McMahon & Anor v McMahon & Ors

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL AND EQUITY DIVISION

No. 7514 of 2005

McMAHON & ANOR	Plaintiffs
v
McMAHON & ORS	Defendants

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JUDGE:	WHELAN J
WHERE HELD:	Melbourne
DATE OF HEARING:	14-15, 18-22, 25-28 August, 1, 3-4 September
DATE OF JUDGMENT:	2 October 2008
CASE MAY BE CITED AS:	McMahon & anor v McMahon & ors
MEDIUM NEUTRAL CITATION:	[2008] VSC 386

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CONTRACTS – Intention to create legal relations – Family members – Contract not established.

REAL PROPERTY – Easements - Easement by prescription/Lost modern grant – Easement established.

REAL PROPERTY – Easements - Common intention as to use – Provision of substitute route – Substitute route consistent with common intention.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Mr C Harrison Mr M Kennedy	McMahon Fearnley
For the Defendants	Mr M Colbran QC Mr T Messer	Beveridge Eaton Lawyers

TABLE OF CONTENTS

Introduction......................................................................................................................................... 1

Sequence of events............................................................................................................................ 4

Pre-1969.......................................................................................................................................... 4
Division of the land...................................................................................................................... 5
Clearing in 1971............................................................................................................................. 6
John’s house and fence................................................................................................................. 6
Mid-1970s – tracks to the national park..................................................................................... 8
Location of the track across the large blocks before 1983....................................................... 8
Position as at Christmas 1982...................................................................................................... 9
Discussions concerning the airstrip – Christmas/New Year 1982/1983............................ 10
Work in 1983 on the airstrip and the track across the large blocks..................................... 10
The taxiway and the 1984 realignment of the fence on John’s small block........................ 11
1985 work..................................................................................................................................... 12
New Year 1995: the ultralight parachute incident................................................................ 12
John’s fence in the late 1990s..................................................................................................... 13
Counsel’s advice in 1997............................................................................................................ 13
John says he is withdrawing permission for the airstrip...................................................... 16
John prevents use of the airstrip............................................................................................... 16
Confrontation at John’s eastern fence....................................................................................... 17
Track work and airstrip reconstruction in May 2004............................................................. 17
Flooding....................................................................................................................................... 18

The airstrip agreement.................................................................................................................... 19

The respective accounts of events............................................................................................ 19
Intention to create legal relations............................................................................................. 27
John’s right to close the strip..................................................................................................... 28
Agreement not established in any event................................................................................. 30
The airstrip estoppel claim........................................................................................................ 30

The plaintiffs’ easement claims..................................................................................................... 32

The pleaded case......................................................................................................................... 32
The claims as argued.................................................................................................................. 33
Factual issues concerning John’s fence.................................................................................... 33
Timing of John’s fence................................................................................................................ 34
Use after the fence was erected................................................................................................. 35
Bulldozing on John’s small block in 1971............................................................................... 36
The track at the big rope............................................................................................................ 37

Applicable legal principles concerning the easement claims.................................................. 40

Analysis of the plaintiffs’ easement claims................................................................................. 43

Characteristics of the east/west easement.................................................................................... 48

The defendants’ claims for easements in relation to ocean access.......................................... 51

Conclusions....................................................................................................................................... 53

HIS HONOUR:

Introduction

Members of the McMahon family have owned land on the Boole Poole Peninsula near Lakes Entrance for generations. In 1969 Henry Ernest McMahon transferred land on the Boole Poole Peninsula which he owned to his five children as tenants in common. By various subdivisions during the 1970s the land he transferred was divided amongst the five children. I will refer to this land as the McMahon land.

The McMahon land is on a peninsula running east-west, with the ocean to the south and the Gippsland Lakes to the north. It was, and is, relatively inaccessible. At its eastern end there are small beaches on the lakes where it is possible to land by boat and there is a jetty named Donohue’s Jetty. The area of the McMahon land at the eastern end was, and remains, more desirable than areas of the land further west because of its accessibility by boat. In order to deal with this situation equitably the land was divided in such a way as to give each of Henry McMahon’s five children two blocks, a small block at the eastern end and a large block towards the western end.

The five children are named Henry, who is called Hal; Mary, whose married name is Drost; John, who died in 2006; Lloyd; and Don. I will refer to them and their father by their first names.

When the land was divided Don obtained the small block closest to Donohue’s Jetty at the eastern end of the McMahon land, and the large block at the furthest western extremity of the McMahon land. Lloyd obtained the next small block and the large block to the east of Don’s large block. There then followed Mary, John and finally Hal. As Hal’s small block and his large block border each other, they form a single block. The blocks are referred to as Don’s small block, Don’s large block, Lloyd’s small block, and so on; save that Hal’s land is referred to simply as Hal’s block. The various blocks occupy the peninsula from the lakes in the north to the ocean in the south. Along the lakes there is a crown reserve and immediately next to that reserve, running along the shore of the lakes, is a narrow strip of land which is in Don’s name but which is reserved for public purposes.

Henry endeavoured to ensure that the division of the land was equitable between his five children, and in that he seems to have succeeded. He did not address the question of access across the blocks. For at least the last 25 years the McMahon children have been in dispute with each other about access and about their competing desires in relation to the use of the land. These disputes have now culminated in this proceeding brought by Hal and Lloyd against John’s widow, Valerie; one of John’s sons and his wife, Graeme and Dianna; Don; Mary; and a company named Glenmark NSW Pty Ltd (“Glenmark”) which is controlled by another of John’s sons, Kenneth.

In the early 1970s, John built a house on his small block and put a fence around it. Hal and Lloyd claim that in doing so he wrongfully purported to cut off their then existing access across his small block.

In 1983 Lloyd built an airstrip on Hal’s land and on a small portion of John’s large block. This has become an area of significant dispute between the family members.

In addition to the dispute concerning the fence on John’s small block, the family members have also been in dispute about east/west access across the McMahon land more generally. Don’s large block, which occupies the most westerly portion of the McMahon land, borders on a national park upon which there is a track leading to a small settlement called Mosquito Point. Mosquito Point is on the lakes opposite Metung and has access to Metung by barge. The family members are in dispute as to the location and the characteristics of the track across Hal’s block and the large blocks to the track in the national park.

There is also an issue raised in the counterclaim concerning access to the ocean beach.

Thus, for present purposes, the broad areas of dispute are:

1.The airstrip.
2.Access across the small blocks, and in particular John’s fence.
3.Access across the McMahon land more generally.
4.Ocean access.

I turn to the relevant sequence of events.

Sequence of events
Pre-1969

Lloyd and Hal’s third further amended statement of claim alleges that since 1893 there has existed a track from the Mosquito Point district to Donohue’s Jetty capable of carrying vehicles which is referred to as “the old track”. In the alternative it is alleged that a track was created by Henry in the late 1950s which was then extended in the 1970s and which also traversed the McMahon land from east to west. This is referred to as “the alternate track”.

Whatever may have been the position previously, it became clear in the trial, and I find that, as at 1969 there was no track which traversed the entirety of the McMahon land from east to west which was capable of carrying vehicles.

What existed in 1969 was the following.

In the area near Donohue’s Jetty, on the northern or lakes side of the peninsula, the land was largely clear. Its condition is depicted in photographs taken in the 1960s which are in evidence. There was a track across it from Donohue’s Jetty to some rudimentary buildings which Henry had erected on what is now Lloyd’s small block. These are called “the shacks” or “the sheds”. The track in this area was essentially a footpath across open grassland. This path is depicted in tendered photographs of Don and others moving a fridge in January 1972. The cleared nature of the area meant that it would have been possible to drive a vehicle along this path to a point approaching Donohue’s Jetty. It also meant there were a variety of routes one could take when heading west, depending upon the eventual objective.

From the shacks there was a rough bush track through the scrub across what was to be Mary’s small block, across what was to be John’s small block, and into what was to be Hal’s block for a distance of approximately 100 metres to a waterhole. This track was wide enough for a small vehicle to travel along, with scrub on both sides. A photograph of Henry taken in October 1968, whilst not necessarily of the track in this area at that time, depicts the kind of track which then existed.

At that time the only track extending significantly beyond the waterhole on what was to be Hal’s block was a track which Henry had cut, or re-instated, to a location known as “Happy Days” which is close to the lake shore on what was to be Lloyd’s large block. Henry had erected a small shelter there. This track was largely overgrown. A vehicle could not have passed along it.

Division of the land

In the late 1960s Henry discussed with his five children the transfer of the McMahon land to them. The procedure for dividing the land fairly (2 blocks each-small and large), to which I have referred, was agreed upon.

In September 1969 the McMahon land was transferred to the five children as tenants in common. Henry was in failing health at that time and he died in March 1970.

In September 1972 the McMahon land was subdivided in such a way that (moving west to east):

(a)Don became the registered proprietor of land in a separate certificate of title referred to as Don’s large block.
(b)Lloyd became the registered proprietor of land in a separate certificate of title referred to as Lloyd’s large block.
(c)Mary became the registered proprietor of land in a separate certificate of title referred to as Mary’s large block.
(d)John became the registered proprietor of land in a separate certificate of title referred to as John’s large block.
(e)Hal became the registered proprietor of land in a separate certificate of title referred to as Hal’s block.
(f)Because of restrictions in relation to subdivision existing at the time, Mary and John as tenants in common became proprietors of land in a separate certificate of title covering both John’s small block and Mary’s small block.
(g)Don and Lloyd similarly became tenants in common over land in a separate certificate of title covering both Don’s small block and Lloyd’s small block.

In March 1974 Lloyd and Don partitioned their small blocks so that they each became the registered proprietor of land in separate certificates of title referred to as Lloyd’s small block and Don’s small block.

In August 1979 a similar partition occurred separating John’s small block and Mary’s small block.

Mary transferred her large block to an outside party in 2002, but it was brought back within the McMahon family in April 2004 when it was purchased by John’s son, Graeme, and his wife Dianna. In October 2007 Mary’s small block was transferred to Glenmark (the company controlled by another of John’s sons, Kenneth).

Clearing in 1971

In 1971 a bulldozer was transported by water to the McMahon land. It was landed on a small beach at the eastern end of the land in front of the shacks. The bulldozer was used to carry out clearing work. Extensive clearing was done on John’s small block. There was also some clearing done on John’s large block. The clearing on John’s large block created a rectangular section of cleared land and also an area where the scrub had been cleared but the trees had not, so as to create what some witnesses referred to as a “park-like” effect.

Lloyd undertook some clearing on what was then the land which he and Don held as tenants in common. This led to a rift between Lloyd and Don.

The bulldozer was also used in 1971 to clear a track from the small blocks up to Happy Days. It was then moved to an area on the boundary between Don’s large block and Lloyd’s large block and was used to clear an area for a pine plantation. This area was thereafter referred to as “the pines”.

John’s house and fence

Before 1971 there was no house on the McMahon land, other than the shacks which Henry had built on what was to become Lloyd’s small block, and the shelter at Happy Days.

In 1971/1972 John constructed a holiday house on his small block and erected a post and wire fence around the area where the house was situated. There is an issue between the parties as to precisely when the fence was built. I will return to this issue.

John’s fence occupied a portion of the eastern boundary between what then was, or was to be, John’s small block and Mary’s small block. Part of the fence ran along part of the western boundary between what was, or was to be, John’s small block and Hal’s block. Another part of the western fence was inset away from the boundary. The southern portion of the fence was not far from the house and was a substantial distance from the ocean beach and the southern boundary of the block. The northern fence was short of the northern boundary of John’s small block. There was a gate in the northern fence and another gate in the western fence. The eastern and western fence lines crossed over the rough narrow track which had existed from the shacks to Hal’s waterhole to which I referred earlier. There was no gate on the eastern fence. The western gate was approximately in the position of the track.

It is perhaps unsurprising that John, who built a holiday house on the McMahon land, felt the need for a fence of some kind. There was an additional reason, however. John’s family were horse riders and they brought horses to the McMahon land from time to time from the early 1970s until approximately 1986. It was desirable to have a fenced area in which to keep the horses.

John’s fence was built across the existing track through Mary’s small block and John’s small block. John died in February 2006. His widow, Valerie, explained to me that she and John fenced their block and, in her words, “provided gate-free access” … “along the north”. This was done by not extending the fence to the northern boundary and leaving a portion of unfenced land adjacent to the public reserve and the shore of the lakes.

Valerie agreed that as far as she and John were concerned what they did was okay and that the others could have done the same, adding … “realising there wasn’t very much beyond our block at that stage also. Only the kangaroos”.

The evidence of the various family members differed on the issue of whether complaints were made about John’s fence shortly after its construction. I accept the evidence of Lloyd and Hal that the existence of the fence “rankled” with them. There is no doubt that they complained about it, but there is a dispute about how early their complaints began. They contend that the old access is superior to the northern access John created because it is on higher, drier ground.

Mid-1970s – tracks to the national park

Between the mid-1960s and 1971 there were some vehicles on the McMahon land, including a tractor and a small motor vehicle. John had brought over vehicles by boat and landed them at the eastern portion of the McMahon land. Vehicles could drive along the track across Mary’s small block and John’s small block, and then into Hal’s block, where the track ended in a turning circle.

In the early 1970s there was a bushfire on the land which cleared some of the scrub in the western area. In around 1974 or 1975 two of John’s sons, Graeme and Alan, found tracks during hunting expeditions in this area. With John’s other sons, Kenneth and David, they pieced together a route from the old Happy Days track, which had been extended to the pines by the bulldozer in 1971, through to a locked gate at the western boundary with what is now the national park.

Valerie gave evidence about riding the horses through this area. The horses were first brought to the land during the 1973/1974 summer.

Commencing in about 1976 Lloyd’s son, Adam, began regularly clearing the track through to the national park using a tractor, a slasher, and a chainsaw.

Location of the track across the large blocks before 1983

The track presently across Hal’s block and the large blocks is not in all respects in the same location as it was in the 1970s. The deviations between the location of the track as it then was and its current location are now uncontroversial, with one exception. The parties are in dispute as to whether the track in the 1970s went along what was then the small rectangular clearing on John’s large block, or whether it went further to the south emerging on Hal’s block at a point known as the big rope or the red rope. At this point there is a large rope hanging from a tree. The rope was washed up on the beach and was put there for children to play on. It is clear that in 1983 there was a path south of the clearing to the big rope. The issue is whether that path was created in 1983 in circumstances to which I will turn in a moment, or whether it existed before then. Hal and Lloyd say the track previously went to the big rope and should be reinstated there. The defendants say the track’s existing location along the southern side of the clearing should stay.

Position as at Christmas 1982

As at Christmas 1982 the position was as follows.

Access across the small blocks had been affected by the construction of the fence on John’s small block. As Don explained in his evidence, the existence of the fence diverted people travelling west further to the north. On an aerial photograph (Exhibit P 39) he marked with one blue line the more southerly route taken from Donohue’s Jetty past the shacks on Lloyd’s small block before the fence was constructed, and with another blue line the more northerly route taken after the fence was constructed.

Persons moving from Donohue’s Jetty to the west would have gone along a track which began as a footpath, and which became capable of carrying vehicular traffic by the time it entered the open area of Lloyd’s small block, and then would have proceeded through a cleared area on the northern portion of Mary’s small block, and through the “gate-free access” at the north of John’s small block, travelling along the northern portion of John’s fence.

Persons heading westward would then go south along the western portion of John’s fence to meet the old track at the gate on his western fence, and then turn west along the pre-1971 track to Hal’s waterhole.

From there, they would proceed along a narrow track capable of carrying a tractor across Hal’s uncleared block to the area of the small clearing on John’s large block. From there the track proceeded to Happy Days, turned up along the western boundary of the pines, and then turned west again over the tracks opened up by John’s sons in the 1970s and maintained by Lloyd’s son, Adam, to the gate to the national park.

Discussions concerning the airstrip – Christmas/New Year 1982/1983

As at Christmas 1982 John had a holiday house on John’s small block, Lloyd stayed in the shacks built by his father on Lloyd’s small block, and Don had built a holiday house on his small block. Hal’s block was uncleared. There was nowhere to stay on Hal’s block. That year Hal was staying with Don and his family.

Lloyd is a pilot. For many years he had had a desire to build an airstrip on the McMahon land. He and his father had talked about it and had paced out a possible location across the area of the small blocks. Lloyd had raised the possibility of building an airstrip with John in the past. John’s wife, Valerie, was unenthusiastic about the prospect of an airstrip being built on the McMahon land.

There were discussions that Christmas about an airstrip, and John gave Lloyd permission to use the cleared area on his large block as part of a strip Lloyd proposed to build. The content of those discussions is an area of great controversy between the family members. Nothing was recorded in writing at the time. Hal and Lloyd say a binding legally enforceable agreement was reached with John which gives them a licence over part of John’s large block for use as part of the airstrip. John’s widow, Valerie, contests this. Amongst other things, she contends Lloyd assured John that he would always have the right to withdraw his permission to use his land as part of the airstrip.

Work in 1983 on the airstrip and the track across the large blocks

In January 1983 and in May 1983 work was undertaken to clear a large area on Hal’s block, and to expand the clearing on John’s large block, so as to construct the airstrip. The construction of the airstrip was a substantial undertaking. It involved extensive earthworks and a considerable commitment of time and money, principally by Lloyd.

As a result of the airstrip’s construction Hal for the first time erected a structure in which he could stay when visiting the McMahon land. The building is referred to as a hanger. It is designed to accommodate aircraft and also people.

In 1983 the bulldozer used for the airstrip construction was used to realign the track across the large blocks, so that instead of proceeding past Happy Days to the north of the pines and then up the western boundary of the pines, it took a more direct route from a point just east of Happy Days to the southern boundary of the pines. The route so taken is depicted as a blue line on attachment A to the third further amended statement of claim.

In 1983 the bulldozer was also used to clear a track in the area of the clearing on John’s large block from the big rope westward. John took steps to close this track and to divert users onto the southern edge of the clearing on his large block. This is the area where the family members are still in dispute as to the location of the east/west access.

The taxiway and the 1984 realignment of the fence on John’s small block

At one point there was discussion about a possible taxiway for aircraft to travel across the northern part of John’s small block and Mary’s small block to Hal’s small block. These discussions are part of the larger controversy about the discussions concerning the airstrip. I will deal with them in that context.

In 1984 John realigned the fence at the northern end of his small block. The fence was moved further to the north and 12-foot gates were installed at the eastern end and the western end to enable passage through the fence.

In 1984 acrimonious correspondence passed between John on the one hand and Lloyd and Hal on the other, principally relating to Lloyd’s proposed use of the northern access across John’s small block as a taxiway for his plane. As a result of these disputes, and John’s realignment of the fence and the installation of gates, the area never became a taxiway. In the course of this correspondence Hal also made more general written complaints about John’s fencing.

1985 work

In 1985 Hal brought heavy equipment, including a bulldozer, onto the McMahon land via Mosquito Point and the east/west track for the purpose of drilling a bore.

The track over the large blocks was realigned by the bulldozer in the area west of the clearing on John’s large block so as to both widen and straighten it. John’s family disparagingly refer to this widened and straightened section of track as the “gun barrel highway”.

The bulldozer also went through the area south of the clearing on John’s large block to the big rope. Again, this section of track was closed by John. It was not used thereafter and is now completely overgrown. The only cleared track now is the one that passes along the southern edge of the clearing on John’s large block.

New Year 1995: the ultralight parachute incident

Disagreements concerning the airstrip flared as a result of an incident in 1995, principally concerning Hal and one of John’s sons, David.

David and a friend flew an ultralight aircraft from the airstrip, and David parachuted from the ultralight aircraft down onto the airstrip. Hal took particular exception to this. He considered it to be dangerous and in breach of applicable regulations. He erected a notice on the airstrip banning, in his capacity as owner, any use of the airstrip for ultralight operations.

Apart from the safety issues, Hal found David’s use of the airstrip particularly galling in circumstances where he had requested assistance from John’s sons in maintaining the airstrip and had been rebuffed. Notwithstanding the fact that according to Hal’s version of the airstrip arrangements Lloyd was responsible for maintenance, the refusal of John’s sons to help maintain the airstrip annoyed Hal, and his annoyance was exacerbated by what he saw as David’s dangerous and irresponsible use of the strip.

Hal’s ban upon David’s use of the strip for ultralight flying then became the cause of disagreement between John and Hal which threatened the future of the airstrip.

John’s fence in the late 1990s

By 1997 John’s fence around his small block was, at least in some areas, somewhat dilapidated and, at least on one occasion (demonstrated on a video which is exhibit P 6), it was possible to walk through the fence line along approximately the route of the pre-1971 track across the middle of John’s small block.

John’s widow, Valerie, described what she referred to as a “campaign” to re-establish the old track through the late 1990s. A track was cleared through Mary’s small block. The fence was repeatedly cut. Whilst it was suggested by Lloyd, Hal and Adam that the fence was broken as a result of natural deterioration or the action of animals, it seems to me that the tendered photographs corroborate the evidence of John’s family members that the fence around John’s small block in the area where the old track had passed was cut. I am unable to say who cut the fence, but on the balance of probabilities my conclusion is that the fence cutting was done as part of the dispute between Hal and Lloyd on the one hand and John’s family on the other.

Counsel’s advice in 1997

Lloyd McMahon is a solicitor. He is a member of the firm McMahon Fearnley, the solicitors for the plaintiffs in this proceeding.

In January 1997 Lloyd briefed Ms Kathryn Rees of counsel to advise in relation to the issues of the airstrip, and access across the McMahon land. Lloyd and Hal gave her instructions in conference. By a memorandum of 13 February 1997 Ms Rees forwarded to Lloyd what she described as “the first ten pages of my advice, constituting my instructions”. She advised that there were queries which she had highlighted and stated: “When I have received your response to these, I will be able to forward my lengthy advice to you.” A document which appears to be these ten pages is in evidence.

There is also in evidence a lengthy advice by Kathryn Rees dated 24 February 1997. The copy which is in evidence appears not to be complete. An addendum entitled: “Some problems and weaknesses”, which is referred to in the index, is missing.

Mr Lloyd McMahon in his evidence agreed that he would have received the lengthy advice on or about the date which it bears. He said he is unable to recall the circumstances in which he obtained the lengthy advice. It seems that the firm’s file on the matter is not obtainable. Given the circumstances in which the advice was obtained and the use to which Lloyd subsequently put the advice, this is unfortunate.

There are some minor differences between the ten-page document and the instructions in the first 11 pages of the lengthy advice.

My conclusion on the balance of probabilities is that Ms Rees sent to Lloyd the first ten pages of what was then her draft advice, that he corrected some minor aspects of it, and that he then requested the lengthy advice, which he received on or about 24 February 1997.

The advice from Ms Rees sets out a factual background which largely accepts as accurate the pleaded case of Lloyd and Hal in this proceeding. Unsurprisingly, she reaches the conclusion that they are correct in their contentions concerning access over the small blocks, particularly John’s small block; access over the large blocks; ocean access; and that they are also correct in relation to the dispute concerning the airstrip.

Some aspects of the factual basis for Ms Rees’ opinion need to be noted. Amongst other things, Ms Rees was instructed that:

1.It was known by the five children at the time the method of division was agreed (in the late 1960s) that “access by road from the subject land for walkers, riders and vehicles to the barge from Metung was gained via the Old Track, which crossed over all the intended parcels of land”.
2.“… there was not and had not been direct access from Lake King to the subject land as it was too shallow to allow even an ordinary little motor boat in”.
3.“John … liked the idea of an airstrip for light aircraft, and agreed to it crossing his land (large block), provided that Lloyd maintained it and paid for the work on it. Lloyd accepted those terms, and Hal agreed to share the cost with Lloyd”.
4.In 1971 the bulldozer had been landed from Metung and had left the same way.

As is apparent from what I have already said, items 1, 2 and 4 were incorrect. Item 3 was an issue of considerable controversy.

By a letter dated 25 February 1997 Lloyd sent Don, Hal, John and Mary what he described as “a draft statement prepared by Kathryn [Rees]”. He invited his siblings to pen in any comments they wished to make and return the memorandum to his office. His letter went on: “Kathryn has considered the law applicable and on the return of our amended instructions will complete her advice.”

If he had the lengthy advice dated 24 February 1997 when he wrote the letter of 25 February 1997, his letter did not tell them he had it and did not tell them what its conclusions were. If he received the lengthy advice shortly afterwards, there is no evidence suggesting he told them about it when he did receive it.

Lloyd had a response from Mary, who had little knowledge of the relevant circumstances, but otherwise did not get a response from any of his other siblings other than Hal, in writing at least, before 6 May 1997. On that date he wrote to John and advised as follows:

Further to my letter to you of 25 February 1997, and having not received further information from you, I have requested and now received from Kathryn Rees, the barrister, her memo of advice, a copy of which is enclosed for your perusal and record.

No one other than Mary appears to have noticed that the advice was dated before the letter of 25 February 1997. Mary pointed this out to Lloyd in a document which she entitled “Personal note only”. That note, and other correspondence at the time which she had written concerning the issues between Lloyd and John, drew an angry written response from Lloyd on the letterhead of his solicitors’ firm.

By a letter of 18 June 1997 addressed to Hal and Lloyd, John expressed his comprehensive disagreement with the contents of Ms Rees’ advice, which he described as “your barrister’s concoctions from your briefing”. Further acrimonious correspondence followed between Hal and John throughout 1997, which also involved John’s son David. Lloyd entered into the correspondence, on the letterhead of his solicitors’ firm, with a letter dated 16 September 1997 in which he treated the advice of Ms Rees as effectively resolving the various issues in dispute in his favour. He was later to use the advice in the same way when dealing with John’s son Graeme in 2004.

John says he is withdrawing permission for the airstrip

Prior to Ms Rees’ advice John had erected posts on his large block to mark the boundary of his land. By a letter of 6 July 1997 to his brother Hal he said he was withdrawing his permission to use the cleared land on his large block for the airstrip.

John prevents use of the airstrip

In early 1999 John again realigned the northern fence on his small block. He removed the gates at each end and brought the northern fence south again, leaving a passageway across the north of his small block. One effect of this movement was to re-instate what Valerie calls “gate-free access”; another was to place a permanent fence down the middle of what had been projected to be the taxiway.

In January 1999 John attempted to stop use of the airstrip by writing to CASA. He placed white crosses with car tyres on his large block. Eventually, at the end of 1999 he fenced an area in the clearing on his large block. This action did have the effect of closing the strip.

In early 2000 John made an offer to Lloyd to enter into an agreement for use of the airstrip for a period of five years. The terms were not acceptable to Lloyd.

Confrontation at John’s eastern fence

In 2002 John’s son Graeme, in response to what John’s family perceived to be the campaign to reinstate the track across John’s small block where it had been in 1971, felled a large pine tree and placed it across the relevant area of the eastern boundary of John’s small block. Provocatively, Graeme carved the symbol of a smiling face into the fallen tree trunk. Scrub and trees were also placed against the western gate.

Track work and airstrip reconstruction in May 2004

In May 2004 Lloyd and Hal engaged a contractor who brought a bulldozer and other heavy equipment onto the McMahon land through Mosquito Point. The track through the large blocks was bulldozed extensively in some areas, resulting in a substantial widening of the track. The areas affected included parts of what had been Mary’s large block, then owned by Graeme and Dianna.

Reconstruction and reconfiguration work on the airstrip was undertaken so as to confine the strip to Hal’s land. Graeme confronted Lloyd whilst this work was being undertaken. He was particularly upset at the bulldozing activities on Mary’s large block, which he and his wife now owned. When confronted, Lloyd maintained the project was Hal’s. Graeme and Dianna engaged solicitors who wrote to Lloyd on their behalf.

It seems that the work was being done without a planning permit. The relevant authorities were alerted. Subsequent proceedings at VCAT resulted in orders being made against Lloyd and Hal.

Later in 2004, in response to Graeme’s complaints, Lloyd, again on the letterhead of his solicitors’ firm, wrote to Graeme relying on the advice of Ms Rees and enclosing a copy of that advice “for your study and reference”.

Flooding

From time to time water from the lakes floods the lower areas of the McMahon land. When this occurs water covers the areas to the north of the land, including the northern access across John’s small block. Major flooding of this kind occurred in 1987, 1997 and 2007. Minor flooding has occurred in other years. The northern access is more vulnerable to flooding than the old access across John’s small block, but the entire area, including the airstrip itself, is vulnerable to inundation.

The airstrip agreement
The respective accounts of events

In the third further amended statement of claim Lloyd and Hal allege that an agreement was made between Hal, Lloyd and John in or about 1982 under which Hal and Lloyd agreed to construct an airstrip on part of Hal’s block and on a part of John’s large block. It is alleged that there were terms of the agreement that each of Hal, Lloyd and John could use the airstrip for general aviation aircraft; that Hal, Lloyd and John would have the right to access the lands as necessary to maintain the airstrip; and that Hal and Lloyd would be entitled to use the airstrip, subject to their maintaining the same, for “the balance of the life of whomever of them lived longer”.

In his witness statement Lloyd says he discussed the desirability of an airstrip with John over the telephone in or about December 1982. When he arrived at the McMahon land a few days later he says he went to see John at his house. He says this was on Boxing Day. According to Lloyd, the first option he put to John was to build an airstrip over the small blocks and part of Hal’s block. John said he did not like that idea. Lloyd says that he then said the second option was that if Hal would agree to an airstrip on his land then use could be made of the cleared area on John’s large block. Lloyd says that John said he also had some objections to that proposal. His objections concerned bringing bulldozers onto the site and the clearing that would be involved. According to Lloyd, he asked John whether he would agree if he (Lloyd) could solve those problems and John said that he would agree. Lloyd says that John said he was generally opposed to his family becoming involved in the airstrip because of a previous bad experience he had had with aircraft. According to Lloyd’s witness statement, John said that it was his (Lloyd’s) responsibility to make it happen and that if it did happen “it was my responsibility to maintain the airstrip”.

According to Lloyd, later that day or the next day John and he had a conversation in the presence of his son Adam. In this conversation, Lloyd’s witness statement says “John stressed that whilst he agreed about the creation of the airstrip, it was my responsibility to make sure it was maintained”.

Lloyd says that later that same day or the next day relatively early in the morning he met Hal on his (Lloyd’s) small block. He explained the idea to Hal, who was “very keen”. Hal expressed interest in building golf greens as well. According to Lloyd, at this point John walked over. Lloyd says that John said to Hal that whilst he was not interested in flying and was not particularly interested in golf “he was happy to placate my interest in building an airstrip”. Lloyd says that John stated that he was agreeable to having the airstrip but that he wanted the right to close it if he wished. Hal said he would not agree to that. According to Lloyd, John then said that “he would allow me to use that part of the airstrip on his land for my lifetime”. According to Lloyd, John said he was doubtful that the airstrip could be built and that Lloyd responded that if the works were not completed he (Lloyd) would plant trees to prevent erosion, build fences to protect the trees and re-establish the site.

According to Lloyd’s witness statement, Lloyd “repeated to Hal and John that I would be responsible for the cost of building the airstrip and of maintaining the airstrip”.

In cross-examination Lloyd described the arrangement about maintenance as follows:

… the agreement was that any one of us could maintain the airstrip and if we did the other two would have the right to use it along with the one that maintained it.[1]

At two points in his oral evidence Lloyd confirmed that his version of the arrangement was that nobody was obliged to maintain it.[2]

[1]Transcript, 367.

[2]Transcript, 367, 375-6.

According to Lloyd, in the same conversation with Hal and John, they also discussed a taxiway from the airstrip across the north of John’s small block to Lloyd’s small block. Lloyd says John agreed that this could also be done and said that if the use of the taxiway did not work out, its use would be stopped. Lloyd and Hal make no claim concerning the taxiway in this proceeding.

Hal in his witness statement also describes a conversation which he says occurred on the day after Boxing Day in December 1982 near the jetty on Lloyd’s small block. Hal says Lloyd approached him with the airstrip idea and that he (Hal) said he would give him permission to do the clearing and that he would help him. Hal says he also said he was keen on establishing a six hole golf course. According to Hal, John then approached and was asked by Lloyd if he was still agreeable to including John’s cleared area on his large block. According to Hal, John said “he had no difficulty with this”. Hal says John said that “he recognised that the airstrip would be a good recreational asset in addition to a functional airstrip”.

Hal says that John said he wanted to be able to withdraw his permission if he wanted to and that he (Hal) said he would not agree to that. According to Hal, John then said that he would allow use of the airstrip “as long as Lloyd or the family wanted to use it and maintain it”.

In his cross-examination Hal was asked about the duration of the arrangement. Hal said that as far as he was concerned the arrangement was to continue, subject to continued maintenance, for as long as any of Lloyd, John and himself or their respective family members (not extending to grandchildren) wanted to use it.[3]
[3]Transcript, 137.

In his witness statement Hal says that “Lloyd’s tenure required his maintenance”. He clarified the position in relation to maintenance in his cross-examination. He said: “The terms were that Lloyd was to build the airstrip and maintain it.”[4] Later he said: “Lloyd had to maintain it”.[5]
[4]Transcript, 120.
[5]Transcript, 175.

At another point in his oral evidence Hal’s account was more ambiguous in relation to maintenance. When asked whether he was giving up his land for as long as someone maintained the airstrip he responded: “Yes. It could be John, it could be me, it could be Lloyd”.[6]
[6]Transcript, 137.

According to Hal, it was also in that one conversation when there was discussion about the taxiway.

Hal’s evidence is that on the same day he discussed the position with John’s wife, Valerie. According to Hal, Valerie said to him that she did not believe it could be done or maintained.

In his witness statement Lloyd’s son Adam says he was present at a discussion between his father and John about the proposed airstrip in or about January 1983. He says that in that discussion John said he doubted the airstrip could be done and his father said he was sure he could do it. Adam said he was present when a similar conversation occurred at John’s house at around that time.

John’s widow, Valerie, also gave an account of dealings with Lloyd concerning the airstrip.

Valerie says in her witness statement that for many years Lloyd had persistently requested John’s permission to construct an airstrip and John had refused. Valerie says that in late 1982 or early 1983 Lloyd spoke to John and to her, endeavouring to persuade them to agree to permit the airstrip to be built. According to Valerie, “Lloyd stressed that John could withdraw his permission at any time”. Valerie says that she was opposed to the airstrip and that she expressed that opposition. Her account of events is that Lloyd approached them on more than one occasion at their holiday house at the McMahon land over the Christmas/New Year period of 1982/1983. She says that Lloyd “pleaded” with John and her for permission. She says Lloyd stressed that John could withdraw his permission at any time and she says that she recalls he used words to the effect of: “It’s your land. If you have any problems, you can fence it. I will come and help you build the fence.”

She says that it was on the basis of these assurances that John and she eventually agreed.

In cross-examination Lloyd disputed Valerie’s version of events.[7] He agreed he had had “several conversations in their house”. He denied that he had stressed John could withdraw his permission at any time. He said John could withdraw permission for the taxiway. He also said he told them he would re-instate the land if the strip was not able to be built.
[7]Transcript, 366-79.

Don had previously had disputes with Lloyd about the land. He says that in January 1983 he asked Lloyd for the details of the contract with John regarding the airstrip. When asked what Lloyd said in response Don’s evidence was: “He said John had the right to close it. He said if there was any trouble he would assist John in building a fence to close the airstrip.”[8]
[8]Transcript, 864.

Don says that the conversation was abrupt and that he then said to Lloyd: “you are going to fall out and I am going to be asked to give this evidence in court”. Don says he has repeated this prediction to Lloyd through the years time after time.[9]
[9]Transcript, 865.

Lloyd said that his conversation with Don was about the airstrip being closed if it was not able to be completed appropriately and also about the trial of the taxiway.[10] Lloyd and Don accordingly differ on the issue of what that conversation was about.
[10]Transcript, 380-1.

Valerie’s version of the taxiway discussion differed from Hal and Lloyd’s version. According to her, the discussion about the taxiway was not in late 1982/early 1983 but in late 1983. She says her husband John allowed Lloyd to give it a try but asked Lloyd to wait until they arrived at the land before commencing work on the taxiway. She says that when they arrived over the Christmas/New Year period in 1983/1984 Lloyd had not waited but had already undertaken work on the taxiway. As indicated, there is no claim about the taxiway made in this proceeding.

There were a number of discussions about the airstrip between the McMahon family members during the Christmas/New Year period of 1982/1983. The only person present at all of them was Lloyd. I do not have an account of the conversations from John. He died in 2006. He swore an affidavit in this proceeding concerning the matter but objection was taken to reliance upon that affidavit. The attempt to rely upon it was not persisted in. Section 55(4) of the Evidence Act 1958 would have represented an obstacle if attempted reliance upon it had been persisted in. I have not read John’s affidavit.

There are significant differences between the accounts given by Lloyd and Valerie of the discussions.

Between Hal and Lloyd there are also differences.

Notwithstanding a submission of behalf of the plaintiffs that, upon analysis, their positions on maintenance do not differ, in my view they do. It seems to me that Hal says that Lloyd was obliged to maintain the strip. Lloyd’s witness statement appeared to say this also, but he made it as clear as he could in his oral evidence that whilst he may have to maintain it if he wanted to use it, he was not obliged to do so.

Lloyd and Hal also differ on the duration of the arrangement. According to Lloyd, the agreed duration was for his life. According to Hal, the agreed duration extended to the next generation.

There is another important issue concerning Hal’s involvement in the arrangement. The case now put by Lloyd and Hal is that there was a single agreement to which John, Lloyd and Hal were parties, and that this agreement was reached in a conversation between the three of them in or about December 1982. During the acrimonious correspondence between John and Hal arising out of the ultralight aircraft and parachute incident, Hal was adamant in repeatedly asserting there was no agreement concerning the airstrip between him and John. He maintained he had an agreement with Lloyd and that John did too, but that he had no agreement with John.

All of the members of the McMahon family who gave evidence before me are honest people. But they are dealing with issues about which they hold passionate and emotional beliefs informed by their dealings with each other not just on the occasions relevant to this case, but over decades. In relation to the arrangement concerning the airstrip, they are attempting to recall conversations between close family members, during family holidays, that were not recorded in any way, and which occurred over 25 years ago. In such circumstances it is necessary to be cautious about all of the evidence given.

Whilst the nature of the subject matter, the general circumstances, and the elapse of time mean that I am cautious about the evidence of all of the McMahon family members on this issue, I am particularly cautious about Lloyd’s evidence. I have reached this position for the following reasons:

(1)The version of events which Lloyd gave Ms Rees was one which was both incorrect in important respects and slanted towards obtaining the outcome which he wanted. I refer to the four aspects of Ms Rees’ instructions which I set out earlier. It was wrong for Ms Rees to be told that at the time of the agreed division it was known that vehicular access across the McMahon land to the barge from Metung was via “the Old Track”. It was also wrong for Ms Rees to be told that there was no direct access from Lake King at all as it was too shallow. It was wrong for her to be told that in 1971 the bulldozer had been landed from Metung and had left the same way. It was a misleading characterisation of the position for her to be instructed that John “liked the idea of an airstrip”. On any view, John’s position could not be fairly summarised in that manner. Lloyd was the instructing solicitor and ought to have been conscious of the need to give Ms Rees accurate instructions, as Lloyd conceded in his cross-examination.[11] This was particularly so given the use that Lloyd proposed to make of the advice. I am conscious of the fact that Hal also had an involvement in giving instructions to Ms Rees and that Lloyd circulated the instructions given.
(2)I am also cautious about Lloyd’s evidence because of what I would describe as Lloyd’s management of the opportunity he gave his siblings, or those who might disagree with Hal and him, to comment on the instructions to Ms Rees, and the use he then made of the advice obtained. His inability to recall the sequence of events, and the absence of records maintained by his firm concerning dealings with Ms Rees, mean that my concern in this respect is not allayed. I have earlier referred to the relevant factual matters. In my view Lloyd withheld the detailed advice from his siblings for a time. My conclusion is that he knew the answer before he gave John, Don and Mary the opportunity to participate in the process. On any view, he knew the answer before the time for their participation had elapsed, according to the timetable he set. My conclusion is that Lloyd was concerned to manage the process in such a way as to enhance the prospects of achieving the outcome which he considered to be in the best interests of the McMahon family and the McMahon land, but which coincided with what he wanted. This matter makes me cautious because it reveals the extent of Lloyd’s passionate commitment to his cause, and makes me concerned that that commitment may have led him into exaggeration and reconstruction, albeit perhaps unconsciously.
(3)Lloyd’s witness statement contains exaggeration of the kind to which I have just referred. Like the plaintiffs’ pleading and the instructions given to Ms Rees, it gives a misleading impression of a track wide enough to allow vehicles to pass, existing at all relevant times, running east/west from the small blocks to the land opposite Metung. It is necessary to read the witness statement as a whole in this respect, but I particularly refer to paragraphs 20 and 37. The true position was that, whatever may have been the case historically, before the bulldozing work in 1983 there was no track of a width sufficient to carry vehicles from one end of the McMahon land to the other; and immediately before the bulldozing work in 1971 it would not even have been possible for a vehicle to get from the small blocks to Happy Days. When giving evidence orally, Lloyd agreed without hesitation or qualification that this was the position, and that the relevant portion of his witness statement was an “overstatement”.[12] I am conscious of the fact that there are problems with witness statements, given that litigation lawyers have a substantial involvement in their preparation. Often it would not be fair for a witness’s credit to be impugned on the basis of an exaggeration in a witness statement which is clarified in cross-examination. But here Lloyd is himself a solicitor and is a member of the solicitors’ firm acting on behalf of the plaintiffs in this proceeding. In the circumstances the position portrayed in Lloyd’s witness statement, which can fairly be described as overstatement or exaggeration, is another factor which leads me to be cautious about accepting his account of events on issues where he differs from other family members.
[11]Transcript, 337-8.
[12]Transcript, 343-5.

Intention to create legal relations

A submission was made on behalf of the defendants that what occurred in relation to the airstrip was relevantly analogous to what had occurred in Murphy v Simpson,[13] where an arrangement between siblings concerning a house was described by Gavan Duffy J as follows[14]:

The arrangement was so amorphous that it would be hard to say what, if any, was the offer and acceptance – what were the terms, what the rights were and obligations given and undertaken - but to my mind the evidence suggests, on a balance of probabilities and indeed establishes, that the parties had no intention of creating legal rights or obligations, or of making an agreement which was enforceable at law.

[13][1957] VR 598.

[14][1957] VR 598, 600.

I accept the defendants’ submission.

Having heard the various versions of events, I am unable to say what the parties’ respective rights and obligations were, and what the duration of the agreement was to be. In my view conflicts and uncertainties as to maintenance, as to who owed obligations to whom, and as to duration arise because the arrangement was one between close family members who had no intention of creating a legally enforceable contract. That is also why nothing was written down, even though Lloyd was a solicitor well aware of the general requirement that agreements concerning interests in land be evidenced in writing.[15]
[15]Transcript, 367.

Persons outside the McMahon family might think it unlikely that Lloyd would proceed with such a substantial undertaking without a legally binding arrangement. Having seen the persons involved and reviewed the history, I do not find it at all surprising. Lloyd and the others saw the land as a whole as part of their family heritage. Lloyd saw the airstrip plans as also part of that heritage. He was very anxious to proceed. He was prepared to do so as soon as he had anything approaching a “go ahead” from John.

John’s right to close the strip

Given my conclusion that the parties did not intend to create a legally enforceable contract, it is not necessary for the purposes of the contract claim to determine whether Lloyd assured John and Valerie that John had the right to close the airstrip. The issue is, however, relevant to an estoppel claim made by the plaintiffs concerning the airstrip.

On the issue of whether Lloyd assured John and Valerie that John could close the airstrip if he wished, I accept the evidence of Valerie.

Valerie’s account seems to me to be consistent with the parties’ respective positions at the time. John and Valerie had no desire to have an airstrip built. Lloyd’s desire for an airstrip was strong. Lloyd was asking, indeed pleading, for a favour. I think it is likely that he gave the assurances which Valerie says he did.

In addition, insofar as Valerie differs from Lloyd, I prefer Valerie’s account because of my particular caution, for the reasons I have explained, about Lloyd’s evidence.

Finally, I accept Valerie’s evidence because it is consistent with what Don says that Lloyd told him at the time. I prefer Don’s version of this conversation to Lloyd’s for the reasons I have already given which lead me to be more cautious about Lloyd’s evidence.

The plaintiffs did not make a specific submission to the effect that even if John and Valerie had been given an assurance by Lloyd that John could close the airstrip, that assurance was negated or abandoned when John was challenged by Hal in the early morning conversation near the jetty. Whilst a specific submission to that effect was not made, it is a matter that ought to be addressed.

There is an issue of timing. Did the conversation in the early morning near the jetty occur before or after Lloyd’s conversations (or any or all of them) with John and Valerie in which he assured them that John could close the strip? The question is difficult to determine because of the elapse of time, the inherent difficulties with the various accounts of what occurred, and the absence of any account from John. As indicated, I am satisfied on the balance of probabilities that the assurances were given because I accept Valerie’s account of the discussions with Lloyd over the Christmas/New Year period of 1982/1983.

There are three aspects of Lloyd and Hal’s account of what occurred by the jetty which are important in this respect. First, they both say the conversation was very soon after Boxing Day; Hal says the next day, Lloyd says within a day or two. Both Valerie and Adam’s evidence indicates that there were further conversations after then. I have accepted Valerie’s evidence that Lloyd repeatedly assured John and Valerie that John had the right to close the airstrip. I find on the balance of probabilities that he repeated that assurance after the conversation by the jetty. Secondly, neither Lloyd nor Hal give an account in which John is said to respond specifically, and in terms, to Hal’s statement that John should not have the right to close the airstrip. They both record Hal saying he (Hal) is opposed to such a right, amongst other things, and to John then saying he will give permission, with Lloyd apparently standing there silent. I do not interpret this conduct, even on Hal and Lloyd’s own accounts, as a withdrawal by Lloyd of his assurances or as an acceptance of withdrawal by John. In this respect there is, yet again, the likelihood that Hal had a different view of the arrangement to John, and perhaps to Lloyd as well, because he was not present at the discussions between Lloyd and John and Valerie. Finally, both Lloyd and Hal say the taxiway was discussed by the jetty, and Lloyd says John did have the right to withdraw permission and to close the taxiway. There is considerable potential for confusion on the closure issue.

It is also important that Don’s conversation with Lloyd, given its terms, is likely to have occurred towards the end of the various discussions, and I accept Don’s version of that conversation.

For these reasons I do not accept that the assurances given by Lloyd to John and Valerie were withdrawn or negated by what occurred between Hal, Lloyd and John near the jetty shortly after Boxing Day.

Agreement not established in any event

If I were wrong about the absence of an intention to create legal relations and about the assurances given by Lloyd, I would find that in any event Lloyd and Hal have failed to establish the agreement for which they contend. Critical aspects of the alleged agreement - who the parties are, what the obligations are, and what its duration is - are subject to such conflicts and uncertainties that I cannot say what was “agreed” beyond the fact that an airstrip could be built.

I reject the plaintiffs’ claim concerning the airstrip insofar as it is founded on an alleged legally enforceable agreement.

The airstrip estoppel claim

The plaintiffs also make a claim based upon estoppel. It is alleged that John represented to Lloyd and Hal, and induced them to believe, that if Lloyd built and maintained the airstrip, John would not deny or obstruct their access to his large block for the purpose of the airstrip for the life of whomever of Hal and Lloyd lived longer. It is then alleged that as a consequence of John’s acquiescence in the “use of the airstrip from in or about 1983 to in or about 2004”, and by failing to fulfil the representation, Lloyd and Hal have suffered detriment, as they incurred the cost of building and maintaining the airstrip and have not been able to use it as an airstrip since December 1999.

Given my finding on the assurances which Lloyd gave to Valerie and John, this claim must also fail. It has not been established that the representation alleged was made.

The estoppel claim would have failed in any event for another reason. The pleaded estoppel is based upon John’s acquiescence in the use of the airstrip from 1983 to 2004. It is not based upon John’s acquiescence in the construction of the airstrip. This is unsurprising, as there is no evidence that John had knowledge of the considerable work which went into constructing the airstrip. Lloyd and Hal had the use of the airstrip incorporating the clearing on John’s large block for over 16 years. If the claim had been made out otherwise, I would have found it was not unconscionable for John to resile from his representation after 16 years in circumstances where use of the strip had led to bitter disagreement between close family members.

The plaintiffs’ easement claims
The pleaded case

The plaintiff’s third further amended statement of claim alleges the existence and use since 1893 of an access route, referred to as “the old track”, running east to west across the McMahon land, then through the land which is now a national park, to the area opposite Metung. Alternatively, the existence of what is referred to as “the alternate track” is alleged, being a track allegedly created by Henry in the late 1950s, which was enlarged, extended, and realigned in the 1960s and 1970s. It is alleged that the alternate track has been used since at least 1983 by all of Henry’s children, and has been maintained since about 1971 by Lloyd, Hal, John and Don.

It is alleged that an easement exists over the entirety of the McMahon land along the old track, or alternatively the alternate track, on a number of different bases.

It is alleged that the existence of the easement is an implied term of an agreement reached between the five children in 1969, or by virtue of a common intention held by the five children and existing at the time of the grant of the land to them as tenants in common on or about 15 September 1969 and/or at the time of the transfer to them of the various blocks pursuant to plans of subdivision on or about 14 September 1972. These respective times are referred to as the time of the “grant” and the time of “the transfers”.

The third basis upon which it is alleged that the easement exists is on the basis of the principle in Wheeldon v Burrows,[16] it being alleged that at the time of the grant and/or transfers, rights of access were reasonable, continuous and apparent along the old track or alternatively the alternate track.
[16](1879) 12 Ch D 31.

The easement claim is also put on the basis of the principle of non-derogation from grant, again expressed as at the time of the grant and/or transfers. A further alternative pleaded is that the easement exists by prescription in accordance with the principles of lost modern grant. Finally, the claim is made on the basis of s 62 of the Property Law Act1958 (Vic), again expressed as at the time of the grant and/or the transfers.

The claims as argued

In final submissions the plaintiffs did not approach the matter in the same way in which it was approached in the third further amended statement of claim. Instead of addressing the matter in a compendious manner across the entirety of the McMahon land, the plaintiffs argued for a separate analysis of the position in relation to each of the blocks.

The plaintiffs did not contend for any easement over Don’s small block. In final submissions, the plaintiffs contended for an easement from the western end of the McMahon land to the eastern end, at the point where the track enters the reserve for public purposes at the north eastern corner of Lloyd’s small block.

In their defence and counterclaim the defendants seek a declaration that reciprocal mutual easements of carriageway exist over the McMahon land along a passage described as “the existing track”. Consistently with their pleading, in final submissions the defendants submitted that I should essentially endorse the status quo on the McMahon land.

Leaving to one side for the moment some controversies which do still exist between the parties as to the characteristics in terms of width and so on of the easement, the differences between the parties, by the time of final submissions, had been reduced to two. The first is the location of the easement across John’s small block, which raises issues concerning John’s fence. The second is the location of the easement in the area of the clearing on John’s large block, raising the issue of whether the track before 1983 proceeded along the south side of the clearing or whether it was located further to the south passing the big rope.

Factual issues concerning John’s fence

There were some factual issues raised concerning the fence erected by John on his small block. The first was when the fence was erected. This issue is relevant because the defendants submit that all of the various bases for the claim must be assessed by reference to the position as at the date of the transfers, 14 September 1972. The defendants submit that at that time the fence was already in place, blocking the old access and providing the new “gate-free” access across the north. The second factual issue concerned the use of the old access after the fence had been built, as the defendants in final submissions relied upon the absence of use, the plaintiffs’ involvement in up-grading the northern access, and the absence of complaint in contending that the old access had been abandoned. Finally, there was an issue raised as to whether the bulldozer had been used in 1971 to clear the track through the middle of John’s small block. The plaintiffs submitted the evidence revealed that it did, and that this demonstrated what the common intention then was.

Timing of John’s fence

Lloyd, Don, Valerie, Graeme, and Hal all made references in their witness statements to the time when John’s fence was erected.

Hal said that the fence was built in 1971, but he also gave evidence that he was not at the McMahon land at that time and did not visit it after then until 1974.

Graeme was the only witness who suggested a time other than 1971 or 1972. In his witness statement he said the fence was built “in or about 1973”. Graeme was then a young teenager.

Lloyd in his witness statement said that the fence was erected “about 1971/1972”. In his oral evidence he agreed with a suggestion that the fence was built in about 1972.

Valerie in her witness statement said that the holiday house and fence were built in 1972. In her oral evidence she also spoke of 1971.

It seems to me that the best evidence on the issue of when the fence was built was given by Don. Don was more confident about the timing because he started constructing his own house on his small block in 1971. Most of the work on his house was done in 1972. Don was able to say with confidence that the bulldozing work in 1971 was done in the school holidays of August/September. He was confident about that because he arrived on the day the bulldozer left, and he subsequently used the cleared area on his small block as the site for his house. He also seemed to have a good recollection of that matter as the clearing done on his site was the cause of a rift between him and Lloyd.

At times Don’s evidence varied as to whether John’s fence was erected in 1971 or in 1972, but the reason for that emerged in the following passage: “… the fence line was cleared in ‘71 but I think the posts were put in in ‘72 but this is over the summer period and it’s very hard to define which is which.”[17]
[17]Transcript, 882.

I accept the evidence of Don, which is consistent with the evidence of all of the other witnesses with the possible exception of Graeme, that the fence was constructed over the summer of 1971/1972.

Thus, the fence was not in existence when the method of division was discussed and agreed upon, or when Henry transferred the land to his five children as tenants in common in 1969; but it was in existence at the time of the transfers to the individual children in September 1972.

Use after the fence was erected

Lloyd and Hal both maintained that they continued to use the old access after the fence was erected. Whilst the fence was in good condition, they could only have gone the old way on foot, climbing over the fence. Lloyd gave evidence that in about 1997 the fence had become so dilapidated that it was possible to drive through the fence line.[18]
[18]Transcript, 355-6.

Valerie maintained that it was impossible to climb over the fence without tearing skin or clothing, and that there was no use of the old access until what she described as a “campaign” in the late 1990s to reopen the old access by slashing a path through Mary’s small block and by damaging the fence on John’s small block. Don essentially supported Valerie’s account.

I accept the evidence of Hal and Lloyd that they were unhappy about the fence. Hal was not on the McMahon land much between when the fence was built and the early 1980s. I think it is likely that Lloyd and his family did go through the old access, climbing over the fence, when it was convenient for them to do so. The photographs and DVDs in evidence do establish that there was a point reached in the 1990s where the fence was in such a condition that it was easy to pass through along the old route, and I find that Lloyd and Hal and their family members probably did so on some occasions. They would have been more inclined to do so when John and his family were not there, and Valerie and John’s sons would then not have been aware of it. The usual means of access was across the north.

The family members differed as to whether oral complaints about the fence were made after it was erected. I accept the evidence of Lloyd and Hal that the existence of the fence annoyed them. They probably did complain about it, although their complaints were probably muted until more serious disagreements began in the 1980s. Hal made written complaints about the fencing commencing in the 1980s, but he did so in the context of more serious disputes about other matters.

Bulldozing on John’s small block in 1971

There was some evidence which might support a conclusion that the bulldozer was used to clear the old track through the middle of John’s small block and Mary’s small block in 1971.

When speaking about the track in that area in 1971 and attempting to estimate its width, Graeme observed that he was sure someone would have “walked the machine along that section at one stage or another”.[19] Graeme was not present when the bulldozer did its work in 1971, but he did later see the results of what was done.
[19]Transcript, 767.

Kenneth was present in 1971. There is a suggestion in the evidence he gave in re-examination that the bulldozer went over the then existing track in 1971.[20] I found his evidence in this respect to be ambiguous. At the time he was principally concerned with where the bulldozer went in the areas beyond what was the then existing track.
[20]Transcript, 711-12.

The plaintiffs relied upon Kenneth’s evidence in re-examination in support of a submission that it was intended in 1971 that there should be access through the middle of John’s small block.

The problems with this submission are that the evidence relied upon is ambiguous and it overlooks an important part of Kenneth’s evidence in chief. In his witness statement, he says:

Lloyd and I spent the earlier part of the day supervising the bulldozer around the house sites on the small blocks. This included bulldozing my father John’s small block so that we could fence it. We also supervised the construction of a new track passing around the front of my father’s small block so the track which previously crossed the middle of his small block could be realigned once the fence was constructed.

Kenneth was a careful witness. I accept what he says. I do not interpret what he said as amounting to a statement that Lloyd knew of and consented to the construction of a new track passing around the front of John’s small block, but I do conclude on the basis of his evidence that the clearing done in 1971 was as consistent with intended access across the north of John’s small block and as it was with access through the middle.

The track at the big rope

The evidence about the location of the track in the area of the clearing on John’s large block prior to 1983 is, on the plaintiffs’ side, very general. Lloyd and Hal’s witness statements do not address specifically the issue of the location of the track in this area save for references to diagrams of the entirety of the track, and a reference in Lloyd’s witness statement when dealing with the issue of maintenance of the track to John and his sons “realigning the historic track several metres to the north onto the salt marsh”.

On the other hand, Graeme says in his witness statement, that one of the changes made to the track in 1983 was that the alignment “was changed to bypass John’s clearing on his large block … the clearing which bypassed the original alignment was closed by John soon after”.

In oral evidence Don maintained that he was “totally confident” that in 1971 the track went through the clearing and not past the big rope.[21] Valerie also said that before 1983 the big rope was not on the track as the track ran along the cleared area further to the north.[22]
[21]Transcript, 850, 908.
[22]Transcript, 598, 635.

Kenneth was on the bulldozer in 1971. He was then a teenager. In cross-examination he was asked for his recollection of where the bulldozer cleared in 1971 in the area of the big rope.[23] He said the bulldozer cleared a five acre clearing and that the bulldozer also cleared scrub amongst the gum trees to create what he agreed was a “park-like” effect. He was asked whether it was possible to drive through the trees where the park-like effect had been created, and he said that he thought the clearing of the park-like effect stopped short of the red rope (a reference to the big rope). When asked whether it would have been possible to drive through the area where the big rope was, he said that he thought it quite likely that the park-like effect stopped short of the Tarzan swing (another reference to the big rope).
[23]Transcript, 701-3.

As I said previously, Kenneth was a careful witness. He did not profess to be sure that it was not possible to drive past the big rope after the bulldozing had been done in 1971. It seemed to me, however, that his description is consistent with Don and Valerie’s evidence that the clearing was part of the track in 1971.

Exhibit P 29, which is an aerial photograph taken in 1979, is of assistance in this regard. It does appear to show a track which might lead to the area of the big rope, but that track does not seem to progress towards the small blocks thereafter, or it does not directly do so. On the other hand, there also appears to be a track which goes through the clearing and which does then proceed towards the small blocks.

The east/west access track was not the only track made by the bulldozer in 1971. Tracks were also made at John’s request for the purpose of driving beach buggies. These tracks also appear on Exhibit P 29. These tracks were later closed because John and Valerie decided they were causing erosion.

My conclusion on the balance of probabilities is that in 1971 the track went through the clearing on John’s large block. It seems only sensible that it should do so as the bulldozer was clearing that area, and the existence of an open clearing results in a fairly obvious route to take. Exhibit P 29 also suggests that the track incorporated the clearing on John’s large block in 1979.

The evidence establishes that a track was cleared past the big rope to the south of the clearing on John’s large block in 1983 and again in 1985. The evidence also establishes that John closed this route soon after it was made on each occasion.

My conclusion is that after the bulldozing in 1971 the east/west access track went along the south side of the clearing on John’s large block and not past the big rope. If I am wrong about that, the portion of the track which did go past the big rope has not been used since 1985.

Applicable legal principles concerning the easement claims

The parties did not differ on the broad legal principles to be applied.

It seems to me that they may be summarised as follows:

1.A grant of an easement will be presumed to have been made and lost in modern times if enjoyment of the alleged easement for 20 years can be proven. Use must have been as of right, not by force, secrecy or permission.[24]
[24]Adrian Bradbrook, Susan MacCallum and Anthony Moore, Australian Real Property Law (4^th ed, 2007) [18.245].
2.The general rule is that on a disposition of land no reservation of any easement will be implied.[25] There are exceptions to this general rule. They include:
[25]Bradbrook, MacCallum and Moore, above n 24, [18.195].
(a)“The law will imply the reservation or grant of such easements as are required to give effect to the common intention of the parties to a grant of real property as to the manner in which the land granted or the land retained by the grantor is to be used, subject only to the qualification that the parties must intend that the land granted or retained should be used in some definite and particular manner”.[26]
(b)A grant may be implied on the basis of non-derogation from grant where the parties contemplated that the grantee’s intended use of the land would require an easement.[27]
(c)An easement will arise where there is a grant of part of the grantor’s land, on which there has been a continuous and apparent exercise of a quasi-easement that is reasonably necessary for the enjoyment of the land: Wheeldon v Burrows.[28] This rule may really be a branch of the general rule against derogation from grant.[29] An implied grant may similarly arise where there is a simultaneous conveyance of two or more adjoining blocks by the one grantor to different grantees.[30]

(d)Easements may exist on the basis of actual or presumed intention (or perhaps public policy) where there exists necessity in the relevant sense.[31]

3.Pursuant to s 62 of the Property Law Act 1958, every conveyance of land is deemed to operate to convey with the land all easements appertaining to the land at the time of the conveyance.
4.An easement may be abandoned by the owner of the dominant tenement. Abandonment is always a question of intention of the owner of the dominant tenement. Mere non-use is not conclusive of abandonment but may be evidence of it. Non-use for a long period may call for an explanation. Use of an alternative route may be evidence of abandonment, or may constitute an explanation for non-use without abandonment, depending upon the circumstances of the case.[32]

[26]Bradbrook, MacCallum and Moore, above n 24, [18.205], re-wording Lord Parker in Pwllbach Colliery Co Ltd v Woodman [1915] AC 634, 646-7.

[27]Adrian Bradbrook and Marcia Neave, Easements and Restrictive Covenants in Australia (2^nd ed, 2000) [4.37]-[4.40].

[28](1879) 12 Ch D 31 (CA), 49.

[29]Bradbrook and Neave, above n 27, [4.25].

[30]Bradbrook, MacCallum and Moore, above n 24, [18.230].

[31]Bradbrook and Neave, above n 27, [4.9]-[4.10].

[32]McIntyre v Porter & Ors [1983] 2 VR 439.

It is also important to bear in mind certain essential characteristics of easements. There must be a dominant tenement and a servient tenement. The dominant and servient owners must be different persons.[33] Unity of ownership and possession in the dominant and servient tenements ordinarily extinguishes any easements.[34]
[33]Operation of s 62 of the Property Law Act 1958 also requires prior diversity of occupation: See Bradbrook, MacCallum and Moore, above n 24, [18.220].
[34]Bradbrook and Neave, above n 27, [19.41]-[19.43].

The parties did differ on the issue of the time at which the existence or otherwise of an easement, based upon intention, non-derogation, Wheeldon v Burrows, the Property Law Act, or necessity, is to be determined.

The defendants submitted the correct time is September 1972, when the land was conveyed in individual blocks to the respective five children.

The plaintiffs submitted that

… the grant of the land and allocation of the small and large blocks did not occur at a single moment in time. Allocation of the small blocks arose from the 1969 agreement and the plan of subdivision then prepared, and was ultimately completed by the plan of subdivision on 14 September 1972.

The plaintiffs submitted it was “arguable” the relevant grant was a “process” commencing on 15 September 1969 and concluding on 14 September 1972.[35]

[35]Plaintiffs’ written final submissions (version 2), [58], [60].

The fundamental requirements that there must be dominant and servient tenements, and that they must have different owners, mean that the defendants’ submission is the correct one in my view. Thus, other than in relation to lost modern grant, the claims must be analysed as at September 1972. But this does not mean that the intentions of the parties in 1969 are irrelevant, for those intentions may have continued and remained operative in September 1972.

For reasons which will emerge, the date of assessment has significance only in relation to the issue of the location of the easement on John’s small block, and then, only as a consequence of the outcome there, for the location on Mary’s small block and Lloyd’s small block.

Analysis of the plaintiffs’ easement claims

Submissions were made in relation to the issue of easements by necessity, but as the argument progressed the plaintiffs did not rely on that ground (or relied on it only as a last alternative) and, given the approach taken by the defendants in also contending for the existence of a carriageway easement east/west across the McMahon land, there is no reason to address the issue.

Having determined that the track in 1971 did not go past the big rope, and that a track past the big rope has not existed since 1985, I find that there is an easement across the large blocks and across Hal’s block in the current location of the existing track. I find that this easement exists because it has been in continuous use as of right for in excess of 20 years. Accordingly, it is an easement by prescription on the basis of the principle of lost modern grant.

In the circumstances it is unnecessary to address the existence or otherwise of other bases upon which this easement might have been found.

When one then comes to the position in relation to access across Mary’s small block and John’s small block, the issue is not whether there should be access, but rather whether the plaintiffs are entitled to insist upon the access which existed prior to the erection of John’s fence over the summer of 1971/1972. The plaintiffs submitted that such an easement was intended at the time of the transfers and/or the grant, that it is to be found by virtue of the principle of non-derogation from grant, on the basis of Wheeldon v Burrows, or by virtue of s 62 of the Property Law Act.

My conclusion that the claimed easements must be assessed as at the time in September 1972 when unity of ownership and occupation ended, means that I must reject the claims based upon Wheeldon v Burrows, and s 62 of the Property Law Act. A submission was made that, even if the position was to be analysed as at September 1972, Wheeldon v Burrows still applied as the easement at the old location was then still being used. There may have been some occasional use but, with a fence having been erected directly across the easement, and with an alternative to the north, I cannot accept that there then existed a continuous and apparent quasi-easement across the middle of Mary’s small block and John’s small block which was then reasonably necessary for the enjoyment of the other blocks.

The matter must be resolved, then, on the basis of common intention and non-derogation.

The common intention of the parties as to the manner of use of the McMahon land in 1972 was confined to general recreation and some limited commercial use represented by the small pine plantation proposed by Don and Lloyd on their large blocks.

Did the five siblings have a common intention as at September 1972 in relation to the manner in which the land was to be used which required access across the small blocks into Hal’s block? In my view, they did. Otherwise the blocks beyond John’s small block would have been almost inaccessible for the relevant uses. Don’s evidence was that he specifically raised the issue of access with Lloyd and Hal and was assured access would never be denied. I am sure the position was the same as far as John and Mary were concerned. John’s correspondence throughout the 1980s reflects this.

There is a further question, however. Was that common intention such as to require that access should be at the location of the then existing narrow bush track across Mary’s small block and John’s small block? The answer to that question is not as straightforward.

In support of a conclusion that the common intention required that access should be at the location of what was then the narrow bush track are the fact that whilst the track may have been narrow, it was a clearly defined access track; and the fact that the track at that location was probably in a good position in terms of the natural conditions.

On the other hand, what Valerie said as to the situation in the early 1970s is true. At that time there was little reason for people to go beyond John’s small block, as there was not much there, “only kangaroos”. Hal rarely went to the McMahon land at that time and there was no place to stay beyond John’s small block until the 1980s, other than the shelter at Happy Days. Whilst the ground conditions may be preferable along the route of the old track, the northern access also had advantages in the way it was constructed in the early 1970s. It was wider than the old track, was “gate-free”, and had the effect of moving the access away from areas where family members might stay, and in particular John’s new house and the sheds on Lloyd’s small block.

What John and Valerie did in fencing part of John’s small block was a unilateral action by them. There is no evidence they gave notice to any of John’s siblings before fencing. I cannot say on the evidence whether the other family members all knew of the fence at the time of the subdivision in September 1972.

I have found little assistance in the authorities on this issue. Two cases to which I have had regard are Bolton v Bolton[36] and Davis and Anor v Whitby.[37]
[36](1879) 11 Ch D 968.
[37][1974] 1 Ch 186.

Bolton v Bolton concerned a right of way of necessity. There were two rights of way in existence and it was held by Fry J that the grantor (the servient owner) had the right to select the way.

Davis v Whitby concerned a right of way claimed by prescription. The evidence established that a right of way by one route had been enjoyed for 15 years and by a substituted route for another 18 years. The alteration in route was said to have been by the consent or acquiescence of those concerned. The Court of Appeal held that in such circumstances the two periods should be aggregated so that a right of way by prescription did arise. The Court of Appeal held that the substituted route was to be considered as substantially an exercise of the same right as that enjoyed over the prior route.

My conclusion is that what John and Valerie did in 1971/1972 was consistent with the common intention then existing as to the manner in which the land was to be used, and did not involve any derogation from grant. The plaintiffs have established there was a common intention as to use which required that there should be access, but in my view the plaintiffs have not established that that common intention required that there be access only at a particular location. The authorities to which I have referred are, it seems to me, consistent with an approach whereby a servient owner, who is a party to a common intention as to use that requires access, might select one of two routes or provide a reasonable substitute route. Whilst there is room for argument as to which is the preferable access, my conclusion is that the northern access provided by John and Valerie was reasonable, was consistent with the common intention existing in September 1972, and did not amount to derogation from grant.

Accordingly, my conclusion is that the easement by prescription on the basis of the principle of lost modern grant, to which I have already referred, also extends across the north of John’s small block and Mary’s small block. Access through there, and across the north of Lloyd’s small block, has been exercised as of right for more than 20 years. I reject the claim to an easement on the basis of common intention, and on the other bases put, across the middle of John’s small block and Mary’s small block.

Given this finding, it is not necessary to deal with the defendants’ arguments that the plaintiffs had abandoned the easement across the middle of Mary’s small block and John’s small block, but I will briefly state my conclusion.

The issue is one of intention, the relevant intentions in this case being those of Lloyd and Hal.

On the one hand, a conclusion that they never intended to abandon the old access is suggested by their occasional use of the old access after the fence was constructed; by the complaints that they made in the 1980s; and by their use of the old access when the fence became dilapidated, and their use more recently, prompting Graeme to cut down a large pine tree and create obstructions so as to stop them.

On the other hand, when there was a prospect of using the northern access as a taxiway from the airstrip they undertook work to upgrade it.

If it had been necessary to decide the matter, I would have concluded that the defendants had failed to prove that Hal and Lloyd intended to abandon the old access.

Characteristics of the east/west easement

The width and height of a right of way extend as far as is required by the reasonable needs of the owner of the dominant tenement.[38]
[38]Bradbrook, MacCallum and Moore, above n 24, [18.110].

The plaintiffs seek a declaration of an easement of a continuous width of 4.5 metres and a continuous height of 4 metres. The plaintiffs also seek a declaration of an ancillary right to use an area of 4.5 metres or such other distance as is reasonably required on either side of the easement for the purpose of disbursing or side casting materials arising during the course of maintenance and repair.

In final submissions what was put by the defendants, in substance, was that I should endorse the status quo. Any order concerning ancillary rights was submitted by the defendants to be unnecessary and likely to create further dispute. It was submitted by them that I should leave the parties to be governed by the law as to maintenance and repair.

There have been a number of serious disagreements between the members of the McMahon family during and since 1971 about the nature and extent of clearing on the land. Don had a dispute with Lloyd in 1971. The widening and straightening of the track in May 1983 by Lloyd caused what Don described as “massive disruptions in the family”. Hal’s widening and straightening of the track in 1985 led to a dispute concerning the section of track which John’s family referred to, in a derogatory sense, as the “gun barrel highway”.

A significant dispute occurred as a result of the track work done in 2004 by Lloyd and Hal’s contractor. Film of the clearing done by the bulldozer along the track in 2004 is in evidence. I can appreciate why Graeme and Dianna, and other family members, were upset by it. That work, together with other work done on the land at the same time, led to the involvement of solicitors and the council, and proceedings in VCAT.

The CFA has recently written to landholders, including Valerie, alerting them to CFA guidelines for access tracks. An expert ecologist called on behalf of the defendants, Lincoln Kern, who has examined the existing track in some detail, expressed the opinion that the current track reflects these CFA guidelines, which he referred to as a 4 metre by 4 metre “box”.

Evidence was also given by experts on behalf of the plaintiffs. The plaintiffs called an expert ecologist, Paul Kelly; a civil engineer, Robert Supplitt; and a forestry expert, Roderic Incoll. David Strange who is the sole director of Gippsland Lakes Barge Services Pty Ltd also gave evidence. Much of this evidence was directed at what might be seen to be desirable so as to enhance access and fire safety. As matters transpired, it had little relevance to the matters in contention between the parties by the time of the final submissions.

Graeme has erected gates on the track, which are 12 feet wide. These gates are consistent with the CFA guidelines which suggest that gates need to be at least 3 metres wide. Gates may be lawfully erected across a carriageway easement provided there is not substantial interference with the right to pass and repass.[39]
[39]Gohl v Hender [1930] SASR 158, 162-3.

I will make a declaration to the effect that a right of way exists from the north/east corner of Lloyd’s small block to the gate to the national park on the western boundary of Don’s large block at the location in which the track now exists, such easement to be 4 metres wide and free of trees and shrubs for a height of 4 metres and with gates, if any, at least 3 metres wide.

I will not make any declaration in relation to ancillary rights. I am concerned that any such declaration could become a source of further dispute. I do not want to make any order which might be seen as an endorsement, or as an authorisation to repeat, what occurred in 2004. The parties have their rights to maintain and repair which are provided for by the law.[40] It is unwise to attempt to prescribe in advance what can and cannot be done.
[40]See: Zenere v Leate (1980) 1 BPR 9300, 9304-5; cited with approval in Prospect County Council v Cross (1990) 21 NSWLR 601, 607-8.

Given the history of the matter, it seems to me that it would be prudent for any of the McMahon family landowners who intend to carry out maintenance or repairs on the track over land other than their own to consult with the landowner concerned first.

The defendants’ claims for easements in relation to ocean access

The defendants’ counterclaim seeks carriageway easements, alternatively a right of way, over two tracks, one of which crosses Hal’s land and is referred to as “the first ocean access track” and one of which crosses Lloyd’s land and is referred to as “the second ocean access track”. The claims are made on the basis of lost modern grant.

In her witness statement Valerie asserts that since at least 1972 both tracks have been used by her and members of her family in order to access the ocean beach on foot.

Hal in his witness statement agrees that there is no access to the ocean beach from John’s small block because of the existence of a lake. He says that in the past he had no objection to John and his family accessing the ocean using his land for that purpose. He says that that is because he had an “agreement” with John in 1984 that each could use the other’s land. He considers that he is no longer bound by that arrangement because of the felling of the tree with the “smiley face”.

In cross-examination it was put to Valerie that she had Hal’s permission to access the ocean through his land and she responded: “Well, we didn’t ask him about that but he said we could use his land in general.”[41]
[41]Transcript, 673.

In cross-examination Hal accepted that there is a track to the ocean beach across his land that has been used by John and his family since the early 1970s. He agreed that he probably would have walked along it himself with John and Valerie in 1974.[42]
[42]Transcript, 216.

Lloyd in his witness statement said that Mary had very rarely visited the McMahon land and that he had never seen her using any track on his block except to go to the shacks. He said he had never seen John or his family crossing his block as a means of access to the ocean beach.

In cross-examination Valerie seemed to accept that since at least the mid-1970s John’s family has gone to the ocean beach using the track across Hal’s land as their usual mode of access.[43]
[43]Transcript, 674-5.

In Don’s evidence he described the ocean access which he has through his own small block.

Overall, little attention was given to this issue in either the evidence or the submissions.

On the limited evidence I have, my conclusion is that there is a right of way by foot across Hal’s land along what is described as the first ocean access track for the benefit of John’s small block. It seems to me that John’s family have exercised that access as of right for in excess of 20 years. Hal asserts a relevant “agreement” in 1984, but what he is referring to, in my view, are statements made in correspondence which had nothing to do with ocean access and everything to do with the taxiway dispute between John and Lloyd. In that context Hal wrote: “We are honoured if you will all use any part of our land any you choose (sic).” John responded: “I am happy to reciprocate your offer of land use by allowing you to freely use my land.” These general statements, in a different context, do not amount to permission in the requisite sense in my view. The “permission” would in any event have come more than a decade after use began.

On the evidence before me I am unable to conclude that there exists an easement or right of way over Lloyd’s land in favour of John’s small block for the purpose of ocean access.

Conclusions

My conclusions accordingly are:

(1)The plaintiffs’ claims concerning the airstrip fail.
(2)The plaintiffs’ claim to a carriageway easement and/or a right of way along what is referred to in the third further amended statement of claim as the “old track” and the “alternate track” fails, but I will declare an easement along the existing track from the north east corner of Lloyd’s small block to the gate on the western boundary of Don’s large block.
(3)The easement referred to is 4 metres in width by 4 metres in height, with gates (if any) at least 3 metres wide.
(4)I will not make any declaration or order concerning ancillary rights, but will leave the parties to be governed by the law as to maintenance and repair.
(5)The plaintiffs’ claims to relief otherwise fail.
(6)I will declare an easement to pass by foot along the track described as the first ocean access track in the amended counterclaim over Hal’s block in favour of John’s small block.

I will hear the parties further on the appropriate declarations and orders and any other consequential matters.

[2008] VSC 386

7 October 2008