Pullen v Smedley

[2017] NSWSC 1721

Supreme Court

New South Wales

Medium Neutral Citation:

Pullen v Smedley [2017] NSWSC 1721

Hearing dates:

24, 25, 26, 27 July 2017; 1 August 2017

Date of orders:

13 December 2017

Decision date:

13 December 2017

Jurisdiction:

Equity

Before:

Ward CJ in Eq

Decision:

In the easement proceeding (2016/00140145)
(1) Order the defendants to remove the Metal Shipping Containers off the right of way referred to in these reasons as Right of Way “B” (being the right of way on Lot 21 DP 1163020 (Lot 21) indicated on that deposited plan and created by the s 88B instrument registered on 5 April 2011 (Right of Way “B”).
(2) Declare that the conduct of the plaintiffs/cross-defendants in leaving open any of the three farm gates erected across Right of Way “B”, after opening and passing through those gates in the exercise of their rights under the said s 88B instrument, amounts (in the absence of sufficient reason or excuse to do so on any particular occasion, as explained in these reasons) to an unreasonable use of their rights under the said s 88B instrument and is not permitted thereby.
(3) Declare that the conduct of the plaintiffs/cross-defendants in leaving open the second farm gate erected across the right of way referred to in these reasons as Right of Way “A” (being the right of way on Lot 20 DP 1163017 (Lot 20) indicated on that deposited plan and created by the s 88B instrument registered on 5 April 2011 (Right of Way “A”), (referred to in these reasons as G2), after opening and passing through that gate in the exercise of their rights under the said s 88B instrument, amounts (in the absence of sufficient reason or excuse to do so on any particular occasion, as explained in these reasons) to an unreasonable use of their rights under the said s 88B instrument and is not permitted thereby.
(4) Note that the Court does not accept a fear of cattle to amount to sufficient reason or excuse to leave any of the said farming gates open after having opened them in the exercise of rights under respective s 88B instruments.
(5) Declare that the placement, deposit and spreading by the plaintiffs/cross-defendants of material (the Road Material) in the period August to September 2015 on part of Right of Way “A” and on Right of Way “B”, constitutes a trespass to land by reason of being carried out without the consent of the defendants/cross-claimants and not being within the rights conferred on the plaintiffs/cross-defendants pursuant to either of the respective s 88B instruments creating the respective rights of way.
(6) Order that the plaintiffs/cross-defendants notify the local Council and the Environment Protection Authority (EPA) in writing within 7 days as to the discovery of the fragment of asbestos on Right of Way “A” and provide copies to those authorities of the expert reports obtained from Dr Martens and Mr de Silva and tendered in these proceedings; and that the plaintiffs/cross-defendants comply with any direction by the EPA as to the containment or removal of part or all of the Road Material and thereafter remediate the rights of way so far as possible to restore them to their former condition as they existed prior to the placement, deposit and spreading of the Road Material.
(7) For the avoidance of doubt if the EPA determines that the Road Material cannot be appropriately contained and should be removed, or otherwise is not able or not prepared to determine within a reasonable time a regime for the containment or removal of the Road Material, the defendants/cross-claimants have liberty to apply on reasonable notice for the making of orders for the removal by the plaintiff/cross-defendants of the entirety of the Road Material and remediation of the land at their cost.
(8) Declare that the damage caused by the plaintiffs/cross-defendants to several large boulders on and in the vicinity of the respective rights of way in the course of road works carried out by them in or about August- September 2015 constitutes a trespass to land, by reason of it not being carried out with the consent of the defendants/cross-claimants and not within the rights conferred on the plaintiffs/cross-defendants pursuant to either of the respective rights of way.
(9) Order that the damaged boulders each be replaced by the plaintiffs/cross-defendants at their cost with boulders of comparable size and appearance brought from off the plaintiffs/cross-claimants’ property.
(10) Reserve question of damages for trespass pending compliance with orders 6, 7 (if applicable) and 9 above.
(11) Otherwise dismiss the plaintiffs’ claims in the proceedings.
(12) Reserve the question of costs.
(13) Direct that written submissions as to costs be served within 7 days with the intent that costs will be determined on the papers.
(14) Liberty to the parties to apply on 3 business days’ notice for any amendment or variation of these orders and for directions in relation to the assessment of damages.
In the transferred proceeding (2016/00366908)
(1) Declare that the respondents have carried out work (Work) on land being Lot 20 DP 1163017 and Lot 21 DP 1163020 (the Land) being development for the purposes of a private road, or alternatively for the purposes of a dwelling house, by constructing a road surface using imported fill being the access road to their dwelling house on adjoining land within their rights of way over the Land but without development consent, when development consent was required for the carrying out of work for either purpose within the E3 Environmental Management zone applying to the land under the Wyong Local Environmental Plan 2013, contrary to 76A Environmental Planning and Assessment Act 1979 (NSW).
(2) Further declare that the respondents by carrying out the Work have carried out prohibited development on the Land being development for the purposes of a waste facility, which is an innominate prohibited use under the Wyong Local Environmental Plan 2013, contrary to 76A Environmental Planning and Assessment Act 1979 (NSW).
(3) Declare that the respondents have used the Land as a “waste facility” contrary to s 144 of the Protection of the Environment Operations Act 1997 (NSW) by placing, depositing and spreading on the Land material within the definition of “waste” in that Act being imported fill being building waste and crushed concrete waste derived from concrete, brick, tile and pipe and trace pieces of steel, alloy and timber (the Road Material).
(4) Note and confirm the orders made in the associated (easement) proceeding (2016/00140145) in relation to the notification to the local council and Environment Protection Authority (EPA) as to the discovery of asbestos and for compliance with any direction by the EPA as to the containment or removal or part or all of the Road Material.
(5) Reserve the question of costs.
(6) Direct that written submissions as to costs be served within 7 days with the intent that costs will be determined on the papers.
(7) Liberty to the parties to apply on 3 business days’ notice for any amendment or variation of these orders and for directions in relation to any further relief to be granted following compliance with the orders made in the associated (easement) proceeding.

Catchwords:

REAL PROPERTY – Easements – Rights of way – Construction – Whether easement implicitly precludes grazing of cattle by servient tenement owner – Meaning of “all weather” access standard – Whether dominant tenement owner liable to contribute financially to the cost of certain works

 

REAL PROPERTY – Easements – Rights of way – Whether installation and closing of gates along right of way, permitting cattle to graze on right of way, and/or the presence of a metal shipping container on the right of way amounts to substantial interference with rights of the owner of the dominant tenement – Whether opening of gates along right of way amounts to unreasonable use by the dominant tenement owner of rights conferred on it under easement

 

ENVIRONMENT AND PLANNING – Development consent – Whether carrying out of works on right of way unlawful for failure to comply with Wyong Local Environmental Plan 2013 and s 76A of the Environmental Planning and Assessment Act 1979 (NSW)

ENVIRONMENT AND PLANNING – Pollution – Land pollution and waste – Special waste – Whether carrying out of works on right of way amounted to the use of land as a “waste facility” contrary to s 144 of the Protection of the Environment Operations Act 1997 (NSW)

Legislation Cited:

Contaminated Land Management Act 1997 (NSW), s 60
Environmental Planning and Assessment Act 1979 (NSW), ss 76A, 76B
Environmental Planning and Assessment Regulation 2000 (NSW), Sch 1
Fences Act 1968 (Vic), s 4
Protection of the Environment Operations Act 1997 (NSW), s 48, 144, Sch 1, cl 39, 49, 50
Protection of the Environment Operations (Waste) Regulation 2014 (NSW), cll 6.1, 91, 92, 93
Wyong Environmental Plan 2013 (NSW)

Cases Cited:

Australia Capital Financial Management Pty Ltd v Linfield Developments Pty Ltd; Guan v Linfield Developments Pty Ltd [2017] NSWCA 99
Baypeak Pty Ltd v Lim [2005] VSC 77
Black v Garnock (2007) 230 CLR 438; [2007] HCA 31
Blacktown City Council v Hocking [2008] NSWCA 144
Breskvar v Wall (1971) 126 CLR 376
Codelfa Construction Pty Ltd v State Rail Authority (NSW) (1982) 149 CLR 337; [1982] HCA 24
David Peter Buckley v David Francis Timbury [2013] NSWSC 1009
Denton v Phillpot (1990) NSW ConvR 55-543
Department of Planning and Infrastructure v Glass Recovery Services Pty Limited [2015] NSWLEC 49
Director-General, Department of Planning and Infrastructure v Glass Recovery Services Pty Limited [2015] NSWLEC 49
Environmental Protection Authority v Hardt [2006] NSWLEC 438; (2006) 148 LGERA 61
Environmental Protection Authority v Terrace Earthmoving Pty Ltd (No 3) [2016] NSWLEC 50
Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89; [2007] HCA 22
Foxman Environmental Development Services [2015] NSWLEC 105
Gohl v Hender [1930] SASR 158
Halloran v Minister Administering National Parks and Wildlife Act 1974 (2006) 229 CLR 545; [2006] HCA 3
Hender v Gohl [1928] SASR 325
Kent v Wotton & Byrne Pty Ltd [2006] TASSC 8
Kettleton v Murray [2017] QDC 64
Kirkjian v Towers (Supreme Court (NSW), Waddell CJ in Eq, 6 July 1987, Unrep)
Mouawad v The Hills Shire Council [2013] NSWLEC 165
Owners Corporation of Strata Plan 42472 v Menala Pty Ltd (1998) 9 BPR 16,337
Pettey v Parsons [1914] 2 Ch 653
Powell v Langdon (1944) 45 SR (NSW) 136
Sertari Pty Ltd v Nirimba Developments Pty Ltd [2007] NSWCA 324
Shannongrove Pty Ltd v Environment Protection Authority (2013) 84 NSWLR 688; [2013] NSWCCA 179
Short v Barrett (NSW Court of Appeal, 5 October 1990, unrep)
Sinclair v Jutt (1996) 9 BPR 16,219
Stewart v Cooper [1986] TASSC 3; [1986] ANZ ConvR 631
Trewin v Felton [2007] NSWSC 851
Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335; (1987) 63 LGRA 361
Westfield Management Limited v Perpetual Trustee Company Ltd (2007) 233 CLR 528; [2007] HCA 45

Texts Cited:

J Gaunt, Gale on Easements (20th ed, 2016, Sweet & Maxwell)
P Jackson, The Law of Easements and Profits (Butterworths, 1978)
S Odgers, Uniform Evidence Law (12th ed, LawBook Co)

Category:

Principal judgment

Parties:

Robert James Pullen (Plaintiff)
Alan Robert Gilbert Smedley (Defendant)

Representation:

Counsel:
J Van Aalst (Plaintiff)
C Ireland (Defendant)

  Solicitors:
Szabo Solicitors (Plaintiff)
Coleman Greig (Defendant)

File Number(s):

2016/00140145; 2016/366908

Publication restriction:

Nil

INDEX

Introduction					[1]
Summary					[5]
Background					[18]
The respective properties				[18]
Smedley property				[19]
Pullen property				[29]
Gates along rights of way				[32]
Fencing along the rights of way				[42]
Condition of the rights of way prior to the Pullens’ road works				[47]
Acquisition by the Pullens of their land and subsequent development applications				[56]
Communications as to the construction works on the Pullens’ property and road works on Right of Way “B”				[58]
Dispute as to the gates on the right of way being left open and as to damage to boulders				[79]
Further complaints as to damage to the works on the right of way, including damage to boulders				[86]
Issues raised by Masterton				[89]
Escalation of the disputes				[92]
Commencement of proceedings				[97]
Incident in relation to the gate in August 2016				[101]
Request made of Mr Fernance that cattle not be agisted on right of way				[104]
Commencement of proceedings in the Land and Environment Court				[109]
Inspection of access road by building certifier				[110]
Nub of the present disputes					[117]
Relief claimed in the various pleadings					[125]
Issues					[129]
The rights of way					[130]
Location of respective rights of way				[131]
Terms of the Right of Way				[132]
Lay Evidence					[134]
Expert Evidence					[149]
Mr de Silva’s report of November 2016				[152]
Dr Martens’ report of August 2016				[155]
The Joint Statement of Contamination Experts – February 2017				[161]
Submissions on expert evidence				[168]
Conclusion				[170]
Issues					[172]
1.   Proper construction of the easements				[172]
Legal Principles			[172]
(i)   “Right” to graze cattle on the right of way		[177]
(ii)   What is meant by “all weather” access standard?		[184]
2.   Has there been a substantial interference by the Smedleys with the Pullens’ reasonable use of Right of Way “B”?				[190]
(i)   Requirement that gates on the right of way be kept closed		[190]
Determination	[207]
(ii)   allowing cattle to graze on the right of way		[230]
(iii)   Presence of the metal shipping containers		[234]
Determination			[240]
3.   Does the conduct of the Pullens in leaving gates open on the right of way amount to unreasonable use of the right of way?				[243]
4.   Declaratory relief sought as to fencing on western side of right of way				[259]
5.   The Pullens’ road works				[262]
(i)   Are the Smedleys are liable to contribute to the works carried out on Right of Way “B” pursuant to the terms of the easement?		[263]
Was the existing right of way prior to the road works trafficable to an “all weather” access standard?	[270]
Were the works properly done with as little inconvenience and causing as little damage as possible to Lot 21?	[279]
Determination	[298]
(iii)   were the road works unlawful?		[300]
Conclusion that asbestos was part of the road fill material	[300]
Significance of the finding of asbestos	[312]
Requirement for development consent under the EPA Act	[332]
Implications of the finding that the road fill was waste	[339]
Summary of above conclusions regarding road works	[361]
(ii)   Are the Pullens liable for damages for trespass and/or for damage to boulders on the Smedley property?		[362]
6. Relief				[366]
Final Observations					[385]
Orders					[393]

Judgment

1. HER HONOUR: These proceedings involve a dispute between owners of neighbouring rural properties in Ravensdale, New South Wales. I will refer to the neighbours by their surnames as the Pullens and the Smedleys, respectively. There are two sets of proceedings, which were heard together.

2. The first, commenced by the Pullens by way of summons (and then continued by way of pleadings) in this Court, involves a claim by the Pullens for declaratory and other relief relating to what they say amounts to a substantial unreasonable interference with their use of a right of way burdening land of the Smedleys, and for contribution by the Smedleys to the cost of certain road works undertaken by the Pullens on the right of way (on the basis that those works were required to render the right of way a trafficable surface to an “all weather” access standard within the meaning of the relevant easement) (2016/00140145). I will refer to this proceeding as the “easement proceeding”.

3. The second, commenced by the Smedleys by way of summons in the Land and Environment Court (and then transferred to this Court), involves a claim for declaratory and other relief by the Smedleys in relation to the said road works (broadly, to require the removal of the road fill placed on the land and restoration of the land to its former condition) (2016/00366908). The Smedleys maintain that the works were unlawful in that they were carried out without the requisite development or regulatory approval in breach of both the Environmental Planning and Assessment Act1979 (EPA Act) and the Protection of the Environment Operations Act 1997 (NSW) (POEO Act) (denied by the Pullens), and hence amounted to trespass for which they claim damages. They also claim damages for damage caused to a number of sandstone boulders on their property caused during the road works. I will refer to this proceeding as the “transferred proceeding”.

4. A complicating factor in the respective proceedings, not least in relation to the relief that should be ordered, is the discovery of a fragment of asbestos at one point on one of the two rights of way burdening the Smedley land.

Summary

5. For the reasons set out below, I do not consider that the presence of the internal gates along the respective rights of way, nor the insistence upon the closing of those gates by the Smedleys, amounts to a real and substantial interference with the Pullens’ reasonable use of the rights of way for access to their property or otherwise as permitted under the terms of the easements creating the rights of way. Nor do I consider that there is any real and substantial interference with the Pullens’ reasonable use of their rights under the respective rights of way caused by the fact that cattle are able from time to time to graze on the grass verges of the rights of way and/or to move across the rights of way from one paddock to another. I find for the Smedleys on those issues. I also consider that the conduct of Mr Pullen since around May 2016 in deliberately leaving gates open along the rights of way (after having opened those gates in the exercise of the rights of access over the Smedley property), in the absence of a sufficient reason or excuse so to do, amounts to unreasonable use of the rights of way and is not permitted under the respective easements.

6. I find that the placement by the Smedleys of two metal shipping containers at a location partly on one of the rights of way interferes in a real and substantial sense with the reasonable use of the easement at that point on the right of way in that it impedes vision of any oncoming traffic or wildlife around the curve or bend of the right of way. In circumstances where it is accepted that there are probably other places on the Smedley property where the metal shipping containers could be located, and it is not apparent that there would be any great inconvenience to the Smedleys in re-locating the metal shipping containers off the right of way, I consider that they should do so.

7. As to the road works carried out by the Pullens’ contractors on what has been referred to in the proceedings as Right of Way “B”, I find on the balance of probabilities that works of some kind were necessary to render the existing surface of the right of way as at 2015 a trafficable surface to an “all weather” standard as that term should be construed in the relevant easement. That said, I am not of the view that the standard of works so required was to be measured by what would have satisfied the Pullens’ building contractors’ requirements before they would proceed with the construction of the Pullens’ home; nor is it necessarily to be measured by reference to the rural fire service (RFS) guidelines. Rather, the term should be given its ordinary and common sense meaning; namely, a surface that is passable by traffic in all kinds of weather.

8. However, the works in fact carried out were inadequate for the purpose of rendering or maintaining the surface as a trafficable surface to an all weather access standard (particularly in light of the deficiencies in the drainage now identified on Right of Way “B”). Further works are now required in order to render Right of Way “B” a trafficable surface to an “all weather” access standard.

5. I find that development consent was required (and not obtained) for the deposit of the road fill on the Smedley property and that those works were unlawful and in breach of the EPA Act.

6. I find that the road fill deposited on Right of Way “B” and part of Right of Way “A” was “waste” and, by reason of the presence in the road fill of a fragment of asbestos, “special waste” (within the meaning of the relevant regulatory regimes). I find that the deposit and storage of the road fill amounted to use of the land as a “waste facility” and that (without development consent and without an environment protection licence) this was unlawful and in breach of the POEO Act, the road fill being “special waste” not falling within any applicable exemption.

7. The Smedleys are not obliged to contribute to the cost of the works carried out without the requisite approval and in breach of the EPA Act. Unless approval can now be obtained from the relevant authorities for the road fill to remain on the rights of way, the road fill should be removed and the land should be remediated at the Pullens’ cost. If approval is now able to be obtained from the relevant authorities for the road fill, though unlawfully deposited, to remain on the rights of way (with whatever steps might be required to contain or “entomb” the area where the asbestos fragment was found), the Pullens should pay damages (to be assessed) for the trespass constituted by the unlawful placement of that material on the rights of way in the first place. Those damages would, at the least, include the expense to which the Smedleys have been put in the respective proceedings in establishing the unlawfulness of the works in question and the cost of remediation of the land.

8. Once the situation in relation to the asbestos has been determined by the Environment Protection Authority (EPA) (as to which I say more below), the Pullens should be required to rectify, at their own cost, the problems caused by the interference by their contractors with the drainage on Right of Way “B” and either to replace the boulders on the Smedley property that were damaged in the course of the road works with comparable boulders from off-site or, if that is not possible or cannot be achieved to the Smedleys’ reasonable satisfaction, to pay damages (to be assessed) for the said damage.

9. The presence of the fragment of asbestos gives rise to serious health and safety risks, as explained cogently by the expert called to give evidence by the Smedleys (Dr Daniel Martens). Dr Martens said (at T 222):

The presence of asbestos within that material means that at first instance there would be a risk that humans could become exposed to asbestos by direct contact but secondly the use of that material which contains asbestos for a road or a road pavement would mean that it is subject to the action of wear and tear from vehicles small and large using that driveway, or that access way. That has the potential to further grind up, crush, destroy and make small particles of what might be larger particles of asbestos and liberate asbestos fibres into the atmosphere. So it is not acceptable to have asbestos present within material that is used for a pavement for a road that is subject to obviously usage by vehicles, in my opinion.

14. Dr Martens’ opinion was that, once material like the fragment of asbestos discovered by the Pullens’ expert (Mr Vipulananda de Silva) has been found in a body of fill which has a uniform character, then there is a high likelihood of it being present in other locations and it is very difficult to undertake any level of sampling to say that the body of fill is free of asbestos (T 245).

15. Although in these proceedings the Pullens have emphasised a number of safety concerns (as to the presence of cattle on the Right of Way “B”, as to the obstruction of vision on the right of way caused by the presence of the metal shipping containers, and as to the increased time it might take emergency vehicles to access their property if there is a need to open and close gates on the right of way in order to do so), they have urged the Court not to make orders for the removal of the whole of the road fill along the rights of way notwithstanding the discovery of the fragment of asbestos on Right of Way “A”. This is on the basis, as I understand it, that the process of approval for the road works (by an accredited certifier for the purpose of the issue of an occupation certificate) is not yet complete. The Pullens say that this is a matter that should be determined by the local Council with assistance from an expert, such as Mr de Silva (who I note has advocated only a further selective testing regime as the first step to be taken and who was of the view that the finding of asbestos was “insignificant”). Dr Martens, to the contrary, has advocated the removal and disposal (at an appropriate disposal site) of the whole of the road fill placed on the rights of way by the Pullens and the remediation of the property.

16. The appropriate course at this stage in my opinion is to order that both the local Council and the EPA be notified of the discovery of asbestos on the property and that the Pullens be ordered to comply (at their expense) with whatever regime the EPA (being the appropriate body with expertise to make such a determination) determines should be put in place to deal with the risk posed by the discovery of asbestos on the land. Failing the determination by the EPA within a reasonable time of an appropriate disposal or containment regime, and approval by the local Council for the development works that were unlawfully carried out, the whole of the road fill should be removed by the Pullens and the rights of way remediated at their cost.

17. I will make orders accordingly.

Background

The respective properties

18. The respective properties are located in a rural area which is designated as a bush fire prone area by the RFS. The applicable zoning for the properties is either RU 1 Primary Production or E3 Environmental Protection under the Wyong Local Environment Plan 2013, which zoning allows for extensive agriculture and a range of rural uses as well as dwelling houses.

Smedley property

19. The Smedley property comprises two lots (Lots 20 and 21). The Smedleys acquired the property pursuant to a contract for sale entered into in September 2014 from a company by the name of Zardon Pty Ltd, of which Mr and Mrs Scott (the Scotts) were or are the directors. The Smedleys occupied the property under licence from the former owner from about November 2014 until completion of the contract for sale in about September 2015.

20. Lot 20 adjoins a public road, Ravensdale Road, to the west. Ravensdale Road runs in roughly a north/south direction. Lot 21 is to the east of Lot 20 and does not have direct access to Ravensdale Road. Access to and from Ravensdale Road for Lot 21 is via a right of way burdening Lot 20 (referred to in these proceedings as Right of Way “A”).

21. There is evidence from which it may be inferred that part, if not all, of the Smedley property was formerly operated by the Scotts as a horse and cattle stud (for example, references in ASIC documents to the “Misty Valley Horse and Cattle Stud” and the “Misty Valley Speckle Park Stud” showing the Ravensdale Road address – Exhibits 31; 32). Mr Pullen does not dispute that the previous owner of the land had horses on the land (T 56) and he was aware at time of his inspection of the property prior to entering the contract to acquire Lot 22 that the former owners “agisted horses, cattle, for the neighbour next door” (T 58.33). (The Pullens argue however, that there is no evidence that Lot 22 was so used.)

22. That said, the relevance of the knowledge of either couple as to the previous use of the respective properties is not apparent given that it is accepted by the parties that the terms of the easements are to be construed objectively, without reference to the subjective intention or contemplation of the parties at the time of the grant or thereafter (see Westfield Management Limited v Perpetual Trustee Company Ltd [2007] HCA 45; (2007) 233 CLR 528). The highest the evidence of previous use of the land was put by the Smedleys was that it informs the reasonableness of the Smedleys’ present use of the land.

23. The Smedley property is presently used by the Smedleys for the grazing of cattle on agistment for a neighbouring farmer (Mr Wade Fernance), whose property is on the opposite side of Ravensdale Road, though Mr Smedley’s evidence is that the Smedleys also intend to have horses on the property in the future (see Mr Smedley’s affidavit of 21 September 2016 at [84]). The agistment arrangement was described by Mr Smedley in cross-examination as a verbal, or handshake, arrangement (T 159) agreed through Mrs Scott at the time the Smedleys entered into the contract to purchase the property, though in his affidavit evidence, Mr Smedley deposed to a meeting with Mr Fernance at about the time of his inspections of the property (at which meeting he says Mr Fernance said he would be happy to continue the agistment arrangement). Whatever the genesis of the arrangement, there is evidence of the payment of moneys for the agistment of Mr Fernance’s cattle (see T 345) and it is not disputed that there is an arrangement of some kind in that regard.

24. The Smedley property covers around 162 or 163 acres and the number of cattle on the property will vary over the year, depending on the presence of calves at times (Mr Smedley said that the numbers were down to less than 30 at the time of the hearing, but I understand that with the presence of calves that might increase by 20-25 calves at calving time – see Mr Smedley at T 139; also T 338/339, where he put the number at up to 60-65; and his son’s evidence at T 396/397), with one or two bulls. Ordinarily, the bulls are kept separate from the cows at calving time (T 397.39).

25. Lots 20 and 21 are divided by way of internal fences into a number of paddocks (some of which were designated, for ease of reference in these proceedings, as paddocks A-F). There are internal gates in the paddock fences through which cattle can be moved. It is Mr Smedley’s evidence, to which I will return in due course, that the cattle are rotated through the various paddocks (at Mr Fernance’s direction) from time to time (see for example T 140.10) and that occasionally Mr Fernance puts the cattle on the right of way through various gates (see T 140) to keep down the grass on the verges of the rights of way.

26. To the north-east of the Smedley property, the land is steep rocky land with an embankment down to the right of way. Mr Smedley’s evidence is that the cattle still graze from time to time on the eastern side of the right of way (usually, as I understand it, in the winter as there is not adequate water for the cattle in that area of the property – T 140).

27. The Smedley homestead is located close to Right of Way “A”, towards the north eastern corner of the Smedley property, in what was designated as paddock B – “the homestead paddock”. There is no fence along the western side of Right of Way “A” at the entrance to the Smedley homestead, access to which is via a short driveway. (The asbestos fragment was located on Right of Way “A” not far from the entrance to the Smedley driveway.)

28. Past the Smedley homestead, on the western side of the right of way and on part of the homestead paddock, the Smedleys have placed two metal shipping containers on their property. (Although the statement of claim in the easement proceedings refers only to a metal shipping container, in the singular, Mr Smedley’s evidence is that there are two containers and that they were placed adjacent to each other on concrete blocks off the ground at a spot where there were twin stakes in the ground.) Mr Smedley’s evidence is that he believed at the time that the containers were being placed on the Smedley property (at the twin markers) not on the right of way. However, a survey plan in evidence (see Exhibit 2) clearly shows that the shipping containers are located partly on the right of way. Part of the Pullens’ complaint in the present proceedings is that the placement of the metal shipping container(s) near a curve or bend on the right of way obscures the view of whatever may be around the curve or bend on the right of way (be that a vehicle or an animal) and poses a safety concern.

Pullen property

29. The Pullen property (Lot 22) adjoins Lot 21 to the south east of the Smedley property. It, too, does not have direct access to Ravensdale Road. It was acquired by the Pullens from the Scotts pursuant to a contract of sale entered into in March 2014.

30. Access to and from Ravensdale Road for Lot 22 is via both Right of Way “A” and a separate right of way commencing from the north-eastern end of Right of Way “A” (referred to in these proceedings as Right of Way “B”). It is the latter right of way with which this dispute is largely, although not wholly, concerned. The only road access to the Pullen property is via the respective rights of way.

31. The Pullens did not immediately occupy their land on completion of the purchase. Rather, they proceeded in due course to engage contractors (through Masterton Homes Pty Limited, “Masterton”) to build a home on the property. As at the time of the hearing, the Pullens had not yet commenced occupation of the house on their property, although Mr Pullen’s evidence was that it was then close to handover stage when it could be considered their residential home. An occupation certificate had not yet been obtained (for the purpose of which further works were required to be carried out on the access road – Right of Way “B”).

Gates along rights of way

32. Along the two rights of way, there are five gates in all. (A sixth gate referred to in the evidence is on the Pullen property itself.) The five gates in question were designated, for ease of reference in these proceedings, as gates 1-5 (though there was some inconsistency in the labelling of the gates in at least one of the photographs in evidence). The parties accept, as I understand it, that gates 1 and 2 (G1 and G2) are located on Right of Way “A”; gates 3-5 (G3-G5) on Right of Way “B” and I have proceeded on that basis (though in a survey plan forming part of Exhibit 2, the shading would suggest that G2 was on Right of Way “B”).

33. In general terms, when travelling from Ravensdale Road the gates are located as follows: G1 is the first or front gate which gives access to Ravensdale Road; G2 is the gate past the Smedley homestead near the shipping containers; G3 is the gate past the bend on the right of way at about the point at which a metal shed is located (near the commencement of Right of Way “B”); G4 is the gate further to the south-east in Lot 21, at the point where Right of Way “B” and the dividing fence between paddocks E and F intersect (about the centre of Lot 21 according to Mr Smedley); and G5 is the last gate on Right of Way “B”, at the boundary of the Pullen property. The Smedleys installed G2 in about December 2015 (see [12(b)] of their defence in the easement proceeding), after completion of the contract for sale in September that year. The other four gates were on the Smedley property at the time it was acquired by the Smedleys.

34. The dispute in the easement proceedings as to the Smedleys’ insistence that gates be kept closed (assuming the gates are closed in the first place), largely concerns G2-G4, though the Pullens’ desire that the western side of the right of way be fenced extends to G5.

35. The Smedleys’ insistence as to the closing of gates is consistent with their understanding of the usual or common practice in relation to gates in rural areas (Mr Smedley at [76] of his 21 September 2016 affidavit refers to closed gates on a property as a normal incident of Australian life on a cattle property and at [78], which was read subject to relevance, he says his experience is that the general rule is “leave gates as you find them”). Mr Smedley says that gates are opened to facilitate the movement of livestock to graze in particular paddocks or travel through gate but are then closed; and his affidavit went on to make submissions as to the purpose of the gates ([79]-[83]). Mr Smedley’s affidavit (at [13]) (again admitted subject to relevance), also deposes to his memory, from growing up on a semi-rural property and spending holidays staying at farms, “that the invariable practice was to always again close any gates that had been closed, after opening and passing through them”.

36. Counsel for the Pullens professed his personal awareness of such a practice but did not acknowledge that this was a matter of which judicial note could be taken – see T 33.43 ff; T 40/41 (whether as to rural areas in general or as to this particular property). Whether or not there is a general practice of this kind as to the closing of gates on rural properties either locally or more widely is not necessary here to determine. The Smedleys say, with some force, that the easement proceeding does not turn on whether there is a universal (or even regional or local) practice as to the disposition of farm gates on rural rights of way, but on the terms of the easement.

37. The Pullens’ complaint about the requirement for the closing of gates is linked to what I perceive now to be the Pullens’ principal complaint, namely as to cattle being permitted on the rights of way at all (that complaint relating largely to the area from G2-G5). The Pullens accept that, to prevent cattle straying onto Ravensdale Road, G1 must be kept closed (though Mrs Pullen complains as to the difficulty of operating the latching mechanism presently on that gate); and there was no argument specifically directed to the closing of G5 at the boundary of the Pullens’ property. It is the Pullens’ stated preference that there be no internal gates at all on the right of way (other than G1), but even if the gates (other than G1) were to be removed or habitually left open, it is clear that the Pullens would still have a problem with the potential presence of cattle on the right of way (see for example, Mr Pullen at T 65.34), even though it was accepted by Mr Pullen that the presence of cattle on the right of way would serve a land management purpose and Mr Pullen understood the concerns of the Smedleys in this regard (T 60.25).

38. Mr Smedley has described the style and method of opening of G1-G4 (at [73] of his 21 September 2016 affidavit), as follows.

39. G1 is a wooden gate with wooden rails and posts, featuring decorative timber elements in the shape of triangles and designed to swing both inwards and outwards, which is opened by unhooking the chain from the eye of the latching mechanism (and which is closed by the reverse process). Mrs Pullen accepted that the process could be described as follows: the opening mechanism is by pushing a metal circle that is within and resting at an angle within a moderately large silver U-shaped bolt so that the longer arm of the U can be extracted from the eyelet that is attached or bolted to the wooden gate; and that, in terms of the physical effort involved in unlatching a gate using that mechanism, (assuming the chain is relatively slack), the key movement involves lifting that internal metal ring within that moderately large U-shaped bolt with one’s fingers so that it does not form an impediment to lifting the U-shaped bolt through the eyelet. Mrs Pullen’s difficulty is in performing that operation from the outside of the gate (at the entrance to and facing Right of Way “A”) as that involves reaching through to the back of the gate.

40. G2-G4 are five bar steel stock gates, opened by unhooking the latch and lifting the chain from the eye on the fence post and then pulling the chain back through the gate (the reverse being done to close the gate). G2 is designed only to swing southwards because of the incline of the roadway; G3 and G4 are designed to swing both ways (according to Mr Smedley, this is to encourage any stock to move in a particular direction). Mr Smedley says that after the road works carried out by the Pullens on the right of way G3 has “dug into” the resurfaced road when it is opened or closed (but that prior to the road works it did not do so) and that G4 is no longer able to swing towards the north or south easily and now can only be opened when the gates swing towards the south. Mr Smedley says that G4 now hangs incorrectly from the fence posts because the positioning of the fence posts was altered by the resurfaced road. Mrs Pullen seemed to accept that the latching mechanism on these gates was not a problem, though her concern is that she may experience pain pushing the hinged gates closed (I say “may experience” because Mrs Pullen had rarely visited the property after her spinal injury and it was clear from her oral evidence that she is to a large extent speculating on how difficult she would now find opening and closing G2-G5 – which I will explain in more detail in due course).

32. By reference to the survey plans (see Exhibit 2 and Exhibit N), it appears that the distance between G2 and G4 is roughly 230m; between G2 and G5, roughly 445m (which I interpose to note is consistent with the road fill having been placed on both Right of Way “B” and Right of Way “A” – since the quote that was accepted by the Pullens referred to an area of some 600m). Although Mrs Pullen, in cross-examination, initially said that there were three gates in 100m (T 92), she later corrected that evidence (having, she said, been corrected in this regard by someone when she went back to sit down at the end of that day’s testimony – i.e., while she was in the midst of cross-examination – see T 111), Mrs Pullen there accepting that the distance was around 300 to 400m. (This is of relevance given that the Pullens rely on a decision, to which I will refer in due course, in which it was found that there was an excessive number of gates on a particular right of way.)

Fencing along the rights of way

42. Neither of the rights of way is wholly enclosed by way of fence.

43. Mr Smedley has deposed (see [88] of his 21 September 2016 affidavit) that on Lot 20 the entire northern boundary of the Smedley property is fenced (as Right of Way “A” is located near the boundary) and that, on the southern side of Right of Way “A”, there is fencing from G1 for a distance of about 250m to (what has been referred to in these reasons as) the homestead paddock. On Lot 21, there is fencing on eastern side of Right of Way “B” between the northern edge of the Smedley property and G2 and on the western side of Right of Way “B” between G2 and G4, with the exception of a short distance when the fence goes around the shed.

44. Mr Smedley describes much of the eastern side of Right of Way “B” as being the bottom of a bank after which he says the terrain rises steeply, particularly between G2 and G4 and then approximately 50m from G5 (see [90] of the said affidavit, which was read subject to relevance as being the subjective view of Mr Smedley, as the farmer or manager of the farm land, as to the matters to which he has there deposed).

45. Right of Way “B” runs through the paddocks designated as E and F. There is potential for the movement of cattle (when the relevant gates are open) across Right of Way “B” to the north-eastern parts of Lot 21, i.e., the paddocks to the west of the right of way. Accordingly, if gates on the rights of way are left open (whether deliberately or otherwise) then, depending on the paddocks in which cattle are located from time to time, cattle can enter the rights of way and move into other paddocks.

46. The verges of both rights of way are grassed. It is Mr Smedley’s evidence that the cattle graze from time to time on those grass verges (thus helping to keep the grass down, which he emphasises is of importance in a bushfire prone area, and to avoid an increase in the number of snakes on the property) (T 339; 355).

Condition of the rights of way prior to the Pullens’ road works

47. There is, as will be explored in more detail in due course, a dispute as to whether, at the time the respective couples acquired their properties, Right of Way “B” in its then condition constituted a trafficable surface to an “all-weather” access standard in terms of the relevant easement (this being relevant to the issue whether, leaving aside the contamination issue and the issue as to the lawfulness of the works, the Pullens can claim from the Smedleys half the cost of the road works they carried out on the rights of way).

48. In her affidavit, Mrs Smedley described the “right of way” (presumably there referring to both Right of Way “A” and Right of Way “B”), as it was at the time she and her husband moved onto the property (leaving aside the contentious label “all-weather”) as a “crushed sandstone road base” (see [23] of her 21 September 2016 affidavit). She was cross-examined as to the choice of the language used in her affidavit (to suggest that the words used to describe the road were those chosen by her lawyers) but the real issue, as I apprehend it, was as to her description of the road as “all weather” and I place no weight on her use of that description.

49. Mr Smedley’s understanding (that he says was conveyed to the Pullens at a meeting at which Mrs Scott was present in March 2015 and which is corroborated by Mr Pullen (see [67] below)) is that the previous owners (the Scotts) had placed a considerable amount of gravel on Right of Way “B”; an assertion also made in correspondence with the Pullens. (Mr Smedley also says that the Scotts had installed drainage on the right of way.)

50. The Smedleys’ evidence is that, in their experience, the right of way was trafficable in all weather conditions (in the sense that vehicles would not become bogged even if the paddocks were sodden) by the kinds of vehicles typical of the area (4WD’s) as well as by smaller cars of the kind that they or their son (or, to their observation, others) have driven over the right of way. Mr Smedley identified in the course of his oral evidence in chief the following makes of car that he has either driven or observed being driven on the right of way in all weather conditions in 2014 before it was resurfaced – a Nissan X-Trail, a Range Rover Sport or 92 Range Rover Classic, a Land Rover Discovery 4 (adding that the Smedleys in their business own a total of seven Land Rover vehicles), a VW Golf, small hire cars (“Corollas or even smaller”) and a small, two-door hatch that he said he had observed a farm labourer driving onto the Pullen property (see T 129; 130.36).

51. The issue as to whether the then existing right of way was an “all weather” access road or surface was, and remains, an issue hotly in dispute between the parties. In due course I will refer to the expert evidence on this issue, though of course neither expert had observed the right of way in situ prior to the placement of road fill on it by the Pullens’ contractors.

52. Photographic evidence was tendered by both sides as to the rights of way prior to the works in question. Pausing here, I note that I have also had the benefit of video footage taken by the Pullens, as well as maps and survey plans, to assist my understanding of the layout of the properties and the position of the rights of way and gates on the rights of way. I was taken to various photographs said to show aspects of the road works (including the complaints made by the Smedleys as to interference with the drainage) and the alleged damage to the boulders, as well as the alleged deterioration of the right of way surface following the road works.

53. I am cognisant of the limitations of, and caution to be shown when relying upon, video/photographic evidence of this kind (see Blacktown City Council v Hocking [2008] NSWCA 144; Short v Barrett (NSW Court of Appeal, 5 October 1990, unrep)). Indeed both Mr Smedley and Mrs Pullen, albeit in different contexts, pointed to difficulties with perceptions based on such evidence.

54. For example, Mr Smedley criticised photographs taken by the Pullens as being out of focus and missing various details. He accused the video photographer of one of the videos of having ‘elected’ to take the footage at particular angles. (See for example the criticism made at T 279.44-46; T 284.36-43; T 288.18-22; T 289.31-49; T 290.1-3). There also was a submission made that the video footage of the Pullens’ daughter opening gates on the right of way showed that her actions were awkward. In turn, Mrs Pullen, when shown photographs of the metal shipping containers, emphasised the difference between what is shown on paper and what can be seen at the site.

55. Other than to note that the video footage of the Pullens’ daughter opening G3 is consistent with the gate dragging on the resurfaced road at that point (to which Mr Smedley himself has deposed) and that I see nothing awkward in the actions there depicted; and to note that some of the photographs show damage to, or scraping of, the boulders (which Mr Pullen somewhat dismissively conceded in cross-examination – see T 74.4) and loose stones on the right of way or stones placed at the site of the culverts (see for example Exhibit W, T 290.40-45, and Exhibit X, T 291.28-50), I have relied on the video and photographic evidence only to obtain a general understanding of the layout of the rights of way and the gates on the rights of way so as to put into context the evidence of the various witnesses, including the expert witnesses (who were taken to certain of the photographs in the course of cross-examination).

Acquisition by the Pullens of their land and subsequent development applications

56. As noted above, the Pullens acquired Lot 22 in mid 2014. They entered into a building contract with Masterton to carry out building works on the land on 10 November 2014 (see [18] of Mr Pullen’s affidavit of 3 May 2016) and lodged a development application in relation to the land on 2 December 2014 (see [16] of Mr Pullen’s affidavit).

57. By notice dated 29 January 2015, Wyong Shire Council approved the Pullens’ application for development approval for the construction of a dwelling on Lot 22. The conditions of approval included, as conditions that must be satisfied prior to the release of an Occupation Certificate, the following: (condition 13) that water, electricity and gas comply with s 4.1.3 of the “Planning for Bush Fire Protection 2006 (NSW)” (see Exhibit R) and (condition 14) that property access roads comply with specified requirements of s 4.1.3(2) of the said document. (For completeness, I note that on 10 February 2016 development approval was granted for the construction of a shed on Lot 22 but nothing relevantly turns on this). No separate approval was obtained for the road works carried out on Right of Way “B”, which is referred to in various of the evidence as the “access road”.

Communications as to the construction works on the Pullens’ property and road works on Right of Way “B”

58. By February 2015, at the latest, there must have been some discussion between the neighbours as to the proposed construction to take place on the Pullen property since, by email on 2 February 2015, the Pullens (referring to a previous email of which there was no copy in evidence) advised Mr Smedley (and the Smedleys’ son, Robert, who was then living at the Smedley property) that the house plans had been approved and that construction should start in about a month’s time. The email continued:

… we need to choose a contractor to upgrade the access road. Have to [sic] had a chance to review the quotes or did you want to arrange others? Could you please let me know in the next week or so as we need to book this work in.

59. It is not clear which are the quotes referred to in that email (although it might perhaps be inferred from a later email that they included a quote from an entity known as “Tiny & Mighty” – since a later email suggests that a “discounted rate” was obtained from that entity – see below at [68]).

60. The response, the same day, from Robert Smedley (expressly on behalf of his parents – and he accepted in the witness box that his father had given him authority to represent him in respect of communicating with the Pullens – T 369) was that “our only obligation is to provide access along the easement and any maintenance or improvements to the access are at your cost”.

61. In that email, Robert Smedley also made reference to “the strict rules relating to the Wyong River water catchment area” and to Council requirements for the road such as fire truck access and passing lanes. The email went on to advise that “you will be responsible for any damage the road construction may cause to our property” including but not limited to “soil erosion, run off, silt build up, contamination of adjoining land or existing infrastructure such [as] fences, damns [sic] or buildings on our property”, which damage it was said may be caused by “inadequate specifications for the road construction or by the actual construction”; and that “[y]ou would be liable for the rectification of any such damages”. (It was put to Mr Robert Smedley, which he did not accept, that this email was aggressive in tone and was assuming non-compliance by the Smedleys with the obligations to which reference was there made – see T 381; T 382.)

62. The email further advised that the Smedleys were prepared to contribute to half the cost of the road improvements from Ravensdale Road up as far as the gate on the easement located at or near the machinery shed (which I take to be G3), subject to certain specified provisos, including “[a]n adequate and acceptable quality of road which includes the addition of a binding top layer such as rotomill, unlike the quotes provided, which only allows for substrate”. Further, it was said that the Smedleys would not contribute any funds to the completion of the road to the machinery shed until after completion of the construction of the Pullens’ development “as we are not prepared to pay for repairs, only to have the road damaged by construction vehicles”.

63. Pausing here, it appears from this and following communications that, on the Smedleys’ part, umbrage was being taken at what was perceived to be an unjustified demand for payment of costs in relation to the road works proposed to be undertaken in connection with the construction of the Pullens’ house. Whether or not this was the starting point of the dispute (as to which Robert Smedley was cross-examined – see T 371/2ff) or there were other issues between the neighbours at or prior to that point; and whether or not the communications were perceived at the time by the Pullens as aggressive in tone) is not clear. However, the apparent indignation or emotion on Robert Smedley’s part at the suggestion that the Smedleys contribute to the road works can be discerned from the following exchange in the course of his cross-examination (from T 371/2):

…

A. The only correspondence by this time between us and the Pullens was via email so it wouldn’t have been in any other way.

Q. Is that because the relationship had totally broken down?

A. From the Pullens’ perspective yes, they were completely‑‑

Q. From both perspectives.

A. Well we were reasonable throughout the process.

Q. I won’t resound [sic; scil; respond] to that. This email is seeking in effect you and your father’s cooperation in respect to upgrading the access road. When I refer to access road in relation to this document, I’m referring to B, not necessarily A. You understand what I’m talking about?

A. Yes, I understand they’re two separate properties.

Q. Yes, and they were seeking cooperation from you and your father in particular to choosing a contractor to upgrade the access road. You understood that?

A. No. From the first conversations between us and the Pullens, they were actually requesting our financial contribution to the road. I wouldn’t say that that was assistance necessarily or you know‑‑

…

Q. Well, you told us before that the dispute between your family and the Pullens turned upon, if I understood you correctly, what was meant by all‑weather access standard, number one, and to be a trafficable surface. So there’s two limbs, trafficable surface and all‑weather.

A. Mm.

…

Q. Is that right? You and your father took the view that, during negotiations with the Pullens before the Masterton builders started work, you had a difference between you as to what that meant.

A. Yes.

Q. You took one view, they took a different view?

A. Yes.

Q. Didn’t they ask for your cooperation and not to bother about all these distinctions, "Just let’s get on with it to enable the building work to start and we can worry about it later?"

A. No, that is not what they asked.

Q. Isn’t it?

A. No.

Q. I see.

A. The first conversation between us and the Pullen’s was when they arrived at our property and within five minutes, demanded that we pay them money, that is the first conversation.

Q. I put to you that that’s false, that of course they didn't demand money from you in the first conversation, that would be, I put it to you, something the Pullen’s would never do.

A. I put it to you that that is the Pullen’s character.

Q. So from the very first meeting with the Pullen’s you came to the view, “We’re not going to get on with these people.” From the very first meeting when you say they demanded money - when you say “they,” Mrs Pullen?

A. Both, both Jennifer and Robert Pullen were present.

Q. Was she demanding money?

A. Yes.

Q. What did she say?

A. This is, you know, three years ago now so I can’t remember the exact words but the conversation went along the lines of, “We are going to be building on our property in the coming months. We need the road to be upgraded, we’ve had quotes done. Can you give us our (as said) email address so that we can send you the quotes and we expect you to pay half the money.”

Q. You’re saying that conversation was so offensive that from that point on there was no chance of a neighbourly relationship with the Pullen’s?

A. I wouldn’t say that was the turning point.

Q. It was the starting point?

A. If you actually - it was the starting point, it was the starting point but if you go through the emails, extensive amount of emails, you’ll see that there's a breakdown between the emails and there is no middle ground, you know, reasoning or anything done. There's no discussion as to the standards, it's just an opinion versus an opinion.

…

Q. “We’re just giving you an update,” it’s just an update.

A. By this time we’d already had aggressive behaviour from them, demanding money, so why would I not put it in writing as to what our position was? Why would I leave that to a phone conversation?

Q. Let’s assume for the moment you’re correct and I’m not accepting it but let’s assume you’re correct, why didn’t you water it down with being a bit more diplomatic and say, “Look, let’s move on.”

A. If that was the case, that they were not demanding money in the first place and aggressive on our first meeting, then I would have been, you know, less confronting in that email but that was not the case.

Q. In what way was Mrs Pullen aggressive? What was she doing?

A. The [sic] demanded money from us with no grounds.

Q. That’s false, isn’t it? You know that that’s false.

A. Its not false.

64. What emerges from this, and the subsequent communications, is that from this point onwards matters escalated to the stage where positions became increasingly entrenched and both sides accusing the other of not exhibiting good neighbourly relations, culminating in lawyers becoming involved and demands being issued (an unfortunate state of affairs if all that was initially in issue was the claim for contribution to road surfacing costs that must by now have well and truly been dwarfed by the costs of the litigation).

65. Going back to the email communications, there followed an email from the Pullens attaching the easement details and suggesting a meeting in person, in which the Pullens stated that sending emails with demands was no way to maintain good neighbourly relations. This was met by the response from Robert Smedley on 5 February 2015 that his reason for emailing was that “to date, you yourself have not exhibited good neighbourly relations”. Complaint was made by Robert Smedley as to the installation of a power pole and meter box on the Smedley property (as an “unsightly eyesore at our front entrance”) (the placement of which is explained in Mr Pullen’s affidavit evidence in these proceedings – but nothing turns on this). Issue was again taken with the suggestion that there was an obligation to contribute to the costs of the road works, Robert Smedley asserting that an all weather road:

… means a road that is constructed in such a way that excessive rain does not cause it to be flooded or sodden to such an extent that vehicles typical [note in this area it is considered a 4WD] of the area travelling over it are likely to become bogged. To be specific, an All Weather Road does NOT mean it must be a gravel road, it does NOT mean it must be free from pot holes or ruts and it does NOT mean it must be free of grass [emphasis as per original]

66. In that context, Robert Smedley asserted, among other things, that the existing road: was already a gravel road; did not flood during heavy rains; and did not become sodden during heavy rains such that a standard vehicle “let alone a vehicle typical of the area” would “get bogged”. He also stated that the previous owners had already had the road graded and cambered and added “extensive amount of material including gravel” through to the Pullens’ boundary and had installed drainage in order to ensure that the road was an all weather access road.

67. What next occurred was what Mr Pullen describes as an “informal meeting” on 1 March 2015, organised by Ms Scott, at which the Pullens, the Smedleys and their son Robert were present (see [8] of Mr Pullen’s affidavit of 14 November 2016; [14]-16] of Mrs Pullens’ affidavit of 23 November 2016). Mr Pullen says that at that meeting there was a discussion as to what was meant by “all-weather access” and he recalls that Robert Smedley had said that the Scotts had spent considerable effort “constructing the existing road” (something to which Mrs Scott presumably did not demur, since there is nothing in Mr Pullen’s affidavit to suggest that she corrected that statement by Mr Smedley - rather, he says he replied to Robert Smedley that Mrs Scott had not mentioned that to him and that she had previously told him “they just spread out some fill that was left over from an excavation” ([8])). Mr Pullen says that at that meeting he said that underground electrical cables would have to be laid before the road re-surfacing work because a trench had to be built for the laying of the telephone cable by Telstra ([8]).

68. Then, by email on Sunday, 8 March 2015 (referring to a discussion between the Pullens and the Smedleys the previous Sunday – presumably that recounted in his affidavit as noted in the preceding paragraph), the Pullens advised Robert Smedley that their builder had confirmed a start date “in the next couple of weeks”. The email referred to it having been agreed that “you were going to investigate getting someone out to access the road to determine which sections need to be upgraded” and enquired as to whether Robert Smedley had had “a chance to discuss the road details with the contractor I provided or were you able to arrange a quote from another contractor?” . The email referred to the need to “get this finalized soon” and annexed an “updated” quote from the Pullens’ “preferred contractor”, referring to a “discounted” cost on the crushed concrete ($30 per tonne) and extra passing bays required by the RFS.

69. Robert Smedley continued to take issue with the suggestion that works were required in order to upgrade the road, again referring the Smedleys to the Australian Road Research Board (ARRB) definition of “all weather road” that was set out in his 5 February 2015 email (see [65] above) and again asserting that the road was already a gravel road for its full length, stating that there were no points on the existing road where a 2WD “let alone a 4WD” would become bogged (see the email of 12 March 2015).

70. Robert Smedley then advised (revising the earlier position that had been communicated to the Smedleys – see [62] above) that he was “prepared to go beyond my obligations outlined within the easement provisions” and contribute to having the standard of the road improved beyond an “‘all weather road’ from the front gate at Ravensdale Road through to the second gate along the easement”. He stated that “we would require that the culverts at the top of both of the damns [sic] to be rectified as without that work being done any work to the road would not last”.

71. That led to further debate as to whether the current access road met the definition of an all weather road (see the email from the Pullens on 15 March 2015; email from Robert Smedley 25 March 2015). The Pullens’ position was that:

The RFS and the certifier our builder is using, indicate that a gravel road is the minimum requirement and we agree with this. Based on their requirements, this would mean the section of road just past your house to our property, a distance of approx. 600m needs to be upgraded to a gravel surface, with 3 x 20m passing bays.

72. The Pullens requested a 50% contribution to the cost of this “as per the registered easement conditions”.

73. I interpose here to note that nothing in the correspondence to this point makes clear, or even conveys the impression, that the works to which the Smedleys were then being asked to contribute (on the basis that they were liable for such a contribution under the terms of the easement) were only temporary in nature – as Counsel for the Pullens submitted at the hearing they were always intended to be (see T 311.26; 402.44). Certainly the correspondence made clear that the building contractors were requiring upgrade works to be carried out but there is no statement to the effect that these were to be temporary or were to be followed by further works in due course. Nor does Robert Pullen’s insistence that the road upgrade works were because he required an access road for the builders to be able to start their work lead to such a conclusion (T 58.40).

74. In any event, the upshot of this correspondence was that the Smedleys refused to contribute to the proposed road works (or to approve a particular contractor for that purpose) and the Pullens then proceeded to arrange for works to be carried out on Right of Way “B” in the period up to September 2015 (without the Smedleys’ consent and without any development approval expressly related to the road works – I consider later their argument that approval was implicit in, or that the works were lawful by reference to, conditions contained in the development consent obtained for the construction of their house).

75. The Pullens then obtained a quote dated 18 May 2015 from “Tiny & Mighty Posi-track Excavations (in respect of Right of Way “B”) “for the original road to be upgraded to an all-weather access road”. The quote provided for the transport and supply of 430 tonne of 40mm road base. The work covered by the quote included “scallop and clean out original culvert to improve flow” and “scallop out high edges near the 2nd and 3rd culverts”. Given that the quote was to spread new material 600m long (and 4m wide), it would seem (as noted above) that what was contracted for was an area not confined to Right of Way “B” (consistent with the Pullens’ position as communicated to Robert Smedley that there needed to be a gravel road from just past the Smedley house – a distance of approximately 600m). By reference to its date, this quote cannot have been the “updated” quote referred to in the Pullens’ 8 March email (see [68] above) nor one of the quotes to which reference was made in the 2 February 2015 email (see [58] above).

76. Moving ahead in terms of the chronology for a moment, the Pullens appear to have accepted that quote on or about 6 August 2015 (see the tax invoice issued on payment of the deposit) and made payment of a second deposit, said to be due on “day 1 as per job agreement” on 17 August 2015.

77. Mr Pullen has deposed that the material used for laying the surface of Right of Way “B” (which he describes as “recycled crushed concrete material) was delivered on or about 4 September 2015 and that it was supplied by EBH Environmental Services (EBH) (see [28]; [30] of his 14 November 2016 affidavit). Mr Pullen’s evidence was that, when ordering the recycled crushed concrete from EBH he “was made aware that Douglas Partners were the accredited testers of the recycled material and that they carried out test on EBH’s material each three months” ([31]). It is not apparent from any documentary evidence to which I was taken how it is that Mr Pullen formed that understanding at the time. Instead, Mr Pullen’s evidence was that he received a copy of a report from Douglas Partners of the test result of the EBH recycled concrete material on 23 July 2015, disclosing 0.1% and 1.1% of foreign material type 1 (metal, glass, asphalt, stone, ceramics and slag (other than blast furnace slag)) in the two samples of grey sandy gravel tested (Annexure “F”), in response to a call he made to EBH following receipt of an email Robert Smedley had sent to his former solicitor on 11 October 2015 (see his 14 November affidavit at [29]-[31]). I note that Mr de Silva, referring to that Douglas Partners test report, nevertheless accepted that the material came to the site without a certificate “and, therefore, it is waste” (T 191).

78. Subsequently, Tiny & Mighty invoiced the Pullens for the “supply of extra truck and dog road material (33.82 tonne) to fill in hole, extend corner of road and put in muddy area near front gate” (which “front gate” is unclear) and then for further works including the reconstruction of culvert near shed gate; supply 2 tonnes of grey ballast; and place sandstone rocks around entrance and edges of culvert.

Dispute as to the gates on the right of way being left open and as to damage to boulders

79. Going back to the timeline of events, works were carried out on one or both of the rights of way prior to the resurfacing works on the rights of way, and prior to the commencement of the construction of the house, to excavate trenches for the laying of underground cables (for the provision of services to the Pullen property). According to Mr Pullen this had been foreshadowed at the March 2015 meeting (see [67] above), though in his affidavit of 21 September 2016 (at [38] Mr Smedley states that he had not previously been informed that this work (i.e., the work by the electrical contractors) “would be carried out or at that time) (see his cross-examination on this issue at T 160-161).

80. Disputes then arose as to the contractors leaving gates open on the rights of way. On 1 August 2015, Robert Smedley emailed the Pullens to complain about the builders “continually failing to close stock gates”. He said that if this continued to happen he would be forced to padlock the stock gates but would provide the Pullens “alone” a key. He also said in that email that the builders had “started breaking up boulders” on the Smedley land.

81. The Pullens responded on 4 August 2015, expressing the hope that the builders had not been causing too much of an inconvenience and stating that “I have reminded them repeatedly to shut the stock gates as padlocking them would be an extreme measure and an inconvenience to us both by not providing unrestricted access as you are very well aware”. The email suggested that padlocking the gates might also be deemed a substantial interference. As to the damaged boulders, the email stated that the boulders “dug up on the easement” was something that was “necessary” due to the requirement of the services being beneath the surface as per the easement conditions and requested advice as to what the Smedleys wanted done with the boulders (suggesting that they could be left in a suitable location near the boulders already located on the Smedley property or moved offsite).

82. On 5 August 2015, there were a number of email communications starting with a complaint by Robert Smedley that “once again” the gates had been left open the previous night. The email stated that “you are leaving me with no choice but to put locks on the gates in order to ensure the protection of the livestock”. As to the boulders, it was said that they did not need to be destroyed; that those that had not been destroyed needed to be put back where they were; and that suitable replacements needed to be found for those that had been destroyed.

83. The Pullens’ response to this was that the electrician said the gates had not been left open. They foreshadowed that if the gates were locked and a key was left they would “consider this” but that if the gates were locked and no key was left for the electrician to use then the electrician would have no alternative but to cut the chain. That provoked a threat by Robert Smedley to call the police if the locks were cut (though Robert Smedley did advise that the Pullens could collect a key); followed, according to the correspondence, by communications by both Robert Pullen and Robert Smedley with the local police as to the legalities of the conduct that each had threatened in relation to the locking of the gates/cutting of locks.

84. The Pullens then instructed solicitors who wrote to the solicitors who had previously acted on the settlement of the sale of Lot 22 (not for the Smedleys but for the previous owners of Lots 21 and 22), asserting that the placement of locks on the gates prohibiting reasonable access to the property was in clear violation of the Pullens’ rights under the easement.

85. Robert Smedley responded to this, asserting that on an almost daily occurrence over the last 2 weeks stock gates for the property had been left open by people acting on behalf of the Pullens and that cattle had gotten out due to gates being left open; advising that a key had been made available to the Pullens; and stating that should they (the Pullens) “begin and continue to maintain their obligations (by which he emphasised that they must ensure that the gates are shut each and every time) we will remove the locks from the gates”.

Further complaints as to damage to the works on the right of way, including damage to boulders

86. On 2 September 2015, Robert Smedley emailed the Pullens’ solicitors advising that since the last correspondence the stock gates on the property had been shut at each passing but that there remained issues as to the damage done to the property (which he then summarised). In essence the complaint was as to an electricity telco trench not having been filled; entry to a culvert pipe having been closed; a deep ditch and subsidence occurring along the full length of the electricity trench; and the destruction and defacing of large boulders. (As to the complaint in relation to damage to boulders see Mr Smedley’s affidavit of 21 September 2016 at [41]-[44].)

87. Further complaint was made by Robert Smedley by email of 3 October 2015 as to the work that had been carried out to the culverts and as to the manner in which the road had been built by the Pullens’ contractor.

88. By 11 October 2015, Robert Smedley was complaining to the Pullen’s then solicitors as to the material used for the road upgrade, which he described as “recycled building material, typically used for fill, … full of rubbish and waste such as bottle tops, metal spikes, plastic pipes, foam, timber and so on”. Reference was made in that email to the “rapid deterioration of the upgrade to the road”.

Issues raised by Masterton

89. Meanwhile, at around this time, the Pullens were themselves taking issue with a requirement by their building contractor that they acknowledge concerns expressed by the building contractor as to access and safety issues for the site (see Masterton’s letter dated 9 September 2015 and the Pullens’ response, referring back to an earlier email of 19 August 2015). In its correspondence, Masterton stated its requirement, in order to commence building works, that there be “all weather access” to the site (by which it was said this essentially meant that “our contractors should be able to freely access [sic] the site as required without any restriction”. Masterton also said that the “shared strip of land” (i.e., the rights of way) needed to be fenced off from livestock “in order to provide a safe and secure method of access to the site by our contractors for the entire duration of the construction period”.

90. The Pullens’ response was that “all weather access’’ did not mean free access without any restrictions and that an “all weather access surface” had been provided. (I interpose to note that this does not suggest that Mr Pullen at that stage regarded the work as temporary.) Mr Pullen made clear that it was unlikely that his neighbour would grant permission for the fencing of the right of way and asserted (somewhat ironically given the stance taken in the present litigation) that “[t]he neighbour’s livestock is secured behind fences … so I do not accept an unsafe work environment has been provided”.

91. What is now said, of course, is that the potential presence of cattle on the rights of way (which, but for the demand made of Mr Fernance in November that year not to graze his cattle on the rights of way – see below at [104]-[105] – would surely remain the same now as it was at October 2015) presents a safety risk to the Pullens and visitors to their property.)

Escalation of the disputes

92. This rather unhappy state of affairs appears to have culminated in correspondence on 3 October 2015 from Robert Smedley notifying of his intention to install more gates along the easement during the week of 12 October 2015 and a response on 12 October 2015 by the solicitors acting for the Pullens, foreshadowing legal proceedings and a claim for reimbursement of “your contribution for the work on the carriageway”, followed up by a similar letter from the solicitors on 11 January 2016.

93. There was then some dispute in March 2016 between the neighbours as to a new boundary survey obtained by the Pullens, in the course of which the Pullens advised that they would not allow access through their property by the Smedleys to a water tank owned by the Smedleys on land beyond the Pullen property.

94. This was followed by assertions in May 2016 by Robert Smedley that the Pullens had continued to leave gates open along the easement, had been moving cattle without the Smedleys’ knowledge or consent between paddocks (the basis for which assertion is by no means apparent on the evidence and it seems unlikely at least on Mrs Pullen’s part given her fear of cattle); and had accessed the Smedleys’ property without authority (as to which there is again no basis put forward for this assertion).

95. At least the first of those assertions is admitted by Mr Pullen – namely, that from early May 2016 his practice has been to leave the gates on the rights of way (other than G1) open (at least if he does not observe any cattle on the rights of way). Mr Pullen’s affidavit of 7 July 2017 deposes to occasions since early May 2016 when he has visited the property. He says that on each occasion all of the gates on Right of Way “B” were closed and that on most occasions he left them open and, when he later left the property – no matter how long he was on the property, all three of the gates were again closed (see for example [3]-[7]). He refers to occasions when all the gates were closed and he says the cattle were on the “fenced section” (or on one occasion when he says “[t]here was no cattle on the entire Smedley property”; see [22]; my emphasis). (As the Smedley property is some 162 or 163 acres it is hard to believe that this last assertion is not somewhat of an overstatement on Mr Pullen’s part.)

96. The following exchange in Mr Pullen’s cross-examination makes clear the stance which he has adopted at least since May 2016 (T 70-73):

Q. It’s the case, isn’t it, that you now leave the gates open routinely when you visit the property because you seek to make a point in relation--

A. No, actually - sorry.

Q. If you would let me finish.

A. I’ll stop.

Q. You seek to make a point in relation to your claims in these proceedings. That’s correct, isn’t it?

A. No, it’s not. I actually sought legal advice and said, “Opening and closing the gates every time, is it really necessary”, and my solicitor said, “No, it’s not”, and so, once I got the legal guidance, that’s when I started leaving them open.

…

Q. Was the advice oral or in writing?

A. I’m not sure. There was a previous solicitor. It wasn’t George, my current solicitor. It was the previous solicitor, Graeme Peters.

Q. You just can’t be sure whether there was a letter or not?

A. No. Well, it would have either been in an email or a phone call, one or the other, but I could certainly check whether there was an email in relation to it.

Q. I call on any email setting out that advice if you could check that in due course.

I’ve been to many sites where I’ve missed finding asbestos and it’s been found. It’s difficult to find, particularly if it’s below the surface. If it comes to the surface in the future because of soil and water erosion or because of the action of the vehicles, then that risk will represent itself in the future. The piece of asbestos that was found is very small. It's not really observable to the naked eye as you walk across the pavement. The risk of similar sizes of material, smaller pieces of asbestos that could easily be crushed and liberate respiratory fibres is real and is present at that site.

369. Dr Martens also said:

… Because of the nature of the material, it is homogenous in colour and character, it is grey, the asbestos pieces are likely to be quite small and crushed and the material that’s been found was a small piece, I think 3 or 55mm in size. Once a material like that has been found in a body of fill which has a uniform character, then there is a high likelihood of it being present in other locations and it is very difficult to undertake any level of sampling to say that it is free.

Where the asbestos is suspected of being in larger fragments, visual inspection can be undertaken and careful sifting through the material, obviously with protective clothing and breathing apparatus and those sorts of things. Where it’s already been processed and crushed and then mixed and redistributed, it’s a very difficult - it, it really is the - an example of the same issue of if we, if we assume that the only place that it's likely to be located - sorry, the only place within the testing regime undertaken so far where there is asbestos is AH08, how far from AH08 would one go before one would say, “We would capture that material that's potentially contaminated with asbestos.”

370. See also the evidence of Dr Martens extracted at [13] above.

371. In closing submissions, the central submission for the Pullens was that the works carried out by Tiny & Mighty on the rights of way were temporary, in order to enable Masterton to carry out the building works on Lot 22, and that it has been established that the Pullens’ intention is to have a further surface laid on the right of way (referring to the letter dated 29 June 2017 from Szabo & Associates to Coleman Grieg and their response of the same date (Exhibit “U”) relating to consent for the further works required as a result of the inspection of the accredited certifier. It was submitted that the surface laid down by the Pullens’ contract was not intended to be the final product: “[t]he final product would come along once we get to the certifier examining the surface so that it complies with the RFS requirements and also to put down a more permanent surface than the original surface”. Unfortunately, I have difficulty accepting that proposition where there is nothing in the contemporaneous documents that supports the proposition that the initial resurfacing was to be a temporary surface. The fact that it was laid down to satisfy Masterton’s requirements for the building to commence, which Mr Smedley accepted in cross-examination, does not establish that proposition.

372. The Pullens nevertheless say that it will be a matter ultimately for the principal certifier (Mr Cohen) to examine the access road once the final surface has been laid to be satisfied that the access road complies with rural fire service (RFS) criteria. On that basis they contend that the construction of the access road over Right of Way “B” is not yet complete and that, for that reason and because of the discovery by Mr de Silva of the fragment of asbestos, there will have to be further testing of the material delivered and laid by Tiny & Mighty. They say that it will be a matter for the Council to determine, on the advice of an expert such as Mr de Silva, what tests should be undertaken and that it is not for this Court now to pre-empt that process. They say that the finding of the asbestos fragment in AH08 and the testing to be carried out to determine if there is evidence of other fragments or fibres of asbestos is a matter for the Council, not for the Court, knowing that the final surface for the access road and the materials to be applied are yet to be laid and tested.

373. I note that it is not suggested by Counsel for the Pullens that, irrespective of how much asbestos was found in the material laid by Tiny & Mighty, the Pullens could lay that material on the right of way in accordance with the Recovered Aggregate Exemption. (In that regard, there seems to be a tacit acceptance of the proposition that, to the extent that the body of material placed on the right of way contained an asbestos fragment, at the very least that material would not fall within the Recovered Aggregate Exemption.)

374. Rather, what Counsel for the Pullens says is that the asbestos found on Right of Way “A” has already been removed and the issue now is what tests have to be carried out as to whether or not there is any other asbestos on the respective rights of way. That proposition is not accepted by the Smedleys (nor by their expert, whose evidence was compelling in this regard), who maintain that the appropriate order (having regard to the multiple breaches and the fact that this is classified as special waste) is that the whole of the road fill should be removed and the land remediated.

375. Insofar as there is any suggestion that the accredited certifier could determine and deal with the issues in relation to waste and environmental matters arising under the POEO Act, the Smedleys point out that an accredited certifier under Pt 4A of the EPA Act has no responsibilities under the POEO Act and that the grant of development consent is something that only Wyong Council could give as the consent authority. Thus it is said that the involvement of the accredited certifier cannot “plug the regulatory gap” in terms of the licensing requirements under the POEO Act or the environmental/development issues under the EPA Act.

376. My concern is that the decision as to how best to deal with the special waste would best be made by the relevant environmental protection agency that deals with issues such as asbestos contamination. It is not for an accredited certifier (who is called upon to certify compliance with rural fire service requirements) to take on the role of determining matters as to the containment or removal of special waste. Both experts in the present case agreed that asbestos waste should be disposed of in a special (appropriately regulated) landfill site. As to the extent of the testing to be carried out, Counsel for the Pullens suggested that the first step would be for the certifier, being put on notice of the existence of the fragment of asbestos, to request an expert’s advice (from someone such as Mr de Silva) as to what tests should be carried out and that at that time the EPA would be contacted “as a matter of course” by the certifier to notify the EPA of the finding of the asbestos and the tests which should be undertaken to determine whether or not there is any further asbestos anywhere in the field “so they work together”. No such notification has apparently yet been made.

377. I raised the issue of notification to the authorities with the parties in the course of submissions. Counsel for the Smedleys referred to s 60 of the Contaminated Land Management Act (NSW), which provides that in certain cases there is a duty (on the part of both the owners of land and to those placing waste on the land) to notify the environment protection authority if certain specific matters are triggered. He submitted that the state of the evidence and the expert opinions obtained by the parties was such that the duty to notify had not yet been triggered under that legislation. Counsel for the Pullens, as adverted to above, considered that the notification would occur by the certifier after he had formed whatever view he forms as to compliance with the conditions of development consent.

378. There is an obligation on the occupier of premises on which a “pollution incident” occurs such that “material harm to the environment is caused or threatened” to notify the relevant authority (the EPA) (POEO Act, s 148). By reference to the definitions contained in the Dictionary to the Act, it is arguable that Part 5.7 of the Act imposes upon an occupier a reporting obligation in relation to the discovery of a “not trivial” amount of asbestos. Section 159 of the POEO Act sets out the requisite manner and form of the notification See also cl 101 of the Protection of the Environment Operations (General) Regulation 2009 (NSW)). The content of the required notification is set out in s 150 of the POEO Act. The meaning of “material harm to the environment” for the purposes of Pt 5.7 is set out in s 147.

379. Whether such an obligation has arisen at the present time may be unlikely, having regard to the submission made by Counsel for the Smedleys in relation to the duty under the Contaminated Land Management Act; and this was not debated (although, as I say, I raised the issue as to notification) in any detail in the course of argument.

380. Nevertheless, I am firmly of the view that if I accede to the urging of the Pullens not to make an order at this stage for the wholesale removal of the roadfill, it should be on the basis that the appropriate authorities are notified so that a determination can be made by those with expertise in the area.

381. I have concerns as to the evidence given by Mr de Silva on the issue of testing. His initial position was that further testing be carried out in the general area where the asbestos fragment was found and he was of the opinion that if no further asbestos was then found it could be assumed that the rest of the road fill could remain. Pressed by Counsel for the Pullens he then suggested that as a matter of prudence the testing could be carried out beyond Right of Way “B”. I am troubled that this does not adequately address the serious risk posed by the presence of asbestos (albeit a small fragment of asbestos) on a site such as this (as identified by Dr Martens).

382. It may well be that the expense of extensive further testing would be such that the most sensible outcome at this stage (and one that the Pullens might find more palalable) would indeed be for the removal of the entirety of the road fill and proper remediation of the rights of way. And I am conscious that there were multiple breaches of the environmental protection legislation which cannot be condoned. However, at this stage, there having been no notification to the relevant authorities, I consider that the appropriate relief to be granted is to make the declarations sought as to the relevant breaches and to direct that the authorities be notified and that the Pullens comply (at their own expense) with whatever regime the EPA advises should be put in place to deal with the issue of asbestos contamination on the land.

383. If the road fill is removed, and the land is remediated (at the Pullens’ cost) to the condition it was in before the road works, an issue may then arise as to whether further works are necessary to render the surface a trafficable surface to an “all weather” access standard (given my finding that on the balance of probabilities it was not to that standard before the road works). The Smedleys would be required under the terms of the easement to contribute to half the cost of any such further works. It strikes me that the sensible course would be for the parties to liaise once the position of the EPA in relation to the contaminated road fill is known, to avoid unnecessary costs of remediation of the rights of way to their former condition only for there then to be works required to render the surface a trafficable surface of an all-weather standard. Whether the relationship between the neighbours is such that a sensible approach will be taken in that regard is a matter about which I will not speculate.

384. The Smedleys submitted that, to the extent that the orders sought for rectification of the damage to Lot 20 and 21 and the right of way were not granted or were limited in their scope, damages should be awarded to them (for trespass to land) with the assessment of the amount depending on the scope of the restorative orders. (They accepted that they would not be entitled to damages if the Court were to order that the Pullens fully repair and remediate the right of way at their cost, other than in relation to the claim relating to the damages to the boulders.) In these circumstances the issues as to damages for trespass remains a live issue and there may need to be a further hearing in due course to address those issues.

Final observations

385. The present dispute has all the hallmarks of an unfortunate neighbourhood dispute in which the principal protagonists appear to have adopted entrenched positions and do not appear able or willing to approach issues in an objective fashion, which is regrettable when there appears to be scope for compromise on at least some of the issues in dispute.

386. So, for example, I would have hoped that the issue as to the difficulty Mrs Pullen says she has with the opening of G1 would surely have been able to be addressed co-operatively by the parties exploring different latch mechanisms (whether by reverting to the wood slider that was formerly there or otherwise); as also complaint as to the opening and closing of G2-4. I accept that there might well be costs issues involved, but those would also seem amenable to resolution in a cooperative fashion, particularly to the extent that any problems with the swinging mechanism of G3 or G4 (such as the apparent need from the video footage for someone opening G3 to lift and drag the gate across the road surface) are referrable to the way in which the road was resurfaced by the Pullens’ contractors.

387. Similarly, the complaints made as to the obstruction to vision caused by the presence of the metal shipping containers could surely have been amenable to a sensible solution, particularly when Robert Smedley accepts that there would probably be other places where the containers could be located.

388. More difficult, I accept, are the concerns arising from Mrs Pullen’s fear of cattle but they might have been able to be accommodated to an extent (or at least ameliorated) if the Pullens had an understanding as to what the usual or likely rotation programme would be for the movement of cattle from paddock to paddock (though I am not suggesting here that there would be any obligation on the Smedleys to obtain the Pullens’ consent to such a rotation programme).

389. The situation with the gates appears to have been exacerbated by Mr Pullen’s stance in persisting to leave open gates along the right of way notwithstanding his understanding that the gates serve a purpose in the management of cattle on the property and as to the Smedleys’ concerns in that regard. Had there been a measure of co-operation between the neighbours it might well have been the case that a regime could have been agreed whereby, if the cattle were not in particular paddocks from which the right of way could be accessed then one or more of the gates could be left open but that if the gates are left closed then the Pullens (other than in exceptional circumstances) would agree to keep them closed after passing through them.

390. Concerns as to the deterioration to the road surface following the Pullens’ road works might also have been able to be accommodated (perhaps by the appointment of an independent expert to advise as to what was necessary to rectify the position) and, similarly, there is no reason to think that some suitable arrangement as to replacement of the damaged boulders could not have been reached.

391. What no doubt might have been the most difficult issue would be how to accommodate the concerns held by the Smedleys and their expert (which I share as to the risks posed by the discovery of a fragment of asbestos near their driveway on the right of way, in view of the starkly different way in which the respective experts have suggested that issue be resolved. That said, I would have expected that the Pullens would share the concerns as to the health risks posed by the discovery of asbestos on the right of way (over which they anticipate their children may ride bicycles or horses), particularly given the concerns expressed by them as to other potential safety risks (such as their stated concerns as to the implications if there is an emergency for the additional time taken to open and close gates and the concerns as to the presence of cattle on the rights of way).

392. However, despite my encouragement (during the course and at the close of the hearing) that the parties seek to explore possible acceptable compromises, that has either not occurred or has not borne fruit; and perhaps that is not surprising given that others before me have expressed similar forlorn hope for sensible compromise by neighbours (see for example the comments of Napier J in Gohl v Hender).

Orders

393. For the reasons set out above, I make the following orders:

In the easement proceeding (2016/00140145)

1. Order the defendants to remove the Metal Shipping Containers off the right of way referred to in these reasons as Right of Way “B” (being the right of way on Lot 21 DP 1163020 (Lot 21) indicated on that deposited plan and created by the s 88B instrument registered on 5 April 2011 (Right of Way “B”).

2. Declare that the conduct of the plaintiffs/cross-defendants in leaving open any of the three farm gates erected across Right of Way “B”, after opening and passing through those gates in the exercise of their rights under the said s 88B instrument, amounts (in the absence of sufficient reason or excuse to do so on any particular occasion, as explained in these reasons) to an unreasonable use of their rights under the said s 88B instrument and is not permitted thereby.

3. Declare that the conduct of the plaintiffs/cross-defendants in leaving open the second farm gate erected across the right of way referred to in these reasons as Right of Way “A” (being the right of way on Lot 20 DP 1163017 (Lot 20) indicated on that deposited plan and created by the s 88B instrument registered on 5 April 2011 (Right of Way “A”), (referred to in these reasons as G2), after opening and passing through that gate in the exercise of their rights under the said s 88B instrument, amounts (in the absence of sufficient reason or excuse to do so on any particular occasion, as explained in these reasons) to an unreasonable use of their rights under the said s 88B instrument and is not permitted thereby.

4. Note that the Court does not accept a fear of cattle to amount to sufficient reason or excuse to leave any of the said farming gates open after having opened them in the exercise of rights under respective s 88B instruments.

5. Declare that the placement, deposit and spreading by the plaintiffs/cross-defendants of material (the Road Material) in the period August to September 2015 on part of Right of Way “A” and on Right of Way “B”, constitutes a trespass to land by reason of being carried out without the consent of the defendants/cross-claimants and not being within the rights conferred on the plaintiffs/cross-defendants pursuant to either of the respective s 88B instruments creating the respective rights of way.

6. Order that the plaintiffs/cross-defendants notify the local Council and the Environment Protection Authority (EPA) in writing within 7 days as to the discovery of the fragment of asbestos on Right of Way “A” and provide copies to those authorities of the expert reports obtained from Dr Martens and Mr de Silva and tendered in these proceedings; and that the plaintiffs/cross-defendants comply with any direction by the EPA as to the containment or removal of part or all of the Road Material and thereafter remediate the rights of way so far as possible to restore them to their former condition as they existed prior to the placement, deposit and spreading of the Road Material.

1. For the avoidance of doubt if the EPA determines that the Road Material cannot be appropriately contained and should be removed, or otherwise is not able or not prepared to determine within a reasonable time a regime for the containment or removal of the Road Material, the defendants/cross-claimants have liberty to apply on reasonable notice for the making of orders for the removal by the plaintiff/cross-defendants of the entirety of the Road Material and remediation of the land at their cost.

2. Declare that the damage caused by the plaintiffs/cross-defendants to several large boulders on and in the vicinity of the respective rights of way in the course of road works carried out by them in or about August- September 2015 constitutes a trespass to land, by reason of it not being carried out with the consent of the defendants/cross-claimants and not within the rights conferred on the plaintiffs/cross-defendants pursuant to either of the respective rights of way.

3. Order that the damaged boulders each be replaced by the plaintiffs/cross-defendants at their cost with boulders of comparable size and appearance brought from off the plaintiffs/cross-claimants’ property.

4. Reserve question of damages for trespass pending compliance with orders 6, 7 (if applicable) and 9 above.

5. Otherwise dismiss the plaintiffs’ claims in the proceedings.

6. Reserve the question of costs.

7. Direct that written submissions as to costs be served within 7 days with the intent that costs will be determined on the papers.

8. Liberty to the parties to apply on 3 business days’ notice for any amendment or variation of these orders and for directions in relation to the assessment of damages.

In the transferred proceeding (2016/00366908)

1. Declare that the respondents have carried out work (Work) on land being Lot 20 DP 1163017 and Lot 21 DP 1163020 (the Land) being development for the purposes of a private road, or alternatively for the purposes of a dwelling house, by constructing a road surface using imported fill being the access road to their dwelling house on adjoining land within their rights of way over the Land but without development consent, when development consent was required for the carrying out of work for either purpose within the E3 Environmental Management zone applying to the land under the Wyong Local Environmental Plan 2013, contrary to 76A Environmental Planning and Assessment Act1979 (NSW).

2. Further declare that the respondents by carrying out the Work have carried out prohibited development on the Land being development for the purposes of a waste facility, which is an innominate prohibited use under the Wyong Local Environmental Plan 2013, contrary to 76A Environmental Planning and Assessment Act1979 (NSW).

3. Declare that the respondents have used the Land as a “waste facility” contrary to s 144 of the Protection of the Environment Operations Act1997 (NSW) by placing, depositing and spreading on the Land material within the definition of “waste” in that Act being imported fill being building waste and crushed concrete waste derived from concrete, brick, tile and pipe and trace pieces of steel, alloy and timber (the Road Material).

4. Note and confirm the orders made in the associated (easement) proceeding (2016/00140145) in relation to the notification to the local council and Environment Protection Authority (EPA) as to the discovery of asbestos and for compliance with any direction by the EPA as to the containment or removal or part or all of the Road Material.

5. Reserve the question of costs.

6. Direct that written submissions as to costs be served within 7 days with the intent that costs will be determined on the papers.

7. Liberty to the parties to apply on 3 business days’ notice for any amendment or variation of these orders and for directions in relation to any further relief to be granted following compliance with the orders made in the associated (easement) proceeding.

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Decision last updated: 13 December 2017