Russell v Pennings

Case [2001] WASCA 115

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION:   RUSSELL & ORS -v- PENNINGS [2001] WASCA 115

CORAM:   PARKER J

HEARD:   4 DECEMBER 2001

DELIVERED          :   12 APRIL 2001

FILE NO/S:   SJA 1146 of 2000

BETWEEN:   CLAUDE RUSSELL

BARRY ARTHUR OWENS
TERRENCE JAMES COURT
SHELLBAY HOLDINGS PTY LTD
Applicants

AND

PETER ADRIAN JOSEPH PENNINGS
Respondent

Catchwords:

Environmental law - Offence of wilfully taking flora - Statutory defence if taking unavoidable incident of statutory obligation - Requirement to undertake environmental review - Whether "statutory obligation" - Clearing access track to enable review - Whether unavoidable incident - Wildlife Conservation Act 1950 (WA), s 23B

Environmental law - Offence of wilfully taking flora - Licensed surveyor - Whether "authorised" survey - Extent to which Act and Regulations requires or authorises clearing of flora - Licensed Surveyors Act 1909 (WA) s 16 - Licensed Surveyors (Guidance of Surveyors) Regulations 1961 (WA) reg 52

Highways - Statutory dedication - Right of passage of public at large - Whether extends to clearing a track with earthmoving machinery

Highways - Easement of necessity - Over dedicated road - Right of passage of public at large negates necessity

Real property - Crown land - Statutory definition - Crown land subject to concession defined as "private" land - Whether dedication of road a concession - Wildlife Conservation Act 1950 (WA) s 6(1), s 23B

Legislation:

Wildlife Conservation Act 1950 (WA), s 23B, s 6(1)

Licensed Surveyors Act 1909 (WA), s 16

Licensed Surveyors (Guidance to Surveyors) Regulations 1961 (WA), reg 52

Result:

Appeals dismissed

Representation:

Counsel:

Applicants:     Mr D W McLeod

Respondent:     Mr B P King

Solicitors:

Applicants:     McLeod & Co

Respondent:     State Crown Solicitor

Case(s) referred to in judgment(s):

Bass Coast Shire Council v King & Ors (1996) 92 LGERA 129

Bayley v Great Western Railway Co (1884) 26 Ch D 434

Louis v Judge Ogden (1984) 153 CLR 682

Manjong v Drammeh (1990) 61 P&CR 194

McLernon v Connor (1907) 9 WALR 141

MRA Engineering Ltd v Trimster Co Ltd (1988) 56 P&CR 1

Nickells v Melbourne Corporation (1938) 59 CLR 219

Nickerson v Barraclough [1987] 1 Ch 426

North Sydney Printing Pty Ltd v Sabemo Investment Corporation Pty Ltd (1971) 2 NSWLR 150

Palos Verdes Estates Pty Ltd v Carbon (1992) 6 WAR 223

Case(s) also cited:

Anderson v Basile [1979] WAR 53

Barry v Hasseldine [1952] 1 Ch 835

Bell v Stewart (1920) 28 CLR 419

Bolton v Bolton (1879) 1 Ch D 968

Ianella v French (1968) 119 CLR 84

Permanent Trustee Co of New South Wales Ltd v Council of the Municipality of Campbelltown (1960) 105 CLR 401

Randwick Municipal Council v Rutledge (1959) 102 CLR 54

Serff v Acton Local Board (1886) 31 Ch D 679

Smith v Burnham (1876) 1 ExD 419

  1. PARKER J: By leave granted by Miller J on 13 September 2000 the four appellants appeal against the decision of Mr S R Malley SM given in the Court of Petty Sessions…

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Russell v Pennings [2001] WASCA 115
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[2001] WASCA 115
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CaseChat Overview and Summary

In the matter of Russell v Pennings, the defendants were charged under the Wildlife Conservation Act 1950 (WA) with wilfully taking flora. The defendants argued that their actions were an unavoidable incident of a statutory obligation, specifically the requirement to undertake an environmental review. The case involved the clearing of a track to enable the review, which led to the taking of flora. The defendants also claimed that their actions were authorised under the Licensed Surveyors Act 1909 (WA) and the Licensed Surveyors (Guidance of Surveyors) Regulations 1961 (WA). Additionally, they argued that their actions were necessary to provide a right of passage over Crown land subject to a concession, which they claimed was equivalent to private land.

The primary legal issue before the court was whether the defendants' actions were an unavoidable incident of a statutory obligation. The court had to determine if the requirement to undertake an environmental review constituted a "statutory obligation" under the Wildlife Conservation Act 1950 (WA), and if the clearing of the track was an unavoidable incident of that obligation. The court also had to decide whether the defendants were authorised to undertake the clearing under the Licensed Surveyors Act 1909 (WA) and the Licensed Surveyors (Guidance of Surveyors) Regulations 1961 (WA). Furthermore, the court considered whether the defendants' actions were necessary to provide a right of passage over Crown land that had been dedicated as a concession.

The court held that the defendants' actions were not an unavoidable incident of a statutory obligation. The court found that the requirement to undertake an environmental review did not constitute a "statutory obligation" under the Wildlife Conservation Act 1950 (WA), and that the clearing of the track was not an unavoidable incident of that obligation. The court also found that the defendants were not authorised to undertake the clearing under the Licensed Surveyors Act 1909 (WA) and the Licensed Surveyors (Guidance of Surveyors) Regulations 1961 (WA). Finally, the court held that the defendants' actions were not necessary to provide a right of passage over Crown land that had been dedicated as a concession. The court noted that an easement of necessity would not arise where there was already a dedicated road, as in this case.

The court found the defendants guilty of the offences under the Wildlife Conservation Act 1950 (WA). The defendants were fined and ordered to pay costs.

Orders

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Background

Background to the litigation

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Ratio Decidendi

Legal Principle Established

A number of difficulties also stand in the way of acceptance of this line of submission. It may be accepted that an easement of necessity will arise where, on the sale by an owner of part of the owner's land, either the vendor or purchaser is left without any means of access to his or her property; see Bradbrook & Neave, Easements and Restrictive Covenants in Australia (2nd ed) at 77 ff, cf par 4.9. It is now accepted that the foundation for an easement of necessity is the actual or presumed intention of the parties; North Sydney Printing Pty Ltd v Sabemo Investment Corporation Pty Ltd (1971) 2 NSWLR 150; Nickerson v Barraclough [1987] 1 Ch 426. Before an easement of necessity is implied the view prevails that the right claimed must be essential, not merely a matter of convenience; Bayley v Great Western Railway Co (1884) 26 Ch D 434, 453, Manjong v Drammeh (1990) 61 P&CR 194. In MRA Engineering Ltd v Trimster Co Ltd (1988) 56 P&CR 1 it was held by the Court of Appeal that an easement of necessity will only be implied where the property could not be used at all, and not merely where an easement was necessary for the reasonable enjoyment of the property. That decision was in a context where there was access by a footpath but not for vehicles. It was held that lack of access by vehicle was not sufficient to give rise to an easement of necessity even though it might be difficult and inconvenient if access was limited to access by a footpath. In the present case it is enough to observe that Doggerup Road was a dedicated road which ran to the boundary of Location 7965 to negative the contention that an easement is to be implied as a matter of necessity. There was no necessity because a dedicated road ran to the boundary of the land. No doubt it may have been contemplated at the time of the Crown grant of Location 7965 that access would have been by way of Doggerup Road. Such access, however, would be enjoyed by virtue of the right of the grantee in common with all other persons to pass and repass on Doggerup Road. The existence of that right, on the evidence in this case, conclusively negates an easement of necessity. Of course, at the time of the original Crown grant Doggerup Road may not have been passable for traffic as it was not a made road. That does not assist the appellants, however, because the fact that Doggerup Road may have been impassable at the time of the Crown grant in 1948 would tell against the implication as a matter of necessity of a right of access along Doggerup Road rather than along some accessible route over the Crown land that then surrounded Location 7965. In this respect I would note that the dedication of the surrounding Crown land as a national park did not occur until more recent years. There is also the decision in McLernon v Connor (1907) 9 WALR 141 where an easement of necessity was claimed across the vendor's land on the basis that a road shown on a plan was impassable because it was fenced off and because trees or fallen trees prevented access. As was said by Burnside J at 147-148:"But a way of necessity does not mean a passage, it merely means a right to get to there, and if a person can get to his land without passing over the land of his vendor no way of necessity exists or can arise … That being so, I do not think the question of a way of necessity arises here. The plan from which the land was bought shews a road, so there is a way, and there is no legal obstruction in the way of his using it. Once the physical obstructions were removed there would be a beautiful road such as he thought he had in the first instance."