Sodhi v Stanes

[2007] NSWSC 177

CITATION:	Sodhi v Stanes [2007] NSWSC 177
HEARING DATE(S):	27 & 28 February, 1 & 2 March 2007
JUDGMENT DATE :	13 March 2007
JURISDICTION:	Equity
JUDGMENT OF:	Austin J
DECISION:	Summons dismissed
CATCHWORDS:	CONTRACT - agreement to provide the plaintiff with access over the defendants' land - whether parties agreed upon an easement or a contractual licence EASEMENTS - imposition of easement under s 88K - whether easement reasonably necessary for effective use or development of dominant tenement - no chance that Council would approve the construction of an access road within site of proposed easement - whether the plaintiff made reasonable attempts to obtain the easement or an easement having the same effect - failure adequately to explore alternative access to plaintiff's land
LEGISLATION CITED:	Conveyancing Act 1919 (NSW) s 88K
CASES CITED:	Coles Myer NSW Ltd v Dymocks Book Arcade Ltd (1996) 7 BPR 14,638; 33 Durack v De Winton (1998) 9 BPR 97,721 Katakouzinos v Roufir (1999) 9 BPR 97,796 Khattar v Wiese (2005) 12 BPR 23,235 McKeand v Thomas [2006] NSWSC 1028 Property Partnerships Pacific Pty Ltd v Owners of Strata Plan 58482 [2006] NSWLEC 709 Riches v Hogben [1986] 1Qd R 315 Simpson v Bagnall [2000] NSWSC 930 Tregoyd Gardens Pty Ltd v Jervis (1997) 8 BPR 97,688 Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387 Watson v Foxman (2000) 49 NSWLR 315 Wengarin Pty Ltd v Byron Shire Council (1999) 9 BPR 97,768
PARTIES:	Sukhver Singh Sodhi (D) Malcolm John Stanes (D1) Michelle Therese Stanes (D2)
FILE NUMBER(S):	SC 1656/06
COUNSEL:	I M Khan with C M Wilson (P) A F Fernon (D)
SOLICITORS:	G L Abbott & Co (P) Crane Butcher McKinnon (D)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

AUSTIN J

TUESDAY 13 MARCH 2007

1656/06 SUKHVER SINGH SODHI V MALCOLM JOHN STANES & ANOR

JUDGMENT (Revised for typographical and minor errors 13 March 2007)

1 HIS HONOUR: By a summons filed on 1 March 2006, the plaintiff, Mr Sodhi, seeks against Mr and Mrs Stanes relief of two kinds. First, he seeks orders for specific performance of an agreement between himself and the defendants, Mr and Mrs Stanes, for the grant of a right of way. Secondly, he seeks in the alternative an order under s 88K(1) of the Conveyancing Act 1919 (NSW) that an easement in the form of a right of carriageway be imposed for his benefit over Mr and Mrs Stanes' land. The summons annexes a diagram, which identifies the site of the right of way that Mr Sodhi seeks to establish.

The issues and contentions

2 At the hearing, Mr Sodhi contended that he made an agreement with Mr and Mrs Stanes that they would grant him an easement over a specified area which veers roughly to the north-west from the site reserved for a road running across Mr and Mrs Stanes' land, so as to bypass some trees and rough terrain in the area designated for the road. He submitted, in the alternative, that Mr and Mrs Staines, by their representations and other conduct, induced him to expect that they would grant him an easement over that area of their land for access to his property, and in reliance upon those representations and that conduct he acted to his detriment by contributing money and work for the construction and concreting of an access road, and consequently they are estopped from denying his entitlement to an easement upon the principles enunciated in such cases as Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387 and Riches v Hogben [1986] 1Qd R 315. The equitable estoppel argument is not directly reflected in the prayers for relief in the summons, but no point was made about this at the hearing. He submitted, in the further alternative, that if (contrary to his contention) he is not entitled to the grant of an easement by virtue of agreement or equitable estoppel, the court should impose an easement over the same area under s 88K.

3 Mr and Mrs Stanes denied that they ever agreed to grant him a right of way or did anything that would give rise to an equitable estoppel; they said that there are substantial safety concerns raised by the proposal for a right of way because of the steep gradient, and possible dangers to them and their family, including their young son who suffers from autism; and that the granting a right of way would interfere with the privacy and amenity of their property. They also contend that there are alternative, preferable routes for a right of way from Mr Sodhi's land to public roads, and that Mr Sodhi has not made all reasonable attempts to obtain an easement over such alternative routes.

4 I shall deal with these matters in the following sequence:

(i) contentions about the general credibility of the witnesses, especially the parties;
(ii) findings of fact about the properties of the parties and the access roads to them;
(iii) findings of fact and determinations about the alleged agreement for the grant of an easement and the alleged estoppel;
(iv) findings of fact and other determinations preliminary to the application of s 88K;
(v) determination of the plaintiff's case under s 88K;
(vi) conclusions.

Credibility of witnesses

5 Mr Sodhi's evidence was inconsistent with the evidence of Mr and Mrs Stanes on important matters. I have not found it possible to adopt any general approach to the credibility of the parties as witnesses, though I was invited to do so. On the contrary, I regard Mr Sodhi and Mr and Mrs Stanes as generally satisfactory and credible witnesses, in terms of the content and presentation of their evidence and their demeanour. However, it is obvious from the evidence and also from the conduct of their respective cases that the parties have considerable intensity of feeling towards one another and a deep determination to succeed in this litigation. Theirs is the evidence of protagonists rather than independent observers, and is therefore subject to the human tendency to recall and describe matters in their most favourable light (cf Watson v Foxman (2000) 49 NSWLR 315, at 318 per McLelland J).

6 That being so, I have endeavoured to resolve conflicts of evidence one by one, where it has been necessary to do so, by placing particular reliance on external evidence (for example, the engineering evidence and the evidence of Frank David Vaughan, who was at the relevant times a field service manager and compliance officer in the Department of Planning based in the Coffs Harbour office) and subject to that, assessing the plausibility of their respective accounts. As it happens, this process has led me to prefer the evidence of Mr and Mrs Stanes to Mr Sodhi's evidence on most issues.

7 The court has been considerably assisted by the engineering evidence of Robert de Groot and Lewis Ford, presented orally and in writing in a very professional manner. For the most part, they agree with one another. The parties also tendered valuation evidence but in view of the conclusion I have reached, it is unnecessary for me to deal with it.

Lot 158

8 Mr Sodhi is the owner of Lot 158 in DP 752853, land having an area of 3.8 ha at Sandy Beach near Coffs Harbour in New South Wales, subject to a mortgage to National Australia Bank Ltd. From the southern boundary, which is at the top of an east/west ridge, the land slopes down quite steeply to the north, the southern boundary being about 100 m above sea level and the northern boundary being about 50 m above sea level. At the top of the ridge there are breathtaking views, especially in the southeastern corner, including a view towards the ocean, which is roughly one kilometre away. At present there is no residence on the land.

9 While I am not in a position to make a finding about the value of Lot 158, there is some evidence to suggest that if development approval were granted for the construction of a dwelling in the southeastern corner of the property, the value could be very high. According to Mr Stanes, Mr Sodhi claimed in 2003 that he could sell the property for $1 million (see also Mr Sodhi's evidence in cross-examination to similar effect, T 83); and there is evidence that Mr Sodhi placed the property on the market in September 2003 for $900,000, although it was not sold. However, the Coffs Harbour City Council is likely to require an access road suitable for two-wheel-drive vehicles as a prerequisite to or condition of the granting of development approval for the construction of a dwelling.

10 Mr Sodhi uses the land as a banana plantation. There is a structure located near the northern boundary, referred to in evidence as "the banana shed", which is used for sorting and packing bananas. There are several unsealed tracks through the banana trees, running from the banana shed roughly in a north/south direction. There is an unsealed track running approximately along the southern boundary, which is the northern boundary of Mr and Mrs Stanes' land, partly on Mr Sodhi's land and partly on Mr and Mrs Stanes' land. Bananas are cut every fortnight and usually three loads are transported out of the property each fortnight by the use of a one-tonne four-wheel-drive tray-back truck.

Lot 234

11 Mr and Mrs Stanes are the owners of land with an area of 1.275 ha adjoining Lot 158 to the south, namely Lot 234 in DP 752853, subject to a mortgage to Permanent Custodians Ltd. The northern boundary runs approximately along the ridge to which I have referred. The land slopes steeply away from the northern to the southern boundary. A house has been erected near the top of the ridge, in the northwestern corner of the property, enjoying much the same views as are available along the southern boundary of Mr Sodhi's land. Mr Stanes has described the house as a "pole home", that is a single storey home constructed on top of 3 m high steel poles. The edge of the house is approximately 7 m from the boundary with Lot 158. An area around the house has been cleared. The remainder of Lot 234 is natural bush, heavily timbered.

The Road 20.115 Wide and the Reserve Road

12 Both Lot 158 and Lot 234 are landlocked, except for the reservation of a road marked on plans as "Road 20.115 Wide Res Road". The southern end of this designated roadsite is at the intersection of Morgans Road and Graham Drive, which are public roads. The designated roadsite passes over intervening properties for about 500 m, and up a hill to Lot 234. The gradient in the section just south of Lot 234 is 32%. It then passes over Lot 234, ending at the northern boundary of Lot 234, which is the southern boundary of Lot 158. It bisects Lot 234 with roughly two-thirds of the lot to its west and about one-third to its east. The average gradient of the designated roadsite from the southern to the northern boundary of Lot 234 is 38%.

13 The designated roadsite up to the southern boundary of Lot 234 is a Crown Public Road under the control of Coffs Harbour City Council. A single-lane road approximately 3 m wide has been constructed, apparently within the designated roadsite area, from Morgans Road/Graham Drive in the south up to a point just inside Lot 234 in the north. As I have mentioned, part of the road is steep. There are no passing bays. Building the road involved some excavation and battering and part of the road (including the top section extending into Lot 234) has been concreted.

14 Where it passes through Lot 234, the designated roadsite is a Crown Road under the control of the Department of Lands. Except for a small portion near the southern boundary of Lot 234, the road as constructed does not continue along the designated roadsite once it enters Lot 234. There is no road within the designated roadsite in Lot 234 except for the part of the road at the southern end of the property.

15 Following the terminology adopted at the hearing, I shall identify the designated roadsite to the south of Lot 234, and the road that has been constructed on it, as "the Road 20.115 Wide". I shall identify the designated roadsite on Lot 234 as "the Reserve Road”.

16 The Proposed Right of Way (the Common Road and the Deviation) and the Driveway

17 After traversing the boundary into Lot 234, the road veers to the north-west, providing a single-lane access road about 100 m long to Mr and Mrs Stanes' dwelling, with one passing bay towards the bottom end. The average gradient is 21% up to a fork in the road. At the fork, one segment continues on to the house at a very gentle gradient of perhaps only 5%, while the other segment runs steeply up the hill to Lot 158, reaching Lot 158 at a point roughly midway along the boundary between the two properties. This "deviation" from the roadway to Mr and Mrs Stanes' house is a little over 20 m long and has an average gradient of about 37.5%. The evidence indicates that it is not used at all by Mr and Mrs Stanes, but only by Mr Sodhi. Except for a small portion at its southern end, none of the road on Lot 234 is concreted, but shale gravel has been laid along the road and both arms of the fork.

18 Following, once again, the terminology adopted at the hearing, I shall describe the road over Lot 234 from the southern boundary up to the fork in the road as "the Common Road", the continuation of the road from the fork in the road to the house as "the Driveway", and the road from the fork in the road to Lot 158 as "the Deviation". Mr Sodhi seeks an easement (which I shall refer to as "the Proposed Right of Way") over an area encompassing, but somewhat wider than, the Common Road and the Deviation, with a total length of about 66 m on the eastern side and about 81 m on the western side.

Lot 3

19 The property to the north, west and east of Lot 158 is Lot 3 in DP 576278, a much larger parcel of land. There is an access road from the house on Lot 3 to Unwins Road, which leads to the Pacific Highway. It is now a bitumen sealed road, since the recent construction of the house on Lot 3. An unsealed road runs northeasterly from Mr Sodhi's banana shed across a banana plantation on Lot 3 to the bitumen road, joining the bitumen road roughly half way between the house and Unwins Road. The road from the banana shed to Unwins Road is suitable for two-wheel-drive vehicles. The total distance from the banana shed to Unwins Road over the unsealed road and the bitumen road is about 400 m, according to the expert evidence (which I accept in preference to Mr Sodhi's evidence on this point) and the gradient fluctuates between 0% and approximately 20%. Lot 3 was owned by Henry Ford until he sold it in about April 2001 to the Benning family, who subsequently built the house.

Lot 2

20 There are two properties abutting Lot 158 to the east, and to the south of Lot 3, namely Lot 1 and 2 in DP 1033452 ("the Onley Land" and "the Peters Land" respectively). There is a house on each of these two properties, with private access to a public road in each case.

21 Evidence was given about the Peters Land but not the Onley Land. The Peters' house is in the northwestern corner of Lot 2, adjacent to the southeastern corner of Lot 158. The house is quite close to the eastern and northern boundaries of Lot 2. There is a semicircular driveway beginning close to the western side of the house, running around the house to the north and east and then curving down the hill to the south, eventually coming out at Graham Drive. The road is a shale road with a gradient varying between 0% (near Graham Drive) up to approximately 25% (near Lot 158).

Access arrangements at the time when Mr Mrs Stanes purchased or 234

22 While the Ford family owned Lot 3 (that is, up to April 2001), Mr Ford allowed Mr Sodhi to have access to Lot 158 over the road running from Unwins Road. Indeed, Mr Sodhi said he, and his father before him, had been accessing Lot 158 over Lot 3 for many years. The access road along the designated Road 20.115 Wide stopped at Lot 234 and did not provide access to Lot 158, although the there was a designated roadsite over Lot 234 marked as the Reserve Road.

23 Mr and Mrs Stanes acquired Lot 234, then vacant land, on 2 May 2002. At that time Mr Sodhi continued to have access to his property over Lot 3 rather than Lot 234, notwithstanding the sale of Lot 3 by the Ford family to the Benning family

24 The Benning family bought Lot 234 at about the same time as they bought Lot 3. They sold Lot 234 to Mr and Mrs Stanes, but before they did so they graded a dirt track from the southern boundary up towards the northwestern corner, an area that had been cleared. This was the site chosen by Mr and Mrs Stanes for their house.

Mr Sodhi's belief about access over Lot 3

25 Mr Sodhi gave affidavit evidence that Mr Ford "had always said to [Mr Sodhi] that when he sold the land he would write in the title that [Mr Sodhi] had a legal access". He gave similar evidence in cross-examination (at T 41). It seems to me more likely than not that there was at least one conversation between Mr Ford and Mr Sodhi about access, but it is unnecessary for me to decide whether Mr Ford promised an easement, and I should not do so in the present case in the absence of further evidence. However, it is appropriate to find, and I do find, that as a result of a representation or representations by Mr Ford, Mr Sodhi believed for some time that he would be given a right of access over Lot 3.

26 That belief commenced at some time prior to the sale of Lot 3 to the Benning family. In his affidavit made on 16 February 2006, Mr Sodhi said that Henry Ford sold Lot 3 to the Benning family at about the end of 2002. In his affidavit made on 18 August 2006 he said the sale was in about February 2002. However a copy of a memorandum of transfer from Mary Elizabeth Ford (Mr Ford's wife, according to Mr Sodhi) to Moti Singh Benning Pty Ltd, which I infer to be a Benning family company, was tendered as a transfer relating to Lot 3 and is dated 11 April 2001.

27 My conclusion is that Mr Sodhi's recollection is faulty and that in fact the sale of Lot 3 to the Benning family took place no later than April 2001. Consequently Mr Ford's representation or representations to him about access must have been made, and Mr Sodhi's belief that Mr Ford would grant him a right of access must have been formed, no later than that time.

28 When did Mr Sodhi cease to believe that Mr Ford would grant him a right of access? In his affidavit made on 18 August 2006 Mr Sodhi said that he became aware that he did not have legal access through Lot 3 in about February 2002, and in cross-examination he asserted categorically that he knew he had no rights in April 2002 (T 43.45; T 58). He said in the affidavit that he went to see Mr Ford when he heard about the sale of Lot 3, and Mr Ford said to him that he had "written it in the contract only", although in cross-examination he said there was nothing in the contract (T 41.32). Mr Sodhi said in the affidavit that he obtained legal advice from a solicitor who told him he had no legal right of access through Lot 3. He claimed that he only became involved in making the road with Mr Stanes once he knew that he did not have legal access through Lot 3.

29 I do not accept this evidence so far as asserts that it was in February 2002 that Mr Sodhi became aware that he had no legal right of access over Lot 3, for several reasons. First, it was put to Mr Sodhi in cross-examination that he had no concerns at the time of his discussions with Mr Stanes in April 2002 about his access over Lot 3 and he agreed, saying he was still using Lot 3 because the Bennings had not stopped him (T 61.47-T 62.2). Secondly, in cross examination Mr Sodhi was challenged to explain why he did not approach the Benning family for a right of access over Lot 3, and he explained that he obtained legal advice to the effect that he had no right of access over Lot 3 only after Mr Stanes had approached him to share equally the cost of making a road over Lot 234 (at T 24.44). Both parties agree that there first discussion about sharing the cost of a road was in April 2002.

30 Thirdly, Mr Stanes gave evidence that in their discussions in April 2002 and on subsequent occasions, Mr Sodhi told him that he had legal access to his land over Lot 3 granted by Mr Ford, although it had not been "sorted" (see, for example, Mr Stanes' affidavit of 2 August 2006, para 37). Mr Sodhi dealt with this evidence in an unconvincing way. In para 22 of his affidavit made on 18 August 2006 he purported to refer to para 36 of Mr Stanes' affidavit of 2 August 2006 and to agree that the conversation attributed to him was substantially correct, while insisting that he also said that he had been to a solicitor and found out that he did not have legal access over Lot 3. Para 36 of Mr Stanes' affidavit is a short statement about Mr Stanes' belief concerning cost sharing, and does not purport to give an account any conversation. Clearly Mr Sodhi's reference to it is incorrect. It seems likely that he intended to refer to the conversation of which Mr Stanes gives evidence in para 37. But since Mr Stanes' account of the conversation begins with an assertion by Mr Sodhi that he had legal access over Lot 3, it is very odd for Mr Sodhi to respond by saying that the conversation attributed to him was substantially correct but that he also said he had been to a solicitor and found out he did not have legal access - these propositions are contradictory. This confusion in Mr Sodhi's affidavit evidence was not cleared up during cross-examination (at T 42) when Mr Sodhi said he did not know what he was referring to in para 22 of his affidavit.

31 These matters lead me to conclude that any legal advice received by Mr Sodhi that he had no legal right of access over Lot 3 was not obtained until after the initial discussion between Mr Sodhi and Mr Stanes in April 2002. Since Mr Stanes gave plausible evidence that Mr Sodhi said similar things in their subsequent meetings, and Mr Vaughan does not depose that Mr Sodhi made any reference to lack of legal access over Lot 3 although that matter would have been material to his evidence, I infer that any such legal advice was not obtained until after all of the relevant discussions in April 2002 had taken place.

Meeting between the parties in April 2002

32 The parties gave consistent evidence that Mr and Mrs Stanes and Mr Sodhi had a conversation on the site at Lot 234 in about April 2002, on the subject of an access road. At that time, as I have said, a track towards the proposed site of the Stanes' house had been graded but not concreted or gravelled. It was obvious that something would need to be done to improve the road access in order to permit the building of a house.

33 Mr Sodhi said he was approached by Mr Stanes, whereas Mr and Mrs Stanes said they were approached by Mr Sodhi. It is unnecessary to resolve the conflict of evidence on that point. The evidence about the content of the conversation is also inconsistent in some respects, but it is common ground that they discussed sharing the cost of road construction. They contemplated that they would share the use of the road, and it was arranged that they would meet again in the presence of an officer from the Department of Planning who turned out to be Mr Vaughan. It seems to me unlikely that any final agreement was reached at that stage, given that a further meeting was contemplated with Mr Vaughan.

34 Mr Sodhi gave evidence that during the April conversation he told Mr Stanes that access over Lot 234 would be his only access to his property, as the access he was then using had never been legalised and he had been advised by a solicitor that he did not have legal access over Lot 3. Mr Stanes gave evidence that Mr Sodhi told him he already had legal access to his land over Lot 3 because of Mr Ford's promise, and that he had been slack in not sorting out the problem after the sale to the Benning family. This difference in evidence is material because, if Mr Sodhi's version were correct, it would have set the scene of later discussions by making it plain that Mr Sodhi needed a right of access over Mr and Mrs Stanes' land to avoid being landlocked, and therefore would probably have been seeking a permanent right in the nature of an easement rather than some lesser permission.

35 In my view, however, it is more probable that Mr Stanes' version of the conversation is correct in this respect, and I so find. I do so because of my finding, expressed above, that at the time of the discussion Mr Sodhi was continuing to access his banana plantation over Lot 3 without difficulty and believed that he would be given a right of access over Lot 3. Having that belief, he would not have said (as he claims in para 6 of his affidavit of 16 February 2006) that the Reserve Road was his only access to his property, and more likely that he would have said (as Mr Stanes claims at para 37 of his affidavit of 2 August 2006) that Mr Ford assured him that he had made provision for a right of way over Lot 3 when he sold to the Bennings. I infer that Mr Sodhi's recollection of the conversation is incorrect. This conclusion is supported by the fact that he was using Lot 3 at that time for access to his banana plantation without difficulty, and on his own evidence he continued to do so until about April 2004.

Meeting between the defendants and Mr Vaughan in April 2002

36 According to Mr Vaughan's affidavit evidence, given on behalf of Mr Sodhi, he was telephoned by Mr Stanes on 16 April 2002. Mr Stanes asked him to come and inspect the access road to Lot 234 because in its then current state it was inaccessible. Mr Vaughan said he attended a meeting on site with Mr and Mrs Stanes and they discussed problems concerning the grading work that had already been carried out by the Bennings without consent. Mr Vaughan said he told Mr and Mrs Stanes that any work carried out to rectify the problem should be done jointly with the neighbouring landholder as the Reserve Road also provided him with access to his property. I accept that evidence.

Meeting of Mr Sodhi, Mr Stanes and Mr Vaughan in late April 2002

37 The parties gave consistent evidence that in late April, there was another meeting on site, this time attended by Mr Vaughan as well as Mr Stanes and Mr Sodhi, but not Mrs Stanes. Mr Vaughan also gave evidence of this meeting. The evidence of the parties as to what was said at that meeting is not wholly consistent, but the evidence of Mr Vaughan provides some assistance in resolving the inconsistency. Mr Stanes, Mr Sodhi and Mr Vaughan all said that there was a discussion in which Mr Vaughan told the others what would be required for a permissible road over Lot 234 to the proposed house and to Mr Sodhi's land. Mr Stanes gave evidence, which I accept (as it is corroborated by the evidence of Mr Vaughan), that he told Mr Vaughan his wife would not agree to anything near the house, and so Mr Vaughan suggested a location for the access road to Lot 158 as far away from the house site as possible to the east, while selecting a location where the access road could be constructed without removing trees.

38 It appears that Mr Vaughan was forthright and categorical. Mr Stanes gave unchallenged evidence that Mr Vaughan was "God" in such matters, in the sense that what he said was to be observed, and he felt under pressure to agree. Mr Vaughan told Mr Stanes and Mr Sodhi that it would be impractical to build a road within the roadsite identified as the Reserve Road. He continued:

"The practical solution would be to build the access road on this location [indicating a location where the Deviation was later constructed]. This solution would be in your mutual interests and you would obtain a practical access to both properties. You could share the costs by paying half each resulting in a much better outcome for both parties."

39 I regard it as significant that Mr Vaughan, who presumably understood the nature of an easement and the steps necessary to create one, did not recommend to the parties that an easement be granted; he simply observed that it would be in the mutual interests of the parties to obtain "a practical access to both properties".

40 Mr Sodhi's evidence is that after the meeting with Mr Vaughan had come to an end, Mr Sodhi and Mr Stanes had a further discussion (implying that Mr Vaughan had left). According to Mr Sodhi's evidence, Mr Stanes said:

"Does that suit you Billa? We will build the road access here on my land, and avoid the steep section of Reserve Road, and I'll give you an easement over my land. But my wife won't want anyone driving past our house, so we’ll make a separate road for you so that you won't be going past our house all the time and we will share the costs equally."
Mr Sodhi said he replied, "That sounds fair to me, " and they shook hands. Mr Stanes said he would arrange for a bulldozer and they agreed to gravel the road rather than to concrete it.

41 Mr Stanes denied that he ever promised to give Mr Sodhi an easement, and he gave evidence that in fact Mr Sodhi left the meeting first, leaving him to have a discussion with Mr Vaughan. I regard Mr Vaughan's evidence as determinative on the question whether he or Mr Sodhi left first. It was tendered by Mr Sodhi and not challenged by Mr and Mrs Stanes. Mr Vaughan said that Mr Sodhi left the meeting first. The significance of this evidence is that there cannot have been a subsequent discussion between Mr Sodhi and Mr Stanes in the absence of Mr Vaughan, as Mr Sodhi claimed, and therefore the occasion for Mr Stanes to tell Mr Sodhi that he would give him an easement did not occur. Further, as I have noted, the dominant recommendation by Mr Vaughan was not expressed in terms of granting an easement. I therefore reject Mr Sodhi's evidence that Mr Stanes told him, after the meeting with Mr Vaughan, that he would grant him an easement over Lot 234.

42 Even if, contrary to my finding, there had been a discussion during or after the meeting with Mr Vaughan to the effect that Mr Sodhi would have access by way of the specified route over Lot 234 in return for paying half the construction costs, it is unlikely that the parties would have spoken in terms of the granting of an easement. Both Mr and Mrs Stanes gave evidence about their understanding of the legal concept of an easement, in comparison with what had emerged, in their view, from the various discussions and actions. For Mrs Stanes, the central difference between the permission they had granted Mr Sodhi and a legal easement was that if an easement were granted, it would be unlimited as to the nature of the user and the range of people who could be permitted by Mr Sodhi to use it(T 172.38-58). It seems to me highly unlikely, in view of her desire to protect her children and her privacy, that she would have authorised her husband, at any stage, to consent to an arrangement which she believed would have such an effect. For Mr Stanes, the key difference between the permission they had granted to Mr Sodhi and the granting of a legal easement was that their permission was conditional and could be revoked on breach of condition, whereas an easement was (in his view) perpetual and irrevocable(T 197.44-50; T 198.1-9; T 205.28-206.1; T 217.33-46). Again, it seems unlikely that he would have agreed to grant an easement if his understanding of the concept was in those terms.

43 Mr Sodhi's own evidence makes it unlikely, in my view, that an easement would have been intended. He was aware that the granting of an easement involved instructing solicitors and having plans prepared and that "until the plans were drawn up for the solicitor there would be no legal easement created" (T 44; T 59). He did not give evidence of any discussion about how those matters would be attended to or who would pay the cost of doing so. Mr Sodhi offered to pay costs in connection with the easement much later, when his solicitor wrote to Mr and Mrs Stanes' solicitors on 22 January 2004 offering to pay legal costs and the costs of survey and registration of a plan and instrument creating the easement, and also the costs of valuation and reasonable compensation for the grant of the easement.

44 Other evidence given by Mr Sodhi in cross-examination reinforces the conclusion that no agreement for the grant of an easement was reached during the discussion in late April 2002. Mr Sodhi accepted that in the period from August 2002 when a gravel road was completed until late in 2003 when a draft written agreement to exchange easements was drawn up, he took no steps to obtain an easement from Mr Stanes (T 68). He also agreed in cross-examination that, when he entered into an agency agreement to sell Lot 158 and had his solicitor prepare a draft contract for sale, he did not instruct his solicitor to insert any clause in the draft contract relating to the agreement he claimed to have with Mr and Mrs Stanes for an easement, even though he knew that this would be a matter of some importance for a purchaser, saying, implausibly, that he did not bother about the matter because he thought the grant of an easement was "just a formality" (T 87-88).

45 Mr Stanes said in his first affidavit (paras 45 and 46) that he "agreed" to what he described as "the ROW". His evidence seems to be that after his discussion with Mr Sodhi and Mr Vaughan, and in the course of his subsequent discussion with Mr Vaughan alone, he agreed to the location of an access road from his driveway to Lot 158. Given his otherwise consistent denial of ever having agreed to an easement, I take it that he did not mean to say in his affidavit that he agreed to grant an easement in the form of a right of way over that location (see also his affidavit, para 47).

46 Although there was no agreement reached late in April 2002 for the granting of an easement, and no representation was made to the effect that an easement would be granted, the evidence of Mr Sodhi and Mr Stanes leads to the conclusion that another kind of agreement, or agreement in principle, was struck that time. An arrangement was reached between Mr Sodhi and Mr Stanes under which Mr Stanes would construct, at their equally shared cost, a roadway along the Deviation and the Common Road, and would permit Mr Sodhi to have access to Lot 158 over that roadway, when constructed, joining up to the Road 20.115 Wide over which Mr Sodhi already had a right of access. The arrangement had the flavour, in short, of a contractual licence. At that point the arrangement was probably not sufficiently certain to constitute an enforceable contract, particularly as regards conditions of use, revocability and the specific location of the Deviation. Conditions of use were spelled out, however, at a subsequent meeting between Mr Sodhi and Mr and Mrs Stanes, as I shall note, and the specific location of the Deviation was determined by its construction.

Subsequent meeting of the parties

47 According to the evidence of Mr and Mrs Stanes, denied by Mr Sodhi, a few days after the meeting of Mr Sodhi and Mr Stanes with Mr Vaughan, there was a further meeting on the site attended by Mr Sodhi and Mr and Mrs Stanes. Mr Stanes pointed out to Mr Sodhi the proposed location of the Deviation. Mrs Stanes expressed her concern about the danger of the steep road and said she did not "want to add to the danger by having to share the access with anyone" (Mrs Stanes' affidavit, para 10). Mr Sodhi said he would only use the access road once or twice a week to access the top part of his banana farm, as he had much better access from the Pacific Highway to his banana shed.

48 Mr Stanes gave evidence, also denied by Mr Sodhi, that during that meeting, he told Mr Sodhi that in return for Mr Sodhi paying half the costs of road construction, he and his family and any employees could use the access road for banana farming as long as the privilege was not abused, but if there was any abuse or any dangerous driving by anyone, Mr and Mrs Stanes would be entitled to terminate access and construct a gate to prevent access. Mr and Mrs Stanes gave evidence that Mr Sodhi agreed to these arrangements and said again that he had legal access to his land over Lot 3.

49 I accept the evidence of Mr and Mrs Stanes on these matters, in preference to Mr Sodhi's denials that the meeting occurred and that the conversations took place. First, it is plausible that, since Mr Stanes and Mr Vaughan continued to discuss the proposed roadwork after Mr Sodhi had left them (according to the finding that I have made), Mr Stanes would have wanted to have another discussion with Mr Sodhi before going ahead with the building work. Secondly, it is plausible that Mr Stanes, whose evidence demonstrates in my view a consistent concern about dangers associated with use of the road, would have wanted the opportunity to convey her concerns to Mr Sodhi. Thirdly, since according to my earlier findings Mr Stanes and Mr Sodhi had reached an arrangement under which Mr Sodhi would have permission to use the road, it is plausible that Mr and Mrs Stanes would have wanted to have a discussion with Mr Sodhi about the conditions of that use and consequently the circumstances in which the permission could be withdrawn. Finally, the evidence of Mr and Mrs Stanes as to what was said is consistent with the findings I have made about other matters, including my finding that Mr Sodhi continued to believe until the time of this meeting that he would be given a right to use Lot 3.

50 Therefore by virtue of this meeting, which occurred before the building works commenced, the parties gave content to the arrangement previously struck between Mr Stanes and Mr Sodhi, by spelling out conditions upon which the contractual licence would be granted to Mr Sodhi and the circumstances in which it might be revoked. It is unnecessary for me to determine whether the arrangements had by this stage reached the level of certainty necessary for the formation of a contract for the grant of a licence to use the roadway when constructed, since the plaintiff does not assert or seek any relief based upon such a contract. However, it is appropriate to observe that the evidence of Mr and Mrs Stanes in their affidavits and in the witness box was consistently to the effect that they regarded themselves as bound by an agreement with Mr Sodhi; and further that any uncertainty that may have remained at that stage about the precise location of the road over which permission would be granted (particularly, the Deviation) was subsequently overcome by the actual construction of the road.

The building of a shale gravel road

51 Road building works for a shale gravel road and drainage commenced after these discussions, though apparently not immediately. Mr Vaughan said that he returned to the site on several occasions between April and July 2002 to advise on erosion problems, and he recalled having advised Mr and Mrs Stanes that the only long-term solution was to provide a sealed or concrete road.

52 Mr Stanes took time off work to complete the shaping and shaling of the road, and supervised the subcontractors. There is conflicting evidence as to just how much work Mr Sodhi personally did in road construction, although it is common ground that he made a physical contribution to the work by helping with the installation and drainage. I need not make any specific findings on how much assistance he gave. As the work progressed, Mr Stanes gave Mr Sodhi bills relating to it and he paid half of the bills, paying in all about $5,000. The construction of a gravel road which included the Common Road, the Deviation and the Driveway was completed in about August 2002.

Concreting part of the road

53 By February 2003, seasonal storm damage had eroded sections of the roadwork. Mr Vaughan advised that the only permanent solution would be to seal the steep section of the Road 20.115 Wide with bitumen or concrete. Mr Stanes proposed to Mr Sodhi that the road be concreted at a cost of approximately $30,000, costed on the basis that he would build it rather than engage a contractor to do so. Mr Sodhi agreed and it was arranged that they would share the cost equally.

54 Mr Sodhi gave evidence that Mr Stanes told him he had talked to the Council who advised that if he wanted to build a house it would be necessary to have access by two-wheel-drive vehicle. Mr Sodhi said he told Mr Stanes that he agreed to contribute to the cost because, if he wanted to build a house on his block, the Council would want him to have two-wheel-drive access as well. Mr Stanes denied that Mr Sodhi said anything about building a house on Lot 158.

55 I am not persuaded that Mr Sodhi spoke to Mr Stanes about building a house at this stage. Mr Sodhi's intention to sell was not implemented until September 2003 and so it has not been shown that sale for residential development was in his mind earlier in 2003 when the parties agreed on the concreting of the road. Furthermore, in view of my finding that Mr and Mrs Stanes specified conditions of use of the road relating to banana farming rather than residential use, it seems to me probable that if Mr Sodhi had spoken about building a house there would have been a strong negative reaction from Mr Stanes, and he does not depose that he received any such response.

56 Mr Stanes obtained quotes from subcontractors and supervised the concreting. Concrete was laid in two sections totalling approximately 200 m in length, running from a point close to Graham Drive in the south and extending for a short distance into Lot 234 in the north. Mr Sodhi brought two friends to help when the concrete was laid. He paid his half share of the bills. The concreting was completed in about July 2003.

57 Mr Sodhi gave evidence that his half share of the bills was $12,000, making his total payment $17,000. Mr Stanes gave evidence that the total amount paid by Mr Sodhi was $16,000. I am not able to resolve this inconsistency of evidence from the documents annexed to Mr Stanes' first affidavit. It is not necessary for me to do so, and in any event counsel for Mr Sodhi conceded that his client would accept the evidence that the lower amount was paid.

58 Mr and Mrs Stanes obtained development consent for the construction of a house, and it was built during 2003. There is no direct evidence that there was any form of approval by the Council of the roadworks but I infer that the completion of the roadworks was a necessary adjunct of the development approval for the house. They moved in, with their three young children (one of whom is autistic), in November 2003, living there until October 2004. Then they moved to Western Australia, where they are currently living. They both gave evidence that a significant factor in their decision to move to Western Australia was their dispute with Mr Sodhi. They intend to return to live on Lot 234 when the present case has been resolved. In the meantime Lot 234 is tenanted.

59 Mr Stanes gave evidence that he and his wife have continued to honour their agreement with Mr Sodhi, under which he is permitted to have access over their land for banana farming. Mr Stanes said in the witness box that this agreement was still in operation(T 201.44-202.18; T 217.52-55). It is unclear whether Mr Sodhi has transported bananas over the Proposed Right of Way since the commencement of the present proceeding, though it appears (as noted below) that he no longer uses the road over Lot 3.

The alleged "exchange of easements" agreement

60 In September 2003 Mr Sodhi entered into an agency agreement for the sale of Lot 158 for $900,000. He cleared an area in the southeastern corner of the property, an area he believed to be a suitable site for a home. He gave evidence in cross-examination, though not in his affidavits, that at about this time he said to Mr Stanes, "I'm thinking of selling my land, I had better get - you better give me an easement now" (T 69.12). He agreed that he was hoping the property could be sold to someone who wanted to use it to build a house (T 69.30), and the fact that electricity had recently been connected to the property created a greater opportunity to sell to someone for residential purposes (T 69.47). I accept this evidence.

61 Mr Stanes gave evidence, which I accept, that he was approached by a sales representative seeking clarification of boundary locations, and he told the representative that there was no legal right of access to Lot 158 over Lot 234. The representative said Mr Sodhi had told him that there was a right of access. Shortly afterwards Lot 158 was withdrawn from sale.

62 Mr Stanes' evidence is consistent with the evidence of Mr Sodhi in cross-examination. Mr Sodhi said that he discovered that Mr Stanes would not grant him an easement when the real estate agent went to look at the property after he had listed the property for sale, and told him that Mr Stanes was "backing out of the deal" and wanted compensation (T 89.12). He said he received this information from the real estate agent before he went to his solicitor to have documents prepared for an exchange of easements, and the information from the real estate agent made him suspicious and led him to go to the solicitor to have an agreement drawn up (T 90.1-8).

63 I infer that as a result of the information Mr Sodhi received from the real estate agent, he decided to try again to obtain a grant of an easement over Lot 234. Both Mr Sodhi and Mr Stanes deposed to a conversation that they had concerning a proposal to exchange easements. The evidence located the conversation at some time after the completion of the concreting (ie, after about July 2003), but in my view the conversation occurred after Mr Sodhi's unsuccessful attempt in September 2003 to sell Lot 158. The proposal was that Mr and Mrs Stanes would grant Mr Sodhi the Proposed Right of Way, and Mr Sodhi would grant Mr and Mrs Stanes an easement over some part of Lot 158.

64 There is considerable confusion in the evidence as to the location of the proposed easement over Lot 158. Mr Stanes said in his first affidavit that the easement was so that he could "access the northern part" of Lot 234. Mr Sodhi said in his first affidavit that the easement was so that Mr Stanes could access his property "on the northern part" of Lot 234. The draft agreement subsequently prepared by Mr Sodhi's solicitor identified an easement 3.1 m wide "along the southern boundary of Sodhi land commencing on the southwestern boundary and then east to the existing gravel access". I infer that the "existing gravel access" was the Deviation, and so the right of way was to run, roughly speaking, along the north/south boundary from just north of the Staines' house up to the Deviation. But in cross-examination Mr Sodhi told the court that the reference in his affidavit to access "on the northern part" was a mistake and should have referred to the eastern part (T 71).

65 Mr Stanes said the proposal was initiated by Mr Sodhi, and Mr Sodhi said it was initiated by Mr Stanes. Mr Sodhi said he agreed to the proposal when it was advanced by Mr Stanes, and Mr Stanes said he told Mr Sodhi that he would discuss the proposal with his wife but that he already had better access to his house over the Driveway. Mrs Stanes said she opposed the proposal when her husband told her about it.

66 I prefer the evidence of Mr and Mrs Stanes on these matters. Taking into account the evidence as a whole, there does not appear to be any good reason for Mr Stanes to have wanted a right of way over Mr Sodhi's land for access to the northern part of Lot 234, given the existence of the Driveway, and no reason was identified as to why he would want access over Mr Sodhi's land to the eastern part of his land (see T 72). On the other hand, it is plausible that Mr Sodhi would have taken steps to negotiate for the grant of the Proposed Right of Way when he discovered that its absence was an obstacle to the sale of Lot 158. In my view it is likely that the proposal for exchange of easements was advanced only after this discovery was made, given that the documentation of the proposed exchange did not emerge until December. It is also plausible that Mr Sodhi would have offered to grant a right of way over an area at the south of Lot 158 as an enticement to secure the Proposed Right of Way, and that the proposal would not have been accepted by Mr and Mrs Stanes because their existing access over the Driveway was adequate.

67 I therefore conclude, notwithstanding Mr Sodhi's evidence, that Mr Sodhi proposed an exchange of easements but Mr and Mrs Stanes did not agree. I note that if Mr Sodhi's evidence were accepted, he would still have to overcome the obstacle that the alleged oral agreement was too uncertain as regards the location of the easement over Lot 158, as well as the problem of lack of writing.

68 In about December 2003 Mr Sodhi instructed his solicitors to prepare a deed of agreement for the granting of easements by Mr and Mrs Stanes to Mr Sodhi and by Mr Sodhi to Mr and Mrs Stanes. A draft deed was prepared, although only Mr Sodhi and Mr Stanes, not Mrs Stanes, were proposed as parties. Mr Sodhi took the draft document to Mr and Mrs Stanes but they refused to sign it. There is some conflicting evidence as to just what happened at that meeting, and Mr Sodhi alleged contrary to the evidence of Mr and Mrs Stanes that Mrs Stanes told him they wished to be compensated for the easement. It is unnecessary to resolve these matters here. Mr and Mrs Stanes then consulted their solicitor who advised them about the nature of an easement and the rights and obligations attaching to it, and subsequently they had a telephone conversation with Mr Sodhi in which they made it plain that they would not agree to the exchange of easements as proposed.

69 The draft deed for exchange of easements was submitted by Mr Sodhi's solicitor to Mr and Mrs Stanes' solicitor under cover of a letter dated 17 December 2003 in which it was alleged that, notwithstanding submission of the draft agreement, Mr Sodhi and Mr Stanes had already made an agreement before the road was constructed for the sharing of costs and the creation of an easement over the Proposed Right of Way without compensation. Mr and Mrs Stanes' solicitor replied on 21 January 2004, saying that his client strenuously denied that there was any agreement that an easement would be created.

70 Subsequently, in February 2004 Mr Sodhi engaged a surveyor, Martin Pundyk, to prepare a plan showing the location of the easement that Mr Sodhi claimed over Lot 234.

71 The evidence concerning the proposal to exchange easements reinforces my conclusion that no agreement had previously been made for the granting of an easement, and no representation had been made by Mr and Mrs Stanes that an easement would be granted. In my opinion, it was because there was no such agreement that Mr Sodhi put forward the exchange proposal. His experience in attempting to sell Lot 158 brought home to him that his existing permission to have access over Lot 234 was insufficient for the purposes of residential development and sale, and it would be necessary for the purpose of sale to obtain the grant of an easement. But instead of asserting an entitlement under an existing agreement, he made a new proposal containing an added element, namely the offer to grant an easement over Lot 158.

Findings as to the alleged agreement to grant an easement and the alleged estoppel

72 For the reasons I have given, I find that there was no agreement at any stage between Mr Sodhi and Mr and Mrs Stanes, or Mr Stanes alone, for the grant of an easement over the area I have designated as Proposed Right of Way, or indeed over any other area. They agreed to grant him a conditional permission to have access to his banana plantation over their land, in consideration of his contribution of half the costs of constructing a shale roadway over the Common Road, the Deviation and the Driveway, and (subsequently) of the concreting of the Road 20.115 Wide.

73 Nor was there any representation or other conduct, or acquiescence or omission to act, on the part of Mr and Mrs Stanes upon the basis of which an equitable estoppel might rest. They promised to give Mr Sodhi conditional permission to use the roadway over their land for access to his banana plantation and they have given him that conditional permission, which according to the evidence of Mr Stanes is still in place. On the facts, they did not promise to give him any more than such a permission, and nothing they did provided any foundation for him to believe that they would grant him an easement. Consequently when he acted to his detriment by contributing half of the road construction costs, as well as some physical work, and incurred expenses for lawyer's and surveyor's fees, he cannot have done so in reliance upon anything that might now estop Mr and Mrs Stanes from denying an easement in his favour.

74 The fact that Mr Sodhi later assisted in the construction of the road and paid $17,000 or $16,000 for the construction costs is not inconsistent with my finding. I infer that at the time of the April conversation, while Mr Sodhi believed that Mr Ford had promised him an easement, he recognised that there was some significant uncertainty as to whether a legally enforceable easement would in fact be granted to him, given that there was bad blood between the Benning family and the Sodhi family. In those circumstances he may well have regarded it as a wise move to agree to pay a substantial amount of money to secure an alternative access by licence over Lot 234, at a time before he discovered that no right of way over Lot 3 would be forthcoming.

75 My findings make it unnecessary to address the question whether the agreement alleged by Mr Sodhi was partly performed and therefore specifically enforceable notwithstanding the absence of writing. Nor is it necessary to deal with the submissions made on behalf of Mr and Mrs Stanes to the effect that any agreement made with, or representation relied on by, Mr Sodhi was made without the authority of Mrs Stanes. It seems to me, however, that she was bound by the agreement to grant Mr Sodhi a licence to use the road, by virtue of her participation in the meeting in late April or early May when the conditions of that permission were spelled out.

Findings and determinations preliminary to the application of s 88K

76 Certain findings of fact and other determinations need to be made on matters that are preliminary to the court's ruling on the application of s 88K. I have made determinations on the following issues, which I shall set out before considering and applying the components of s 88K:

(i) whether it is possible to construct an access road within the Reserve Road;
(ii) facts relating to the availability of access over Lot 3;
(iii) facts relating to the availability of access over Lot 2;
(iv) facts and determination relating to access via the Central Route identified in Mr Ford's evidence;
(v) safety concerns about the Proposed Right of Way;
(vi) effect of the Proposed Right of Way on the privacy and amenity of Lot 234.

Access over the Reserve Road

77 Subject to the requisite development consent, Mr Sodhi would be entitled as against Mr and Mrs Stanes to construct a road over Lot 234 from the Road 20.115 Wide at the southern boundary up to Lot 158, provided that the construction was wholly within the roadsite marked as the Reserve Road. However, it emerges clearly from the evidence that the Reserve Road is an unsuitable site for the construction of such a road. The engineering evidence of Mr de Groot in his reports dated 8 February 2007 and 1 March 2007, substantially accepted in relevant respects by the plaintiff's engineer, Mr Ford, are especially significant. Mr de Groot concluded in his first report that it would not be possible, for two reasons, to obtain approval to construct a roadway within the Reserve Road that would satisfy Council requirements for a public road reserve or a right of carriageway.

78 First, the terrain is very steep, having an average gradient of about 38%. If a "zig-zagging" road were to be constructed so as to reduce the gradient, there would still be a slope of around 33%, assuming that the road remained in the designated area which is about 20 m wide. Secondly, the designated area of the Reserve Road is heavily treed and in particular, there are some substantial blackbutt trees that would have to be removed to permit road construction. The removal of the trees would probably lead to erosion.

79 In his report dated 28 February 2007, Mr Ford expressed the opinion that the design standards that would be adopted by the Council in assessing a road proposal would be standards somewhat less onerous than the ones identified by Mr de Groot, but nevertheless he agreed with Mr de Groot's conclusion that the construction of a road within the Reserve Road would be impractical because of the gradient and the destruction of vegetation that would be involved. The same conclusion was expressed in the evidence of Mr Vaughan.

80 It is therefore necessary to proceed on the basis that access to Lot 158 over the Reserve Road is impossible. That being so, there are no reasonable attempts that could be made to obtain an easement in the area of the Reserve Road, that have not been made.

81 Mr Stanes gave evidence that if no other alternative were available, he would agree to an easement to widen the Reserve Road to the east. He said that if this were done, the existing concrete road could be extended, weaving around the trees to prevent any erosion. He said such a road would be safer than using the Deviation and would be well away from his house. This proposal was not explored in the expert evidence and is not the subject of Mr Sodhi's application to the court. It seems to me plain from the proposal outlined by Mr Stanes that it would not be an easement having the same effect as the easement proposed in the summons, for it would wind through the trees well to the east of the Deviation, presumably at a lower gradient. That being so, s 88K(2)(c) does not apply to this proposal, and it is unnecessary to explore it further.

Access over Lot 3

82 In his first report, Mr de Groot concluded that the use of the Deviation would be unsafe as well as non-compliant with Council's requirements, and then he considered two alternate access roads, one over Lot 3 (the Benning property) and the other over Lot 2 (the Peters Land). He reached the conclusion that in each case an accessway conforming to Council's requirements could be constructed. Mr Ford agreed with these conclusions.

83 It is common ground that, until about December 2003, Mr Sodhi accessed Lot 158 for the purpose of cutting and transporting bananas via the road over Lot 3 rather than via the Proposed Right of Way. Mr Stanes gave evidence that while he was present on Lot 234, working on the house and the road, and during his residence in the house from November 2003 to October 2004, he observed Mr Sodhi accessing Lot 158 over Lot 3 approximately 4-5 times per fortnight, delivering materials, removing banana crops, and driving employees to and from the banana plantation. During that period he observed Mr Sodhi using the Proposed Right of Way in his Land Cruiser truck approximately once per week, and said he was alone and the truck was empty. He denied that Mr Sodhi used the Proposed Right of Way to transport bananas at any time in the period up to October 2004, when he and his wife moved to Western Australia.

84 Mr Sodhi's evidence is that he transported his bananas over Lot 3, and used the Proposed Right of Way only occasionally, up until either December 2003 or (in another part of his evidence) April 2004. In my opinion, Mr Sodhi's evidence is to be preferred on this point. According to Mr Stanes (first affidavit, para 89), he had a conversation with Mr Sodhi in late 2003 in which Mr Sodhi was angry, saying he wanted to sell his land and move to Sydney, and demanded a written agreement for access because he had spent a lot of money on the road. He told Mr Stanes that Mr Ford had not arranged for a right of way when he sold the land, and the Bennings had informed him they were "going to stop" him having access over their land. I accept that evidence, it being consistent with Mr Sodhi's evidence that he stopped using Lot 3 late in 2003 or early in 2004. I accept that, while he was living in Lot 234, Mr Stanes observed Mr Sodhi using the access road over Lot 3, but his evidence does not persuade me that those observations related to any time after April 2004. In my opinion by that time Mr Sodhi had stopped using Lot 3.

135 As regards attempts to obtain the easement sought in the summons, the Proposed Right of Way, I have set out earlier in these reasons for judgment the negotiations in which Mr Sodhi engaged in 2002 and then, subsequently, in proposing an exchange of easements late in 2003. The effect of my findings is that in 2003 Mr Sodhi did not engage in an attempt to obtain the easement that he now seeks, but instead he engaged in a successful negotiation by which he was granted a contractual licence. In late 2003 he attempted to obtain an agreement for the granting of the easement that he now seeks but the consideration that he offered was an easement over Lot 158 which, according to the evidence, Mr and Mrs Stanes did not want. That cannot have been a reasonable attempt to obtain the easement. Mr and Mrs Stanes would be entitled to compensation if an easement were to be imposed upon their land, and at that stage Mr Sodhi did not offer any compensation beyond the proposed easement over Lot 158 and the fact that he had contributed money and labour to the construction of the road.

136 Subsequently there was a chain of correspondence between the solicitors for the parties, during the course of which Mr Sodhi's solicitor offered compensation. In his letter dated 21 January 2004, the solicitor for Mr and Mrs Stanes rejected an allegation that their clients had agreed to an exchange of easements, but he added that Mr and Mrs Stanes might consider granting an easement if they were properly compensated, and suggested that Mr Sodhi should pay for the costs of an independent valuer to value the proposed easement. In subsequent correspondence the parties exchanged valuation reports assessing the valuation impact of the grant of the proposed right of way over Lot 234. By letter dated 31 May 2004 Mr Sodhi's solicitor wrote to Mr and Mrs Stanes' solicitor enclosing Mr Delahunty's valuation report dated 20 May 2004 and offering to pay compensation in the assessed amount of $5,500. Mr and Mrs Stanes' solicitor rejected this valuation report and eventually, under cover of a letter dated 3 November 2004, sent Mr Sodhi's solicitor a compensation assessment report by Mr Dovers of North Coast Valuation Service dated 4 October 2004, which assessed compensation at $32,000. By letter dated 3 March 2005 Mr Sodhi's solicitor rejected Mr Dovers' compensation assessment, enclosing a critique prepared by Mr Delahunty and dated 1 March 2005. However, in a without prejudice letter of the same day Mr Sodhi's solicitor communicated his client's offer to pay compensation of $7,000 plus costs. Then on 21 June 2005 the offer was increased to $15,000 plus costs, noting that $16,000 had already been paid by Mr Sodhi of the construction of the road (Mr Sodhi's evidence at the hearing was that he in fact paid $17,000, but Mr Stanes said the correct figure is $16,000).

137 This evidence satisfies me, on balance, that Mr Sodhi has made all reasonable attempts to obtain the easement sought in the summons. The evidence shows that Mr Sodhi has been prepared to engage in a course of negotiation, and to consider and respond to matters put to him by Mr and Mrs Stanes. His original proposal for compensation for a lower figure was revised after he received Mr Dovers' compensation estimate of $32,000. The subsequent correspondence shows his continuing willingness to negotiate. The case law shows that "reasonableness" is a matter of degree, and the court must consider the likelihood that consensus would be reached if any further steps were taken (Coles Myer NSW Ltd v Dymocks Book Arcade Ltd (1996) 7 BPR 14,638; Tregoyd Gardens at 15,855).

138 In my view a plaintiff may satisfy the requirement in s 88K(2)(c) to show that he made all reasonable attempts to obtain the easement proposed without having to establish that he offered the amount which the court, with the benefit of all of the evidence tendered at the hearing, finds to be the amount necessary for fair compensation. Depending upon the surrounding circumstances, it may well be enough to show a willingness to negotiate and respond reasonably to the other side's expert opinions and contentions (compare Katakouzinos v Roufir Pty Ltd (1999) 9 BPR 97,796 at [75]-[77]). The correspondence in evidence exhibits a reasonable approach to negotiations by Mr Sodhi and, it must be said, a less clear and more ambiguous approach to negotiations by Mr and Mrs Stanes. Unlike the plaintiffs in McKeand v Thomas [2006] NSWSC 1028 at [139], Mr Sodhi was prepared to offer compensation while insisting (wrongly, according to my finding) that he had a specifically enforceable agreement for the grant of an easement. I am satisfied that in all the circumstances, reasonable attempts have been made by Mr Sodhi to obtain the easement proposed in the summons.

139 However, it seems to me that the second limb of s 88K(2)(c) is not present in the present case; that is, I am not able to conclude on the facts that all reasonable attempts have been made by Mr Sodhi to establish an easement having the same effect as the easement proposed in the summons. It is necessary to consider, on this issue, whether reasonable attempts have been made in respect of

(i) the Reserve Road;
(ii) Lot 2;
(iii) Lot 3.
As I shall explain, my finding is that s 88K(2)(c) is satisfied in respect of the Reserve Road and Lot 2, but it is not satisfied in respect of Lot 3.

140 As with the first limb, s 88K(2)(c) requires that all reasonable attempts be made, not all possible attempts be made, and consequently the requirement may be satisfied where the plaintiff has not approached the registered proprietors of all adjoining properties over which access might be granted, when there are many such properties, and has deferred taking further steps until the applicable consent authority has made a relevant decision (Durack v De Winton (1998) 9 BPR 97,721 at 16,446-8 per Einstein J). Similarly, where there are two alternative properties over which a satisfactory easement could be obtained, and the plaintiff has approached the second landowner and has been firmly rebuffed for apparently valid reasons to do with disruption and costs, the plaintiff need not push the matter further against that landowner (Tregoyd Gardens at 15,856). The issue is whether the attempts that have been made constitute all of the attempts that are reasonable in the circumstances.

141 In Khattar v Wiese at [55]-[58], Brereton J compared the easement proposed by the plaintiffs with an alternative location, noting that the alternative was much longer, would involve additional cost, and might not satisfy a condition of a deferred commencement approval, and he reached the conclusion that the alternative was not an easement having the same effect as the proposed easement. But another alternative site would serve the purpose of the plaintiff's proposal by connecting the plaintiff's properties to the existing drainage system, and the disadvantages of the second alternative were not so great as to entitle the plaintiff substantially to disregard it. His Honour treated the second alternative as one having the same effect as the plaintiff's proposal, and found that s 88K(2)(c) was not satisfied. The case indicates that the question of "same effect" is to be addressed in a pragmatic way, having regard to the function of the proposed easement and the respective advantages and disadvantages of the alternatives. The statutory language does not require that the alternative easement be precisely the same in every detail, but only that as a matter of commonsense it achieves the same purpose as the easement proposed by the plaintiff. On that approach, which I accept, the fact that the two main alternatives to the plaintiff's proposed easement in the present case would provide him with access to Lot 158 from the north and east respectively, rather than (as proposed) the south, does not prevent the court from concluding that these alternatives have the "same effect" as the plaintiff's proposal.

142 As to the Reserve Road, I have already expressed my conclusion that access over the designated site to Lot 158 is impossible and that being so, there are no reasonable attempts that could be made to obtain an easement over the designated site of the Reserve Road, but have not been made.

143 As the Lot 2, I have referred to evidence showing that an access road to Lot 158 would have to pass in a semicircle very close to the Peters' house. That acute proximity means, in my view, s 88K(2)(c) does not impose any obligation on Mr Sodhi to make any further attempt to obtain a right of way over Lot 2. In terms of the language of the subsection, there are two ways of expressing this conclusion: that any right of way over Lot 2 would be so unsatisfactory that any attempt to secure the easement would ipso facto be unreasonable; and in view of the impact on the amenity of Lot 2, an easement over that lot would not have the same effect as the easement proposed in the summons.

144 As to Lot 3, I have noted that the construction of an access road from the entrance of the existing road near that the banana shed at the northern end of Lot 158, progressing up the hill to the southeastern corner, would involve substantial cost. But the fact that an alternative easement may be costly does not of itself establish that all reasonable attempts have been made to procure it, especially where precise evidence of the cost has not been given.

145 I have also noted the evidence that there is bad blood between the Sodhi and Benning families and that the Benning family may be reluctant to negotiate with Mr Sodhi until the Pacific Highway upgrade negotiations have been finalised. But those morsels of evidence do not amount to a case that all reasonable attempts had been made by Mr Sodhi to obtain an easement over Lot 3. The fact that there is bad blood between the families is not a sufficient justification for not seeking to negotiate a commercial transaction, and the impact on such negotiations of impending road widening is a matter for speculation.

146 In my opinion an easement over Lot 3 along the road from the banana shed to Unwins Road falls within the statutory description of "an easement having the same effect" as the easement proposed in the summons. It is true that an easement over Lot 3 would provide access only to the lower, northern end of Lot 158. But it would serve substantially the same purpose as an easement over Lot 234, because it would provide the owner of Lot 158 with access to land that would otherwise be landlocked. The evidence indicates that the access road to Lot 158 is already constructed, sealed in part, and at a gradient much lower than the gradient through Lot 234. Further, the road was in fact used by Mr Sodhi and his family for several decades up until sometime in the period from December 2003 to April 2004.

147 My conclusion is that Mr Sodhi could have done substantially more to explore the prospect of securing alternative access through Lot 3, and should have done so before initiating the present proceeding. He has failed to satisfy s 88K(2)(c) with respect to an alternative easement providing a right of carriageway over Lot 3 along the marked unsealed and bitumen roads from the banana shed to Unwins Road. I should add that I was referred to Simpson v Bagnall [2000] NSWSC 930. That is a case where the court found that the failure to make inquiries about an obvious alternative route led to the conclusion that s 88K(2)(c) was not satisfied. While that case contains a succinct and useful statement of principles by Bergin J (at [99]-[103]), the case is not closely analogous and my determination on this issue is based closely on the facts concerning Lot 3.

Discretionary considerations

148 If, contrary to my determinations, all the ingredients necessary to give the court jurisdiction to impose an easement under s 88K were present in this case, I would nevertheless decline to exercise jurisdiction. Mr Sodhi has come to the court with a proposal for an easement that would give him a right of access over Lot 234 to Lot 158 in a designated area. Part of the designated area, the site of the Deviation, has a very steep gradient, and there are several blind spots upon the Deviation and the Common Road. The expert evidence satisfies me that there is a real risk of harm to drivers and passengers of vehicles using the access road, not only from other vehicles but also from the steepness of the incline of the road. The expert evidence also shows that the Proposed Right of Way does not comply with the applicable design standard and bushfire access requirements; that an access road complying with those requirements could not be constructed within the designated area of the Proposed Right of Way; and that, even if the consent authority (Coffs Harbour City Council) did not insist on full compliance (for example, if it were satisfied with bushfire access over Lot 2), the authority would refuse its consent having regard to the road gradient.

149 Mr Sodhi has made his application under s 88K without properly investigating the feasibility, in terms of matters of engineering and Council consent, of using the area he specifies as the Proposed Right of Way for an access road. Moreover, he has made the application without properly exploring the prospects of alternative access over Lot 3, as I have found. If the latter consideration were not, of itself, a disentitling factor, it would weigh heavily against Mr Sodhi's application on the question of discretion.

150 These matters imply that it would be unwise for the court to make the order under s 88K sought in the summons. As I have noted, Mr Stanes has indicated a willingness to negotiate another access route using land to the east of the Reserve Road. That appears to be a realistic approach, bearing in mind that the Reserve Road will remain on the title to Lot 234, unaffected by my decision. There is also the proposal for the Central Route, which emerged late in the hearing. Although the evidence does not provide an adequate basis for assessing the impact of the proposal on Lot 234 or the amount that would be required as fair compensation for an easement over that site, the proposal seems to me worthy of further consideration by the parties. Taken together, those considerations would lead to my declining the relief sought, if otherwise s 88K were available.

Conclusion as to s 88K

151 I have reached the conclusion that s 88K is not available for the imposition of the easement proposed in the summons, for the following reasons:

(a) the easement is not reasonably necessary for the effective use or development of Lot 158 because there is no chance that the Coffs Harbour City Council would permit the construction of an access road within the area proposed for the easement, in view of its steep gradient;
(b) I am not satisfied that all reasonable attempts have been made by Mr Sodhi to obtain an easement having the same effect as the easement proposed in the summons, that is to say, an easement over Lot 3 to give him access to Lot 158 from Unwins Road;
(c) if, contrary to my determinations, the ingredients that must be established under s 88K to supply the court with power to impose an easement had all been established in this case, I would decline to impose an easement having regard to the safety concerns presented by the present access road over the Proposed Right of Way and any road constructed within the site proposed in the summons, and the plaintiff's failure adequately to explore alternative means of access to Lot 158.

152 At one stage during the hearing, I raised the possibility that the court might impose an easement under s 88K on conditions reflecting, as closely as practicable, the conditions upon which the contractual licence was granted by the defendants to the plaintiff (including a condition restricting the easement to use for the purposes of a banana plantation). Both parties made submissions opposing this idea, and they have persuaded me to abandon it. The fact that neither side seeks any such restrictions is itself influential; and further, there is a risk that, if banana farming declines in the Coffs Harbour area, such conditions would become obsolete and unduly onerous for the owner for the time being of Lot 158. In any event, I have found that the conditions for the exercise of the discretion under s 88K are not satisfied.

Conclusions and orders

153 I have reached the conclusions that:

(a) the plaintiff has failed to prove that there was any agreement for the grant of an easement or any representations, conduct or acquiescence having the effect of estopping the defendants from denying his entitlement to an easement of the kind sought in the summons; and
(b) s 88K is not available because the ingredients of s 88K(1) and s 88K(2)(c) are not satisfied, and even if they were, the court would not, in the exercise of its discretion, impose on the defendants' land an easement under s 88K over the area specified in the summons.

154 Consequently the plaintiff has failed on all grounds. In the circumstances, it is unnecessary for me to deal with the question of quantum of compensation for the imposition of an easement, although evidence was tendered on that subject. I shall order that the summons be dismissed and hear the parties on the question of costs.

**********