FitzGerald v Foxes Lane (NSW) Pty Ltd

[2024] NSWSC 1312

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

FitzGerald v Foxes Lane (NSW) Pty Ltd [2024] NSWSC 1312

Hearing dates:

30 September 2024 – 2 October 2024; further submissions 4 October 2024

Date of orders:

21 October 2024

Decision date:

21 October 2024

Jurisdiction:

Equity - Real Property List

Before:

Peden J

Decision:

At [153]

Catchwords:

LAND LAW — Easements — Construction of easements — Whether building a crowned unsealed road and drains is reasonably necessary for the dominant owner’s enjoyment of his rights under the easement — Whether servient owner is entitled to plant crops over right of carriageway

LAND LAW — Easements — Extinguishment of easements — Extinguishment by statute — Whether continued existence of right of carriageway would impede the reasonable user without securing a practical benefit to dominant owner — Whether extinguishment of right of carriageway would not substantially injure the dominant owner

LAND LAW — Easements — Modification of easements — Statutory modification of easements — Whether width of right of carriageway should be narrowed

TORTS — Nuisance — Private nuisance — Whether obstructions to the right of carriageway caused by the servient owner amounted to a nuisance — Whether grading of the right of carriageway by the dominant owner was excessive user so as to constitute a nuisance and/or trespass

Legislation Cited:

Conveyancing Act 1919 (NSW) ss 88BA, 89, sch 8

Evidence Act 1995 (NSW) s 53

Roads Act 1993 (NSW)

Water Management Act 2000 (NSW)

Cases Cited:

Aust-One Investment Pty Ltd v New World Investments Pty Ltd (2023) 111 NSWLR 39

Bland v Levi [2000] NSWSC 161

Bone v Seale [1975] 1 WLR 797

Burke v Frasers Lorne Pty Ltd [2008] NSWSC 988

Butler v Muddle (1995) 6 BPR 13,984

Cavacourt Pty Ltd v Durian (Holdings) Pty Ltd [1998] NSWSC 787

Clough v Breen (No 4) [2023] NSWSC 1155

Coffill v Lagudi Holdings Pty Ltd [2016] NSWSC 1764

Commonwealth v Murray (1988) Aust Torts Reports 80-207

Currumbin Investments Pty Ltd v Body Corp Mitchell Park Parkwood CTS [2012] 2 Qd R 511

Davidson v Elkington [2011] WASC 19

Durian (Holdings) Pty Ltd v Cavacourt Pty Ltd [2000] NSWCA 28

Elliott v Renner [1923] St R Qd 172

Fenwick v Wambo Coal (No 3) [2011] NSWSC 788

Frasers Lorne Pty Ltd v Burke [2008] NSWSC 743

Gray v Motor Accidents Commission (1998) 196 CLR 1

Hare v Van Brugge (2013) 84 NSWLR 41

Heaton v Loblay (1959) 60 SR (NSW) 332

Hunter v Canary Wharf Ltd [1997] AC 655

Laris v Lin (No 2) [2016] NSWSC 560

Lawrence v Griffiths (1987) 47 SASR 455

Lowe v Kladis [2018] NSWCA 130

Mantec Thoroughbreds Pty Ltd v Batur (2009) 25 VR 507

Marsh v Baxter (2015) 49 WAR 1

McDowall v Reynolds [2004] QCA 245

McWilliam v Hunter [2022] NSWSC 342

Middleton v Arthur [2002] NSWSC 627

Milner’s Safe Co Ltd v Great Northern and City Rail Co [1907] 1 Ch 208

New South Wales v Williamson [2011] NSWCA 183

New South Wales v Zreika [2012] NSWCA 37

Newcomen v Coulson (1877) LR 5 Ch D 133

Nicholls v Ely Beet Sugar Factory Ltd [1936] Ch 343

Owners Corp of Strata Plan 42472 v Menala Pty Ltd (1998) 9 BPR 16,337

Perpetual Trustee Co Ltd v Westfield Management Ltd [2006] NSWCA 337

Pieper v Edwards [1982] 1 NSWLR 336

Powell v Langdon (1944) 45 SR (NSW) 136

Re Application by Wolfe (1997) 8 BPR 15,669

Re Callanan [1970] 2 NSWR 127

Re Chamberlain and Conveyancing Act (1969) 90 WN (Pt 1) (NSW) 585

Re Ghey & Galton’s Application [1957] 2 QB 650

Re Henderson’s Conveyance [1940] Ch 835

Re Mason and the Conveyancing Act [1962] NSWR 762

Re Parimax (SA) Pty Ltd (1954) 56 SR (NSW) 130

Sertari Pty Ltd v Nirimba Developments Pty Ltd [2007] NSWCA 324

Stolyar v Towers [2018] NSWCA 6

Tempe Recreation (D500215 and D1000502) Reserve Trust v Sydney Water Corp (2014) 88 NSWLR 449

Treweeke v 36 Wolseley Road Pty Ltd (1973) 128 CLR 274

Tujilo v Watts [2005] NSWSC 209

Uren v Bald Hills Wind Farm Pty Ltd [2022] VSC 145

Walsh v Erwin [1952] VLR 361

Webster v Bradac (1993) 5 BPR 12,032

Westfield Management Ltd v Perpetual Trustee Co Ltd (2007) 233 CLR 528

White v Johnston (2015) 87 NSWLR 779

Zenere v Leate (1980) 1 BPR 9300

Texts Cited:

Adrian Bradbrook and Susan MacCallum, Bradbrook and Neave’s Easements and Restrictive Covenants (3rd ed, 2011, LexisNexis)

David Rolph, Jason N E Varuhas, Penelope Crossley and Michael Douglas, Balkin & Davis: Law of Torts (6th ed, 2021, LexisNexis)

Category:

Principal judgment

Parties:

Joseph Roger FitzGerald (Plaintiff)
Foxes Lane (NSW) Pty Ltd (First Defendant)
Gerardus Johannes Jacobus Kurstjens (Second Defendant)
Maria Mattheiu Elisabeth Kurstjens (Third Defendant)

Representation:

Counsel:
J Hutton SC and P Springthorpe (Plaintiff)
T Alexis SC and J Smith (Defendants)

Solicitors:
Baker Deane & Nutt (Plaintiff)
Cole & Butler Solicitors (Defendants)

File Number(s):

2022/00348117

Publication restriction:

Nil

JUDGMENT

1. This is a dispute about the historical and future use of a registered right of carriageway (ROC) situated on neighbouring rural land outside of Moree, New South Wales.

2. In 1925, Mr Joseph FitzGerald’s grandfather purchased a large grazing property known as “The Prairies”. It is likely that the track along the ROC was used as an access road from the public Prairie Road to a (now demolished) house on the farmland.

3. In 1992, the property was subdivided, creating “North Prairie”, owned by Mr FitzGerald’s father, and “Prairie South”, owned by Mr FitzGerald’s uncle. The ROC was created at that time, benefitting North Prairie by registration of Deposited Plan 817727, and in particular, benefitting Lot 19.

4. The ROC burdens Lots 10 and 11 in Deposited Plan 1163015. The ROC is about 3.5km in length: about 2.65km is through Lot 10, and about 800m is through Lot 11. There are several gates across the ROC, with a maximum width of about 3.5m.

5. In 2009, Mr FitzGerald inherited North Prairie, including Lot 19. He lives elsewhere, but there is a cottage on Lot 19 of fair condition, which is occasionally used by farm workers. Mr FitzGerald uses parts of North Prairie for broadacre farming and also for a biodiversity stewardship enterprise. Day to day farming is carried out by another farmer, with whom Mr FitzGerald is in business.

6. There are other access routes to Lot 19, but Mr FitzGerald prefers to use the ROC. Since about 2011, Mr FitzGerald has used the ROC, sometimes a few times a year and, more recently, many times a month. There is no evidence as to the extent of the use of the ROC by Mr FitzGerald’s invitees. Mr FitzGerald has never seen his farming partner use the ROC.

7. In 2011, entities controlled by Mr Gerardus Kurstjens purchased Prairie South. In 2017, Lots 10, 11 and 20 within Prairie South were transferred to the first defendant, Foxes Lane (NSW) Pty Ltd (Foxes Lane Co).

8. Since 2011, most years Lots 10 and 11 have been used for cropping. Historically they were used by Mr FitzGerald’s family for grazing. It is this change in use of the land that appears to have led to the current dispute.

9. Foxes Lane Co uses a “tramline” or “controlled traffic” farming method. This involves:

1. The creation of parallel indented tracks on the land between which rows of seeds are planted, and along which water naturally flows, because of the slope of the land.

2. The farming machinery (for each of the planting, growing and harvesting phases) run along these compacted tramlines.

10. Foxes Lane Co also grows crops up to and over the ROC on Lot 10. Mr FitzGerald complains about this cropping over the ROC, because of the existence of the plants and the tramlines. He asserts that the tramlines over the ROC cause rutting and corrugation of the surface of the ROC, making driving slower and less comfortable. Further, he asserts that the tramlines divert water flow across the ROC and therefore cause erosion on the ROC. He asserts it is difficult to drive over crops on the ROC.

11. Mr FitzGerald wishes to improve the ROC’s usability by constructing an “unsealed crowned road 100-300mm high together with table drains, as appropriate”, and undertake periodic grading activities. A table drain is, according to the experts, a “trapezoidal [shape] … flat bottom drain with shallow slopes either side of it to minimise erosion risk on the slopes that is lower than the landform [ie track].” Table drains may be constructed in different widths and depths. The narrower and deeper a drain is, the greater the concentration of water, which can lead to greater erosion. He further seeks an injunction preventing the defendants cropping over and creating tramlines on the ROC.

12. In contrast, Foxes Lane Co submits that Mr FitzGerald is not permitted to “physically change, modify or damage the servient tenement” unless he is removing or remedying anything that substantially interferes with his right to pass or repass along the ROC, and has given it at least 14 days’ notice. The defendants assert that Mr FitzGerald is entitled to do what is reasonably necessary for him to use the ROC, but he has not demonstrated that it is “reasonably necessary” to carry out any work, or at least not the work that he proposes. They assert that building the proposed road would not be reasonably necessary, noting that Mr FitzGerald has always been able to drive along the ROC, even if with some difficulty due to Foxes Lane Co’s cropping activity.

13. While Foxes Lane Co also seeks the extinguishment of the ROC, or its modification pursuant to s 89 Conveyancing Act 1919 (NSW), it accepts that if a finding is made that it is “entitled to crop across the carriageway”, or that Mr FitzGerald “is not permitted to build a road on the carriageway”, then its case under s 89 is “difficult, if not impossible”.

14. Mr FitzGerald also complains that from August to December 2022, the defendants impeded his access across the ROC, including with barriers and by wiring shut a gate. The defendants accept that they did so, and therefore submit that they are liable for Mr FitzGerald’s costs in these proceedings until the impediments were removed on 20 December 2022.

15. The issues in dispute are:

1. On the proper construction of the ROC, in the current circumstances:

1. is Mr FitzGerald entitled to construct an unsealed road and drains; and/or

2. is Foxes Lane Co entitled to grow crops and carry out farming activity on the ROC?

2. Ought the ROC be extinguished or narrowed pursuant to s 89 Conveyancing Act, primarily because other access routes are available and appropriate for Mr FitzGerald’s use?

3. Ought either party be entitled to damages for the nuisance or trespass of the other?

View

16. On the first day of the hearing, the Court conducted a view of the relevant properties pursuant to s 53 Evidence Act 1995 (NSW) to assist with an understanding of the evidence. The parties’ counsel, solicitors and representatives of the parties attended and travelled in 4-wheel drives over the ROC and various surrounding roads and road reserves. The view stopped where counsel sought to demonstrate various physical aspects of the documentary evidence.

17. It is convenient to refer to the route taken on the view by reference to the diagram included in the joint expert report, reproduced below with modifications to indicate the key access routes and lots.

18. The view commenced on Prairie Road Road Reserve (Prairie Reserve) (point S) where the ROC starts on Lot 10. It proceeded partly along the ROC to Prairie Straight (path S to T). No 4-wheel drive vehicle had any difficulty driving along the ROC, even though in places, there were low-lying plants or crops and the surface was not always flat or dry.

19. The view then proceeded along Prairie Straight back to Prairie Reserve (path T to V). Prairie Straight is an internal farm road created and maintained by Foxes Lane Co. It is not cropped over and is used by heavy farm machinery and smaller farm vehicles, such as 4-wheel drive utilities. Prairie Straight had a noticeably superior surface to the ROC and it was possible to drive faster on it. It had recently been drag bucketed to level out erosion and improve the surface. Foxes Lane Co carries out such maintenance “as needed” and sometimes, a few times a year.

20. At the junction of Prairie Straight and Prairie Reserve, the view proceeded towards where Prairie Reserve meets Mr FitzGerald’s Lot 2 of Deposited Plan 1198384 (path V to W).

21. Part of that stretch of the Prairie Reserve was quite wet and boggy. The black soil in the area takes some time to dry out after a rain event. Foxes Lane Co maintains the Prairie Reserve for large farm machinery to use and for smaller farm vehicles to use, when it is not too wet.

22. The drivers determined the safest way to drive that part of the Prairie Reserve was to veer off the path of the road and drive over Foxes Lane Co’s Lot 10 field of crops growing alongside the road. Even though the grain crops were relatively mature with yellowed heads that stood at about hip-height, the vehicles had no trouble driving over those crops. The existence of vegetation, including crops, on farm roads, including the ROC, reduces surface moisture, because the plants absorb it.

23. The view then traversed Prairie Reserve back to the commencement of the ROC (path W to S) and then proceeded along its length (path S to R).

24. The view stopped at the gate (point R), which marks the boundary of Lot 10 and Lot 11. That is one of the sites where the defendants admit they blocked Mr FitzGerald’s access between August and December 2022.

25. The view proceeded through Lot 11 on the ROC. Lot 11 is not currently cropped, but there was some vegetation on the ROC, including what appeared to be some crop stubble. Again, no vehicle experienced any difficulty driving over the ROC, even though it was not completely flat or dry.

26. The view proceeded from Lot 11 to Lot 21 (path R to Y). Lot 21 (and lot 20) is burdened by a very short “right of access” benefitting Mr FitzGerald’s Lot 19. This came into existence in June 2014, before Lot 21, which was previously a public road, was purchased by Kurstjens Onroerend BV in September 2014. Lot 21 was later transferred to Foxes Lane Co in June 2017.

27. The view then stopped at Mr FitzGerald’s workers’ “cottage” (situated on path Y to X). Next to the cottage, the “British standard or Britstand light grader” was observed. Mr FitzGerald accepted that he towed that grader behind his utility truck on about 10 occasions to cut down Foxes Lane Co’s crops and level out tramlines across parts of the 20-meter wide ROC.

28. The view then proceeded through Mr FitzGerald’s property to Foxes Lane and then back to Moree (path X to Z). Mr FitzGerald’s track on his property was not in a much better condition than the ROC.

29. Foxes Lane was a very useable road with gravel or compacted dirt or asphalt.

Proper construction of the right of carriageway

30. The parties agree that the first issue is whether, on its proper construction, the ROC permits Mr FitzGerald to carry out particular works on the ROC and/or permits Foxes Lane Co to plant and farm over it.

Principles of construction

31. The terms of the carriageway over Lots 10 and 11 are those in Part 1 of Schedule 8 of the Conveyancing Act 1919 (NSW):

Full and free right for every person who is at any time entitled to an estate or interest in possession in the land herein indicated as the dominant tenement or any part thereof with which the right shall be capable of enjoyment, and every person authorised by that person, to go, pass and repass at all times and for all purposes with or without animals or vehicles or both to and from the said dominant tenement or any such part thereof.

32. The terms of the right of access over a very small portion of Lot 20 and Lot 21 are those in Part 14 of the Schedule:

1

The owner of the lot benefited may-

(a) by any reasonable means pass across each lot burdened, but only within the site of this easement, to get to or from the lot benefited, and

(b) do anything reasonably necessary for that purpose, including-

• entering the lot burdened, and

• taking anything on to the lot burdened, and

• carrying out work within the site of this easement, such as constructing, placing, repairing or maintaining trafficable surfaces, driveways or structures.

2

In exercising those powers, the owner of the lot benefited must-

(a) ensure all work is done properly, and

(b) cause as little inconvenience as is practicable to the owner and any occupier of the lot burdened, and

(c) cause as little damage as is practicable to the lot burdened and any improvement on it, and

(d) restore the lot burdened as nearly as is practicable to its former condition, and

(e) make good any collateral damage.

33. A registered easement is to be construed by reference to the language of the easement itself, without having recourse to materials extrinsic to the Torrens Register: Lowe v Kladis (2018) 19 BPR 38,599; [2018] NSWCA 130 (Lowe) at [87] (Sackville AJA, Meagher and White JJA agreeing), citing Westfield Management Ltd v Perpetual Trustee Co Ltd (2007) 233 CLR 528 (Westfield) at [39] (Gleeson CJ, Gummow, Kirby, Hayne and Heydon JJ); see also Aust-One Investment Pty Ltd v New World Investments Pty Ltd (2023) 111 NSWLR 39 at [21] (Mitchelmore JA).

34. The current physical characteristics of both the dominant and servient tenements can be considered when construing an easement, at least where there has not been “some material change in physical circumstances … since the creation of the easement”: Hare v Van Brugge (2013) 84 NSWLR 41 (Hare) at [15]-[18] (Barrett JA, Macfarlan and Tobias JJA agreeing); see also Lowe at [88]; Tempe Recreation (D500215 and D1000502) Reserve Trust v Sydney Water Corp (2014) 88 NSWLR 449 at [77] (Leeming JA, Basten and Emmett JJA agreeing); Sertari Pty Ltd v Nirimba Developments Pty Ltd [2007] NSWCA 324 (Sertari) at [15]-[16] (Handley AJA, Tobias and McColl JJA agreeing).

35. However, where the physical features of the land in question have changed since the creation of the easement, it appears the better view is that the physical characteristics at the time of grant cannot be taken into account: see Currumbin Investments Pty Ltd v Body Corp Mitchell Park Parkwood CTS [2012] 2 Qd R 511 at [49] (Fryberg J, McMurdo P and Fraser JA agreeing), discussed with apparent approval in Hare at [18]. That is because having regard to the physical features of the land when the easement was created would involve “taking into account matters … that are inaccessible to a third party inspecting the [Torrens] register”: see Lowe at [88].

36. Therefore, in construing ROC, the Court is “limited to the material in the folio identifiers, the registered instrument, the deposited plans, and [if relevant] the physical characteristics of the tenements”: Sertari at [16].

Ancillary rights of dominant tenement

37. Further, the owners of the dominant tenement hold those rights which are conferred by the express terms of the easement on its proper construction, as well as any ancillary rights that are implied by virtue of being reasonably necessary for the owners’ enjoyment of their express rights: McWilliam v Hunter [2022] NSWSC 342 at [37] (Darke J); Westfield at [23]; Zenere v Leate (1980) 1 BPR 9300 (Zenere) at 9304 (McLelland J).

38. Mr FitzGerald relied on Brereton J’s remarks in his ex tempore judgment in Burke v Frasers Lorne Pty Ltd (2008) 14 BPR 26,111; [2008] NSWSC 988 (Burke) at [21], where his Honour expressed the following view (citations omitted):

[The right to construct a road] is an ancillary right of a dominant owner: incidental to a grant of a right of way, the grantee may enter on the easement to do whatever is reasonably necessary to make the grant effective — including, in the case of a right of carriageway, not only repairing it but making a road so that there is a serviceable carriageway over which vehicles can pass in poor conditions as well as in good weather. … [T]he right to construct a road includes a right to pave.

39. He also referred to Newcomen v Coulson (1877) LR 5 Ch D 133 at 143 (Jessel MR) and Lawrence v Griffiths (1987) 47 SASR 455 (Lawrence) at 465 (White J) as authority for that proposition.

39. Foxes Lane Co submitted that the statement by Brereton J ought not be understood as suggesting that a right to construct a road always exists, and that the authorities Brereton J cited do not stand for such a wide proposition.

40. It is not necessary to determine whether Brereton J overstated previous authorities. Here, there is already a dirt road; it is not a case where it is necessary for a road to be formed where none existed, and instead, the issue is what repair or improvement of that road is reasonably necessary.

41. That is because the dominant owner’s right to construct improvements (or the right to construct a road, if that right exists in a particular situation) on the servient tenement is confined to “what is reasonably necessary for the effective and reasonable exercise and enjoyment of the easement”, assessed “in light of all the circumstances”: Burke at [22]; Mantec Thoroughbreds Pty Ltd v Batur (2009) 25 VR 507 (Mantec) at [92] (Habersberger J); Zenere at 9305; Sertari at [9]; see also Lowe at [96]; Lawrence at 488; Westfield at [23].

42. This limitation is consistent with the authorities which state that the "dominant owner is not entitled to use the right of carriageway in a manner that unreasonably interferes with the use by the servient owner of the carriageway" (Lowe at [101]; see also Hare at [25]; Lawrence at 488), even though the carriageway is expressed as being "for all purposes": Westfield at [21]-[22].

43. Bryson J explained the limitation in this way in Owners Corp of Strata Plan 42472 v Menala Pty Ltd (1998) 9 BPR 16,337 at 16,340:

The [dominant tenement owner’s] right of way does not entitle the [dominant tenement owner] to have the whole of the 6 m strip cleared of any obstruction as if it were a billiard table. The [servient tenement owner] continues to be the owner of [its] land, and may use it in any way and maintain on it any structure if it does not create a real substantial interference with the enjoyment of the right of way. If enough space is left free for passage without any real substantial interference with the right to pass and re-pass, the [dominant tenement owner] cannot insist on more. 

45. In Mantec at [94], Habersberger J considered that the effect of the limitation was that:

[T]he defendants have an ancillary right to undertake works in respect of the easement in order to make it passable for all types of vehicles, if those works can be performed without causing injury to the plaintiff’s land, in other words, without damaging the dam or surrounding areas.

46. Counsel for Foxes Lane Co also cited Butler v Muddle (1995) 6 BPR 13,984 at 13,986-7, where Young J (as his Honour then was) observed that:

The general proposition that a right of way is not the equivalent of ownership was made clear by Rath J in Saggers v Brown (1981) 2 BPR 9329 at 9331 , where he said, citing authority,

At the outset it is to be observed that there is a distinction between ownership of land giving rights to the soil and to every inch of the soil and the rights of enjoyment conferred by the grant of a right of way.

Mr Gyles submitted more than once that there was a general right to pave the whole easement. With respect, that is not right. In cases such as Gerrard v Cooke (1806) 2 Bos & Pul (NR) 109; 27 ER 565, it was held very early on that where one had a right of footway to one’s door one could lay a flagstone. Whilst such paving was not absolutely necessary it was “needful” to enjoy the way and in accordance with the manner in which the parties intended it be enjoyed. Likewise it was said that where one had a right of carriageway one could pave so that the wheels of one’s carriage did not sink into the ground … But none of that authority gives any licence to the dominant owner to pave the whole of the right of way. His right is only to pave so much as is reasonably necessary for his enjoyment. For reasons I have already indicated the defendants are seeking to pave too much.

47. As for the servient owner, it has “rights incidental to ownership of the burdened fee simple.” However, “a concept of reasonable use applies” such that both the servient and dominant owners “must exercise a degree of restraint in relation to the easement site” and refrain from causing a substantial or unreasonable interference to the other: Hare at [25].

48. The question of what constitutes a substantial interference with the reasonable use of a right of way for the purposes of a dominant tenement was described by Palmer J in Middleton v Arthur (2002) 11 BPR 20,263; [2002] NSWSC 627 at [48] (approved by Sackville AJA, Meagher and White JJA agreeing, in Lowe at [93]) as “essentially and ultimately a question of common sense judgment founded upon the circumstances of each particular case”. His Honour proceeded to observe that:

An obstruction may be small in size and short in duration but, in the light of the particular use for which the Right of Way is reasonably required, it may nevertheless be a substantial interference … On the other hand, the obstruction may be large in size and of permanent duration and yet, because of the limited use for which the Right of Way is reasonably required, it may not be a substantial interference …

49. As Hall J held in Davidson v Elkington [2011] WASC 19 at [33], the servient owner’s obligation “is merely negative” in the sense that it is an “obligation to refrain from acts which obstruct the exercise of the dominant owner’s rights”. However, neither the servient owner nor the dominant owner is required “to desist altogether from exercising some part of the totality of [their] rights so as to leave the field entirely clear” for the other: Hare at [25].

Application

50. I consider the correct construction is that Mr FitzGerald may carry out such works which are reasonably necessary for him to enjoy access over the ROC. The extent of what is reasonably necessary is considered below. For completeness, I do not accept that because Mr FitzGerald only has a “right of access” over Lot 20 and 21 at the end of the ROC in order to access his Lot 19, that the benefits of the ROC ought to be read down in accordance with Part 14 of Schedule 8 Conveyancing Act.

51. Whether Mr FitzGerald’s proposed (and historic) works are currently permitted is to be judged considering:

1. The proper construction of the easement, as set out above;

2. The current circumstances; and

3. What works are assessed to be “reasonably necessary” for Mr FitzGerald to obtain the benefit of the easement.

Physical characteristics of the properties

52. The state of the parties’ properties was apparent on the view as recorded above. Presently, Foxes Lane Co crops Lot 10, and the ROC was covered with what appeared to be crop stubble in parts. Other parts were muddy and wet. However, as noted above, the whole of the ROC was passable with the 4-wheel drive vehicles during the view.

53. While somewhat unclear, Mr FitzGerald appeared to assert that the physical features of the parties’ land have materially changed since the time of grant, and that provided a basis to support his entitlement to improve the ROC.

54. However, there is little evidence providing a detailed picture of the land specifically at the time of grant in 1992.

55. The parties accept that in 1992 there was a dirt track along the ROC that led to a former house on Lot 19. Mr FitzGerald relied on an 18-minute video taken in about 2010 mostly from a moving utility vehicle, of which the parties agreed that approximately 6.5 minutes was shot on the ROC. The video shows that the track on the ROC is bumpy, but mostly flat. It consisted of dirt compacted paths, along which the wheels of the utility vehicle mostly travel. In between in the middle of the track is slightly elevated green vegetation, where no vehicle wheels would likely travel. On both sides of the track, low-lying scrubby green vegetation can be seen. On the land around the ROC were some cattle.

56. Mr FitzGerald gave evidence that he recalled at the time of grant that there were “table drains” on either side of the track. Mr FitzGerald’s senior counsel submitted that these drains were visible on the 2010 video. However, no particular frame was identified, where such drains were said to be visible. No expert gave evidence as to the existence of table drains near the ROC either in the video or otherwise from their observation. I consider it almost impossible to discern any table drains in the video. If they existed at the time of the video, there is no compelling evidence that they existed at the time of grant. Nor is there evidence going towards whether they were necessary or effective.

57. The parties’ land was and remains relatively flat farming land accessed by unsealed farm tracks. Lot 19 had and has alternative access routes other than the ROC.

58. I do not consider the fact that much of the servient tenement was used for grazing at the time of grant, rather than the current cropping, amounts to a material change in circumstances relevant to the construction of the easement. Therefore, the physical features of the parties’ land now may be considered in the construction process.

Proposed road and drain construction works

59. Mr FitzGerald’s ancillary right to construct improvements does not extend to his proposed road and drain works for the following reasons.

60. First, it is not possible to accurately assess the work proposed, because there is currently no plan as to the exact formation of the road, nor approval or exemption for the drains under the Water Management Act 2000 (NSW) by the relevant regulatory authority, because of the diversion of the natural water course. While Mr FitzGerald seeks to build a crown on the road of up to 300mm, based on the expert evidence, I accept that it is more likely than not that approval would be needed even with a lower crown of 150mm, if water could still flow over the ROC. Mr FitzGerald had not inquired into that matter, but did not suggest that approval would not be necessary.

61. Further, there was no agreement between the experts as to the appropriate type of drain. Mr FitzGerald’s expert in erosion and sediment control, Mr Frankcombe, considered that “a grass line drain of suitable width” along the whole of the ROC would be necessary at least on the eastern side, if not on both sides. He did not identify the “suitable width.” Mr Buchanan’s evidence was that the table drains would need to be designed and would probably need to be much wider at the south end of the ROC because of a likely greater quantity of water.

62. Mr Taylor, an irrigation, environmental and resources consultant, noted that “the process of building the table drain will need to include backfilling of the eroded material from the right of carriageway that’s … gone now.” No expert had been asked to design the appropriate table drains and road to ensure that they could be accommodated within the ROC, and that approval would be granted.

63. However, I accept the expert evidence of Mr Taylor that grassing over the ROC would introduce “significant difficulty” for cropping, because the herbicides used on the crops would kill the grass needed on the ROC. I also accept Mr Thorn’s evidence that having a grassed drain next to crops would not be possible, or alternatively, would need a “wide buffer” that I consider would unreasonably interfere with Foxes Lane Co’s use of the ROC. That is particularly so in circumstances where crops would reduce erosion when they were growing on the ROC, so as to achieve a beneficial effect on Mr FitzGerald’s use of the ROC. There would be a similar positive effect caused by stubble remaining after harvest. I note Mr Buchanan also accepted that “grass cover [rather than a drain or some other engineering solution] would be the most practical, low-cost solution for both parties.”

64. Secondly, it would appear uncontroversial that a grant to pass with a vehicle ought to be construed as authorising the use of vehicles of any description, which are consistent with the purposes for which the easement was granted: see eg the concession made in Elliott v Renner [1923] St R Qd 172 at 176 (Shand J) (decision affirmed on appeal: at 180-2); in Zenere at 9305, McLelland J referred to “reasonable vehicular access”; see also Adrian Bradbrook and Susan MacCallum, Bradbrook and Neave’s Easements and Restrictive Covenants (3rd ed, 2011, LexisNexis) at [6.11]-[6.19].

65. Considering that the parties’ properties have unsealed internal farm roads, fences and gates across the ROC of not more than about 4 metres, I consider that Mr FitzGerald is entitled to pass and repass using any usual farm vehicle. That is a relevant consideration when determining whether his proposed works are reasonably necessary.

66. I do not consider Mr FitzGerald’s proposed road works are “reasonably necessary” in the circumstances where he has always been able to pass and repass along the ROC with his utility vehicle. No doubt Mr FitzGerald can traverse the ROC in an ordinary farm vehicle without carrying out such significant works. As seen on the view, it is completely possible for a vehicle to drive over even quite mature crops. If he was not able to pass and repass over the ROC from time to time, then he would be entitled to remove some crop growth or flatten some tramlines.

Periodic grading by Mr FitzGerald

67. In addition, Mr FitzGerald seeks to maintain the trafficability of the ROC by undertaking periodic grading activities on the ROC and to remove any crops and tramline ruts.

68. As noted above, an easement confers upon the dominant owner an ancillary right to “repair and maintain improvements at his or her own expense,” which “extends to the provision of any service that is reasonably necessary to make the easement usable”: Hare at [29]. However, that right must be exercised in a manner that is “consistent with the reasonable use and enjoyment of the right of way,” and it also cannot be used in a way that would “interfere with the use and enjoyment” of the servient owner’s land: Zenere at 9305.

69. Mr FitzGerald asserts that his proposed works of grading the ROC with a commercial grader, or his own “light grader” that can be dragged behind his utility vehicle, are in accordance with the way that farm roads are maintained in the area. He referred to Prairie Straight, Foxes Lane Co’s internal road, that when needed, is drag bucketed to give a better surface.

70. I do not consider that this is an appropriate comparator. Foxes Lane Co is entitled to use the ROC, but must allow Mr FitzGerald to pass and repass. However, Foxes Lane Co need not consider the interests of any other person when dealing with its own internal road, Prairie Straight. It has decided to make Prairie Straight a farm access road and not crop over it; it has not done so with the ROC.

71. Foxes Lane Co is entitled to use the ROC in any way, including by cropping over it, provided that it does not cause a substantial interference with Mr FitzGerald’s right to pass and repass. All the experts also accepted that the types of crops grown on the ROC since 2013 can be driven over, as was also experienced on the view.

72. Mr FitzGerald is not entitled to do more than what the expert Mr Thorn explained was “only very minor regrading of the road so as not to affect the quality of the soil for [the] establishment and growing of crops.” Such maintenance would permit the use of a light grader, such as one towed. Only if there were significant ruts in the track would a larger grader be needed, and only for those particular sections. To the extent that there are crops that interfere with Mr FitzGerald’s access, he may cut them back: see eg Treweeke v 36 Wolseley Road Pty Ltd (1973) 128 CLR 274 at 280 (McTiernan J) (in a different context, pruning of obstructing bamboo appropriate).

73. Further, the area for such “reasonable” maintenance is only of a sufficient width so as to allow Mr FitzGerald’s farm vehicle to pass.

74. Therefore, it is appropriate to make orders in the form sought by Foxes Lane Co concerning the entitlements of the parties to carry out works on the ROC.

Mr FitzGerald’s nuisance claim

75. Mr FitzGerald alleges that the defendants committed an actionable nuisance between August 2022 and 20 December 2022, when they created physical impediments preventing his use of the ROC.

76. Obstruction of a dominant owner’s use of an easement is actionable as nuisance: Clough v Breen (No 4) [2023] NSWSC 1155 at [209] (Slattery J), citing McDowall v Reynolds [2004] QCA 245. However, the obstruction must be a real and substantial interference: see eg Powell v Langdon (1944) 45 SR (NSW) 136 at 139; Mantec at [76].

77. The defendants admit that between August and December 2022, on various dates, they obstructed the ROC by:

1. Wiring the latch of a gate across the ROC;

2. Digging trenches;

3. Building up earth in front of the double gates on the ROC; and

4. Placing and locking metal beams on the cattle grid.

78. As for the award of damages, there is a general rule that a nuisance “is not actionable per se and actual damage must be proved.” However, an exception to this rule is where the interference is with an easement: David Rolph, Jason N E Varuhas, Penelope Crossley and Michael Douglas, Balkin & Davis: Law of Torts (6th ed, 2021, LexisNexis) at [14.6], citing Nicholls v Ely Beet Sugar Factory Ltd [1936] Ch 343 at 349-50 (Lord Wright MR) and Walsh v Erwin [1952] VLR 361 at 363-4 (Sholl J).

79. In those circumstances, an affected owner is entitled to compensation for the diminution in the amenity value of the property during the period of the nuisance: see eg Hunter v Canary Wharf Ltd [1997] AC 655 at 706 (Lord Hoffman).

80. Mr FitzGerald seeks $75,000 by way of monetary relief for his loss of amenity occasioned by the interference for approximately four months in 2022. He refers to Fenwick v WamboCoal (No 3) (2011) 15 BPR 29,559; [2011] NSWSC 788 (Fenwick) in support of that contention.

81. In Fenwick, from October 2008, the plaintiff had denied the defendant access to a right of way, and continued to do so as at the date of hearing in July 2011, approximately 3 years later. Although the plaintiff had other access, it took “at least half an hour longer each way.” The plaintiff consequently “had to cut down his time” at the Warkworth gun club, which he regularly attended, and “did not visit friends and relatives in Singleton as often as he would otherwise have done”: at [117].

82. White J awarded $20,000 in damages for loss of amenity. His Honour reasoned at [118] that:

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.

83. Counsel for Mr FitzGerald also referred to Bone v Seale [1975] 1 WLR 797. That decision concerned a nuisance arising from the smells caused by the accumulation of pig manure and the boiling of pig swill that emanated from the defendant’s pig farm. The trial judge ordered the defendant to pay each of the plaintiffs the sum of £6,344.66, being damages for loss of amenity at the rate of £500 per annum for approximately 12 years and 8 months. However, on appeal, the award was reduced to £1,000 for each plaintiff, or about £80 per annum.

83. Mr FitzGerald gives evidence that due to the wet weather in September and October 2022, the alternative access routes to North Prairie could not be safely or reliably used. He asserts that the consequence of the obstruction of the ROC was that he suffered “financial harm” as he was unable to carry out his farming and biodiversity stewardship operations.

84. However, there was no evidence as to the quantum of the alleged “financial harm” suffered in September and October 2022. Nor did Mr FitzGerald particularise the loss of amenity that he suffered beyond bare assertions that he was unable to develop his farm as a residence or improve it substantially, and that neither friends, family nor service providers were able to reliably access North Prairie. The evidence only shows that in 2022, Mr FitzGerald used the ROC a few times a month and there was unspecified use by his invitees.

85. Having regard to the authorities discussed above, the relatively short period of time which the ROC was obstructed, and the limited evidence of impact on Mr FitzGerald and his invitees, I consider that $2,500 is the appropriate amount of compensation to reflect the inconvenience that Mr FitzGerald suffered when he was unable to use the ROC from time to time during the 4 month period, despite his efforts to remove obstructions.

86. Mr FitzGerald also seeks $4,400 (excluding GST) in damages for consequential loss, which he asserts is the wasted cost of having a commercial grader and driver attend the property in August 2022 to create a formed-up road on the ROC, when that was not possible due to the obstructions created by the defendants. However, I do not consider that Foxes Lane Co is liable in damages for this amount in circumstances where:

1. The proposed work was not “reasonably necessary” for the reasons above; and

2. Mr FitzGerald in fact used the commercial grader for other work on his property and therefore obtained the benefit of the hire charge and suffered no identifiable loss.

88. Further, Foxes Lane Co has accepted that it ought to pay Mr FitzGerald’s costs from the commencement of these proceedings until the obstructions were removed on 20 December 2022.

Exemplary damages?

89. In his opening written submissions, Mr FitzGerald submitted:

Exemplary damages may be awarded (Commonwealth v Murray (1988) Aust Torts Reports 80-207) and should be awarded here.

90. While that statement of principle may be accepted, Commonwealth v Murray concerned an assessment of a jury’s award of exemplary damages for nuisance on appeal, and is not helpful to the application of the legal principles here. Counsel for Mr FitzGerald indicated that submissions on damages would be developed in closing. However, aside from the contention that the Court should “impose damages in an amount that represents the egregious nature of the conduct” (mistakenly referred to as for trespass), no further closing submissions were made in relation to exemplary damages (including quantum). Instead, the focus of the submissions was on cases concerning loss of amenity.

91. Sackville AJA (Macfarlan and Whealy JJA agreeing) explained in New South Wales v Zreika [2012] NSWCA 37 (Zreika) at [61] that exemplary damages “go beyond compensation and are awarded as a punishment to the guilty, to deter similar conduct in the future, and to reflect “detestation” for the action”. Generally, what is required for an award of exemplary damages is “conscious wrongdoing in contumelious disregard of another’s rights”: Gray v Motor Accidents Commission (1998) 196 CLR 1 at [14] (Gleeson CJ, McHugh, Gummow and Hayne JJ); Zreika at [61].

92. Exemplary damages must be approached moderately. Given how “objectives of punishment, deterrence and condemnation … inform an award of exemplary damages,” it is relevant to consider the likelihood of the defendant engaging in the conduct again: White v Johnston (2015) 87 NSWLR 779 at [146] (Leeming JA, Barrett and Emmett JJA agreeing).

93. Here, I do not accept that there ought to be any exemplary damages awarded in addition to the loss of amenity damages. While it was inappropriate for the defendants to restrict Mr FitzGerald’s access, that occurred in circumstances where Mr FitzGerald was threatening to bring a large grader onto the ROC to carry out work beyond what was reasonably necessary to ensure his access. The defendants have acknowledged that the self-help action was inappropriate, including in the form of the volunteered costs order. The defendants have not repeated restricting Mr FitzGerald’s use of the ROC since December 2022, and I do not expect it is likely that the defendants will do so in the future.

Injunctions?

94. Similarly, while Mr FitzGerald sought injunctions, I do not consider that there is an ongoing threat of further interferences with his access along the ROC, particularly in circumstances where the defendants accept that they wrongfully impeded the ROC in 2022. I will not make orders imposing an injunction.

Foxes Lane Co’s nuisance and trespass to land claims

95. Foxes Lane Co claims damages for nuisance and trespass in the sum of $76,720, for remediating the ROC when Mr FitzGerald excessively graded the ROC on at least 7 occasions.

96. As noted above, Sackville AJA (Meagher and White JJA agreeing) held in Lowe that “the dominant owner is not entitled to use the right of carriageway in a manner that unreasonably interferes with the use by the servient owner of the carriageway”: at [101].

97. In Perpetual Trustee Co Ltd v Westfield Management Ltd (2007) 12 BPR 23,793; [2006] NSWCA 337 at [31], Hodgson JA (Beazley and Tobias JJA agreeing) held (not doubted on appeal in Westfield):

[E]ven though a use of the servient tenement may otherwise be within what was granted by the easement, if this use is carried out unreasonably so as to cause unreasonable damage to the servient tenement, it may be restrained as a nuisance.

98. Similarly, Neuberger LJ (as his Lordship then was) observed in McAdams Homes Ltd v Robinson [2004] EWCA Civ 214 at [27] that excessive use of an easement by the dominant owner will render them liable in nuisance. Further, “[a] person who makes excessive use of a servient tenement in purported exercise of a right-of-way commits a trespass”: Clough at [211], citing Milner’s Safe Co Ltd v Great Northern and City Rail Co [1907] 1 Ch 208 at 229 (Kekewich J).

99. I consider that Mr FitzGerald’s use of the grader as seen in the video in evidence from 2018 was excessive user and amounts to a nuisance and a trespass. Mr FitzGerald could be seen grading across an area many times as wide as his utility truck. He was adamant in cross-examination that he “needed” 20 metres of the ROC. However, no explanation was provided as to why Mr FitzGerald needed to clear as wide an area as he did, when his vehicle could already pass relatively quickly, and where the track on the ROC can accommodate vehicles of about 3 metres wide.

100. Further, as found above, he was not entitled to bring on a commercial grader on any occasion, and therefore to the extent that he did so, it amounted to a trespass and a nuisance.

101. However, nuisance is generally not actionable per se and proof is loss is required: see [78] above. I am not satisfied that the defendants have demonstrated that they have suffered the loss of the claimed $76,720 for remediation. There is insufficient evidence that those costs of remediation claimed were incurred. The evidence from Mr Kurjstens is vague, and he has no first-hand knowledge of any works carried out to allegedly remediate the ROC. Mr Coughran, the farm manager on site, could have given such evidence, but did not. Further, there are no records from which the alleged costs can be determined.

102. Therefore, while I accept that Mr FitzGerald was not entitled to grade the ROC in the manner that he did, I do not consider Foxes Lane Co is entitled to damages of $76,720.

103. However, I accept that Foxes Lane Co is entitled to some damages for Mr FitzGerald’s trespass, even if no loss or damage is proved, as vindication of the fact that its right has been infringed: see eg New South Wales v Williamson [2011] NSWCA 183 at [57] (Campbell JA, Macfarlan JA agreeing).

104. In my view, $2,500 is the appropriate amount of compensation to be awarded to Foxes Lane Co as damages for Mr FitzGerald’s trespass.

Ought the ROC be extinguished or modified?

105. Should the above conclusions be erroneous, Foxes Lane Co seeks the extinguishment or reduction in size of the ROC under s 89 Conveyancing Act.

106. The issues concerning extinguishment are:

1. Whether under s 89(1)(a) Conveyancing Act, the continued existence of the ROC would impede the reasonable user of Lots 10 and/or 11 without securing a practical benefit to the persons entitled to the ROC, either without a condition or on the condition that Foxes Lane Co grant a new easement or otherwise.

2. Whether under s 89(1)(c), the extinguishment of the ROC would not substantially injure the persons entitled to the ROC, either without a condition or on the condition that Foxes Lane Co grant a new easement or otherwise.

107. If extinguishment is not considered appropriate, then the same issues arise concerning modification of the width of the ROC from 20 to 8 meters (or some other width).

108. For extinguishment or modification, it must be appropriate to exercise the discretion to do so with or without conditions.

109. The proper operation of s 89(1) is not in dispute: see eg Durian (Holdings) Pty Ltd v Cavacourt Pty Ltd (2000) 10 BPR 18,099; [2000] NSWCA 28 at [4] (Mason P, Stein JA agreeing).

110. As noted above, Foxes Lane Co accepts that its case under s 89 is weak, in circumstances where, as I have found, it is entitled to use the ROC, including by cropping, provided that it does not substantially interfere with Mr FitzGerald’s use of the ROC. For the following reasons, I do not consider it appropriate to extinguish or modify the ROC.

Does the ROC impede Foxes Lane Co’s reasonable user?

111. Foxes Lane Co contends that the continued existence of the ROC would impede the reasonable user of its land and that the ROC does not secure any practical benefit to Mr FitzGerald.

112. Foxes Lane Co accepts it must establish that no reasonable user of the land is possible unless the easement is modified or extinguished: Frasers Lorne Pty Ltd v Burke (2008) 14 BPR 26,131; [2008] NSWSC 743 (Frasers Lorne) at [14] (Brereton J). The focus is therefore on the use of the land which can be made by any owner: Heaton v Loblay (1959) 60 SR (NSW) 332 at 335 (Myers J).

113. Further, Foxes Lane Co must show that the continuance of the unmodified ROC “hinders, to a real and sensible degree, the land being reasonably used, having due regard to the situation it occupies, the surrounding property, and the purpose of the [easement]”: Re Ghey & Galton’s Application [1957] 2 QB 650 at 663 (Evershed LJ, Morris and Pearce LJJ agreeing); Cavacourt Pty Ltd v Durian (Holdings) Pty Ltd (1998) 9 BPR 16,833; [1998] NSWSC 787 at 16,839 (Young J, as his Honour then was) (reversed on appeal but on other grounds).

114. What is a “practical benefit” for the benefitted land owner is capable of ready assessment: Laris v Lin (No 2) (2016) 18 BPR 34,917; [2016] NSWSC 560 (Laris v Lin (No 2)) at [71] (Slattery J). There must be some proper evidence that the restriction is no longer necessary for any reasonable purpose of a benefited owner: Frasers Lorne at [17], citing Re Henderson’s Conveyance [1940] Ch 835 at 846 (Farwell J).

115. If a benefited owner is in favour of a covenant remaining, a court should conclude that the covenant secures to them a practical benefit, unless their preference is clearly unreasonable or is activated by motives of spite or malice: Re Application by Wolfe (1997) 8 BPR 15,669 at 15,674 (McLaughlin J), citing Re Chamberlain and Conveyancing Act (1969) 90 WN (Pt 1) (NSW) 585 at 593 (Helsham J).

116. The question is whether the benefited owner presently attains some reasonable objective relating to the subject matter of the covenant: Re Callanan [1970] 2 NSWR 127. The benefit derived by a benefited owner cannot necessarily be measured only by the monetary value of the benefit: Re Parimax (SA) Pty Ltd (1954) 56 SR (NSW) 130 at 133 (Myers J).

Does ROC hinder Foxes Lane Co to a real degree?

117. It does not appear in dispute that dryland cropping is a reasonable user of Foxes Lane Co’s land, and this also follows from the relevant zoning of the land as “primary production.”

118. The unanimous view of all four experts in this case was that the ROC has become a “preferential flow path” for water across Lot 10 beyond the ROC, is causing erosion, and in time, will form a “catchment divide”. They have noted that this impacts farming and planting times, is causing loss of yield and reduced productivity in the paddock, reduces planting density thus allowing weed growth, and impacts the passage of large farm machinery. However, the actual practical impact of the existence of the ROC was not in evidence. Mr Coughran, the farm manager for Foxes Lane Co, gave clear evidence that it would be possible to crop around the ROC without too much difficulty by creating headlands, and the crops grown on those headlands would also be productive.

119. Mr FitzGerald’s counsel accepted that if Lot 10 were divided into two paddocks and the ROC was not cropped over, there could be some loss of moisture flow from the east to the west. However, this was not something that had been quantified or explained by Foxes Lane Co as a detriment.

120. Foxes Lane Co placed great emphasis on the opinion of Mr Buchanan and Mr Frankcombe, the plaintiff’s experts, that:

… the use of the ROC needs to be either cropping, or carriageway. It cannot be both.

121. However, during their joint evidence in Court, Mr Buchanan and Mr Frankcombe explained that cropping would be incompatible only if the ROC was built up, as suggested by Mr FitzGerald, with table drains. Mr Frankcombe also accepted that cropping or grassing over the ROC provided a way of avoiding erosion that occurs with a dirt only track, with 70% coverage being “best practice”.

122. Therefore, I do not accept that in circumstances where Foxes Lane Co is able to crop over the ROC or crop around it, its reasonable user of Lot 10 is impacted by the ROC.

Does ROC secure a “practical benefit” to Mr FitzGerald?

123. The question of whether the ROC secures a “practical benefit” to Mr FitzGerald largely turns on the same matters relevant to whether extinguishment will cause “substantial injury” to Mr FitzGerald. That question, which involves assessment of the alternative access, is addressed below.

Does the ROC cause Foxes Lane Co a “substantial injury”?

124. A substantial injury within the meaning of s 89(1)(c) means an injury which has present substance; that is to say, not a theoretical injury but something which is real and which has present substance: Coffill v Lagudi Holdings Pty Ltd (2016) 18 BPR 36,483; [2016] NSWSC 1764 (Coffill v Lagudi) at [48] (Darke J), citing Re Mason and the Conveyancing Act [1962] NSWR 762 at 764 (Jacobs J); Tujilo v Watts (2005) 12 BPR 23,257; [2005] NSWSC 209 (Tujilo v Watts) at [37] (Campbell J); Laris v Lin (No 2) at [74] .

125. The kind of injury contemplated is substantial injury to the dominant tenement owner’s interest in the land benefited: Coffill v Lagudi at [49]. The injury includes interference with either the express rights granted by the easement, and may (at least in some circumstances) include incidental rights granted by the easement: Tujilo v Watts at [40] and [88]. The injury need not be tied to a change in the value of the land: Webster v Bradac (1993) 5 BPR 12,032 at 12,035 (McLelland CJ in Eq).

126. The dominant owner does not suffer a substantial injury due to the possible change of an existing situation in the future, in circumstances where there is no immediate prospect of such change and no evidence that such a change is contemplated: Coffillv Lagudi at [54].

127. If an easement offers no “practical benefit” over what the dominant owner already enjoys, then there will no substantial injury: CoffillvLagudi at [55].

Alternative access

128. Foxes Lane Co submits that Mr FitzGerald can use alternative access routes and therefore, he obtains no practical benefit or would not be substantially injured by its extinguishment.

129. Mr FitzGerald’s Lot 19 is not landlocked. There are at least four existing alternative access routes to Lot 19 being used by Mr FitzGerald. For example, he currently uses his own internal farm road to access Foxes Lane. He also has access to Prairie Reserve onto Prairie Road.

130. In wet weather, because of the nature of the soil in the area, there can be limited trafficability on any road. However, the ROC does provide more consistent access and dries out more quickly than Prairie Reserve.

131. Foxes Lane Co’s primary submission is that the availability and condition of the existing access routes are sufficient to render any injury to Mr FitzGerald insubstantial. The defendants’ secondary submission is that any injury that might have been substantial could no longer be found to be substantial if the Court extinguishes the ROC on the condition that a new easement is granted in the form of one of Foxes Lane Co’s offers, made between 4 May 2023 and 30 September 2024.

132. Foxes Lane Co’s sixth open offer, made on the first day in Court, was to the effect that Foxes Lane Co would improve both Prairie Straight and Prairie Reserve by constructing a crowned road and drainage, if permitted by the local council. In the event that council did not permit such improvements, Foxes Lane Co offered an easement over part of its Lot 10 running alongside Prairie Reserve.

133. This offer was said to eliminate all of Mr FitzGerald’s criticisms, and those of the experts, of other alternative routes that had been offered. This offer was said to provide a better access route than the ROC. Obviously, Foxes Lane Co would benefit from no longer being burdened with the ROC across the fields it uses for cropping.

134. That offer has not been accepted, because Mr FitzGerald would lose the benefit of a registered right of way, as Foxes Lane Co has no ability to grant a proprietary interest over Prairie Reserve.

135. Even if the local council consented to the construction of a better road on Prairie Reserve, Mr Fitzgerald submits that any obligation on the part of Foxes Lane Co to maintain and repair the road would not run with the land as a positive covenant under s 88BA(1) Conveyancing Act. That section refers to covenants of maintenance and repair of “land that is the site of an easement or other land that is subject to the burden of the easement.” Because Foxes Lane Co has no right to grant an easement over Prairie Reserve, Mr Fitzgerald submits he would therefore have no enforceable right of maintenance and repair as against any successor in title to Foxes Lane Co.

136. Foxes Lane Co was given an opportunity to make further written submissions after the hearing in response to the concerns in respect of s 88BA(1) raised by Mr Fitzgerald. However, this opportunity was not taken up. I accept Mr FitzGerald’s submissions that the offer did not provide a better alternative in terms of a proprietary right to him.

137. In any case, the evidence was clear that the ROC:

1. Provides Mr FitzGerald with the shortest access route; and

2. Dries out more quickly than other access routes when there is extreme weather.

138. While the length of the ROC is a relevant consideration, the usability of the ROC compared to the other currently available access routes is important. I do not accept Foxes Lane Co’s submission that I ought not accept this because the experts consider the ROC to be a “preferential flow path” which remains “impacted by weather” and “is considered reliable for dry weather traffic only if wheel ruts are not to be created within the ROC.” The issue is whether the ROC provides a benefit, and the important fact is that the ROC provides better access, even if that access is not always available because of weather.

138. It does not assist Foxes Lane Co that the experts consider that the effect of wet weather on all “black soil roads” is to reduce or prevent the use of the road by light vehicles. That is a neutral matter.

139. I consider the better accessibility of the ROC amounts to a practical benefit that would be lost if the ROC were taken from him. I therefore also consider Mr FitzGerald does obtain a practical benefit from the ROC and would be substantially injured by its removal. The ROC ought not be extinguished. Neither ought it be reduced in circumstances where Mr FitzGerald accepts that he can only do what is “reasonably necessary in order to enable [him] to have trafficable access or the type of access contemplated by the grant” over the 20 metre width.

Ought the discretion be exercised?

141. Ordinarily the burden of showing the discretion to modify an easement ought to be exercised once jurisdiction is established is on the owner of the servient tenement: Laris v Lin (No 2) at [76]-[77].

142. The Court will normally exercise caution in acceding to an application for the extinguishment or modification of an easement: Frasers Lorne at [29].

143. The facts relevant to the exercise of the discretion include matters such as the history of the property, the conduct of the owners of both the dominant and servient tenements, the acts of a prior registered proprietor, and the state of the register. No one factor is decisive: Laris v Lin(No 2) at [75]; Pieper v Edwards [1982] 1 NSWLR 336 at 340 (Hutley JA).

144. In light of my conclusions above, it is unnecessary to consider the exercise of the discretion.

145. However, I do not accept Mr FitzGerald’s submission that the discretion ought not be exercised in favour of Foxes Lane Co because Mr Kurstjens was convicted of illegally removing native vegetation.

Conclusion and orders

146. For the reasons above, it is not appropriate to make the orders sought by Mr FitzGerald concerning an entitlement to build a crowned road and table drains.

147. It is appropriate to declare that Foxes Lane Co is entitled to use the ROC, including by cropping, but not so as to create a substantial interference with Mr FitzGerald’s ability to pass and repass the ROC with a vehicle usually used on farm roads, such as a 4-wheel drive.

148. Mr FitzGerald is entitled to carry out such works on the ROC as are necessary to allow him to pass and repass with his vehicle, including cutting crops and filling ruts that make passing difficult or impossible.

149. Generally, there is no requirement for a servient owner to notify a dominant owner of proposed works. In Bland v Levi [2000] NSWSC 161 (Bland) at [22], Young J (as his Honour then was) stated that:

… the dominant owner may do work on the servient tenement which is reasonably necessary for it to enjoy the right of way in such a way that it causes no [un]reasonable interference with the servient tenement or undue inconvenience to the holder of the servient tenement. The right to decide what works will be done, what is the thickness of the driveway and the like, are part of the rights that are granted to the dominant owner and are a matter for it alone.

150. However, here Foxes Lane Co has concerns that Mr FitzGerald’s maintenance work will impact negatively on the use of its farming, including its crops. Therefore, there is a reason to distinguish Bland, as Habersberger J did in Mantec at [98], where there was a concern that works may damage an adjoining dam.

151. Further, because of the antagonism between the parties, I consider it appropriate that Mr FitzGerald notify Foxes Lane Co of any alleged substantial interference he intends to remove. Foxes Lane Co may seek to avoid unnecessary conflict and liability by carrying out work on the ROC to ensure that Mr FitzGerald can pass and repass.

152. Because Foxes Lane Co has had substantial success in the proceedings, it is appropriate for Mr FitzGerald to pay its costs, other than those costs of the proceedings up to 20 December 2022, for which Foxes Lane Co takes responsibility.

153. Therefore, the appropriate orders are:

1. A declaration that the Right of Carriageway burdening the first defendant’s properties shown as Lot 10 in Deposited Plan 1163015 (Lot 10), Lot 11 in Deposited Plan 1163015 (Lot 11), Lot 20 in Deposited Plan 817727 (Lot 20) and Lot 21 in Deposited Plan 1197617 (Lot 21) and benefitting the plaintiff's property shown as Lot 19 in Deposited Plan 817727 (Lot 19) as described in Plan of Subdivision of Lots 19 and 20 in Deposited Plan 817727, Plan of Subdivision of Lots 17 and 18 in Deposited Plan 755988 and Lots 7 and 8 in Deposited Plan 755986 and Plan of First Title Creation and Road Closing under the Roads Act 1993 (NSW) for Deposited Plan 1197617 (ROC) on its proper meaning permits the owner of the dominant tenement and his invitees to go, pass and repass at all times and for all purposes with or without animals or vehicles or both to and from the dominant tenement along the route of the carriageway, but does not authorise or permit the owner of the dominant tenement or his invitees to physically change, modify or damage the servient tenement including any crops growing thereon by the use of digging or grading implements or machines or otherwise, unless:

1. there is something on the ROC that substantially interferes with the dominant owner's right to go, pass or repass along the carriageway; and

2. while the plaintiff remains the owner of the dominant tenement, he gives the servient tenement owner at least fourteen (14) days' written notice of the substantial interference on the ROC before any work is undertaken on the ROC to remove it.

2. Order the defendants to pay the plaintiff damages of $2,500.

3. Order the plaintiff to pay the first defendant damages of $2,500.

4. Order the defendants to pay the plaintiff’s costs of the Amended Statement of Claim until 20 December 2022, as agreed or assessed.

5. Order the plaintiff to pay the defendants’ costs of the Amended Statement of Claim from 21 December 2022, and of the Amended Statement of Cross-Claim, as agreed or assessed.

6. Grant liberty to the parties to apply for an alternative costs order within seven days of today's date, setting out the application and any evidence and submissions of no more than 3 pages upon which they rely.

7. Should such an application be made for an alternative costs order, the responding party is to provide evidence and submissions of no more than 3 pages opposing any alternative costs order within seven days of receiving the first application.

8. The Court will determine any such alternative costs application on the papers, if appropriate.

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Amendments

21 November 2024 - Replaced "dominant" with "servient" and vice-versa pursuant to UCPR r 36.17

21 November 2024 - Amendment pertains to [44]

Decision last updated: 03 December 2024