Simpson v Bagnall - [2000] NSWSC 930

CITATION: Simpson & Anor v Bagnall & Anor [2000] NSWSC 930

CURRENT JURISDICTION: Equity Division

FILE NUMBER(S): SC 1815 of 2000

HEARING DATE(S): 17, 18 and 19 July 2000
Final submissions 28 August 2000

JUDGMENT DATE: 5 October 2000

PARTIES :

James David Simpson & Lynne Elizabeth Simpson (Plaintiffs)
Stephen David Bagnall & Loris Lorraine Stevenson (Defendants)

JUDGMENT OF: Bergin J

COUNSEL : Mr C Hodgson (Plaintiffs)
Mr L Gyles (Defendants)

SOLICITORS: E.C. Abernethy (Plaintiffs)
Graham Barrett & Associates (Defendants)

CATCHWORDS: INTERPRETATION - Whether s. 4(2) of the Inclosed Lands Protection Act (1901) amounts to an entitlement to a declaration independent of a prosecution - Purpose of Act - Reasons for the 1939 Amendments - No entitlement expressly provided for - No necessary implication - Application of Act limited to prosecutions for trespass. REAL PROPERTY - Easements - Application pursuant to s 88K of the Conveyancing Act 1919 (NSW) - Whether imposition of easement is reasonably necessary - Composite nature of test - Plaintiffs unable to establish that the easement sought would facilitate access to their property - Plaintiffs have not made all reasonable attempts to obtain an easement to the same effect - Application under Roads Act 1993 for opening of public road over identical portion of land - Ministerial approval for opening subject to compensation agreed or determined by Land & Environment Court - Test of reasonable necessity not satisfied.

LEGISLATION CITED: Conveyancing Act 1919 (NSW)
Inclosed Lands Protection Act 1901 (NSW)
Roads Act 1993 (NSW)

CASES CITED: Ex Parte Baldwin (1908) 8 SR (NSW) 19
Barns & Campbell v Edwards & Linden (1993) 68 A Crim R 140
Durack v De Winton (1998) 9 BPR 16,403
In the matter of an application by JJ Kindervater (Derrington J, unreported, QSC, 2 August 1995)
Simpson v Stack & Grzelczak (Hulme J, unreported NSWSC, 15 October 1996)
Treweeke v Benson (1936) 53 WN (NSW) 151
Wik Peoples v The State of Queensland & Ors (1996) 141 ALR 129
117 York Street Pty Limited v Proprietors of Strata Plan No. 16123 (1998) 43 NSWLR 504

DECISION: Application for declaration refused. Application for imposition of easement refused.

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
BERGIN J
DATE: 5 OCTOBER 2000
1815/00 - JAMES DAVID SIMPSON & LYNNE ELIZABETH SIMPSON v STEPHEN DAVID BAGNALL & LORIS LORRAINE STEVENSON
JUDGMENT
1 This litigation arises out of an acrimonious and sometimes violent dispute in the otherwise serene and beautiful Taylors Arm Valley (the Valley) in the Parish of Medlow and the County of Raleigh in an area known as Burrapine near Macksville on the North Coast of New South Wales. The dispute arises out of problems the plaintiffs have been experiencing in gaining access to their property which is landlocked from the public road, Taylors Arm Road.
2 The proceedings were expedited and heard in Coffs Harbour on 17, 18 and 19 July 2000. A view of the area was conducted on the afternoon of 17 July 2000. Some further documentary…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Simpson v Bagnall

Details

AGLC: Simpson v Bagnall [2000] NSWSC 930
Case: [2000] NSWSC 930
Decision Date: 5 October 2000

CaseChat Overview and Summary

In Simpson v Bagnall, the plaintiffs sought a declaration that they were entitled to a right of way over the defendants' property and an easement of way, while the defendants resisted the claims and sought to dismiss the proceedings. The case was heard in the Supreme Court of New South Wales. The plaintiffs argued that section 4(2) of the Inclosed Lands Protection Act (1901) entitled them to a declaration independent of a prosecution. They contended that the purpose of the Act was to protect inclosed lands and that the 1939 Amendments suggested an entitlement to a declaration. The defendants argued that no entitlement was expressly provided for and that there was no necessary implication.

The court examined whether section 4(2) of the Inclosed Lands Protection Act entitled the plaintiffs to a declaration independent of a prosecution. The court concluded that the purpose of the Act was to protect inclosed lands and that the 1939 Amendments did not suggest an entitlement to a declaration. The court found that the application of the Act was limited to prosecutions for trespass. The court also considered the plaintiffs' application for an easement under section 88K of the Conveyancing Act 1919 (NSW). The court found that the plaintiffs had not established that the easement sought would facilitate access to their property and that they had not made all reasonable attempts to obtain an easement to the same effect. The court also found that the plaintiffs had applied for the opening of a public road over the identical portion of land under the Roads Act 1993 and that ministerial approval for the opening was subject to compensation agreed or determined by the Land & Environment Court. The court concluded that the test of reasonable necessity was not satisfied.

The court dismissed the plaintiffs' claims and ordered that they pay the defendants' costs of the proceedings. The court found that the plaintiffs were not entitled to a declaration under section 4(2) of the Inclosed Lands Protection Act and that they had not established the necessary criteria for an easement under section 88K of the Conveyancing Act 1919 (NSW). The court also found that the plaintiffs had not satisfied the test of reasonable necessity for the opening of a public road under the Roads Act 1993. The court's decision provides guidance on the interpretation of the Inclosed Lands Protection Act and the criteria for granting an easement under the Conveyancing Act 1919 (NSW).

Orders