Gordon v Lever - [2018] NSWSC 1888

Supreme Court

New South Wales

Medium Neutral Citation: Gordon and Anor v Lever [2018] NSWSC 1888
Hearing dates: 19, 20, 27, 29 November 2018
Decision date: 14 December 2018
Jurisdiction: Equity - Expedition List
Before: Sackar J
Decision:
See para [183]

Catchwords: LAND LAW – easements – creation of easements – imposition of easements by Court – whether easement reasonably necessary – remitted proceedings to determine easement – where remitted proceedings involve determination of precise terms of easement and whether reasonably necessary
Legislation Cited: Conveyancing Act 1919 (NSW)
Evidence Act 1995 (NSW)
Property Law Act 1974 (Qld)
Property Legislation Amendment (Easements) Act 1995 (NSW)
Water Management Act 2000 (NSW)
Cases Cited: 117 York Street Pty Ltd v Proprietors of Strata Plan 16123 (1998) 43 NSWLR 504
Albrighton v Royal Prince Alfred Hospital (1980) 2 NSWLR 542
Borowski v Quayle [1966] VR 382
BrisConnections Finance Pty Ltd (Receivers and Managers Appointed) v Arup Pty Ltd [2017] FCA 1268
Buckby v Coles (1814) 5 Taunt 311
Clark v Cogge (1606) Cro Jac 170
Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588; [2011] HCA 21
Domina Regina v Inhabitants of Cluworth (1704) 6 Mod 163
Duncan v Cliftonville Estates Pty Ltd [2001] NSWSC 968
Dutton v Tayler (1701) 2 Lut 1487
English Exporters (London) Ltd v Eldonwall Ltd [1973] 2 WLR 435
Ewart v Cochranes (1861) 23 D (HL) 3
Fitch v Rawling (1795) 126 ER 614
Govindan-Lee v Sawkins [2016] NSWSC 328
Grattan v Simpson (1998) 9 BPR 16,649
Harrington-Smith v Western Australia (No 2) (2003) 130 FCR 424; [2003] FCA 893
HG v R (1999) 197 CLR 414; [1999] HCA 2
Holmes v Goring (1824) 2 Bing 76
Horseshoe Pastoral Co Pty Ltd v Rixon [2018] NSWCA 121
ING Bank (Australia) Ltd v O’Shea [2010] NSWCA 71
Jango v Northern Territory of Australia (No 2) [2004] FCA 1004
Jones v Pritchard [1908] 1 Ch 630
Moorebank Recyclers Pty Ltd v Tanlane Pty Ltd [2012] NSWCA 445
Morris v Edgington (1810) 3 Taunt 24
Nicholas v Chamberlain (1606) Cro Jac 121
North Sydney Printing Pty Ltd v Sabemo Investment Corporation Pty Ltd (1971) 2 NSWLR 150
O’Shea v Athanasakis [2009] NSWSC 1150
Packer v Welsted (1657) 2 Sid 39
R v Abadom [1983] 1 WLR 126
Rainbowforce Pty Ltd v Skyton Holdings Pty Ltd [2010] NSWLEC 2
Re Seaforth Land Sales Pty Ltd’s Land (No 2) [1977] Qd R 317
Reignolds v Edwards (1741) Willes 282
Shi v Abi-K Pty Ltd (2014) 87 NSWLR 568; [2014] NSWCA 293
Sovmots Investments Ltd v Secretary of State for the Environment [1979] AC 144
Stanford v Roberts [1901] Ch 440
Stanley Robert Gordon v Allen John Lever [2017] NSWSC 1282
Tregoyd Gardens Pty Ltd v Jervis (1997) 8 BPR 15,845
Wheeldon v Burrows (1879) 12 Ch D 31
Texts Cited: C J Gale (with G Cave), A Treatise on the Law of Easements (7th ed, Sweet & Maxwell, 1899)
Law Commission for England and Wales, Working Paper No 36: Transfer of Rights: Appurtenant Rights (5 July 1971)
Queensland Law Reform Commission, Bill to Consolidate, Amend, And Reform the Law Relating to Conveyancing, Property, and Contract and to Terminate the Application for Certain Imperial Statutes (February 1973)
Category: Principal judgment
Parties: Stanley Robert Gordon (first plaintiff)
Christine Margaret Gordon (second plaintiff)
Allen John Lever (first defendant)
Debra Ann Lever (second defendant)
Representation:
Counsel:
Ms L Byrne (plaintiffs)
G Sirtes SC, C Simpson (defendants)
Solicitors:
John F Gibson (plaintiffs)
Parker & Kissane (defendants)

File Number(s): 2017/55270

Judgment

Procedural history
Background facts
The relevant properties
Option 1
Option 4
Primary findings
Appeal findings
Draft terms of easement
Plaintiffs
Defendants

Relevant Annexures

Legal principles
History of “reasonably necessary” easements
Legislation
Expert witnesses

Parties’ submissions
Plaintiffs
Defendants

Evidence
Plaintiffs’ lay evidence
Ms Jodie Louise Dunn
Mr Stanley Robert Gordon
Ms Christine Margaret Gordon
Mr John Francis Gibson

Plaintiffs’ expert evidence
Mr Drew Bewsher

Defendants’ lay evidence
Ms Kelly Waring

Defendants’ expert evidence
Mr Kenneth William Paterson
Mr Stephen Paul McElroy

Consideration
Expert witnesses: general observations
Third parties
Lay witnesses
Expert witnesses: specific findings
Reasonably necessary
Plaintiffs’ further submissions
Compensation

Conclusion

Judgment

Procedural history

On 22 September 2017 I delivered judgment in the matter Stanley Robert Gordon v Allen John Lever [2017] NSWSC 1282 (principal judgment) after hearing the matter in July and August 2017.
The proceedings concerned an application for the imposition of an easement under s 88K of the Conveyancing Act 1919 (NSW) made by Mr Stanley Robert Gordon and Ms Christine Margaret Gordon (Plaintiffs) over land owned by Mr Allen John Lever and now his wife Ms Debra Ann Lever (Defendants) (principal judgment [1]). The parties are neighbouring farmers in the Northern Rivers region of NSW in the shire of Kyogle (principal judgment [2]).
In my judgment I was of the view that of the various options provided by the parties, the Option 1 easement was the most convenient, serviceable and preferable option. However, I proposed to limit the Option 1 easement to only those times when the Option 4 easement was deemed “impassable” (principal judgment [363]-[378]).
I invited the parties to draft an easement to conform to my proposal, anticipating that a surveyor may have been needed to place position pegs in the riverbed, determined with expert evidence if necessary, as to when water levels were such that the Option 4 easement was “impassable” or unsafe to cross (principal judgment [379]).
However, I did not formulate any precise orders in the primary judgment, and the parties could not agree as to what would constitute “impassable”. Even so, no application was made to relist the matter before me to resolve the remaining issues, until after a short hearing on 24 November when I made the following declaration and orders:

1. A declaration that an easement for a right of carriageway over the track in use as shown on the survey plan annexed to the Amended Summons, and known as Option 1, over the [Respondent’s] land (lots 36 & 100) is reasonably necessary for the effective residential and agricultural use of the [Applicants’] land (lots 7 & 40), but only when the Richmond River at Option 4 is impassable.
2. Direct the parties to prepare a form of instrument for an easement intended to be created under s88B of the Conveyancing Act 1919 and short minutes of order in conformity with the Court’s reasons for judgment delivered on 22 September 2017.
3. Each party pay their own costs.
4. Orders 2 and 3 be stayed pending determination of the [Applicants’] appeal to the Court of Appeal.

After making these orders the matter went on appeal. The Court of Appeal handed down judgment on 16 March 2018: Gordon v Lever [2018] NSWCA 43 (appeal judgment).
This current judgment concerns the remitted proceedings following the outcome of the appeal.
On 15 November 2018 I granted leave for the Plaintiffs to file an Amended Summons, which reflected that Mr Lever has since transferred the proposed subservient land to his wife Ms Lever and that there are now Defendants (plural) in the proceedings. I will refer to “Defendant(s)” periodically in this judgment to accommodate this change.

Background facts

The relevant properties

The Plaintiffs are the registered proprietors of five lots, namely Lot 40 in DP 755733, Lot 7 in DP 131323, Lots 101 and 102 in DP 1045950 and Lot 10 in DP 113613 (appeal judgment [27]).
The Plaintiffs have lived on Lot 101 since they purchased it in 1975. In 2000, their daughter Ms Jodie Louise Dunn commenced living in the dwelling located on Lot 7. Her partner (now husband) joined her in 2003. They and their children, born in 2006 and 2010, have remained in occupation of Lot 7 since (appeal judgment [30]).
The key problem is that Lots 7 and 40 are effectively landlocked in the sense that they have no direct access to a public road (appeal judgment [29]). The Defendants are the registered proprietors of four lots, namely Lot 100 in DP 1045950, Lots 36 and 87 in DP 755733 and Lot 21 in DP 883903, which have been in their family since the late 1800s (appeal judgment [32]).
Therefore, in order for the Plaintiffs to access Lots 7 and 40 there are, or have been in the past, four main routes from which access to Summerland Way can be achieved (appeal judgment [35]-[36]).
Both the Court of Appeal and I have previously provided descriptions of these four main options to access Lots 7 and 40. Of these four options, now only Option 1 and Option 4 remain as potential easements that have been seriously mooted by the parties.

Option 1

Option 1 is marked by a red line on the figure provided. Although there is a dispute as to the extent to which the Plaintiffs used Option 1 prior to December 2015, there is no doubt that they did and that the Defendant(s) acquiesced to its use (appeal judgment [38]).
However in December 2015 a bridge on Lot 36 over a watercourse flowing into the Richmond River was destroyed by a rain event and since then the Option 1 route has been effectively unusable especially during rain (appeal judgment [38]).
The Option 1 route, from its intersection with Summerland Way, travels 109 metres in a southerly direction along Lot 100. It then reaches the road reserve and proceeds along the alignment of the road reserve. It then re-enters the Defendants’ land through Lot 36 and remains within Lot 36 for 242 metres until it reaches the boundary of Lot 40. The destroyed bridge over the watercourse was located approximately 62 metres from the boundary between Lots 36 and 40 (appeal judgment [40]).

Option 4

Option 4 is marked by the pink and yellow lines on the figure provided, with the pink line as what the Plaintiffs identify as the “dry” route and the yellow line as the “wet” route (appeal judgment [47]). The Option 4 route commences at Summerland Way some distance to the east of the commencement of Option 1. It proceeds through Lot 101, passing close to the Plaintiffs’ house, and then along a well formed gravel road to the riverbank. Thereafter the pathway follows a road along the riverbank for about 120 metres until it reaches a shallow rock causeway crossing the Richmond River. From there the path enters Lot 40 on the Plaintiffs’ land (appeal judgment [47]).
It is uncontroversial in my view that the relevant properties are rural land, where the owners are undoubtedly well-acquainted with all aspects of the land and in particular the movements of the Richmond River, to the extent that the river as a natural phenomenon can be predicted. There is no evidence that people arrive or access the Plaintiffs’ land randomly other than by those persons who by implication have been invited. That is, none of the Plaintiffs’ properties are public or park property.

Primary findings

In the primary judgment I found that in wet weather, subject to the proposed bridge being built and the road properly maintained, Option 1 would be the most serviceable option (primary judgment [349]). I accepted it was seriously inconvenient, and at times impossible, for the Plaintiffs and in particular their daughter Ms Dunn and her family, to use Option 4 (primary judgment [350]). However, I was satisfied Option 4, in addition to being passable for most of the year, is a practical alternative to Option 1 for effective use of Lots 7 and 40 (primary judgment [352]). I further found Ms Dunn can, and has since December 2015, used the Option 4 access when the weather is dry (primary judgment [354]). In my view neither Ms Dunn nor Mr Gordon’s current use of the land would in any material way be affected by having to use Option 4 when it is passable (primary judgment [355]).
In the primary judgment, I stated in my view, for the times Option 4 was impassable, a limited easement along Option 1 would be reasonably necessary for the effective residential and/or agricultural use of Lots 7 and 40. I stated I was satisfied an Option 1 easement limited to circumstances where Option 4 is unsafe to pass could be drafted and imposed with sufficient precision, and invited the placing of pegs in the riverbed at Option 4 to determine when the river was “unsafe” or “impassable” (principal judgment [363]-[364]).
As to compensation, I found that the cost of a bridge adequate to carry family vehicles and cattle trucks on Lot 36 would be approximately $48,000 to facilitate Option 1 and replace the bridge that had been destroyed in December 2015 (principal judgment [371]). I also found that:

No compensation was required for maintenance of the Option 1 track as the Plaintiffs, as owners of the dominant tenement, would be bound to maintain the track (principal judgment [372]);

$5,000 should be awarded to the Defendant(s) as compensation for disturbance (principal judgment [373]); and

$3,000 should be awarded to the Defendant(s) for reduction in the value of their land (principal judgment [374]).

I concluded (principal judgment [378]-[380]):

In my view, the Plaintiffs’ proposed Option 1 easement is the most convenient, serviceable and preferable of the Options. However, I am not satisfied an Option 1 easement for all times and all purposes is so substantially preferable to the other Options so as to render it reasonably necessary for the effective residential and/or agricultural use of Lots 7 and 40. In my view, the imposition of such an easement would be broader than necessary to serve the purpose of enabling effective use of Lots 7 and 40. In light of this, I am satisfied the more appropriate order is to grant an Option 1 easement, but limit it to the conditions outlined in [364] above.
I invite the parties to draft an easement to conform with my reasons. I fully accept a surveyor will be needed for the purposes of position pegs in the riverbed, and determining along with any other expert if necessary, water levels that might be regarded as safe to cross.
In light of my findings, I invite the parties to prepare short minutes with the terms of the proposed easement and, if the need arises, to be heard on the question of costs.

Appeal findings

Importantly, the Court of Appeal concluded that I had not had enough information to determine adequately each of the three pre-conditions set out in s 88K(2) and whether they had been satisfied, particularly as I had not been provided the precise terms of the proposed easement (appeal judgment [101]). The Court of Appeal therefore held that there was not enough information before the Court for me to determine the adequate compensation for the imposition of an easement (appeal judgment [101]).
The Court of Appeal also held that there was an absence of a sound evidentiary foundation for my conclusion that there would be no particular difficulty in drafting terms that would limit use of the proposed carriageway to circumstances where Option 4 was “unsafe to pass” or “impassable” (appeal judgment [115]-[117]).
In addition, the Court of Appeal held that without information as to the terms of the proposed easement it was not possible for me to determine whether the proposed easement was “reasonably necessary” for the purposes of s 88K(1) and the effect on the enjoyment of the servient tenement and the property rights of the servient tenement (appeal judgment [114]-[121]).
For those reasons the Court of Appeal did not think that I was in a position to make a declaration that finally resolved the issue of whether the proposed easement was reasonably necessary for the effective use or development of Lots 40 and 7.
Sackville AJA, with McColl and White JJA agreeing, stated (at [122]): “[i]t was necessary for further findings of fact to be made and for the terms of the proposed easement to be formulated with greater precision before a final determination could be made as to whether s 88K(1) of the Conveyancing Act was satisfied”.
The costs order was also set aside, with the Court of Appeal noting attention should be paid to s 88K(5) (appeal judgment [126]-[127]).
The matter was remitted, with the Court of Appeal noting it would be for me to determine whether the parties should be permitted to adduce further evidence in the proceedings, and if so, on what issues. It was also for me to determine if any further issues are to be raised (appeal judgment [131]).

Draft terms of easement

Plaintiffs

The Plaintiffs seek the following updated draft terms of easement (previously Exhibit P4, now as provided on 7 December 2018):

Terms of Easement for Right of Carriage Way
As defined in Part 1 of Sch 8 of the Conveyancing Act 1919 (NSW) subject to the following terms:
1. The proprietor of the land benefited shall construct a bridge on Lot 36 DP 755733 over the unnamed water course at point “G” in the plan at Annexure “A” hereto.
2. The bridge shall be constructed to carry a gross weight of 30 tonne.
3. The construction of the bridge shall be certified by an appropriately qualified engineer.
4. The bridge shall be maintained by the proprietor of the land benefited as necessary and be inspected by a Level Two bridge inspector every four years from the date of construction.
5. The road shall be maintained by the proprietor of the land benefited to allow the passage of 2 wheel drive motor vehicles at all reasonable times having regard to weather conditions and/or damage occasioned by weather events from time to time.
6. The proprietor of the lots benefited shall make all best endeavours to use the Right of Carriage Way for residential and agricultural use in accordance with the following additional terms:
A. Initial upgrade of road and construction of bridge:
7. In the period from the date of registration of the easement to the completion of the bridge, the following works (“the works”) will be done on the lots burdened requiring use by the vehicles nominated:
(i) Initial Upgrade of road: Tip truck and excavator (1-2 weeks)
(ii) Construction of bridge: Crane, cement truck, contractors vehicles (2 months depending on weather)

8. In the doing of the works the proprietor of the lots benefited must:
(i) give one weeks [sic] notice to the proprietor of the lots burdened of the intention to commence the works; and
(ii) comply with any reasonable requirements of the Kyogle Council and the NSW Department of Primary Industries; and
(iii) cause as little inconvenience as is practicable to the proprietor and occupier of the lots burdened; and
(iv) cause as little damage as is practicable to the lots burdened and make good any damage.

9. In the period that the works are being carried out the proprietor of the lots burdened:
(i) must not frustrate or hinder the construction of the bridge and upgrade of the road; and
(ii) must allow contractors to enter the lots burdened and remain there for any reasonable time necessary to do the works; and
(iii) must ensure that his stock are properly managed in this period.

B. From the date of completion of the bridge:
10. Residential Use:
(i) Passenger Motor vehicles – as reasonably required by the residents on the land benefited;
(ii) Utility vehicles – Country Energy, Electrician, pest inspector, trades – as required.

11. Agricultural use:
Cattle trucks – within range of weight restriction on bridge, ordinarily at the rate of one every two months or otherwise required by farm management regime;
Miscellaneous – rural produce & fertilizer supplier, Stock & Station Agent, vet – as required.

12. The gate at the Summerland Way entrance to Lot 100 DP 1045950 is to remain closed but unlocked at all times.

Defendants

After a series of amendments, the Defendants seek the following draft terms of easement:

1. Following the registration of this easement the proprietor of the land benefited shall: -
(a) construct a bridge on Lot 36 DP 755733 over the unnamed water course at point “G” in the plant at Annexure “A” hereto (“the Bridge”); and
(b) undertake any works in relation to the upgrade of the road within the easement area (“the Road”) required by these terms;

(“the Works”).

2. The Bridge shall be constructed and maintained to a reasonable and safe standard consistent with its use.
3. The Road shall be upgraded and maintained to a standard consistent with its use.
4. In the doing of the Works the proprietor of the lots benefited must:
(a) give one weeks’ notice to the proprietor of the lots burdened of the intention to commence the Works; and
(b) comply with any reasonable requirements of the Kyogle Council and the NSW Department of Primary Industries; and
(c) cause as little inconvenience as is practicable to the proprietor and occupier of the lots burdened; and
(d) cause as little damage as is practicable to the lots burdened and make good any damage.

5. In the period that the Works are being carried out the proprietor of the lots burdened:
(a) must not frustrate or hinder the undertaking of the Works; and
(b) must allow contractors to enter the lots burdened and remain there for any reasonable time necessary to do the Works.

Terms of Use
6. Use of the right of carriageway is permitted pursuant to the terms of a right of carriage way detailed in Part 1 of Schedule 8 of the Conveyancing Act 1919 subject to the following terms: -
(a) No use is permitted until the Works are completed.
(b) The right of carriageway may be used:
A. by an emergency vehicle at any time; and
B. by pedestrians and other vehicles at the following times:
(i) during the time when the water level at the Crossing is 300mm or more above the bed surface level at that location (being the level of the surface traversed by vehicles using the Crossing including any pavement, causeway or other structure built upon the riverbed); or
(ii) if either the approach or exit track to the Crossing is damaged by flooding of the Richmond River to such an extent that it is not reasonably and safely passable by a 2 wheel-drive vehicle, for a period of 14 days following the occurrence of that damage (and may be used notwithstanding that, in that period, the water level in the river returns to a level below that specific in sub-paragraph (i) of this clause).

(c) In the event of any dispute (including in any legal proceedings) as to whether, at any particular time, the water level in the Richmond River exceeded the level specified in sub-paragraph (b)B(i) of this clause, it is to be presumed, unless the contrary is proven, that the water level did exceed that level at that time. This clause may be relied on by any person who uses the easement, whether or not the proprietor of the land benefitted.

7. For the purposes of these terms:
a. the “Crossing” means the ford across the Richmond River at the location marked “X” on the map at Annexure “C” hereto;
b. “emergency vehicle” includes (without limitation):
i. any ambulance, health professional’s vehicle, paramedic’s vehicle, fire (including rural fire) service vehicle, police vehicle, utilities provider’s vehicle, emergency services vehicle (including any State Emergency Services vehicle); and
ii. any private vehicle travelling in circumstances of actual or perceived medical or fire emergency.

Relevant Annexures

The Annexure A referred to in both draft terms provides:

Annexure C referred to in the Defendants’ draft terms is below:

Legal principles

History of “reasonably necessary” easements

The notion of reasonable necessity in the context of easements is a concept of some longevity as is clear from the following history. Indeed, the statutory power of a Court to create easements which are “reasonably necessary” can be traced back to the original easements of necessity at common law, including as far back as in Nicholas v Chamberlain (1606) Cro Jac 121 (at 121-2) where the Court held with respect to water rights “if one erect a house and build a conduit thereto in another part of his land, and convey water by pipes to the house, and afterward sell the house with the appurtenances, excepting the land, or sell the land to another, reserving to himself the house, the conduit and pipes pass with the house; because it is necessary, et quasi appendant thereto; and he shall have liberty by law to dig in the land for amending the pipes, or making them new, as the case may require”. A selection of such historical cases follow.
In Clark v Cogge (1606) Cro Jac 170 the question was if one sells land, and afterwards the purchaser claims a way over that land (at 170) “he might well justify the using thereof, because it is a thing of necessity”. In Packer v Welsted (1657) 2 Sid 39 it was found that there was justified a form of (at 39) (translation) “necessary and private way” as “there was no other way to come at the land not aliened but over the other land”.
In Dutton v Tayler (1701) 2 Lut 1487 reference was made to a way of necessity by recourse to the public policy consideration that land should not be left unoccupied, which although distinguished by Hope J in North Sydney Printing Pty Ltd v Sabemo Investment Corporation Pty Ltd (1971) 2 NSWLR 150, echoes the public policy requirements of s 88K(2)(a).
In Domina Regina v Inhabitants of Cluworth (1704) 6 Mod 163 Holt CJ said (at 163) “every one that uses that river has, if occasion be, a right to a way by the brink of the water over that land, or farther in if necessary”, applying the test of necessity to the ability of those using a river to access some portion of the riverbank if need be.
In Reignolds v Edwards (1741) Willes 282 the Kings Bench rejected a claim for a right of way because it held the way could not be claimed as a way of necessity as it did not appear (at 287) “that there is no other way, but only that there was not any other way or passage then left open”: A Treatise on the Law of Easements by C J Gale (with G Cave) (7th ed, Sweet & Maxwell, 1899) at 159.
In Fitch v Rawling (1795) 126 ER 614 (at 615) submissions were made noting the distinction to be made between easements for necessity and easements for the public good. It was argued “the matters of easement which they may claim, are to be classed under two heads, such as are necessary for the enjoyment of their own estates, and such as are for the public good … it is not sufficient that they were merely for pleasure”.
In Morris v Edgington (1810) 3 Taunt 24, Mansfield CJ said (at 31):

[I]t would not be a great stretch to call that a necessary way, without which the most convenient and reasonable mode of enjoying the premises could not be had. Then what are the circumstances of this case? First, it is much more convenient for any one to go to the tap-room through the gateway than through the coffee-room. And it is much more convenient to carry out beer through the gateway than through the coffee-room. Can it then be doubted that the intent was to give the same use of the way over the gateway, as the lessor before used to have?

In Buckby v Coles (1814) 5 Taunt 311 Dallas J said (at 318) “[t]he question on the issue is, whether there were any other way: the evidence on the defendant’s side is, that there was no other way; the Plaintiff meets that by evidence that there is another way, though not quite so convenient”.
In Holmes v Goring (1824) 2 Bing 76, Best CJ said (at 83-4):

On the part of the Plaintiff the case has been put on its right ground. If I have four fields, and grant away two of them, over which I have been accustomed to pass, the law will presume that I reserve a right of way to those which I retain: but what right? the same as existed before? No: the old right is extinguished, and the new way arises out of the necessity of the thing. The passage which has been cited from Serjt. Williams's note contains a complete answer to the argument on the part of the Defendant. “A way of necessity, when the nature of it is considered, will be found to be nothing else than a way by grant;” but a grant of no more than the circumstances which raise the implication of necessity require should pass. If it were otherwise, this inconvenience might follow, that a party might retain a way over 1000 yards of another's land, when by a subsequent purchase he might reach his destination by passing over 100 yards of his own. A grant, therefore, arising out of the implication of necessity, cannot be carried farther than the necessity of the case requires, and this principle consists with all the cases which have been decided. It has been argued, that the new grant operates as a prevention of the extinguishment of the old right of way, but there is not a single case which bears out that proposition, or which does not imply the contrary. By the grant a new way is created, and that way is limited by necessity.

More recently in Ewart v Cochranes (1861) 23 D (HL) 3 Lord Campbell, with whom Lord Chelmsford and Lord Kingsdown agreed, said (at 4) (emphasis added):

I think the case of Preston's Trustees is the first case which is supposed to have recognised that new and separate and distinct mode of constituting a servitude; but when examined, it will be seen that what are there considered to be the things which create a servitude are the facts which are to be construed as giving a meaning to the grant of servitude. I consider the law of Scotland, as well as the law of England to be, that when two properties are possessed by the same owner, and there has been a severance made of one part from the other, anything which was used, and was necessary for the comfortable enjoyment of that part of the property which is granted, shall be considered to follow from the grant, if there be the usual words of conveyance.

The concept of “reasonably necessary” with respect to easements included the famous remarks of Thesiger LJ in Wheeldon v Burrows (1879) 12 Ch D 31 (“Wheeldon v Burrows”), who said (at 49) (emphasis added):

We have had a considerable number of cases cited to us, and out of them I think that two propositions may be stated as what I may call the general rules governing cases of this kind. The first of these rules is, that on the grant by the owner of a tenement of part of that tenement as it is then used and enjoyed, there will pass to the grantee all those continuous and apparent easements (by which, of course, I mean quasi easements), or, in other words, all those easements which are necessary to the reasonable enjoyment of the property granted, and which have been and are at the time of the grant used by the owners of the entirety for the benefit of the part granted. The second proposition is that, if the grantor intends to reserve any right over the tenement granted, it is his duty to reserve it expressly in the grant. Those are the general rules governing cases of this kind, but the second of those rules is subject to certain exceptions. One of those exceptions is the well-known exception which attaches to cases of what are called ways of necessity; and I do not dispute for a moment that there may be, and probably are, certain other exceptions, to which I shall refer before I close my observations upon this case.

Likewise in Jones v Pritchard [1908] 1 Ch 630 Parke J said (at 638) (citations omitted):

Once again, the grant of an easement is prima facie also the grant of such ancillary rights as are reasonably necessary to its exercise or enjoyment. Thus the grantee of an easement for a watercourse through his neighbour's land may, when reasonably necessary, enter his neighbour's land for the purpose of repairing, and may repair, such watercourse. On this principle each party in the present case may do such acts on the property of the other as are reasonably necessary to the continued enjoyment of the easement; for example, each party would be entitled to repair the other's half of the wall in question so far as was reasonably necessary for the enjoyment of any easement impliedly granted or reserved.

The principles enunciated in Wheeldon v Burrows remain relevant today, for example being considered by the House of Lord in Sovmots Investments Ltd v Secretary of State for the Environment [1979] AC 144 and cited by the New South Wales Court of Appeal in Horseshoe Pastoral Co Pty Ltd v Rixon [2018] NSWCA 121 (at [12]).
The common law approach to easements of necessity was, however, markedly changed as a result of the recommendations of the Law Commission for England and Wales in its Working Paper No 36 Transfer of Rights: Appurtenant Rights (1971) (at 57-61, 118-19).
The United Kingdom Working Paper recommended (at [117]-[118]):

[W]e think that if a proper balance is to be maintained between public and private development it may be desirable to create a procedure under which essential facilities over other land may be obtained by private persons in proper cases. It will be appreciated that the acquisition of such rights may be important on any change of the use of land and not only development in the ordinary sense. We provide this in Proposition 15(1).
The concept is not entirely new. In 1923, the need to ensure an adequate supply of minerals led to the introduction of legislation (now contained in the Mines (Working Facilities and Support) Act 1966) under which the court may confer on any person the right to search for and work certain minerals, together with ancillary rights over private land of a quite extensive kind. An Order under the Act can be made only if a grant of rights is expedient “in the national interest”, but the burden on the land affected is likely to be much heavier than that which would be incurred by the servient land if the procedure summarised in Proposition 15(1) were adopted. Nevertheless, we think that the procedure should include stringent safeguards against its misuse by persons wishing to develop their land and we suggest four conditions, all of which would have to be satisfied, namely:
(i) the proposed use or development must be in the public interest;
(ii) the imposition of the obligations must be necessary if the development is to be economically practicable;
(iii) it must be possible for the servient land-owner to be adequately compensated in money; and
(iv) the refusal of the servient landowner to agree to impose the obligations must be unreasonable (or, nobody must be available capable of entering into such an agreement).

Proposition 15 of the Working Paper was as follows:

(1) Where an owner of a freehold or leasehold interest in land desires to carry out a specific development on his land or to make a specific change of the use of his land, the Lands Tribunal will be empowered to impose Land Obligations over other land on the payment of compensation where appropriate and on such conditions as it thinks fit if it satisfied that all the following circumstances are present:-
(i) it is in the public interest that the dominant land should be developed or used in that way;
(ii) the development or change of use cannot be effective unless specific Land Obligations are imposed on the servient land;
(iii) the owner of the interest to be burdened in the servient land can be adequately compensated in money for any loss or disadvantage he may suffer from the imposition of the Land Obligations; and
(iv) in all the circumstances the refusal of the owner of the interest to be burdened in the servient land to agree to the imposition of the Obligations is unreasonable or no person can be found who is competent to enter into an agreement under which the specific Obligations could be imposed.

The Working Paper noted alongside this proposition that the “public interest” element part of the proposition “represents entirely new law” and that “we think the time may have come for the law, in the public interest, to go some way towards helping an owner of land to acquire such rights as are essential to enable him to put his land to better use”.
The origins of s 88K of the Conveyancing Act 1919 (NSW) and, for example, similar legislation in Queensland and Tasmania (the “first generation” of this species of legislation), can be found broadly in the recommendations of the United Kingdom Working Paper.
The United Kingdom Working Paper was referenced, for example, by the Queensland Law Reform Commission in 1973 in its Bill to Consolidate, Amend, And Reform the Law Relating to Conveyancing, Property, and Contract and to Terminate the Application for Certain Imperial Statutes which recommended the Property Law Act 1974 (Qld). The Queensland Law Reform Commission recommended s 180 of the now Property Law Act 1974 (Qld), which provides for statutory rights of user in respect of land “where it is reasonably necessary in the interests of effective use in any reasonable manner of any land” (at [180]).
Section 88K of the Conveyancing Act 1919 (NSW), which was introduced in 1995 as a result of the Property Legislation Amendment (Easements) Act 1995 (NSW) mirrors this trend and is clearly broadly structured off the United Kingdom Working Paper in its reference to (1) public interest, (2) compensation and (3) reasonable attempts to obtain consent for the easement. Whilst a statutory power now in New South Wales and in other states, it is helpful to understand s 88K alongside the more ancient common law easements of necessity and those “necessary for the reasonable enjoyment” of land.

Legislation

Section 88K of the Conveyancing Act 1919 (NSW) provides:

88K Power of Court to create easements
(1) The Court may make an order imposing an easement over land if the easement is reasonably necessary for the effective use or development of other land that will have the benefit of the easement.
(2) Such an order may be made only if the Court is satisfied that:
(a) use of the land having the benefit of the easement will not be inconsistent with the public interest, and
(b) the owner of the land to be burdened by the easement and each other person having an estate or interest in that land that is evidenced by an instrument registered in the General Register of Deeds or the Register kept under the Real Property Act 1900 can be adequately compensated for any loss or other disadvantage that will arise from imposition of the easement, and
(c) all reasonable attempts have been made by the applicant for the order to obtain the easement or an easement having the same effect but have been unsuccessful.

(3) The Court is to specify in the order the nature and terms of the easement and such of the particulars referred to in section 88 (1) (a)–(d) as are appropriate and is to identify its site by reference to a plan that is, or is capable of being, registered or recorded under Division 3 of Part 23. The terms may limit the times at which the easement applies.
(4) The Court is to provide in the order for payment by the applicant to specified persons of such compensation as the Court considers appropriate, unless the Court determines that compensation is not payable because of the special circumstances of the case.
(5) The costs of the proceedings are payable by the applicant, subject to any order of the Court to the contrary.
(6) Such an easement may be:
(a) released by the owner of the land having the benefit of it, or
(b) modified by a deed made between the owner of the land having the benefit of it and the persons for the time being having the burden of it or (in the case of land under the provisions of the Real Property Act 1900) by a dealing in the form approved under that Act giving effect to the modification.

(7) An easement imposed under this section, a release of such an easement or any modification of such an easement by a deed or dealing takes effect:
(a) if the land burdened is under the Real Property Act 1900, when the Registrar-General registers a dealing in the form approved under that Act setting out particulars of the easement, or of the release or modification, by making such recordings in the Register kept under that Act as the Registrar-General considers appropriate, or
(b) in any other case, when a minute of the order imposing the easement or the deed of release or modification is registered in the General Register of Deeds.

(8) An easement imposed under this section has effect (for the purposes of this Act and the Real Property Act 1900) as if it was contained in a deed.

(9) Nothing in this section prevents such an easement from being extinguished or modified under section 89 by the Court.

In 117 York Street Pty Ltd v Proprietors of Strata Plan 16123 (1998) 43 NSWLR 504 Hodgson CJ in Eq said (at 508-9) (emphasis in original):

What does “reasonably necessary” mean?
It is clear that “reasonably necessary” in s 88K(1) does not mean “absolutely necessary”, and thus that the requirement may possibly be satisfied even when the plaintiff's land could be effectively used or developed without the easement: Tregoyd Gardens v Jervis (Hamilton J, 25 September 1997, unreported); Goodwin v Yee Holdings Pty Ltd (Windeyer J, 6 November 1997, unreported); Re Seaforth Land Sales Pty Ltd's Land [No 2] [1977] Qd R 317.
In my opinion: (1) the proposed easement must be reasonably necessary either for all reasonable uses or developments of the land, or else for some one or more proposed uses or developments which are (at least) reasonable as compared with the possible alternative uses and developments; and (2) in order that an easement be reasonably necessary for a use or development, that use or development with the easement must be (at least) substantially preferable to the use or development without the easement.

His Honour further said (at 511-12) (emphasis added):

In my opinion, the question of reasonable necessity has to be decided in the light of present circumstances, so that, even if it were the case that these present circumstances were due to the plaintiff taking a gamble, that would not prevent a finding of reasonable necessity. However, if it were the case that such reasonable necessity for an easement as now exists arose from previous unreasonable conduct by the plaintiff, that could in my opinion be a discretionary factor counting against the granting of relief.
In the present case, I do not think there has been unreasonable conduct in the past by the plaintiff. This is not a case where the easement sought imposes a heavy burden on the defendant. The plaintiff commenced negotiations in about April 1997. The plaintiff's failure to secure the defendant's agreement appears to be the result of very different views as to the measure of compensation: the defendant is seeking about $400,000, whereas the plaintiff suggests that about $23,000 would be reasonable.
I turn to the question of illegality. If use of a proposed easement would be absolutely illegal, or (probably) if it were shown that there was no chance of obtaining a consent necessary to make it other than illegal, then this would in my opinion prevent the Court from finding that the easement was reasonably necessary. However, I do not think that the proposed use in this case is absolutely illegal, nor do I think that there is no chance of obtaining consent.
…
In my opinion also, nothing said or done by the council in this case shows that there is no chance of obtaining necessary consents. Although the council has grounded its refusal to date on the lack of consent by the defendant, it has not yet been asked to consider whether or not it would adhere to that requirement if the plaintiff has an easement over the defendant's property.
In my opinion, even if the use of the proposed easement would be illegal without consents, and those consents have not been obtained, the easement may still be “reasonably necessary for the effective use or development of the land”, at least so long as the use is not absolutely illegal or there is no real chance of consent. Having regard to my interpretation of the meaning of “reasonably necessary” in the section, there is no inconsistency in this view. A project like the present one may involve dealing with a number of adjoining properties, and perhaps with other government authorities, as well as with a local council. It may be that some necessary consents will not be available unless the court has already granted an easement. Having regard to the remedial nature of the section, I do not think it should be interpreted in such an inflexible way as to require that all other obstacles to the proposed use must have been overcome before the Court has power to grant an easement.

In Grattan v Simpson (1998) 9 BPR 16,649 Young J said (at 16,651) (emphasis added):

The cases show that the mere fact that there is some other means of access to the property does not of itself preclude an order being made under this particular section. However, where there are alternate means of access the evidence must show that in order to appropriate someone else’s property there must be a considerable advantage in obtaining the easement rather than developing an alternative access.
In the present case there are, in addition to the old road, two possible paths for the plaintiffs to gain access to their land. One is over the path called the “old roadway” that leads from the homestead to the Arramagong Road. The other is by a path which would run parallel to the existing road, although on the eastern side of the top paddock and middle paddock. Both of these would cost money to put in, but it would seem to be only money to the extent of $10,000 or so.
In view of these other means of access, and the amount that would need to be spent to develop them, and indeed the considerable frontages that there are for the 310 acres abutting both the Grenfell/Young Road and the Arramagong Road, I do not consider that the plaintiffs have made out a case that it is reasonably necessary that they have the benefit of an easement over someone else’s land.

See also O’Shea v Athanasakis [2009] NSWSC 1150, where Forster J drew a distinction between simply those easements which are (at [124]) “convenient or nice to have” and those easements which are reasonably necessary.
In Rainbowforce Pty Ltd v Skyton Holdings Pty Ltd [2010] NSWLEC 2 Preston CJ observed (at [83]):

Tenthly, the requirement of reasonable necessity can be satisfied notwithstanding that some future action may be required, in addition to obtaining the easement, for the effective use or development of land, such as obtaining some statutory consent. For example, if an easement in the form of a right of carriageway is created, it may be necessary to obtain development consent under the EPA Act to construct the road in the right of carriageway. The requirement in s 88K(1) does not require that all other obstacles to the proposed use or development of the land that will have the benefit of the easement must have been overcome before the Court has power to grant an easement: 117 York Street Pty Ltd v Proprietors of Strata Plan No 16123 at 512. Only if use of the proposed easement would be absolutely illegal and there was no chance of obtaining a consent necessary to make it other than illegal, would the Court be precluded from finding that the easement was reasonably necessary: 117 York Street Pty Ltd v Proprietors of Strata Plan No 16123 at 511-512.

The Court of Appeal has made it clear that, if conditions are to be imposed on the enjoyment of an easement, they must be imposed on the terms of the easement itself, and not in any order or undertaking independent of the easement. This is because in Moorebank Recyclers Pty Ltd v Tanlane Pty Ltd [2012] NSWCA 445 the Court said (at [99]):

There are other problems with the order of the primary judge. Although an easement can be subject to conditions and restrictions on its enjoyment, these conditions must in our opinion be specified in the order imposing the easement and not in an order or undertaking independent of the easement: 117 York Street, supra at 522. There is good reason for this. The easement will take effect on registration and persons dealing with the dominant and servient tenement will only be bound by what appears on the register, not by some extrinsic order or undertaking which is made between parties to litigation.

Importantly for the facts of this case, the Court also said in this case (at [158]):

The determination of whether an easement is reasonably necessary for the use or development of the land also involves consideration of the alternative methods by which such use or development could be achieved. That is implicit in the concept of reasonable necessity. In the present case it involves the consideration of whether there is alternative access to give effect to the development.

In Shi v Abi-K Pty Ltd (2014) 87 NSWLR 568; [2014] NSWCA 293 Basten JA said (at [6]):

The critical element in this provision is the requirement that the easement be “reasonably necessary” for the effective use or development of the land sought to be benefited (the developer’s land). Whether or not the condition is satisfied in a particular case is likely to require consideration of the following factors:
(a) the capacity of the developer’s land for use or development of particular kinds;
(b) the nature of the specific proposed development;
(c) the manner in which the proposed development is to be effected; and
(d) the effect of the easement, if granted, on the servient tenement.

That is not to suggest that each factor is separate and distinct; clearly they will overlap.

His Honour also said (at [14]-[16]):

This passage contains two propositions which may be noted. First, the passage referred to in Rainbowforce was a statement that if “use or development of land for some planning purpose … cannot be achieved without the creation and use of an easement”, apparently meaning “if there is not any planning purpose which cannot be used without an easement”, then the easement is reasonably necessary. That statement would be unimpeachable. The court in Moorebank Recyclers appears to have read it as if “some” meant “some but by no means all” possible planning purposes. If that were the correct reading, the statement would indeed allow the imposition of an easement in too wide a category of cases. (Unsurprisingly, Hodgson CJ in Eq avoided such ambiguity.)
Secondly, the last sentence quoted was said to be consistent with the passage extracted from Hodgson CJ in Eq in 117 York Street. Accepting that to be so, the tests of “appropriate to the area” and “an economically rational use of the land” might appear to lower the hurdle somewhat, as they are tests which will be readily satisfied in the present case. Thus, it would be difficult to accept that a use which had been approved by a local council was not “appropriate to the area in which the land is situated”. Further, it would be difficult to accept that a use which had been proposed by a commercial developer was not “at least an economically rational use of the land”.
Factors (c) and (d) — effect of proposed easement
The manner of carrying the proposed development into effect will engage a consideration of the need for the easement to allow for the “effective use or development”, as identified, of the dominant tenement. That will mean having regard to the effect of the proposed easement on the servient tenement, as explained in Moorebank Recyclers at [117]. That principle was not challenged in the present case. The general principle is that “the greater the burden on the servient tenement, the stronger the case needed to justify a finding of reasonable necessity”: at [156]. As the court in Moorebank Recyclers further noted at [157]:
“[157] … If the effect of the imposition of an easement was to effectively preclude a reasonably available development or use of the servient tenement appropriate to that land, then it would require a strong case of reasonable necessity before the easement would be imposed.”

Consistent with the above authorities “reasonably necessary” does not mean there must be absolute necessity, but the need must go beyond mere desirability or convenience: Tregoyd Gardens Pty Ltd v Jervis (1997) 8 BPR 15,845. There may still be a necessity for the easement sought, notwithstanding that there are alternative sites for an easement: Re Seaforth Land Sales Pty Ltd’s Land (No 2) [1977] Qd R 317, citing Stanford v Roberts [1901] 1 Ch 440 at 444 on “reasonably necessary” in the context of letting property. The “reasonably necessary” criterion requires an analysis of the “whole picture” including the effect on the proposed servient tenement: ING Bank (Australia) Ltd v O’Shea [2010] NSWCA 71.
In Govindan-Lee v Sawkins [2016] NSWSC 328 Darke J said (at [49]-[50]):

The plaintiff bears the onus of showing reasonable necessity and is best placed to adduce evidence about this alternative. It is unsatisfactory that the plaintiff has failed to bring forward evidence that would facilitate a more comprehensive assessment of this alternative, including of any difficulties or uncertainties involved in it.
I am unable to accept the submission that a widening of the driveway across parts of the Blue and Green Easements is not a feasible financial alternative. Based on the evidence given by Mr Katauskas that a retaining wall would be required and that an average retaining wall costs about $2,000 per m2 of surface area, the total cost of widening the driveway further into those easements from the point where the existing retaining wall stops, down to Duneba Place, is likely to be substantial and quite possibly within the range of the rough estimate of $80,000 to $150,000 given by Mr Katauskas. However, in the absence of more cogent evidence about what would actually be required in terms of retaining walls and methods of construction, the Court is not in a position to be more definite.

His Honour said (at [59]):

It may be accepted that vehicular access is something that is reasonably required for the effective use of Lot 4 – a residential, battleaxe block, where the house is situated a considerable distance away from the street. The proposed easement would secure that access. Nevertheless, there appears to be an available alternative that would secure vehicular access to Lot 4. The alternative appears to be technically feasible (on the evidence available before me) and the plaintiff has not shown that it is not feasible or justifiable for financial reasons, or for any other reason. It has not been shown that use or development of Lot 4 with the proposed easement is substantially preferable to the use or development of Lot 4 without the proposed easement.

Expert witnesses

There was significant argument about the expert evidence tendered by both sides in this case, not only about the question of expertise but also the respective methodologies employed. I will return to this in due course.
However, in general, the Court will accept as a matter of practicality that it is appropriate to demand an expert outline the precise basis of their accumulated knowledge. That is, an expert needs to set out the precise basis of their expert knowledge accumulated by the usual maintenance and development of their professional opinion.
However, in Borowski v Quayle [1966] VR 382 Gowans J said (at 386):

In Wigmore on Evidence, 3rd ed., vol. 2, pp. 784-5, para. 665(b), it is said: "The data of every science are enormous in scope and variety. No one professional man can know from personal observation more than a minute fraction of the data which he must every day treat as working truths. Hence a reliance on the reported data of fellow-scientists, learned by perusing their reports in books and journals. The law must and does accept this kind of knowledge from scientific men. On the one hand, a mere layman, who comes to court and alleges a fact which he has learned only by reading a medical or a mathematical book, cannot be heard. But, on the other hand, to reject a professional physician or mathematician because the fact or some facts to which he testifies are known to him only upon the authority of others would be to ignore the accepted methods of professional work and to insist on finical and impossible standards.

In English Exporters (London) Ltd v Eldonwall Ltd [1973] 2 WLR 435 per Megarry J said (at 438-9):

As an expert witness, the valuer is entitled to express his opinion about matters within his field of competence. In building up his opinions about values, he will no doubt have learned much from transactions in which he has himself been engaged, and of which he could give first-hand evidence. But he will also have learned much from many other sources, including much of which he could give no first-hand evidence. Textbooks, journals, reports of auctions and other dealings, and information obtained from his professional brethren and others, some related to particular transactions and some more general and indefinite, will all have contributed their share. Doubtless much, or most, of this will be accurate, though some will not; and even what is accurate so far as it goes may be incomplete, in that nothing may have been said of some special element which affects values. Nevertheless, the opinion that the expert expresses is none the worse because it is in part derived from the matters of which he could give no direct evidence. Even if some of the extraneous information which he acquires in this way is inaccurate or incomplete, the errors and omissions will often tend to cancel each other out; and the valuer, after all, is an expert in this field, so that the less reliable the knowledge that he has about the details of some reported transaction, the more his experience will tell him that he should be ready to make some discount from the weight that he gives it in contributing to his overall sense of values. Some aberrant transactions may stand so far out of line that he will give them little or no weight. No question of giving hearsay evidence arises in such cases; the witness states his opinion from his general experience.

The same conclusion may apply to reference to statistical evidence by an expert witness, as per R v Abadom [1983] 1 WLR 126 per the Court of Appeal (at 129-30):

Relative probabilities or improbabilities must frequently be an important factor in the evaluation of any expert opinion and, when any reliable statistical material is available which bears upon this question, it must be part of the function and duty of the expert to take this into account.
However, it is also inherent in the nature of any statistical information that it will result from the work of others in the same field, whether or not the expert in question will himself have contributed to the bank of information available on the particular topic on which he is called upon to express his opinion. Indeed, to exclude reliance upon such information on the ground that it is inadmissible under the hearsay rule, might inevitably lead to the distortion or unreliability of the opinion which the expert presents for evaluation by a judge or jury. Thus, in the present case, the probative value or otherwise of the identity of the refractive index as between the fragments and the control sample could not be assessed without some further information about the frequency of its occurrence. If all glass of the type in question had the same refractive index, this evidence would have virtually no probative value whatever. The extent to which this refractive index is common or uncommon must therefore be something which an expert must be entitled to take into account, and indeed must take into account, before he can properly express an opinion about the likelihood or unlikelihood of the fragments of glass having come from the window in question. The cogency or otherwise of the expert's conclusion on this point, in the light of, inter alia, the available statistical material against which this conclusion falls to be tested, must then be a matter for the jury.

In Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588; [2011] HCA 21 at [69] Heydon J (in dissent on the outcome) cited the common law standards expressed Borowski v Quayle [1966] VR 382, English Exporters (London) Ltd v Eldonwall Ltd [1973] 2 WLR 435 and R v Abadom [1983] 1 WLR 126 with approval.
In statute s 79 of the Evidence Act 1995 (NSW) provides:

79 Exception: opinions based on specialised knowledge
(1) If a person has specialised knowledge based on the person's training, study or experience, the opinion rule does not apply to evidence of an opinion of that person that is wholly or substantially based on that knowledge.

(2) To avoid doubt, and without limiting subsection (1):
(a) a reference in that subsection to specialised knowledge includes a reference to specialised knowledge of child development and child behaviour (including specialised knowledge of the impact of sexual abuse on children and their development and behaviour during and following the abuse), and
(b) a reference in that subsection to an opinion of a person includes, if the person has specialised knowledge of the kind referred to in paragraph (a), a reference to an opinion relating to either or both of the following:
(i) the development and behaviour of children generally,
(ii) the development and behaviour of children who have been victims of sexual offences, or offences similar to sexual offences.

In Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588; [2011] HCA 21 French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ said (at [32] and [37]) (citations omitted):

To be admissible under s 79(1) the evidence that is tendered must satisfy two criteria. The first is that the witness who gives the evidence “has specialised knowledge based on the person’s training, study or experience”; the second is that the opinion expressed in evidence by the witness “is wholly or substantially based on that knowledge”. The complaint which Dasreef made at trial, on appeal to the Court of Appeal and on appeal to this Court was that Dr Basden did not express an opinion about the numerical or quantitative level of exposure to respirable silica encountered by Mr Hawchar in working for Dasreef that was an opinion based on any specialised knowledge Dr Basden had that was based on his training, study or experience.
…
It should be unnecessary, but it is nonetheless important, to emphasise that what was said by Gleeson CJ in HG (and later by Heydon JA in the Court of Appeal in Makita (Australia) Pty Ltd v Sprowles) is to be read with one basic proposition at the forefront of consideration. The admissibility of opinion evidence is to be determined by application of the requirements of the Evidence Act rather than by any attempt to parse and analyse particular statements in decided cases divorced from the context in which those statements were made. Accepting that to be so, it remains useful to record that it is ordinarily the case, as Heydon JA said in Makita, that “the expert’s evidence must explain how the field of ‘specialised knowledge’ in which the witness is expert by reason of ‘training, study or experience’, and on which the opinion is ‘wholly or substantially based’, applies to the facts assumed or observed so as to produce the opinion propounded”. The way in which s 79(1) is drafted necessarily makes the description of these requirements very long. But that is not to say that the requirements cannot be met in many, perhaps most, cases very quickly and easily. That a specialist medical practitioner expressing a diagnostic opinion in his or her relevant field of specialisation is applying “specialised knowledge” based on his or her “training, study or experience”, being an opinion “wholly or substantially based” on that “specialised knowledge”, will require little explicit articulation or amplification once the witness has described his or her qualifications and experience, and has identified the subject matter about which the opinion is proffered.

See also generally Albrighton v Royal Prince Alfred Hospital (1980) 2 NSWLR 542, HG v R (1999) 197 CLR 414; [1999] HCA 2 and BrisConnections Finance Pty Ltd (Receivers and Managers Appointed) v Arup Pty Ltd [2017] FCA 1268 (“BrisConnections”). In BrissConnections Lee J said (at [48]):

It is evident that there is a need to work out where licit delegation, consultation and testing ends, and where inappropriate compromise of opinions begins. There is a danger in generalising and using labels, but I will use the term ‘compromised opinions’ to mean opinions reached as a result of decision to ‘adopt’ an opinion, which opinion is not the result of an application of the specialised knowledge of a proposed witness, but as a result of a compromise between the proposed witness and another. This is to be contrasted with an opinion which is the result of an application of the specialised knowledge of a proposed witness, but is reached following discussion and debate between the expert and another (even if the tentative or preliminary view of the expert is refined or changed by that discussion and debate, and involves, as a matter of fact, a consensus emerging, by reason of that process, between the initial view of the expert and the view of another). The former is an abdication of the expert’s responsibility to form an opinion by reason of the application of the expert’s specialised knowledge; the latter is a faithful discharge of the expert’s responsibility to test and refine the expert’s views and come to a considered opinion based on the expert’s specialised knowledge, even though it may involve embracing a final view which may not have been initially evident. Subject to how the opinion is expressed, the latter is admissible while the former is not.

To this end there was considerable argument in particular about the reports of Mr Drew Bewsher. On 19 November 2018, I gave the Plaintiffs the opportunity to redraft and serve again a revised version of Mr Bewsher’s expert reports, having formed the view that they were as then impermissible in form and that the Plaintiffs should be given the opportunity to “mend its hand”: Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588; [2011] HCA 21 at [19]. These reports in their revised form were admitted on 20 November 2018.

Parties’ submissions

Plaintiffs

The Plaintiffs, with reference to the Court of Appeal judgment, submit that it is open to me to grant an easement on the terms and conditions they contend, that is, without any limitation or reference as to when the Option 4 crossing is “impassable” (submissions [1]-[8]). That is, they contend that it is still open to me to revisit my primary findings and it is still open for the Plaintiffs to tender expert evidence on whether Option 4 is “impassable” and the flooding risks associated with the various options and easements proposed (submissions [8]). Their case is that an easement cannot be drafted with sufficient precision to require the use of Option 1 to be contingent on the “trigger” of Option 4 being passable (further submissions [1]).
The Plaintiffs’ position is that the expert evidence is that it is not feasible to define when the Richmond River is impassable, and that the existing Option 4 route should only be used as an alternative route for stock (submissions [9]-[12]). The Plaintiffs contend therefore that it is not feasible to use when the Richmond River is “impassable” as a trigger to use the Option 1 route, as it leaves open the subjective opinion of the individual approaching the river (submissions [13]). As is evident from the terms of their draft terms of easement, the Plaintiffs wish to impose an easement on the Defendants’ property in the form of the construction of a bridge on the Option 1 route to replace the one that was destroyed, and that use of this easement will not be limited to when Option 4 is “impassable” or otherwise.
In their opening submissions, the Plaintiffs criticised the Defendants’ draft terms of easement, and proposal to build a causeway on Option 4, as subject to approval from regulatory authorities, including the Department of Primary Industries (DPI) (submissions [15]). To the extent that the Defendants no longer propose the construction of a causeway, this submission is of little continued relevance.
In their further submissions, the Plaintiffs contend that the terms of any proposed easement cannot include any land not comprising the dominant and servient tenement. Upon this basis, they submit that any terms of easement contingent on the Option 4 river crossing is beyond power. This is because the Option 4 crossing requires use of Lots 101 and 102, which are not the subject of proceedings, and not parcels of land that can be characterised as a “dominant tenement” and “servient tenement” (further submissions [2]-[8]).
The Plaintiffs also criticise the Defendants’ proposed terms as lacking adequate precision, including because (further submissions [9]-[13]):

The terms depend on an assessment of the depth of the water at the Option 4 crossing;

The Option 4 crossing is on crown land; and

Assessment of water depth at Option 4 “requires persons to be able to access the location marked at X, these persons it would seem need to include the Defendants” and the Defendants do not have any right to access the Option 4 river.

The Plaintiffs assert the Defendants’ terms of easement invite the possibility of dispute over the water level depth of Option 4, and “requires the person, at the time they elect not to use the river crossing, to have recorded the level of the river” (further submissions [14]-[20]). They contend that the Option 4 route nevertheless must require some form of construction on it to make it safe and would therefore require external approval (further submissions [21]-[26]). In addition, the Plaintiffs’ contend as an “alternative route” Option 4 must be assessed as if it were the “only access” or “sole access”, and as a sole access is unsuitable and unsafe for permanent access to residential dwellings and farmland (further submissions [27]-[33]).
The Plaintiffs do not dispute the amount of compensation assessed at the trial and primary judgment, although accept it is open to the Court to determine an additional amount for disturbance if the Plaintiffs’ proposed easement succeeds (submissions [17]). The Plaintiffs submit they would accept a further amount of $5,000 “for disturbance should be added to the determination of $21,256.55 by Sackar J” and contend a further “$20,000 as suggested by the Defendants is too generous given all the circumstances” (further submissions [34]-[43]).
The Plaintiffs, in their further submissions, raised the issue of the gates to access Option 1, stating the Plaintiffs should be provided with three keys to the lock on the gate at the Summerland Way entrance to the Defendants’ lot 100 (further submissions [44]). They made objection to the expert evidence of Mr Kenneth Paterson and Mr Stephen McElroy, including Mr Paterson’s reliance on the input of Ms Kelly Waring and Mr McElroy’s “highly partisan opinions”, contending the expert evidence of Mr Bewsher should be preferred (further submissions [45]-[68]).
The Plaintiffs otherwise rely on their submissions at first instance (submissions [19]).

Defendants

The Defendants likewise, unsurprisingly, base their submissions on the Court of Appeal judgment and contend there were two difficulties with the primary judgment leading to the appeal allowed and remitter (submissions [1]-[9]):

There were further factual findings the Court needed to make before determining the terms that could be drafted to limit use of Option 4 to circumstances where it was “unsafe” or “impassable”; and

The Court could not determine whether an easement was reasonably necessary unless it took into account the effect on the servient tenement, which could not be known until the extent of permitted use was known.

The Defendants submit, therefore, that the Plaintiffs are now seeking to re-agitate issues that go beyond the scope of the Court of Appeal’s remitter, and that only the following issues require further consideration (submissions [10]-[14]):

The terms, if any, that should be imposed on the Option 1 easement;

Having regard to those terms, whether the easement is reasonably necessary for the use of the land; and

The amount of compensation payable.

Implicit in this submission is that the Defendants still wish the Option 1 easement to be limited or causally linked to the Option 4 route, and contend it is not open for the Plaintiffs now to seek terms of an easement referring to the Option 1 route alone (with no reference to alternative use of the Option 4 route).
Their case is that it is only open to me on this remitter to determine those issues relating to the safety of Option 4 in adverse conditions, and that my finding that Option 4 was a practical alternative to Option 1 during dry weather was not overturned by the Court of Appeal, and should not now be contested by the Plaintiffs (submissions [15]-[18]). The Defendants provided a Schedule of factual findings that they wish me to make, including:

The Plaintiffs desire to impose an unlimited easement in the form of Option 1 is motivated by concerns about succession planning, not the question of “reasonable necessity”;

The proceedings are being brought as a proxy claim for the Plaintiffs’ daughter and her husband who are the most frequent users of Lots 7 and 40;

Mr Bewsher’s expert evidence impermissibly relies on the opinions and views of Dr Yeo who has not been made available for cross-examination;

It was inappropriate for Mr Bewsher to undertake a “roving commission” in preparing his report;

Mr Bewsher lacked independence and played an advocacy role, making unsubstantiated statements;

Option 4 has been in constant use for all purposes for 3 years, and is not unsafe other than on somewhat irregular occasions (it is safe and passable for the majority of the time);

The crossing at Option 4 is generally safe for use by pedestrians and all vehicles at water depths below 300mm irrespective of velocity; and

An unrestricted Option 1 easement is not reasonably necessary in perpetuity.

The Defendants reject much of the lay evidence now served by the Plaintiffs as impermissibly traversing undisturbed factual findings (submissions [20]-[22]). The Defendants also therefore make objection to the expert report of Mr Bewsher served by the Plaintiffs, both as re-agitating undisturbed findings and based impermissibly on the views and evidence of others (submissions [23]-[24]). However, I will deal with the expert report of Mr Bewsher in more detail in consideration.
The Defendants contend, however, that there is nevertheless an agreement on the expert evidence that the depth at which the Option 4 river crossing is “impassable” or “unsafe” is 300mm, and that it is agreed between the experts the river level will never rise so suddenly as to surprise a vehicle whilst crossing. Given this, the Defendants state Option 1 should only be used when the Option 4 crossing exceeds 300mm (submissions [25]).
Initially, the Defendants’ draft terms of easement proposed requiring the Plaintiffs to construct concrete blocks on their property across the Option 4 river crossing. However, following oral submissions, the Defendants conceded that the Court does not have power to order the Plaintiffs to develop their land as a prerequisite for ordering an easement, noting there is no known authority where the Court has used s 88K to impose an obligation on the owner of the dominant tenement to spend money on their land as a prerequisite for ordering an easement (further submissions [1]-[9]). The Defendants provided revised draft terms of easement on 3 December 2018 reflecting this concession. These revised terms concede that emergency vehicles can use the Option 1 easement at any time, and that there is a presumption in favour of those using the Option 1 easement that the river is above 300mm (submissions [29]-[31]).
The Defendants therefore desire an easement in which the Plaintiffs must repair and maintain the Option 1 route, including the road and bridge (submissions [26]-[28]). The Defendants submit that because Option 4 is an available alternate route that is safe a majority of the time, the Court should not impose an unlimited easement over Option 1 because it is not reasonably necessary (further submissions [10]-[20]). They contend the Court need only order an easement in the more limited terms of their draft terms of easement (further submissions [21]-[22]).

Evidence

Plaintiffs’ lay evidence

Ms Jodie Louise Dunn

Ms Dunn swore two affidavits on 24 August 2018 and 13 November 2018.
In her first affidavit (24 August 2018) she said she was the daughter of the Plaintiffs and resides in the main house of Lot 7 in DP 131323 which is one of the parcels of land mentioned above. She said her husband is a Type 1 diabetic and her son has been diagnosed with bronchial asthma, meaning that they may require emergency care.
She described an incident on the 2-7 March 2018, where her youngest child was taken to hospital, stating “I was able to get out and take him to Kyogle Hospital, but it may have been that he needed an ambulance at our home”. She said the gate to the Defendants’ property was unlocked on 7 March 2018 in the event that there was an emergency. She said since the loss of the bridge on Option 1, she has been totally reliant upon Option 4.
The remainder of her first affidavit outlined various vehicles’ access to her property, historical use of Options 1 and 4 and certain photos. However, much of this material was limited by operation of s 136 of the Evidence Act 1995 (NSW) as statements of belief or understanding, but not as proof of fact.
Ms Dunn’s second affidavit (13 November 2018) commented on the expert reports of the Defendants, and was largely limited in a similar manner by s 136 of the Evidence Act 1995 (NSW).
Given my rulings on her affidavit evidence, Ms Dunn was not required for cross-examination.

Mr Stanley Robert Gordon

Mr Gordon (the First Plaintiff) swore one affidavit on 24 August 2018.
In his affidavit he said following the hearing of this matter he had contacted the DPI about the ability to use Option 4 as the primary source of access to Lots 7 and 40. However much of his evidence was limited by s 136 of the Evidence Act 1995 (NSW) as statements of belief or understanding.
He said as the drought worsens he has had to buy “pods” of molasses in 1 tonne units to keep his livestock going, and has not been able to access his storage facilities in Lot 7. At the time of writing he estimated his daughter and her family living on Lot 7 had 6 weeks of drinking water left.
Given my rulings on his evidence, Mr Gordon was not required for cross-examination.

Ms Christine Margaret Gordon

Ms Gordon (the Second Plaintiff) swore one affidavit on 24 August 2018.
In her affidavit she said she had read the primary judgment and the judgment delivered by the Court of Appeal. She said that Lots 7 and 40 were currently owned by her and her husband. Otherwise, the substantial remainder of her affidavit evidence was limited including by s 136 of the Evidence Act 1995 (NSW).
Given my rulings on her evidence, Ms Gordon was not required for cross-examination.

Mr John Francis Gibson

Mr Gibson swore one affidavit on 16 November 2018.
This affidavit was likewise admitted subject to s 136 of the Evidence Act 1995 (NSW) and essentially attached relevant correspondences.
Mr Gibson was not required for cross-examination.

Plaintiffs’ expert evidence

Mr Drew Bewsher

On the first day of trial the Plaintiffs sought to tender the two affidavits of Mr Drew Bewsher of 23 August 2018 and 15 November 2018. The Defendants objected to the entirety of the affidavits on the basis that they failed adequately to explain the connection between his specialised knowledge, the facts assumed or before him and his expert opinions. Objection was particularly taken to Mr Bewsher’s reports’ reliance on communications with Mr Jonathan Yantsch of the DPI, Mr Tony Lickiss who is Kyogle Council’s Director of Assets and Management and Dr Stephen Yeo of Flood Focus Consulting Pty Ltd. The basis of this objection was that Mr Bewsher’s opinions were not based on his own specialised knowledge but on the opinions and knowledge of other persons.
On 19 November 2018 I gave ex tempore reasons indicating my view that consistent with s 79 of the Evidence Act 1995 (NSW) and the views expressed by the High Court in Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588; [2011] HCA 21 and HG v R (1999) 197 CLR 414; [1999] HCA 2, Mr Bewsher’s reports were not admissible in their current form. With respect to Mr Bewsher and his communication with the abovementioned individuals, I said in my ex tempore reasons:

Mr McElroy estimated the following costs for upgrades on the Option 1 route:

Option 1 with basic bridge for domestic passenger vehicles only: $85,558.00 (report [10.1]);

Option 1 with improved bridge for ambulance and small service vehicles: $89,606.00 (report [10.4]); and

Option 1 with improved bridge for large trucks: $189,606.00 (report [10.5]).

Mr McElroy disagreed with Mr Bewsher over the grade of the Option 4 route, stating it is 17.49% not 25.50%.
Beyond providing costing Mr McElroy did not provide a detailed analysis of flooding, and stated both options “have benefits and deficiencies”.
He concluded Option 4 is a more “versatile option” and suggested construction of a concrete ford or causeway on this crossing would not be difficult and would provide a “well defined, safe and structurally sound permanent crossing”. His estimate of the upgrades to Option 4 allowing access to all vehicles “in all weather conditions, except when the Richmond River is impassable” was $63,714.00 (report [10.2]).
In cross-examination Mr McElroy said that there would need to be realignment of the road leading to Option 1 to allow for larger vehicles to use it, and that this did not matter whether the bridge was 12.5 or 16m in length (T213/14-27). He said he proposed the scenario of a 19m semi-trailer simply as a standard suite of vehicles he used to test the proposed bridge (T213/31-36). Mr McElroy said he had done some costing and assessment of whether the Option 4 crossing could be used by a 19m semi-trailer (T215/25-41).
With respect to Mr Wade who assisted him, he said Mr Wade’s contribution was to provide the technology that permitted him to do a greater number and more accurate survey readings (T217/35-39). He said there was no intentional difference between his previous report on Option 1 and his 2018 report on Option 1 (T220/1-26). He denied his report was now asserting that Option 4 was really the only option available (T225/45-48). He disagreed that Option 4 had a steep curve approaching it (T226/11-30). He said it also was an acceptable alignment for any rural road (T228/23-29). He said erosion could still be a problem (T228/37-48).
He further said there would need to be approval from DPI Fisheries, but denied there would need to be development consent from Kyogle council (T229/3-16). He said there would need to be approval from DPI Water and there would be a time and cost involved with that application, who would assess whether or not the matter would be referred to DPI Fisheries (T231/38-48). He said he had not investigated this issue, and it would likely be out of his area of expertise (T232/1-20).
Mr McElroy said with respect to the Option 4 causeway he had costed a concrete slab at approximately $28,000 and a round culvert option at $43,571 (T239/14-23).

Consideration

Expert witnesses: general observations

I have already indicated the procedural history and various iterations which were involved in the production of the Plaintiffs’ expert report of Mr Bewsher. Objection was centred upon the form of his reports and in particular his consulting of various third parties: Mr Lickiss, Mr Yantsch and Dr Yeo.
Experts usually should provide their expert opinions given a set of factual assumptions provided to them, which the calling party is obliged to prove. It is not appropriate, especially if uninvited, for experts to engage in their own sleuthing or investigations.
There are obvious dangers with this course of independent investigation, principally because the expert is uncontrolled and may be influenced by inadmissible or untested evidence. It is imperative that in their letter of retainer and during conferences solicitors keep in mind the necessity of keeping control over expert witnesses: Harrington-Smith v Western Australia (No 2) (2003) 130 FCR 424; [2003] FCA 893 at [18]-[19] per Lindgren J and Jango v Northern Territory of Australia (No 2) [2004] FCA 1004 at [9]-[10] per Sackville J.
Clearly an expert may introduce factual materials into evidence as part of the giving of their expert opinion, for example in the case of a medical expert by examining a party to express an opinion as to their physical or medical condition. Experts may, as they have done in this case, attend a physical location to assess it or may inspect a physical object. In this sense, the expert introduces factual material such as their measurements or readings, in respect of which they may ultimately express an opinion. Experts may also refer to learned journals, authoritative textbooks and the reported data of fellow scientists.
However, it is imperative that an expert should set out in detail what was observed, read or undertaken to elucidate whether their opinions are based upon their expert knowledge. In this case, as has been traversed, I was concerned by the form of Mr Bewsher’s original reports as inappropriately implying he may have been influenced by others and expressing their joint views not his own. I offered Mr Bewsher the opportunity to amend his reports, to ensure the views he expressed were based on admissible material, which I then allowed in evidence.
I also note that Mr McElroy said his inspections were undertaken by himself and surveyor Mr John Wade, although did not provide any detail as to the contribution of Mr Wade to his ultimate report apart from in cross-examination stating Mr Wade’s contribution was limited to providing advanced surveying equipment to be used by Mr McElroy (T217/35-39).
Mr Paterson’s evidence is also not without its difficulties associated with his use of the solicitor for the Defendants Ms Kelly Waring to operate a computer program to manipulate data. Whilst I am satisfied Ms Waring did indeed only conduct a mechanical exercise, as explained by Mr Paterson and Ms Waring in her affidavit, and this was essentially resolved by Mr Paterson and Mr Bewsher providing a note setting out the key points of difference in their views in Exhibit P6, I do note this practice is again undesirable (T168/48-T169/5).

Third parties

I also note the undesirability of a number of letters which the Plaintiffs sought to bring into evidence in the remitter.
The Plaintiffs attempted to procure letters from Kyogle council relating to the council’s apparent views on the various options and the likelihood the council would approve the developments associated with the various options. They also attempted to tender the views expressed by the DPI. The clear and obvious purpose of attempting to procure these letters was to support a case that any causeway at Option 4 would not be approved. The letters were procured solely for use in litigation and in my view could never be admissible. The view of third parties such as these were not open to be tested and their use in litigation in inappropriate.
The documents received in this form are of little assistance, as they do not elucidate whether or not the council officer in question is an expert, or whether or not the officer purports to speak on behalf of council. Therefore, I have not permitted these letters into evidence to prove anything as to the views of council or the Department of Primary Industries or otherwise.
In addition, on 28 November 2018 the Plaintiffs emailed my Associate the “Reducing the Impact of Road Crossings on Aquatic Habitat in Coastal Waterways – Northern Rivers, NSW” report and the “Policy and Guidelines for Fish Habitat Conservation and Management”. The aquatic report was before me at the primary trial (“Bundle of NSW Government Publications”) as was the fish habitat report (T267/40-T268/5). These documents are not unimportant, but of limited utility as any application to the relevant regulatory authorities will depend on the precise merits of the application.

Lay witnesses

With respect to the lay witnesses I have already made findings with respect to their evidence. For example, I noted how Ms Dunn said in 2017 that due to access problems her children had lost 85 hours of school in that last year (primary judgment [226]). She gave evidence about emergency services and utilities accessing the farm and the wear and tear on vehicles having to travel over the rugged terrain (primary judgment [227]). She also described how from 30 March to 14 April 2017 her house was cut off entirely due to flood water, wherein she and her husband had to erect a footbridge to get the children to school (primary judgment [228]).
I likewise noted Mr Gordon’s evidence, for example, that he has been unable to transport his cattle directly from Lot 7. That when he needs to sell cattle he is required to move them approximately 1 kilometre across the current crossing and to yards located on Lot 102 (primary judgment [251]). This is more time consuming, labour intensive and stressful on stock (primary judgment [251]). Mr Gordon also expressed he was prepared to build a replacement bridge on the access road, had obtained a quote for that purpose, and intended himself to work on the bridge to supply the decking (primary judgment [254]). He described, again for example, the extensive repair works he had to undertake to make the Option 4 crossing safely passable after Cyclone Debbie (primary judgment [261]).
The evidence of Ms Dunn and Mr and Ms Gordon provided for this remitted hearing likewise has continued the theme of their difficulties in using the Option 4 crossing and the flooding that can prevent them from crossing into Ms Dunn’s home. They were not required for cross-examination and I accept their evidence and the other Plaintiffs’ lay witnesses as generally truthful. However their evidence has got to be seen against my previous judgment and findings that Option 4 is safely passable for most of the year and is a practical alternative (primary judgment [352]). The evidence in the remitter of the lay evidence did not change my views as to the status of Option 4, including in addition in light of the expert evidence.
But I should say in passing there was likely some element of exaggeration in both Mr Gordon and Ms Dunn’s evidence. It is the fact that since the bridge was washed away at Option 1 in 2015, both Mr Gordon and Ms Dunn clearly must have utilised Option 4 on many occasions when it was not only passable, but entirely safe, the water being most likely at 300mm or less.

Expert witnesses: specific findings

Notwithstanding the above difficulties regarding the reports of expert witnesses, in particular Mr Bewsher, they have assisted me to focus on what I see to be the key controversy in resolving whether the easements proposed by the parties are “reasonably necessary” and satisfy s 88K of the Conveyancing Act 1919 (NSW). This key controversy in my view is clarified by an analysis and comparison of the expert witnesses, particularly Mr Bewsher and Mr Patterson, as to the safety and availability of Option 4 as an alternative route for the Plaintiffs’ use and development of their land (which clearly informs upon the reasonable necessity of an easement at Option 1).
First, Mr Bewsher and Mr Paterson both accept that at 300mm or lower of water depth at the crossing at Option 4 the crossing is “low hazard” irrespective of velocity (T132/21-T133/47). I have no reason to reject this evidence and am satisfied this assessment should be accepted as appropriate in the circumstances.
Secondly, however Mr Bewsher and Mr Paterson disagree as to the number of days which the crossing at Option 4 is above 300mm. Mr Paterson has estimated the number of days where Option 4 in its current state (without improvement) would be above 300mm and therefore “high hazard” would be 18 days per year (first report [4.37]). Mr Bewsher provides a table that is far less easy to understand but estimates the number of days when Option 4 would at least be 400mm as at its highest 54 days (first updated report [35]). I am more than satisfied to find that as a rough estimate and taken at its highest the river at Option 4 will be above 300mm at best on average 54 days per year. That is in the converse that the Option 4 crossing is a low hazard (on average) 311 days per year (or 85% of the year).
Thirdly, Mr Bewsher and Mr Paterson disagree as to the involvement of public authorities in the improvement (if any) of the Option 4 crossing. Mr Bewsher expressed the opinion that from his analysis of the policies and guidelines of DPI Fisheries a causeway would not be approved across Option 4 (T137/50-T138/6). Mr Paterson, on the other hand, was more indefinite as to the likelihood of approval from public authorities. He expressed the opinion that a causeway would require approval from DPI Fisheries and under the Water Management Act (T182/40-46), however accepted this would be an idiosyncratic exercise depending on the precise circumstances of the site and the proposal (T193/19-26). Mr McElroy also purported to express an opinion concerning the involvement of approval authorities in cross-examination (T231/26-30):

Q: No, no, I'm really trying to get to the bottom of this, are you saying that what you have just said is a matter about which reasonable minds may differ within the council or within authorities or is it about something you cannot be wrong about?
A: Look, I am ‑ I am 99.9% sure.

Mr McElroy however accepted he had not investigated the issue of approval by DPI, and it would likely be out of his area of expertise (T232/1-20).
Fourthly, and most significantly, Mr Bewsher concluded (in section H of his first updated report) that the “use of Option 4 as the only access, or its use as the primary access (i.e. where an alternative access is available), is inappropriate and unsafe because of the flood safety risks” and that “[i]n my opinion the existing ford to the River should only be used for occasional stock movements as part of farming activities and should not be used for vehicle access to a residential dwelling”. Mr Paterson and Mr McElroy clearly disagreed.
With these four broad points of comparison between the experts, in my view the most significant distinction between the parties on the expert evidence is the extent to which Option 4 is “high hazard” or “unsafe” or “unpassable” and therefore not available as an alternative route to the Option 1 easement.
To this end, I largely reject the expert opinions of Mr Bewsher. Whilst I am sure Mr Bewsher did his best to provide candid and thoughtful answers, and has a good deal of expertise concerning hydrology and flooding, I am of the view his conclusion is untenable. This is because it is based in my view on a faulty reasoning process. As best as I understand his opinion, Mr Bewsher starts with the premise that at 300mm or under the river at Option 4 is safe irrespective of velocity. He then seems to reason a water crossing is inherently unsafe because in times of flood it can rise at short notice and destabilise a vehicle, and this particular river has been subject to flash flooding and at times is unsafe to cross. Subsequently, he concludes notwithstanding that the river is safe at least on average 311 days per year, because it is unsafe to cross on some occasions, it is therefore always unsafe or should be so regarded. He also concludes, in addition, the Option 4 crossing will not be improved by any of the innovations proposed by the Defendants and in any event they would not be approved by the relevant public authorities.
In my view this is an illogical conclusion not based upon a thoroughly objective analysis or reasoning process. It is a logical misstep to state in effect the Option 4 the river is unsafe on some occasions and therefore is always unsafe or should be regarded as such.
In addition, I reject Mr Bewsher’s opinion as contrary to the facts as I have found them, including that in addition to being safe to traverse for much of the year the Option 4 route is a practical alternative to Option 1 (primary judgment [352]). In addition, as was implicit in cross-examination in the primary trial, and in accordance with my finding that Ms Dunn has used the Option 4 access since December 2015 when the weather is dry (primary judgment [354]), the Plaintiffs have been using Option 4. For Mr Bewsher to provide an opinion (at Section H of his report) that Option 4 should not be used as the “only access” or the “primary access” and “should not be used for vehicle access” is contrary to the fact that the Plaintiffs and their family have indeed been using Option 4 since December 2015. Importantly, it is also contrary to the reality that once the Option 1 bridge is constructed, the Plaintiffs will not be forced to use Option 4 as the “only access” and will not be landlocked, having the capacity to use the bridge when the river is above 300mm.

Reasonably necessary

Until final submissions, the case was conducted on the basis of the Plaintiffs seeking an unlimited Option 1 easement that would not involve use of Option 4. The Defendants sought an amalgam of Option 1 and Option 4, with the suggestion of concrete blocks and a concrete causeway at Option 4. As a result of discussions in oral submissions, the question of the Court’s power to order the Plaintiffs to build on their land as a prerequisite to the easement arose. In light of this change which I think is wholly reasonable, in my view a reassessment of compensation is appropriate.
Given the above analysis of the experts, the fundamental question is how the expert evidence translates into “reasonably necessary” and my assessment of s 88K. In accordance with the authorities, “reasonably necessary” is to be determined in light of the present circumstances. The “reasonably necessary” analysis although enshrined in s 88K clearly has its traditions in the more ancient common law easements of necessity, which asked: is there another way for the applicant to cross without encroaching on another property?
Further, a s 88K analysis takes into account all of the relevant circumstances, including the various options proposed by the parties, the expert evidence as to the safety of Option 4 and the other expert evidence as to the time and cost involved in the various alternatives.
In my view the Richmond River at Option 4 is safe to cross for much of the year (on average 85% of the year at least). The experts agree that at 300mm or less of water depth it is safe to cross in a 2WD vehicle, irrespective of the velocity of the water. I do not accept Mr Bewsher, who extrapolates from a maximum of 54 days per year to a conclusion that the crossing at Option 4 is entirely unsafe as providing any guide on the question of reasonable necessity.
Option 4, when under 300mm of water depth, is a safe and alternative route. How safe and stable that alternative route is a matter for the Plaintiffs and his family. The Plaintiffs, their family and guests can cross the river at Option 4 as it is if they are of the view it is safe to use the river without any construction works done to it, or they can construct a causeway or concrete ford if they see fit. I do not consider I have the power, nor would I as a matter of discretion, direct the Plaintiffs to adopt a particular solution or a particular construction at Option 4.
This is because the compensation referred to in s 88K is directed to compensation to the servient tenement for the blot on title and associated matters. There is no scope in the section in my view for “compensation” which involves expenditure by the dominant tenant. In any event, as a matter of my discretion, I would not order the Plaintiffs expend any money on their property. However, the availability of alternative routes is clearly a consideration in determining what is reasonably necessary. On the facts as I have found them the river at Option 4 is safely passable for much of the year on average, and any improvements to Option 4 is a matter for the Plaintiffs. It should not and cannot be the subject of an order of the Court, although does weigh in my analysis of reasonable necessity. In other words, the extent of any alternative access is a matter which informs the extent of any reasonable necessity, including as asserted by the Plaintiffs.

In addition, as to how the Plaintiffs, their family and those who enter their property as invited assess the river and its safety is a matter for them, and whether they wish to install concrete blocks to assess when the river is above 300mm is a matter for them in that they are free to do what they want on their property.
In their updated draft terms of easement, the Defendants have made concessions which in my view are wholly reasonable to address the Plaintiffs’ concerns, or I should say more accurately their daughter’s concerns as this litigation has to some extent been a proxy case, with the Plaintiffs purporting to act on behalf of their daughter and her family. The Defendants have conceded first that emergency vehicles will be able to access Option 1 at any time (when the bridge is built) and second that in the event of some dispute of the height of the water at 300mm the presumption is in the Plaintiffs’ favour.
I do not consider the cost of a causeway or difficulties in obtaining consent from the DPI or any other public authority renders Option 4 all year an unsafe option, so as to make Option 1 the only reasonably necessary route in perpetuity. I am not satisfied on the state of the evidence that if the Plaintiffs choose to enhance the Option 4 crossing, although it would involve time and money, that it would be impossible to do so. The evidence in my view does not go that far.
Therefore, the crux of my reasoning is that for much of the year the river at Option 4 is below 300mm, which is low hazard on the expert evidence, and therefore for much of the year is an alternative route that renders an easement over Option 1 in perpetuity is not reasonably necessary as per s 88K and the principles it enshrines. I am of the view that the terms of easement proposed by the Defendants are, however, reasonably necessary as they accommodate the necessity for the Plaintiffs to have access to Lots 7 and 40 when the river is above 300mm, noting the allowance for emergency vehicles and the presumption in favour of those using the Option 1 easement.
Further on the state of the evidence and in light of the concessions made by the Defendants as to a presumption in favour and emergency use, the Defendants proposed terms of easement in my view are clearly certain on the facts and with sufficient clarity indicate when the Option 1 easement is to be used (cf, Duncan v Cliftonville Estates Pty Ltd [2001] NSWSC 968). The presumption will clearly support the Plaintiffs and those seeking to rely on the easement if a view is formed that the river is above 300mm and/or unsafe to cross.

Plaintiffs’ further submissions

In their further submissions provided to the Court on 7 December 2018, the Plaintiffs raised a number of further issues which arose out of the concessions made by the Defendants. In my view it is appropriate to address these issues separately and explain why they do not ultimately satisfy me that the Plaintiffs’ proposed easement is reasonably necessary.
First, there was some suggestion by the Plaintiffs that the Defendants’ terms of easement requires an assessment of the level of the river at Option 4 by the Defendants themselves, and would require a trespass onto the Plaintiffs’ land to visually sight the water level to determine its depth. This submission is without basis, because on the clear construction of the Defendants’ proposed easement there is a presumption in favour of the person seeking to rely on the water level at Option 4. To suggest that easement should be construed as creating a trespass or right of access for the Defendants in order to assess the water depth is incorrect. The assessment of water depth is to be done by the person desiring to cross the Option 4 river and is a matter for the person crossing and the presumption acts in that person’s favour. It is true that the presumption may be rebutted by objectively sustainable evidence, however, this does not require any trespass. Whilst the Plaintiffs may in the future sell or transfer Lots 101 and 102 to a third party, this is a matter which may be subject of a variation of the easement. In my view the Plaintiffs’ submission on this point is contrary to the terms of the easement and imports a layer of meaning that in my view is not supported by the language of the Defendants’ terms.
Secondly, the Plaintiffs’ further submissions proceed on the assumption that Option 4 as an alternative route should be assessed as the “only access” to Lots 7 and 40. In my view this is clearly incorrect, as it ignores the fact that the Option 1 bridge will be built and will provide all-weather access to Lots 7 and 40, meaning that Lots 7 and 40 will not be landlocked. It is incorrect to suggest Option 4 will be the “only access” as per the Defendants’ terms of easement, especially given the concessions for emergency vehicles and use of Option 1 made by the Defendants.
Thirdly, the Plaintiffs raised the issue of the gate to the Defendants’ land. This issue was not the subject of debate before me on the remitted hearing and is not included in the Defendants’ draft terms of easement which I propose to make. In my view it is not appropriate or reasonably necessary to order the Defendants to keep the gate perpetually unlocked and would go beyond that which is contemplated in an easement. I do not propose to make orders concerning the gate and repeat the Defendants’ draft terms of easement are the appropriate terms under s 88K.
Finally, I note that the Plaintiffs’ proposed terms of easement contemplate the agricultural use of the Option 1 bridge. In my view this is an imprecise and unnecessary provision. Again, the Defendants’ terms of easement more generally contemplate, and allow for the use of Option 1 “by pedestrians and other vehicles” which accommodates the residential and agricultural use of Option 1 when the Option 4 crossing is above 300mm, consistent with my prior findings (primary judgment [364]). As was clear in my primary findings, the Plaintiffs use Lots 7 and 40 as part of their working farm but primarily for grazing beef cattle (primary judgment [6], [346]). In terms of agricultural use, I noted that the Plaintiffs’ cattle could stray onto Lots 7 and 40 and theoretically may be marooned there by the river, however this would not be disastrous as they could simply graze until the river lowered sufficiently to allow them to cross again (primary judgment [355]). On this evidence, there is nothing to suggest there is a reasonable necessity for Lots 7 and 40 to be accessed by Option 1 for agricultural use, confirming my view that in reality the Plaintiffs’ case is one really acting to buttress the wishes of their daughter Ms Dunn who lives on Lot 7.

Compensation

As to s 88K(2)(b) and the question of compensation, I am likewise satisfied the owner of the land to be burdened can be adequately compensated for any loss or other disadvantage that will arise from the imposition of the limited Option 1 easement. As noted by the Court of Appeal the “loss or other disadvantage” is not limited to the personal inconvenience of the servient owner(s) and can include, for example, any diminution in the value of the servient tenement by reason of the imposition of the easement (appeal judgment [102]).
In accordance with my assessment at the primary trial, which likewise contemplated conditional use of Option 1, I assess a reduction in value at $3,000 (primary judgment [374]), blot on title at $5,000, special value at $4,000, value of area of easement at $506.55 and injurious affectation at $3,750 (primary judgment [377]). To reflect the Defendants’ concessions, and reflecting use by emergency vehicles and the presumption, I assess compensation for disturbance at $10,000 (cf, primary judgment [373]).
In addition, in accordance with the expert report of Mr McElroy which I accept on this point and consistent with the draft terms of easement provided by the Defendants (particularly a bridge of a “reasonable and safe standard consistent with its use”) the Plaintiffs should pay for the cost of works to the Option 1 track assessed at $36,674 and costs of construction of a basic 10.5m span timber bridge at $48,884 (report [10.1]). The bridge can be weighted to carry 30 tonnes which I was informed by counsel does not add any cost and indeed complies with the Plaintiffs’ own version of proposed easement (T283/10-16). This likewise reflects use by emergency vehicles and the presumption.
In light of the use by emergency vehicles at all times and the presumption in favour of the Plaintiffs and those that use the easement, I am of the view that consistent with the Defendants’ draft terms of easement, and as a result, the Plaintiffs should attend to the refurbishment of the road on Option 1 within the easement area. The Plaintiffs would as they accept (as is clear from their draft terms of easement) be responsible for its ongoing maintenance.

Conclusion

I will make orders imposing the Defendants’ proposed terms of easement and invite the parties to provide short minutes giving effect to my reasons.
I will hear the parties on the question of costs if necessary and the impact of s 88K(5).

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Decision last updated: 14 December 2018

Medium Neutral Citation:	Gordon and Anor v Lever [2018] NSWSC 1888
Hearing dates:	19, 20, 27, 29 November 2018
Decision date:	14 December 2018
Jurisdiction:	Equity - Expedition List
Before:	Sackar J
Decision:	See para [183]
Catchwords:	LAND LAW – easements – creation of easements – imposition of easements by Court – whether easement reasonably necessary – remitted proceedings to determine easement – where remitted proceedings involve determination of precise terms of easement and whether reasonably necessary
Legislation Cited:	Conveyancing Act 1919 (NSW) Evidence Act 1995 (NSW) Property Law Act 1974 (Qld) Property Legislation Amendment (Easements) Act 1995 (NSW) Water Management Act 2000 (NSW)
Cases Cited:	117 York Street Pty Ltd v Proprietors of Strata Plan 16123 (1998) 43 NSWLR 504 Albrighton v Royal Prince Alfred Hospital (1980) 2 NSWLR 542 Borowski v Quayle [1966] VR 382 BrisConnections Finance Pty Ltd (Receivers and Managers Appointed) v Arup Pty Ltd [2017] FCA 1268 Buckby v Coles (1814) 5 Taunt 311 Clark v Cogge (1606) Cro Jac 170 Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588; [2011] HCA 21 Domina Regina v Inhabitants of Cluworth (1704) 6 Mod 163 Duncan v Cliftonville Estates Pty Ltd [2001] NSWSC 968 Dutton v Tayler (1701) 2 Lut 1487 English Exporters (London) Ltd v Eldonwall Ltd [1973] 2 WLR 435 Ewart v Cochranes (1861) 23 D (HL) 3 Fitch v Rawling (1795) 126 ER 614 Govindan-Lee v Sawkins [2016] NSWSC 328 Grattan v Simpson (1998) 9 BPR 16,649 Harrington-Smith v Western Australia (No 2) (2003) 130 FCR 424; [2003] FCA 893 HG v R (1999) 197 CLR 414; [1999] HCA 2 Holmes v Goring (1824) 2 Bing 76 Horseshoe Pastoral Co Pty Ltd v Rixon [2018] NSWCA 121 ING Bank (Australia) Ltd v O’Shea [2010] NSWCA 71 Jango v Northern Territory of Australia (No 2) [2004] FCA 1004 Jones v Pritchard [1908] 1 Ch 630 Moorebank Recyclers Pty Ltd v Tanlane Pty Ltd [2012] NSWCA 445 Morris v Edgington (1810) 3 Taunt 24 Nicholas v Chamberlain (1606) Cro Jac 121 North Sydney Printing Pty Ltd v Sabemo Investment Corporation Pty Ltd (1971) 2 NSWLR 150 O’Shea v Athanasakis [2009] NSWSC 1150 Packer v Welsted (1657) 2 Sid 39 R v Abadom [1983] 1 WLR 126 Rainbowforce Pty Ltd v Skyton Holdings Pty Ltd [2010] NSWLEC 2 Re Seaforth Land Sales Pty Ltd’s Land (No 2) [1977] Qd R 317 Reignolds v Edwards (1741) Willes 282 Shi v Abi-K Pty Ltd (2014) 87 NSWLR 568; [2014] NSWCA 293 Sovmots Investments Ltd v Secretary of State for the Environment [1979] AC 144 Stanford v Roberts [1901] Ch 440 Stanley Robert Gordon v Allen John Lever [2017] NSWSC 1282 Tregoyd Gardens Pty Ltd v Jervis (1997) 8 BPR 15,845 Wheeldon v Burrows (1879) 12 Ch D 31
Texts Cited:	C J Gale (with G Cave), A Treatise on the Law of Easements (7th ed, Sweet & Maxwell, 1899) Law Commission for England and Wales, Working Paper No 36: Transfer of Rights: Appurtenant Rights (5 July 1971) Queensland Law Reform Commission, Bill to Consolidate, Amend, And Reform the Law Relating to Conveyancing, Property, and Contract and to Terminate the Application for Certain Imperial Statutes (February 1973)
Category:	Principal judgment
Parties:	Stanley Robert Gordon (first plaintiff) Christine Margaret Gordon (second plaintiff) Allen John Lever (first defendant) Debra Ann Lever (second defendant)
Representation:	Counsel: Ms L Byrne (plaintiffs) G Sirtes SC, C Simpson (defendants) Solicitors: John F Gibson (plaintiffs) Parker & Kissane (defendants)
File Number(s):	2017/55270