:
" Claim to right of way across Wambo Coal Pty Ltd ('Wambo Coal') land
Wambo Coal acknowledges receipt of your email dated 14 March 2008 regarding the right of way you are claiming over Wambo Coal land.
Wambo Coal has reviewed the right of way position and formed the view:
(a) There is a registered right of way across Lot 1 in DP 110084 and Lot 2 on DP 110084. This is depicted as the 'Existing R.O.W.' on the attached plan. This is the right of way you use to access and egress your land, and Wambo Coal will continue to observe to this right of way.
(b) In relation to the right of way you have claimed to cross Lot 83 on DP 548749, depicted as the 'R.O.W. in Question' on the plan, Wambo Coal understands that Lot 83 is not encumbered with the right of way you are claiming. A copy of the relevant title is attached. The only right of way registered over Lot 83 is in relation to Lot 82, which is also owned by Wambo Coal.
Wambo Coal has also considered the following:
You have free and unrestricted access to and from your land using the 'Existing R.O.W.';
Lot 83 forms part of the Wambo Coal mining operations;
Wambo Coal has strict obligations to ensure the safety of all employees and other persons it permits to enter onto its mining land; and
Under the relevant safety laws and company policy, Wambo Coal must control access to its mining operations for safety reasons.
It would appear that you do not have a legal right of way across Lot 83. Therefore Wambo Coal cannot allow you to enter Lot 83 and you must not do so. In these circumstances, Wambo Coal does not intend to repair the South Wambo Creek crossing. "
There was no proper basis for Wambo to deny that Mr Fenwick was entitled to a right of way over lot 83. The fact that that right of way had been omitted in 1971 when Wambo lodged the plan of subdivision of lots 8 and 9 of DP 3030 and new lots 82 and 83 in DP 548749 were created, does not mean that the right of way was extinguished. An omission of a validly created right of way is an exception to indefeasibility under s 42 of the Real Property Act 1900. Wambo had legal advice. It must have known this. Nonetheless, Wambo maintained this position up to the second day of the hearing, although it did not present any argument to seek to justify the position taken in its letter of 23 October 2008.
Who is entitled to use the right of way?
Counsel for Wambo submitted that as the 1915 grant of the easement was to the " owner for the time being of the land hereby transferred or any part thereof ... for himself his agents servants and workmen ... " it did not extend to Mr Fenwick's invitees. Counsel submitted that the right of way was confined to those persons able to effectuate the commercial or trading purposes of the landowner. In oral submissions counsel for Wambo was constrained to admit that the grant would extend to Mr Fenwick's wife because any other construction would be absurd. However, she would not be so entitled if the only persons entitled to the benefit of the right of way were the registered proprietor and his agents, servants and workmen.
In Peter Butt, Land Law , 6 th ed (2010) Law Book Co. at [16 97] Professor Butt states that:
" Words in the grant or reservation of an easement mentioning persons entitled to use the easement are generally regarded as illustrative only, not restrictive. "
This is illustrated by Baxendale v North Lambeth Liberal and Radical Club Ltd [1902] 2 Ch 427. There the right of way was expressed to be for the benefit of the grantee " his executors, administrators and assigns, undertenants and servants ". The right of way was granted under a long-term lease of which the assignee was a club. Swinfen Eady J held that the right of way could be used by all licensees of the club, that is, by all persons lawfully going to and from the club including members, associates, tradespeople and servants. His Lordship said (at 429):
There was no evidence as to whether the creek at the former crossing was in materially the same condition (relevant to its ability to be crossed by a vehicle) as it had been in prior to Wambo's carrying out its works in 1998. Because Mr Fenwick has been excluded from the site, the evidentiary onus was on Wambo to adduce evidence as to the condition of the creek at the site of the crossing.
As a general rule, a servient owner (that is, Wambo) is not obliged to maintain a right of way. Therefore, prima facie , if Mr Fenwick needed to construct works to provide a crossing over the South Wambo Creek, he, not Wambo, would have to construct the crossing. It would be an implied term of the right of way that Wambo would do all that was necessary on its part to allow Mr Fenwick to use the right of way. This would include its giving consent to any necessary development application and to any necessary application under the Water Management Act for the construction of a crossing.
There was no contract whereby Wambo was obliged to maintain a vehicular crossing at South Wambo Creek. Nor was the condition of the development consent (referred to at [27] above) a source of rights enforceable by Mr Fenwick in this court.
However, Wambo has interfered with the crossing by its construction of the culvert bridge in 1998 and its subsequent removal of that bridge and re-contouring of the creek. Given that Wambo had designated that crossing as the route of the northern right of way, it was obliged when carrying out the work of removal of the culverts and re-contouring of the creek to provide a crossing at least as adequate as the crossing that existed before the culvert bridge was constructed. Otherwise its works of first constructing and then removing the culvert bridge and re-contouring the creek would substantially have interfered with the right of way.
Wambo gave no evidence as to whether the condition of the creek crossing after removal of the culverts and re-contouring was more or less favourable to its being crossed by vehicles than the crossing before 1998. It can be inferred that no evidence it could have adduced on that question would have been favourable to it.
Prior to 1998 there was a bed crossing over South Wambo Creek at the point in question, albeit that the crossing was often only possible with a four-wheel drive vehicle. Wambo adduced evidence from a Mr Michael Shaw, a civil engineer. Mr Shaw gave evidence that there were four engineering options for a crossing at the South Wambo Creek. These were either a bridge, a crossing with concrete box culverts similar to those previously installed, a crossing using pipe culverts, or a crossing involving grading of the bank to allow direct vehicular entry and exit to and over the creek.
The provision of any of those crossings requires approval under Pt 3 of the Water Management Act . Wambo did not seek approval for any such crossing because it wanted to stop Mr Fenwick from using his right of way. Given that it was Wambo's works over the creek and the effect of the 2007 flood that necessitated further works to be done to the creek, Wambo was required to seek approval and to do such works as were necessary as to provide a crossing over the creek. There had been such a crossing before Wambo carried out its works. Therefore it was its responsibility to reinstate some form of vehicular crossing. Professor Butt states (Peter Butt, Land Law , 6 th ed (2010) at [16 107]):
" ... the grantor may be required to repair if the disrepair flows from some act ... that he or she does on the site of the easement. "
Dr Phillipa from the Department of Water and Energy advised Wambo in August 2007 that the Department would prefer to see a bed-level crossing or a bridge rather than another culvert design. Any of such crossings would meet Wambo's obligation to reinstate a vehicular crossing over the creek.
Wambo has led no evidence that the present condition of the creek would allow a vehicular crossing. In any event, the case was litigated on the basis that a creek crossing required approval under the Water Management Act as a controlled activity ( Water Management Act 2000, s 91E). As Wambo sought and obtained approval for the carrying out of a controlled activity on the creek, if it were to restore some form of vehicular crossing to Mr Fenwick, it was required to seek the necessary approval for such a crossing.
Wambo did not do this, notwithstanding that in his letter of 7 March 2001 Mr Hopps had advised that it was then Wambo's intention to retain a creek crossing which would be more trafficable than the former crossing. Wambo's position as stated in its letter of 23 October 2008 (quoted above at [65], and reiterated in further correspondence), was that as Mr Fenwick did not have a legal right of way, it did not intend to repair the crossing. This was an implicit acknowledgment that if Mr Fenwick had a right of way (which Wambo ultimately conceded he did) it was obliged to repair the crossing. That required it to obtain the necessary approval from the Department of Water and Energy.
It is not known what the Department might require by way of a vehicular crossing. It might accept a bed crossing. It might approve a new box culvert crossing, although this seems unlikely. It might require construction of a bridge. Damages are not an adequate remedy because it is not known what form of crossing will be required. That uncertainty is caused by Wambo's decision to obtain a controlled activity approval for works that provided for no crossing of the creek. It misled Mr Fenwick into the belief that it had obtained the necessary approval to reinstate a crossing.
The enforcement of a mandatory order requiring Wambo to seek the necessary approval for a vehicular crossing and to construct that crossing may require some supervision by the court, but should not require continual supervision. The works involved are not complex.
In these circumstances a mandatory injunction is appropriate to require Wambo to take all steps necessary on its part to obtain approval for a crossing of South Wambo Creek at the crossing designated in the plan annexed to its letter of 13 December 2002, for persons on foot or by vehicle, and to construct the necessary works to effect such a crossing.
Damages
Since 23 October 2008 Wambo has denied Mr Fenwick access to the northern right of way. It has fenced off the right of way. From 11 January 2008 its management determined that it would not reinstate a crossing over South Wambo Creek. I infer that had it sought approval to reinstate a crossing over South Wambo Creek, the approval would have been given by no later than 1 May 2008. That was the date on which the Department of Water and Energy approved Wambo's application to carry out the rehabilitation work to South Wambo Creek for which approval was then sought. Had such approval been sought, it is a reasonable inference that vehicular access over South Wambo Creek could have been reinstated by at least October 2008.
Accordingly, Wambo is liable for damages for its obstruction of the northern right of way since October 2008. It will be some months before a crossing is provided. Damages cannot be quantified with any precision. Wambo contended that any damages were minimal. Mr Fenwick had access to roads leading to Bulga and Warkworth through the southern right of way. However, Mr Fenwick deposed that travel to Warkworth and beyond now took at least half an hour longer each way. He had been a regular attendee at the local gun club at Warkworth, but the extra travelling time created too much delay. As a result he had had to cut down his time at that gun club. He said that he did not visit friends and relatives in Singleton as often as he would otherwise have done had he not had to travel the longer distance. I accept that evidence.
Damages as a result of the interference with the right of way cannot be assessed by calculating what extra petrol might have been consumed in Mr Fenwick's having to travel a longer distance to Warkworth, what extra wear and tear, if any, there might have been to his car in taking the longer route, or what financial disadvantage he may have suffered by having to take a longer time to travel to Warkworth or Singleton. Not only are these matters not capable of being precisely quantified, but they do not reflect the true loss. The true loss is the loss of amenity in the imposition of delays in Mr Fenwick's pursuing a favoured recreational pursuit and in otherwise travelling to Warkworth and Singleton. The question of the appropriate measure of damages is not capable of an articulated reasoned answer that allocates a dollar figure to a particular claim, for example, so much for extra travelling time, or so much for disappointment in missing one or more meetings of the club. Nonetheless, the damage is real. In my view, $20,000 is the appropriate amount of compensation for having been denied the use of the easement.
Injunction
Wambo has repeatedly denied Mr Fenwick's right to use the right of way, although it had no lawful or plausible basis for that assertion. It has physically blocked his access. A mere declaration of Mr Fenwick's entitlement would not be an adequate remedy. The sanction of contempt proceedings is necessary to ensure that Wambo and its management respect Mr Fenwick's rights. Mr Fenwick is entitled to an injunction to restrain Wambo from continuing to obstruct the right of way.
Conclusions
For these reasons I have concluded that:
a) the persons entitled to use the easement are not confined to Mr Fenwick, his agents, servants and workmen, but include all persons authorised by him, including his family, tradespeople and visitors;
b) Wambo has designated as the route of the right of way over the servient tenement the subject of the 1915 memorandum of transfer, the route shown in the plan that accompanied Mr Hopps' letter of 13 December 2002 that is Annexure A to these reasons;
c) Wambo is estopped from denying that Mr Fenwick is entitled to a right of way over its land shown as burdened by the " Right of Way Extension to Warkworth " as depicted in the plan that accompanied Wambo's letter of 13 December 2002 and is Annexure A to these reasons;
d) that right of way is to be on the terms of the right of way created by the 1915 transfer, including the right of Wambo reasonably to vary the route of the right of way, provided that in so doing it provides alternative access to a road leading to Warkworth;
e) if not agreed, the terms of such right of way can be determined by the court;
f) Wambo is required to do all things necessary on its part to obtain the necessary approvals for and to construct a vehicular crossing at South Wambo Creek at the crossing designated as the crossing for the right of way in Wambo's letter of 13 December 2002;
g) Wambo should pay damages of $20,000 for interference with the right of way; and
h) Wambo should be restrained from further obstructing the right of way.
I will stand the proceedings over to a convenient time for counsel for the plaintiff to bring in short minutes of order consistent with these reasons. The short minutes should also provide for the 1915 right of way to be registered over lots 82 and 83 of DP 548749.
I have previously ordered that Wambo pay part of Mr Fenwick's costs on the indemnity basis ( Fenwick v Wambo Coal Pty Ltd [2011] NSWSC 176 at [74]). Prima facie Mr Fenwick is entitled to his costs of the balance of the proceedings. There may be an issue as to the basis on which they should be ordered. There may have been offers exchanged relevant to questions of costs. I will hear the parties on costs.
Annexure A
Annexure B
Decision last updated: 29 July 2011
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