Stanley Robert Gordon v Allen John Lever - [2017] NSWSC 1282

Supreme Court

New South Wales

Medium Neutral Citation: Stanley Robert Gordon and Anor v Allen John Lever [2017] NSWSC 1282
Hearing dates: 31 July, 1, 2, 28 August 2017
Decision date: 22 September 2017
Jurisdiction: Equity - Expedition List
Before: Sackar J
Decision:
See [378]

Catchwords: LAND LAW – easements – imposition of easements by Court – whether easement reasonably necessary for effective use of agricultural and residential land
Legislation Cited: Conveyancing Act 1919 (NSW)
Cases Cited: 117 York Street Pty Ltd v Proprietors of Strata Plan No 16123 (1998) 43 NSWLR 504
D&D Corak Investments Pty Ltd v Yiasemides [2006] NSWSC 1419
Donnellan v Woodland [2012] NSWCA 433
ING Bank (Aust) Ltd v O’Shea [2010] NSWCA 71
Khattar v Wiese [2005] NSWSC 1014
Moorebank Recyclers Pty Ltd v Tanlane Pty Ltd [2012] NSWCA 445
Owners Strata Plan 13635 v Ryan [2006] NSWSC 221
Rainbowforce Pty Limited v Skyton Holdings Pty Limited and Ors [2010] NSWLEC 2
Wengarin Pty Ltd v Byron Shire Council (1999) 9 BPR 16,985
Category: Principal judgment
Parties: Stanley Robert Gordon (First Plaintiff)
Christine Margaret Gordon (Second Plaintiff)
Allen John Lever (First Defendant)
Representation:
Counsel:
L Byrne (Plaintiffs)
C Simpson (Defendant)
Solicitors:
John F Gibson, Solicitor
Parker & Kissane, Solicitors & Lawyers

File Number(s): 2017/55270
Publication restriction: n/a

Judgment

The proceedings
Background facts
The properties and parties
Access to the Plaintiffs’ Lots
Option 3
Option 1
Option 4
Option 2

Procedural history

Legal principles
Section 88K of the Conveyancing Act
Reasonable necessity
Reasonable attempts to obtain the easement
Discretionary matters
Nature and terms of the easement
Compensation

Parties’ submissions
Use of the land
Section 88K(1)
Reasonable necessity of Option 1
Plaintiffs’ submissions
Defendant’s submissions
Comparison with other Options
Option 4
Option 3
Option 2
Limited Option 1 easement

Section 88K(2)
Public interest
Adequate compensation
Reasonable attempts to obtain easement

Compensation
Cost of the new bridge
Road maintenance
Disturbance
Special circumstances
Compensating advantages
Compensation only for certain heads

Evidence of Expert Witnesses
Evidence of Mr Denny
Evidence of Mr Breen
Evidence of Mr McElroy

Evidence of the Valuers
Evidence of Ms Hunt
Evidence of Mr Northfield

Evidence of the lay witnesses
Evidence of Mr Madeley
Evidence of Mr Gibson
Evidence of Ms Dunn
Evidence of Mr Gordon
Evidence of Mrs Lever
Evidence of Mr Lever
Evidence of Mr Little

Consideration
Section 88K(1): Reasonably necessary
Section 88K(2) Considerations
Compensation

Conclusion
Figure 1: Map of Grevillia (the Map)

Judgment

The proceedings

These proceedings concern an application for the imposition of an easement under section 88K of the Conveyancing Act 1919 (NSW) over the Defendant’s land for the benefit of two parcels of land making up the Plaintiffs’ land.
The Plaintiffs (Mr Stanley Robert Gordon and Mrs Christine Margaret Gordon) and the Defendant (Mr Allen John Lever) are neighbouring farmers in the Northern Rivers region of NSW, in the shire of Kyogle, called “Grevillia.” The Plaintiffs seek an order for an easement over two parcels of the Defendant’s land in the form of an access road and bridge over a gully, claiming the easement is reasonably necessary for the effective residential and agricultural use of the Plaintiffs’ land.

Background facts

The properties and parties

Figure 1 annexed to this judgment is a map depicting the relevant Lots and Options for providing access from Lots 7 and 40 to the Summerland Way (CB 292) (the Map).
The Plaintiffs are the registered proprietors of Lot 40 in DP 755733, Lot 7 in DP 13123, and Lots 101 and 102 in DP1045950. They purchased Lots 101 and 102 in around 1975 (RG1 [8]), and purchased Lots 7 and 40 in or around October 1998. Together, these lots make up the “Gordon Land”. Other Lots also owned by the Plaintiffs’ are coloured in beige on the Map.
Lots 7 and 40 of the Gordon Land are adjoining properties, and sit on the other side of the Richmond River to the Summerland Way. The Lots are therefore effectively land locked from the public road.
The Plaintiffs live in a dwelling house in Lot 101, and the Plaintiffs’ daughter, Ms Jodie Louise Dunn, lives in the main dwelling house in Lot 7. The Plaintiffs use Lots 7 and 40 as part of their working farm, with Mr Gordon claiming the land is primarily used for grazing his cattle. In 2006, 117 of the Plaintiffs’ hand reared dairy cows died due to an outbreak of botulism (RG2 [16]-[21]). Notwithstanding this, the land continued to be used as a dairy farm up until September 2013. Since September 2013 the Plaintiffs have used the land for beef cattle production (RG1 [40]-[42]).
Ms Dunn moved into Lot 7 in 2000, with her now husband (Mr Dunn) joining her in 2003 (JD1 [3]-[6]). They currently both reside there with their two children. Mr Dunn works at Boral Timber Mill in Kyogle, and leaves at 5am for work, returning at about 4pm (JD1 [28]).
The Defendant, Mr Allen John Lever, is the registered proprietor of Lot 100 in DP 104590 and Lot 36 in DP 755733, in addition to Lot 87 in DP 755733 and Lot 21 in DP 883903. Together, these Lots make up “the Lever Land,” which is coloured in blue/purple on the Map.
The Defendant’s family has owned the Lever Land since the late 1800s. While the Defendant previously resided at the Lever Land on a full time basis on various occasions, for approximately the past ten years he has lived in Brisbane, returning to the Lever Land about once per month (AL1 [4]-[5]).

Access to the Plaintiffs’ Lots

As set out in the Map, there are, or have been in the past, four main routes from which the Plaintiffs can, could or may be able to access the Summerland Way from Lots 7 and 40. I deal with these in chronological sequence.

Option 3

Option 3 is depicted by the green line on the Map.
Option 3 was the historical access to Lots 7 and 40. Both parties however agree Option 3 was used by the residents of Lot 40 and Lot 7 up until the bridge over the gully in Option 1 was built.
Along with a factual controversy as to when the Option 1 bridge was built (see [16] below), there is also dispute as to whether a bridge or a causeway traversed the Richmond River along Option 3. According to the Plaintiffs, correspondence from the Kyogle Council shows there was a bridge that traversed the Richmond River connecting Lot 7, which was washed away in 1954 by flood (JG1 [8], [10(a)]). The Defendant on the other hand claims the only crossing at that location at Option 3 was a causeway built from the river bed (AL1 [21]).

Option 1

Option 1 is depicted by the red line on the Map.
Option 1 involves entering a gravel access road through Lot 100, and then going through Lot 36 where there was a bridge crossing over a gully to then enter Lot 7. In total, Option 1 travels about 500 metres across the Lever Land.
There is dispute as to the origins of the bridge, with the Plaintiffs maintaining the Council built the bridge as a replacement of the bridge across the Richmond River at Option 3 when it was washed away in the 1954 floods, so as to provide access to Lot 7 and adjacent properties (JD1 [8]; CB 570-57; T65/47-T66/5; Plaintiff’s closing submissions in reply [2]-[6]). The Defendant asserts the bridge was built in the early 60s or 70s without any assistance from the Council in the construction or maintenance of the bridge (T282/13-T285/26).
According to the Plaintiffs, from 1954 to December 2015, all access to Lot 7 was via a road going through Lot 36 which traversed this bridge (JD1 [9]; JG1 [4(e)]). The Defendant disputes this, claiming people kept using the Option 3 access route for at least another ten years until the Option 1 bridge was built (T286/5-10). The Defendant does accept that Ms Dunn and her family were relatively frequent users of Option 1 until December 2015 (Defendant’s opening submissions [18]).
According to Mr Gordon, the Council periodically maintained Option 1 with gravel up until the mid-1990s, after which Mr Gordon periodically maintained the road. Since 1998, he allegedly re-gravelled the road three times (RG1 [30]).
In December 2015, the bridge over the gully in Lot 36 was destroyed by storm.
On or about 2 December 2016, the Plaintiffs, together with their solicitor Mr John Francis Gibson and Ms Dunn attended a meeting with the General Manager of the Kyogle Council, to discuss what assistance the Council could offer in constructing a suitable bridge to replace the destroyed bridge in Lot 36. According to Mr Gibson, the General Manager said the Council could not assist, but would reconsider if the Plaintiffs obtained a registered easement over Option 1 (JG1 [15]).

Option 4

Option 4 is depicted by the pink and yellow lines on the Map. The pink line on is what the Plaintiffs’ identify as the “dry” route, and yellow line as the “wet” route (JD1 [14], [16]).
According to Ms Dunn, since the bridge across the gully in Option 1 was destroyed in December 2015, all access to Lots 40 and 7 are now through a track from Lot 10, through to Lot 101 and 102. The Plaintiffs contend Option 4 is weather dependent as it involves driving for 20 metres on an angle across the Richmond River (JD1 [14]; T176/30-50).
From about 31 March to 4 April 2017, Cyclone Debbie hit the Queensland coast, causing widespread flooding in Northern NSW, including in Grevillia. According to the Plaintiffs, from 30 March to 14 April 2017 her house was entirely cut off from the Summerland Way (JD1 [32]-[33]; JG1 [16]).
Following Cyclone Debbie, the First Plaintiff alleged he had to undertake extensive repair works to make the river crossing passable again (RG1 [52]).

Option 2

Option 2 is depicted by the blue line on the Map.
The Defendant constructed a dam on Lot 100 where Option 2 traverses in approximately 2000. Thus, Option 2 has never been used by the Plaintiffs as a means of access to the Summerland Way.

Procedural history

On or about 25 July 2016, Mr John Francis Gibson, solicitor for the Plaintiffs, sought an agreement from the Defendant for the creation of a right of carriageway along Option 1 on his properties.
Correspondence between the parties’ respective solicitors followed, with ultimately no agreement reached.
On 15 December 2016 Mr Gibson made an offer of $7,500 to the Defendant’s solicitors (CB 522-524), which was increased to $20,000 on 8 February 2017 (CB 541). Both offers were rejected.
On 21 February 2017, these proceedings were commenced by way of summons seeking an order for the creation of a section 88K easement for a right of way over the segment of Option 1 which forms part of the Lever Land (CB 1-5).
On 4 April 2017, in the direct aftermath of Cyclone Debbie, Mr Gibson wrote to the Defendant’s solicitor asking them if the Defendant would agree to have the right of carriageway over the track in Option 1 registered, in light of the alleged land locked predicament of the Plaintiffs (CB145-146).
The Defendant’s solicitor replied by letter dated 20 April 2017, refusing to consent to the right of carriageway being granted (CB 150).

Legal principles

Section 88K of the Conveyancing Act

Section 88K of the Conveyancing Act provides:

88K Power of Court to create easements
(1) The Court may make an order imposing an easement over land if the easement is reasonably necessary for the effective use or development of other land that will have the benefit of the easement.
(2) Such an order may be made only if the Court is satisfied that:
(a) use of the land having the benefit of the easement will not be inconsistent with the public interest, and
(b) the owner of the land to be burdened by the easement and each other person having an estate or interest in that land that is evidenced by an instrument registered in the General Register of Deeds or the Register kept under the Real Property Act 1900 can be adequately compensated for any loss or other disadvantage that will arise from imposition of the easement, and
(c) all reasonable attempts have been made by the applicant for the order to obtain the easement or an easement having the same effect but have been unsuccessful.

(3) The Court is to specify in the order the nature and terms of the easement and such of the particulars referred to in section 88 (1) (a)–(d) as are appropriate and is to identify its site by reference to a plan that is, or is capable of being, registered or recorded under Division 3 of Part 23. The terms may limit the times at which the easement applies.
(4) The Court is to provide in the order for payment by the applicant to specified persons of such compensation as the Court considers appropriate, unless the Court determines that compensation is not payable because of the special circumstances of the case.
(5) The costs of the proceedings are payable by the applicant, subject to any order of the Court to the contrary.
(6) Such an easement may be:
(a) released by the owner of the land having the benefit of it, or
(b) modified by a deed made between the owner of the land having the benefit of it and the persons for the time being having the burden of it or (in the case of land under the provisions of the Real Property Act 1900) by a dealing in the form approved under that Act giving effect to the modification.
(7) An easement imposed under this section, a release of such an easement or any modification of such an easement by a deed or dealing takes effect:
(a) if the land burdened is under the Real Property Act 1900, when the Registrar-General registers a dealing in the form approved under that Act setting out particulars of the easement, or of the release or modification, by making such recordings in the Register kept under that Act as the Registrar-General considers appropriate, or
(b) in any other case, when a minute of the order imposing the easement or the deed of release or modification is registered in the General Register of Deeds.
(8) An easement imposed under this section has effect (for the purposes of this Act and the Real Property Act 1900) as if it was contained in a deed.
(9) Nothing in this section prevents such an easement from being extinguished or modified under section 89 by the Court.

The principles surrounding the key provisions of this section follow.

Reasonable necessity

Hodgson J (as his Honour then was) offered an approach to determining the reasonable necessity under section 88K(1) in 117 York Street Pty Ltd v Proprietors of Strata Plan No 16123 (1998) 43 NSWLR 504 (117 York St) at 508-509:

It is clear that 'reasonably necessary' in s 88K(1) does not mean 'absolutely necessary', and thus that the requirement may possibly be satisfied even when the plaintiff's land could be effectively used or developed without the easement.
In my opinion: (1) the proposed easement must be reasonably necessary either for all reasonable uses or developments of the land, or else for some one or more proposed uses or developments which are (at least) reasonable as compared with the possible alternative uses and developments; and (2) in order that an easement be reasonably necessary for a use or development, that use or development with the easement must be (at least) substantially preferable to the use or development without the easement.
The first of those requirements may seem contrary to a statement by Hamilton J in Tregoyd Gardens (at 14) that the Court 'is not to judge upon the reasonableness of the particular development'. However, that statement is qualified by the words 'at least in this case'. If there are some possible reasonable uses or developments of the land for which a proposed easement is not reasonably necessary, then it seems to me that the easement cannot be 'reasonably necessary for the effective use or development' of the land, at least unless there is some proposed use or development, for which the proposed easement is reasonably necessary, which is itself a reasonable use or development. It may be that the particular use or development would need also to be preferable to the alternatives; but whether or not that is so, it would in my opinion certainly need to be at least reasonable.
(citations omitted)

The above passage was cited with approval as the “correct approach” to the question of reasonable necessity by the New South Wales Court of Appeal (Bathurst CJ, Beazley and Meagher JJA) in Moorebank Recyclers Pty Ltd v Tanlane Pty Ltd [2012] NSWCA 445 (Moorebank v Tanlane) at [154].
The Defendant submits Hodgson J’s passage in 117 York St should be qualified by – but is not inconsistent with - the remarks of Giles JA in ING Bank (Aust) Ltd v O’Shea [2010] NSWCA 71 (ING Bank) at [56]. The Defendant relies on the observations of Beazley JA in Donnellan v Woodland [2012] NSWCA 433 (Donnellan), where her Honour noted 117 York St adopted a “more flexible approach to the application of s88K” (at [99]), while Giles JA in ING Bank emphasised “the importance of necessity in the statutory test and either explained or perhaps implicitly rejected the approach of Hodgson CJ in Eq in 117 York Street” (at [100]) (Defendant’s closing submissions [36]-[38]).
Further, the Defendant submits Giles JA’s reference to Young J in D&D Corak Investments Pty Ltd v Yiasemides [2006] NSWSC 1419 at [13] that “one must look for a requirement that is far closer to necessity than it is to convenience” is similar to the Young J’s remarks in Hanny v Lewis (1998) 9 BPR 16,205 at 16,209 that “the tone of the word ‘necessary’ is getting close to something which is a vital requirement” (Defendant’s closing submissions [39]).
In my view, 117 York St accurately reflects the law on reasonable necessity. Both parties accept this (Defendant’s closing submissions [35]; T 138/40-50). However, I do not consider Giles JA in ING Bank to be qualifying the test set out in 117 York St, or advocating for a more stringent approach which the appellate courts have not adopted. In my view, ING Bank is entirely consonant with 117 York St. Indeed, in ING Bank, Giles JA rejected the appellant’s submission the trial judge had applied a stringent test at odds with the 117 York St, explaining that Hodgson J was not reducing reasonable necessity to the question of substantial preference (at [53]).
To the extent Beazley J’s remarks in Donnellan may suggest there is a difference in approach, it should be noted the New South Wales Court of Appeal in Moorebank v Tanlane expressly endorsed the position of Hodgson J in 117 York St some three days after Donnellan. In my view, it is therefore correct to apply the principles set out in 117 York St in determining whether a section 88K easement meets the standard of reasonable necessity.
After citing 117 York St with approval, the Court of Appeal in Moorebank v Tanlane went on to note at [155]-[159]:

155 In Rainbowforce supra, Preston CJ of the Land and Environment Court, gave a relatively wide meaning to the concept of effective use and development (at [72]) stating that if use or development of land for some planning purpose such as residential, commercial or industrial cannot be achieved without the creation of the easement, the easement is reasonably necessary for such use or development to be effective. To the extent that Preston CJ was suggesting that subject to the other matters which he stated required consideration, an easement would be reasonably necessary for the effective use and development of the land if it was required for any proposed development, regardless of the development's desirability or economic effect, the proposition, with respect, is too wide. That approach would not take adequate account of the word effective. Equally, we do not believe, as suggested by Moorebank, that it is necessary to show that the easement is necessary to achieve the highest and best use of the land. In a case such as the present, where the easement is said to be necessary for the commercial development of the land, it is sufficient in our opinion to show that the proposed development is one which is appropriate to the area in which the land is situated and is at least an economically rational use of the land. That in our opinion is consistent with what was said by Hodgson J in 117 York Streetsupra in the passage which we have cited above (see also Lonergan v Lewis[2011] NSWSC 1133 at [22]).

156   That is not to say that an easement will always be granted in these circumstances. As we have indicated the authorities have established that the concept of reasonable necessity requires consideration of the effect of the grant of the easement on the servient tenement: O'Shea supra. Further, it is correct in our opinion, that the greater the burden on the servient tenement, the stronger the case needed to justify a finding of reasonable necessity: Rainbowforcesupra at [77]; Khattar v Wiese supra at [27]; Woodland v Manly Municipal Council, supra at [12]; Lonergan v Lewis supra at [22].
157   As we indicated earlier (par [131]) in Bloom v Lepre supra, Young J stated that where the effect of the easement was to sterilise the servient tenement insofar as the person's own development or use is concerned, the Court is not necessarily quite so favourable to the application. We would put the proposition more strongly. If the effect of the imposition of an easement was to effectively preclude a reasonably available development or use of the servient tenement appropriate to that land, then it would require a strong case of reasonable necessity before the easement would be imposed.
158   The determination of whether an easement is reasonably necessary for the use or development of the land also involves consideration of the alternative methods by which such use or development could be achieved. That is implicit in the concept of reasonable necessity. In the present case it involves the consideration of whether there is alternative access to give effect to the development.
159   None of the factors to which we have referred above can be considered in isolation from the others. Ultimately the question of whether an easement is reasonably necessary for the use or development of the land will be determined by an evaluation of those factors in conjunction with each other.

In Owners Strata Plan 13635 v Ryan [2006] NSWSC 221 at [67], a case cited by the Plaintiff, Rein J observed:

67 In my view, the historical context of use of the land, both of the dominant and servient tenements, is of relevance to an application for imposition of an easement pursuant to s 88K. Context can demonstrate that the use for which the easement is said to be reasonably necessary is a reasonable use of the land in all the circumstances.

Reasonable attempts to obtain the easement

Recognising the Court’s reluctance to impede proprietary rights and impose an easement, section 88K(2) requires the applicant for the easement to have made all reasonable attempts to otherwise obtain the easement. Preston CJ summarised the relevant principles in Rainbowforce Pty Limited v Skyton Holdings Pty Limited and Ors [2010] NSWLEC 2 at [131]:

[131] In order for an applicant for an order to make all reasonable attempts to obtain an easement:
(a) the applicant for the order must make an initial attempt to obtain the easement by negotiation with the person affected and some monetary offer should be made: Hanny v Lewis at 16,210;
(b) the applicant for the order should sufficiently inform the person affected of what is being sought and provide for the person affected an opportunity to consider his or her position and requirements in relation thereto: Coles Myer NSW Ltd v Dymocks Book Arcade Ltd (1996) 7 BPR 14,638 at 14,654;
(c) the applicant for the order is not required to continue to negotiate with a person affected by making more and more concessions until consensus is reached to the satisfaction of the person affected: Coles Myer NSW Ltd v Dymocks Book Arcade Ltd at 14,654; and
(d) the whole of the circumstances are to be considered from an objective point of view; once it appears from an objective point of view that it is extremely unlikely that further negotiations will produce a consensus within the reasonably foreseeable future, it may be concluded that all reasonable attempts have been made to obtain the easement: Coles Myer NSW Ltd v Dymocks Book Arcade at 14,653–14,654 and see also Antipas v Kutcher at [14].

Discretionary matters

Notwithstanding satisfaction of section 88K(1) and (2), the Court retains discretion as to whether to grant relief by way of an easement; Khattar v Wiese [2005] NSWSC 1014 (Khattar) at [59] – [60].
The discretion should be exercised consistently with the purpose of the section, being as Brereton J summarised it in Khattar at [60] with reference to the Second Reading Speech on 4 December 1995, to facilitate “the reasonable development of land whilst ensuring that just compensation be paid for any erosion of private property rights.”

Nature and terms of the easement

Under section 88K(3), the Court may impose the nature and terms of the easement. The New South Wales Court of Appeal summarised various examples of the application of section 88K(3) in Moorebank v Tanlane at [183]-[184]:

[183]…Section 88K(3) requires the court to specify the nature and terms of the easement but imposes no limitation on the terms which can be imposed. Thus, for example, in 117 York Street supra, Hodgson J imposed a condition on the easement requiring the owner of the proposed servient tenement to grant owner’s consent to the lodgement of a development application by the plaintiff (at 522).
[184] In Rainbowforce supra, Preston CJ rejected the application by the defendant to impose suggested conditions on road and bridge construction as a term of the instrument creating the easement. However, he declined to do this not because of an absence of power to impose the terms but because he considered the matters in question were matters for the Council to consider on a development application (see at [206]–[209]).
(footnotes omitted)

Compensation

Read together, sections 88K(2)(a) and 88K(4) require the owner of the servient tenement be “adequately compensated for any loss or other disadvantage that will arise from the imposition of an easement’ and for an amount ‘as the court considers appropriate.”
Relevant considerations in assessing the appropriate amount of compensation include those set out by Young J in Wengarin Pty Ltd v Byron Shire Council (1999) 9 BPR 16,985 at 16,989:

(a) the diminished market value of the affected land (including what is sometimes called the hope value, that is the potential use to which the subject land could have been put: Re Bowden’s Application (1983) 47 P&CR 455 at 457 );
(b) associated costs that would be caused to the owner of the affected land: Tregoyd at 15,856;
(c) an assessment of the compensation for insecurity, loss of amenities such as loss of peace and quiet: Tregoyd at 15,856; S J C at 326; and see Preston and Newsom, Restrictive Covenants Affecting Freehold Land, 8th ed, Sweet & Maxwell, London, 1991, p 284;
(d) the compensation is to be less compensating advantages, if any.

Parties’ submissions

The main issue in dispute was whether the Option 1 easement over the Lever Land should be granted (as submitted by the Plaintiffs) or the Plaintiffs should instead have access to the Summerland Way through an Option 4, or possibly an Option 3 easement across Gordon Land (as submitted by the Defendant as its primary case).

Use of the land

The Plaintiffs submit Lot 40 and 7 are used for residential and agricultural purposes. The Plaintiffs submit Ms Dunn, her husband and her two primary school aged children live on Lot 7 and thus use the land for residential purposes.
However, the Plaintiffs also submit Mr Gordon uses the land for agricultural purposes, running a dairy farm until 2013 on both Lot 7 and Lot 40, and now using the land for beef cattle production and wanting to use the proposed bridge across the gully of Lot 36 to take his cattle in and out and also bring in stock and feed (T256/46-50) (RG1 [40]-[42]).
The Defendant accepts Ms Dunn and her family heavily rely on Option 1 for residential purposes. However, the Defendant disputes the extent to which Mr Gordon uses Option 1 for farming purposes, relying on the evidence of Mr Madeley and Mr Lever (T286/36). The Defendant submits the only evidence the Plaintiffs put on was Mr Gordon’s evidence he can no longer transport his cattle direct from Lot 7 by truck (CB 94 [15]).

Section 88K(1)

Reasonable necessity of Option 1

Plaintiffs’ submissions

The Plaintiffs submit Option 1 is “(at least) substantially preferable to the effective use of the Gordon land than Option 4 and therefore the easement is reasonably necessary” (Plaintiffs’ opening submissions [33]).
The Plaintiffs submit that unless the Summerland Way can be accessed on a day to day basis, there will not be an effective use of the land (T13/49-50). In light of the frequency of flooding and rainfall in the past six months (T14/17-20), the Plaintiffs submit Option 1 is the only easement which will allow for access to the Summerland Way in these conditions on a day to day basis.
Through a table of comparisons (see Plaintiffs’ Table of Evidence), the Plaintiffs submit a list of factors in favour of Option 1 being reasonably necessary to provide the Plaintiffs with access to the Summerland Way. Unlike Option 4, Option 1 can be accessed safely in all weather conditions and all times of day. Further, while Option 1 would only allow for 2 wheel drive vehicles (as opposed to 4 wheel drive vehicles on Option 4), Option 1 would allow for vehicles carrying stock in all conditions, and Option 1 would be cost effective with a quote already obtained.
The Plaintiffs also submit the work that would be required to be done in implementing the Option 1 easement would be “vastly more straightforward” than what is required by Option 4 (Plaintiffs’ submissions on regulatory framework and evidence [32]). The Plaintiffs note the minimal regulatory issues with Option 1 easement given the proposed does not impound water, and the fact the proposed bridge would be replacing a former structure in a known location with good natural clearance from intermittent stream on both sides due to topography (Plaintiffs’ submissions on regulatory framework and evidence [32]). The Plaintiffs further state the Council has said it does not oppose or have any objection to the creation of a right of carriageway over the existing access path (CB 574), and furthermore can provide assistance with the application to the NSW Fisheries for the rebuilding of the bridge over the gully (CB 574) (Plaintiffs’ submissions on regulatory framework and evidence [27]-[30]).
To the extent historical use is relevant (T251/48-T252/5), the Plaintiffs submit the evidence shows that each successive owner of Lot 7 and 40 from 1954 (namely Mr Barlow, the Heads, the Cootes and now the Plaintiffs) used the Option 1 route as their primary vehicle access from the Summerland Way to the houses on Lot 7 and 40 (Plaintiffs’ opening submissions [17]).
The Plaintiffs submit the burden of Option 1 on the Lever Land is minimal, since the access road has been in existence for a considerable period of time, the location is obscured from the view of the main dwelling, and it is the start of an important access route to further land of the Lever’s (Plaintiffs’ opening submissions [34]).

Defendant’s submissions

The Defendant submits while it might be “advantageous or preferable” to have access to the Summerland Way that is not occasionally interrupted by flooding, this cannot be put higher than a matter of convenience or desirability and falls short of a “vital requirement” for the residential use of the land (Defendant’s closing submissions [44]-[46]).
The Defendant submits historically, the evidence shows that even once the Option 1 route was opened, the predominant access to Lots 40 and 7 was the Option 3 access route, until Ms Dunn moved to Lot 7 and used it for residential purposes (T286/12-22; Defendant’s closing submissions [12]-[19]). The Defendant further submits Mr Gordon used Option 4 for farming purposes, or to the extent he used Option 1, he was unaware of such use (Defendant’s closing submissions [20]-[25]).
The Defendant also notes the Plaintiffs made no attempt to build the proposed bridge themselves after the destruction of the former bridge in December 2015, and they waited seven months before approaching the Defendant about an easement (Defendant’s opening submissions [38](e)). Further, there is no guarantee the proposed bridge along Option 1 would remove any restriction on access, since the limited evidence shows the weather can at times still be severe enough to damage and wash a bridge over the gully away, as occurred in December 2015 (Defendant’s opening submissions [38](d)).
The Defendant submits the burden imposed by an Option 1 easement is disproportionate to any need the Plaintiffs may have, noting it involves a 500 metre long road traversing close to the Defendant’s homestead, the terms of the Plaintiffs’ Option 1 easement will allow any person or vehicle accessing Lot 7 and 40 to traverse the Defendant’s land, and there would be an increase in use or change in the type or frequency of vehicles using the access road (Defendant’s closing submissions [58]).

Comparison with other Options

Option 4

The Plaintiffs submit the Court does not have a sound evidentiary base for determining a causeway of the Richmond River is a reasonable option, citing a myriad of regulatory issues and a stringent, costly and timely approval regime that would first need to be overcome, including several environmental approvals that would be required given the existence of the endangered Purple Spotted Gudgeon in the Richmond River (T276/10-T280/8; Plaintiff’s submissions on regulatory framework and evidence [7]-[26]).
The Plaintiffs also note Mr McElroy’s proposal of a concrete causeway at the crossing of the Richmond River is not based on a close expert assessment since he had not crossed the river nor inspected the tracks on Lot 7 and 40 that lead from the house to the Option 4 crossing (Plaintiffs’ submissions on regulatory framework and evidence [1]-[2]).
Further, the Plaintiffs submit, as acknowledged by the Defendant’s expert Mr McElroy (T101/20; T102;30; T102/45-103/11), any causeway over the Richmond River would be impassable and unsafe to cross in periods of heavy rain, as has been experienced in the past 18 months (Plaintiffs’ submissions on regulatory framework and evidence [25]).
The Defendant submits the Option 1 easement is not reasonably necessary for the residential use of the land as it can be and has been used for that purpose without the easement, with access to the land via Option 4. As evidence of the lack of reasonable necessity attached to Option 1, the Defendant submits the Plaintiffs have failed to sufficiently prove why Option 4 is not a viable and obvious alternative method of access to the Summerland Way.
The Defendant accepts the crossing over the river is currently unimproved, but relies on Mr McElroy’s observations that the construction of a concrete causeway across the river “would allow ready safe access across the [river] in most flow regimes with the exception of significantly high flows” (McElroy Report [3.4.4]) (Defendant’s closing submissions [31]). The Defendant submits the Plaintiffs have failed to put on any evidence as to the impossibility or impracticality of improving vehicle movement by properly forming the roads which are currently used for the Option 4 route (Defendant’s closing submissions [34]).
In relation to issues with regulatory approval, the Defendant submits this barrier is not significant, with the Plaintiffs unable to put it any higher than “the Court cannot be certain that a causeway at Option 4 would be acceptable” to the DPI (Plaintiffs’ submissions on regulatory framework and evidence [18]). The Defendant submits such a finding is not sufficient to warrant Option 4’s exclusion from consideration (Defendant’s closing submissions [32]).
The Defendant further submits there is insufficient evidence to show how frequently Option 4 will be prevented from being used due to rainfall or river flow (Defendant’s closing submissions [33]).

Option 3

The Plaintiffs dismiss Option 3 as unrealistic and unreasonable as it requires a costly bridge to be built, and has numerous other issues as pointed out by Mr McElroy in his report (at [3.3.7], [5.04]) (Plaintiffs’ opening submissions [28]).
The Defendant acknowledges a causeway along Option 3 would likely be problematical as the surrounding banks are steep and a track runs alongside the river for about 200 metres which itself is subject to flooding damage. A bridge would cost about $240,000 but would provide a “permanent solution” (McElroy Report [3.3.7]) to access. However, the Defendant submits the total cost of Option 1 (for works, compensation and legals) is likely to approach or even exceed the cost of a permanent solution at Option 3 which did not require an easement or the incurring of substantial legal costs to obtain it (Defendant’s closing submissions [51]).

Option 2

Both parties accept an Option 2 easement is not an option, due to several barriers including the positioning of a dam over Lot 100 (T269/15; Defendant’s closing submissions [28]; T290/40-45).

Limited Option 1 easement

The Defendant submits even if the Court does take the view the Option 1 easement is reasonably necessary, the Court should not impose an easement allowing for use of the Defendant’s land at all times and for all purposes (Defendant’s closing submissions [81]). The Defendant suggests a condition restricting use of the easement to relevant vehicles for periods around flood times could be drafted with sufficient precision (Defendant’s closing submissions [82]).
The Plaintiffs submit limiting an Option 1 easement to certain times is unenforceable due to the uncertainty it would create (T259/5).

Section 88K(2)

Public interest

The Plaintiffs submit an Option 1 easement would not be inconsistent with the public interest as it is in the public interest for the children of Ms Dunn to attend school, and for persons to take the safest route to gain access to a public road (Plaintiffs’ opening submissions [36]).
The Defendant accepts the current uses of Lot 7 and Lot 40 are consistent with the public interest (Defendant’s opening submissions [44]).

Adequate compensation

The Defendant does not dispute he can be adequately compensated for any loss or disadvantage arising from an Option 1 easement (Defendant’s opening submissions [45]).

Reasonable attempts to obtain easement

The Plaintiffs submit the correspondence between the parties in Volume 2 of the Court Book show their reasonable attempts to obtain the easement (Plaintiffs’ opening submissions [38]).
The Defendant submits the Plaintiffs did not take reasonable steps to obtain the easement. The Defendant notes the correspondence between the parties leading up to these proceedings show the Plaintiffs made no attempt to provide the Defendant with any assessment or information regarding alternative access, including in relation to Option 4. The Defendant submits even if Option 1 should be imposed, it was unreasonable of the Plaintiffs to dismiss Option 4 out of hand as another option, and not provide the Defendant with any information such as regulatory or engineering barriers to the improvement of the causeway over the river (Defendant’s closing submissions [59]-[64]).

Compensation

Cost of the new bridge

In terms of cost, the Plaintiffs submit $38,940 (including GST) is an appropriate quote.
The Plaintiffs note Mr McElroy agreed under cross-examination Mr Gordon’s quote of $38,940 was within the range for an acceptable bridge at that location and not dissimilar to the $48,884 he proposed (T111/46-T112/21). The Plaintiffs submit the difference between the figures is that Mr Gordon would undertake some labour.
The Defendant’s expert maintains $48,884 is an appropriate figure for the construction of a bridge fit for purpose (McElroy Report [3.1.9]-[3.1.10]).

Road maintenance

The Defendant’s expert suggests $36,674 is appropriate for road maintenance of the Option 1 access road along Lot 100 and Lot 36 across the Lever Land.

The Plaintiffs accept it is usually a matter for the dominant tenement to maintain the right of carriageway, and agree they will continue to maintain the access road on Option 1 as they have in the past, with no complaints voiced by the Defendant (Plaintiffs’ submissions on regulatory framework and evidence [33]-[35]). The Plaintiffs also point to the drone footage (Exhibit P10), photos (P11) and Mr McElroy’s concessions regarding the state of the road, as evidence of the minimal upgrade that would need to be done on the access road leading to the proposed bridge (Plaintiffs’ submissions on regulatory framework and evidence [34]).

Disturbance

The Plaintiffs submit compensation for disturbance should not exceed $3,000, as valued by Ms Hunt, pointing to a multitude of reasons why disturbance is minimal and does not justify Mr Northfield’s figure of $15,000 (Plaintiffs’ submissions on valuation evidence and the assessment of compensation [19]).
These reasons include evidence going to the fact the Defendant will benefit from the existing road and the Plaintiffs’ maintenance of the road, and the Defendant has allowed for the use of the road by the Plaintiffs and their family for the past 19 years and accepted they were not causing “too much of a disturbance for me even when I was in residence” and the use of the road was not causing him “any great problem” (T231/35-T232/03), seen in the fact the Plaintiffs were only unable to use the road once the bridge over the gully was destroyed and not because the Defendant provided otherwise.
Further, the Plaintiffs point to evidence showing traffic on the road is “minimal,” there is no request to use the easement for development on the land, use of the road is unlikely to intensify once the easement is granted, the Defendant accesses his dwelling house by a different road, there are natural features largely obscuring the road from the Defendant’s dwelling house, and he is more likely to hear noise from the Summerland Way than the access road.
The Defendant submits Ms Hunt misunderstood the issue in reaching her valuation of $3,000, only taking into account disturbance cause by the reconstruction of the bridge on Option 1, rather than disturbance caused by the subsequent use of the easement. Further, the Defendant submits Ms Hunt also wrongly assumed only one car per day would use Option 1, when in reality it would be much more than that, especially if the bridge is capable of carrying 40 tonne trucks (Defendant’s closing submissions [66]-[70]).

Special circumstances

The Plaintiffs submit it is open to the Court to find no compensation is payable under section 88K(4) for any loss or other disadvantage that may arise from the imposition of the easement over Lot 100. The Plaintiffs’ base this submission on the “special circumstances” (adopting the language of Young J in Wengarin) arising in this case, namely that an easement would not be needed over Lot 100 (and only Lot 36) if the Defendant had not built the dam over the road reserve, the Plaintiffs could have used that road to access the Summerland Way (Plaintiff’s submissions on valuation evidence and the assessment of compensation [13]-[15]).
The Plaintiffs submit Ms Hunt’s deductions in compensation for this circumstance, being $8,600 should be accepted as an amount attributable to special circumstances with respect to Lot 100 (Plaintiffs’ submissions on valuation evidence and the assessment of compensation [17]).
The Defendant submits the dam is located where there was a naturally occurring swamp, he was not cross-examined on the issue nor was any evidence adduced by the Plaintiffs about the viability of building a road on the swampy ground (Defendant’s closing submissions [28]).

Compensating advantages

The Plaintiffs further submit the Court should take into account the “compensating advantages” an Option 1 easement would have for the Defendant. These include the fact the Defendant’s farm manager uses the access road on Lot 36 on a regular basis, he will further need the road if he wishes to subdivide Lot 36 into Lot 26 and 27 which will also improve the prospects of selling Lot 36, and he can also use the bridge to access the part of Lot 36 which is over the gully (Plaintiffs’ submissions on valuation evidence and the assessment of compensation [19](x)).
The Defendant submits there is no evidence the Defendant ever intends to carry out the subdivision of Lot 36 – he obtained consent 20 years ago and has still not acted on it (Defendant’s closing submissions [76]). Further, the Defendant submits even if there was such a subdivision the owners of Lot 26 would, as a matter of law, also have an obligation to repair or maintain the easement, so it is not correct to assume the Defendant or the owners of Lot 26 would obtain any advantage (Defendant’s closing submissions [77]).

Compensation only for certain heads

The Plaintiffs submit it is also open to the Court to find compensation is only payable for blot on title ($5,000) and diminished value in the land ($750) because the road is already in existence and in use by both parties, and special value and injurious affection are not available as a matter of law in these cases (Plaintiffs’ submissions on valuation evidence and the assessment of compensation [20]).

Evidence of Expert Witnesses

Evidence of Mr Denny

Mr Anthony John Denny swore two affidavits, one of 18 April 2017 (AD1) and the other of 13 July 2017 (AD2). Mr Denny is a registered surveyor and a partner of a firm Newton Denny Chappelle at Lismore, New South Wales. He has practised as a surveyor for almost 20 years. His clients include Councils and other business mainly in northern New South Wales (AD1 [1]-[2]).
By letter dated 23 February 2017 Mr Denny was asked to prepare a plan for the creation of a right of carriageway over the track referred to as Option 1 in the proceedings (AD1 [3]).
For that purpose Mr Denny attended at the property on 14 March 2017 and he carried out a survey of the track in use as identified by the parties (AD1 [4]).
On 15 September 2016 he expressed a number of views in relation to Options 1, 2 and 3 (CB 205-207). Option 1 was to utilise the existing track and repair the gully crossing. He took the view that as far as survey services, this was the most cost effective.
Option 2 as described he thought was not practical due to part of the road reserve has a large dam built on it.
Option 3 was to construct a bridge over the Richmond River. He thought this would be of great expense and was not sure this would be possible given the need for relevant approvals.
His second report required him to address certain issues in the letter of 28 June 2017 (AD2 [4]). That letter indicated that objection would be taken to Mr Denny’s report as he did not set out the basis for any of the opinions he expressed and which are somewhat cryptically set out in his letter of September 2016.
In his second affidavit he set out further correspondence with Mr Gibson solicitor. The thrust of this report in part at least was to indicate that he attempted to get access to Mr Lever’s land and was denied it. As a result he then did what he described as a “desk top analysis” (AD2 [6]-[7]).
He further indicated he had subsequently obtained access to the Defendant’s land. He had also read the Report of Mr McElroy of 13 June 2017. He was unable to express any views as to the engineering opinions of Mr McElroy. He disagreed with Mr McElroy’s assertion that Option 4 as described was the most pragmatic. His view was that a formalised crossing of the Richmond River would require the registration of the right of carriageway over the subject titles of the Lots (AD2 [9]-[11]).
Mr Denny was cross-examined. Mr Denny was asked whether at the time he had written his original letter he was aware that the Gordon’s owned land to the north of Lots 7 and 40. He said he was not (T37/20-25).
It was suggested to Mr Denny that the reason he did not consider Option 4 was because as far as he was aware someone else owned that land. He agreed with that proposition and indicated he was looking at strictly legal access via road reserves. He discovered the Gordons owned Lots 101 and 102 (to the north of Lots 7 and 40) on the day of his second visit (T37/39-T38/2).
Having learnt that the Gordons owned Lots 101 and 102 it was put to Mr Denny this simply reaffirmed his opinion of 15 September. It was further put to him that their ownership of these Lots would have meant Option 4 should have been considered as an Option. He indicated he did not think of that at the time (T38/13-33).
It was put to Mr Denny that he was asked to assume that Kyogle Council had agreed to reinstate the crossing of the creek where the bridge had been washed away but there was no reference to any costs of reconstruction. He said the reason he made no reference to costs is that he was not an engineer and he would not be able to comment on the costs (T39/5-10).

Evidence of Mr Breen

Mr Jeffrey Breen swore one affidavit dated 14 July 2017 (JB). He is an engineer. Mr Breen has a Bachelor or Engineering Degree from Deakin University. He has had extensive experience over the years since he began as a scaffolding inspector in 1981. He has worked as a consultant, an engineering manager both for Local Government and private companies. He was also Chief Executive Office of the Shire of Ashburton (JB [1]-[2]).
His letter of instruction dated 13 July 2017 asked him to comment on the report of Mr McElroy of 20 June 2017 and also of Mr Denny of 18 April 2017.
A number of objections were taken to his affidavit principally on the basis that he had failed to explain his reasoning process behind a number of assertions made by him. I allowed his report but with some limitations.
He is familiar with the area in question and the circumstances surrounding them. When the bridge was washed away in a storm event in late 2015 he was employed then as the Executive Manager of Infrastructure and Works at Kyogle Council (JB [6]).
Somewhat cryptically, he asserted Mr McElroy’s estimates for the replacement of the bridge are to a standard beyond the requirement. No further explanation is proffered. This opinion is expressed in relation to Option 1 (JB [8]-[12]).
As far as Option 2 is concerned he appeared agree with Mr McElroy’s comments (JB [13]).
As far as Option 3 is concerned without explanation he expressed the view that this route is a high risk option from a safety, environmental and financial view point (JB [14]-[15]).
As far as Option 4 is concerned he thought that this provided a reasonably easy constructed and maintained access track over the Gordon’s property from Summerland Way to the river. However beyond the river the access track he thought became problematical. This is because the access track has to cross river flats that would remain wet and soft for extensive periods of the year and may require repair after flood events. In addition he felt crossing the Richmond River was also problematical (JB [16]-[18]).
Construction of a causeway he believed would require approval of the DPI. If there were any endangered fish species this would also make approval problematical (JB [18]).
Because of the possible rise of flood waters, the longevity of any causeway constructed may be questionable (JB [19]-[20]).
From a safety risk perspective he thought the causeway was a higher risk option, partly due to slipperiness caused by algae, delineation of the crossing at night and other matters associated with flooding (JB [21]).
Mr Breen had done some research on the history of the access road which was largely based on files kept by the Council (T60/40-50).
Mr Breen accepted that for most of its length Option 3 runs over a crown reserve road (T65/20-25).
Mr Breen accepted that he did not have any knowledge as to how the previous bridge over the gully in Option 1 had been maintained (T67/39-50).
He had not seen any photographs of the old bridge but he had seen pieces of timber which has been washed downstream (T68/1-5).
He agreed with Mr McElroy for reasons why Option 2 is not appropriate (T68/20-22).
Mr Breen accepted it was possible to engineer a causeway in the context of Option 4. Mr Breen asserted that even constructed by an experienced competent engineer, causeways still wash away (T69/20-30).
Mr Breen also agreed it was possible to erect reflector posts and/or flood light to overcome any night crossings (T69/43-50).

Evidence of Mr McElroy

Mr Stephen Paul McElroy swore two affidavits, one 20 June 2017 (SM1), the second of 28 July 2017 (SM2). Attached to Mr McElroy’s first affidavit was a report he was asked by the Defendants to prepare on what were described as Options 1, 2 and 3 (McElroy Report, CB 372-388).
Mr McElroy is a civil and structural engineer. He graduated with a Bachelor of Engineering Degree from RMIT in 1981 and has a Post Graduate Diploma in Municipal Engineering and Management from Deakin University. He has extensive experience across all the areas of engineering but has worked for many Local Government authorities including Kyogle Council (McElroy Report [1.1]-[1.5]).
He was asked by a letter of 16 May 2017 to prepare a report expressing views on what were described as Options 1, 2 and 3. He was also asked to express a view as to whether he thought there were any other viable means of accessing Lots 40 and 7 (CB 400-402).
Mr McElroy made an inspection of the various Options in company with Mr Northfield, a valuer, and solicitor Ms Kelly Waring. Mr McElroy walked the various routes in company with Mr Northfield (McElroy Report [2.1]-[2.3]).
He observed that all sites showed the rigours of a recent flood event and the surface of the ground and tracks were moist but not wet (McElroy Report [2.4]).
The general description of the surrounding country was undulating to steep grazing country with some remnant patches of riverine environment along the Richmond River (McElroy Report [2.5]).
As far as Option 1 was concerned he described it as currently an unauthorised access to the Gordon property through the Lever property. However until destruction of the bridge by a high flow through the tributary to the Richmond River the use of the access track through the Lever property was allowed by way of a gentleman’s agreement by the present and previous owners of the Lever property (McElroy Report [3.1.1]).
He expressed the view that the access track was in fair condition on the flat sections of the track. On steep sections he observed erosion of the side drains and on sections of the pavement which he thought required repair. He thought if left in disrepair the track would become very rough and would not be accessible by 2WD vehicles. At present a 2WD vehicle could negotiate the track with relative ease until the approach section just prior to the location of the destroyed bridge. He thought the track from the location of the former bridge to the boundary of the Gordon property was very rough and could only be negotiated with great care by 4WD vehicles (McElroy Report [3.1.2]).
His observations were that the access track is a rough formation 3 to 4 metres wide which is being constructed from natural weathered basalt gravel probably sourced locally. The track varies from two wheel tracks to a full width pavement with gravel depth varying from none at all to about 80 millimetres. He believed that during dry weather most of the track would be accessible by a 2WD vehicles but after rain the track would become very slippery and would only be suitable for access by a 4WD vehicle. The distance from the front gate shown in his Exhibit 2 and the gully area shown in Exhibit 4 is approximately 436 metres (McElroy Report [3.1.3]-[3.1.5]).
The gully is 3 metres deep and the western bank is about 1 metre higher than the eastern bank. The contours of the land the alignment of the creek do not allow for the construction of the causeway type crossing. If a bridge were to be erected the minimum length of the bridge would have to be 10.5 metres in span. The desirable span of the bridge at this location will provide for a stable structure he thought was 16 metres (McElroy Report [3.1.6]).
Mr McElroy thought that for the access track to be viable and provide security of access some upgrading would be required. He outlined what he thought needed to be done. He estimated the cost of upgrading the access track would be $118,374 including GST. This figure however would substantially involve the costs of the construction of a new bridge ($82,060). On the other hand merely upgrading the road would be $36,674 (McElroy Report [3.1.8]).
Mr McElroy thought that if the bridge was constructed from timber sourced from the property to a 10.5 metre span, the cost of the bridge would reduce to $48,884. The upgrading of the track however would remain the same at $36,674 (McElroy Report [3.1.9]-[3.1.10]).
Mr McElroy stated that those figures did not allow for periodic maintenance and without costing it he set out those items that he thought should require reasonably regular attention (McElroy Report [3.1.11]).
According to Mr McElroy, Option 2 access would involve the use of the existing unformed road reserve. However the construction of an access road was impractical and uneconomical due in part to the access from the Summerland Way is very close to a sharp curve and not an ideal location for an additional access into a private road. There was a large dam constructed directly over the road reserve and it would be costly and difficult to construct a road reserve across the middle of the dam. Further there is a large hill which would require significant excavation in order to construct a track along the road reserve (McElroy Report [3.2.1]-[3.2.3]).
In Mr McElroy’s view the cost of the construction of a track suitable for the safe passage of a 2WD vehicle would be prohibitive even if possible. It may also be the case that if the RMS were agreeable to allow additional access from the Summerland Way they may require construction of a basic turning lane on the highway. Given the length of the track (429m) and the difficulty of the construction a ball park figure of $300,000 plus GST per kilometre would be an appropriate rate for an initial estimate. This would equate he thought to $141,570 including GST (McElroy Report [3.2.4]).
Mr McElroy thought Option 3 access was not well defined and intersected with the Summerland Way on an oblique angle near the end of a safety barrier. The track down to the river bed is not well defined and there is no defined pavement. Once at the riverbank level the track parallels to the Richmond River for about 200 metres where it crosses at a shallow part of the river through an oblique width of about 30 metres. Again there is no defined pavement or river crossing on this route (McElroy Report [3.3.1]-[3.3.2])
Mr McElroy thought that although the route would be accessible in dry weather, each time the river flooded the track would be washed away. One option for improving the reliability of the access across the river would be the construction of a low level causeway. This would have to be designed and constructed so that it would remain stable during flood events. The estimate cost of a 30 metre long causeway would be $400 a square metre which totals $50,400 including GST (McElroy Report [3.3.4]-[3.3.6]).
On the other hand a permanent solution to access would be the construction of a bridge near to where the track intersects the Summerland Way. A ball park estimate for the construction would be $240,000 including GST (McElroy Report [3.3.7]).
Mr McElroy described Option 4 as a current access used by Mr Gordon to access his dwelling off the Summerland Way. This passes through Mr Gordon’s Lot 101, past his dwelling along a well formed gravel road to the riverbank. The road then travels along the riverbank for approximately 120 metres and crosses the river at a shallow rocked causeway onto another property owned by Mr Gordon (McElroy Report [3.4.1]).

Mr McElroy stated that during high river flow the access track above the top of the river bank remained stable however the track adjacent to the river is subject to damage by fast flowing water (McElroy Report [3.4.2]-[3.4.3]).
The construction of a concrete causeway across the river at this location in his view would allow ready access across in most flow regimes with the exception of significantly high flows. The cost of a concrete causeway at $400 per square metre for a 15 metre long by 4.2 metre wide structure would be around $25,200 including GST (McElroy Report [3.4.4]).
His view was that if a concrete causeway were constructed the proposed arrangement would be usable for most of the year with only occasional events when the river could not be crossed by a 4WD domestic vehicle. His view was according to local knowledge that this occurred only on 6 occasions over the last 30 years, and only over very heavy flooding. He also accepted that the alignment of the access track on the western side of the river crossing could be described as easy with good access over flat land and the track in his view would be passable by a 2WD vehicle with the exception of times when the track is inundated during flooding events (McElroy Report [3.4.5]-[3.4.7]).
In summary, Mr McElroy’s view was that the most viable Option with respect to costs was Option 4. The most viable Option with respect to serviceability was Option 1, however in his view there would be a minimum cost of $85,558 including GST for the maintenance of the road including the construction of the bridge. Although the most permanent solution is Option 3, it was economically prohibitive. Option 2 was also an expensive Option. In conclusion then Option 1 he thought was the most serviceable Option, but Option 4 was the most pragmatic (McElroy Report [4.01]-[5.06]).
Mr McElroy in his second affidavit commented on Mr Breen’s report. In short response he thought the construction of a causeway was entirely feasible with Option 4. Notwithstanding flooding he thought properly constructed Option 4 should provide a serviceable solution (SM2 [1]-[7]).
He accepted that crossing a river always carries some risk. Further there are some ways of ameliorating the risks by the type of material used. In his view financially the proposed option for a permanent river crossing represents the most viable alternative (SM2 [8]-[10]).
Mr McElroy was cross-examined.
Mr McElroy agreed that the date he inspected the property was 22 May (T89/4-6).
He also agreed that the photographs attached to his report were taken on the same day (T89/7-8). Mr McElroy was asked about the land up from the bridge and he asserted that this was not shown on the drone footage (T89/16-18).
He would not agree there was gravel on the whole of the road only on some sections of the road. He was able to observe this by walking along. In some areas there was no gravel at all and in others a reasonable thickness of say 80 millimetres (T89/20-25).
Mr McElroy thought that once the bridge was replaced it would be important to require the degree of upgrading and maintenance he suggested (T90/10-15).
Mr McElroy agreed that the traffic would be very low, nonetheless he thought the figure of $36,674 was necessary (T94/35-45).
Mr McElroy did agree that part of the road on the Lever Land is well above the river and most of the land is well above what Mr McElroy would describe as “nuisance flood level” (T91/15-20).
Mr McElroy adhered to his view that Option 1 although it would not get flooded out could become wet and slippery (T92/25-30).
Mr McElroy agreed that the road is relatively flat after a vehicle passes through the gate but that is why in his view drainage would be necessary to protect the road. A modicum of drains each side of the road would help dry it out when it gets wet (T92/10-15). Mr McElroy agreed that the access from the Summerland Way for Option 2 is very close to a sharp curve (T94/10-15).
It was put to Mr McElroy that the presence of a convex mirror suggests that it is not a safe entrance and he was asked to agree whether the entrance to Option 1 is safer. Mr McElroy said he was unable to comment on that. All entrances have problems and he would have to know why the mirror was installed (T97/5-15).
Mr McElroy thought none of the Options were ideal however if the access for the current Option 1 is closed Option 4 would be the better Option (T98/10-20).
Mr McElroy agreed that since he inspected the property on 22 May there had been no sustained period of rain prior to that (T100/5-10). However he also agreed that had been extensive flooding in April (T100/15-20).
Mr McElroy accepted that Mr Gordon had to do extensive repairs to the crossing after the flooding.
Mr McElroy was shown photographs at pages 64 and 65 of the flooding and it was put that a causeway would be no use in those circumstances. He agreed that no form of river crossing other than a highly elevated bridge would be of any use to a crossing of the river like that portrayed in the photographs. He was shown photos at pages 67 and 68 and agreed that it looked like the same location and that damage had been done to the approaches of the road (T101/20-25).
Mr McElroy said if there was any doubt, people should not cross rivers, but in the Northern Rivers area there are hundreds of situations like this and Kyogle Council and Northern Rivers people are well versed in the dangers of crossing flooded rivers and the causeways or bridges (T103/30-35).
Mr McElroy thought that even a bridge across the gully could be a problem depending upon the intensity of the storm (T105/1-9).
Mr McElroy accepted that the DPI would certainly want to investigate all manner of things concerning the waterway (T109/5-40).
Mr McElroy suggested that the construction of the causeway with Option 4 would have to be done with the most convenient part of the year, probably in winter (T111/35-45).
Mr McElroy accepted that whilst he had referred to ongoing maintenance he had not applied any costs (T114/5-25).
Mr McElroy agreed that part of Option 4 would require going through river flats (T115/10-20).

Evidence of the Valuers

The Plaintiffs called a Ms Hunt and the Defendant a Mr Northfield. Each was cross-examined and I shall deal with that evidence shortly. However in advance of them giving evidence I directed them to confer and they agreed on numerous issues.
Ms Hunt initially produced a report attached to her affidavit of 17 July 2017. Mr Northfield on the other hand produced a report dated 22 June 2017.
The valuers produced a joint report dated 26 July 2017 (Valuers’ Joint Report/Exhibit P6). I should say in passing there was no question that each was appropriately qualified to express the views that they did. Given the joint report and their answers to further questions posed by Counsel for the Plaintiffs I do not propose to detail the evidence they produced in their initial reports.
In the Valuers’ Joint Report, it was agreed that the proposed easement is approximately 1,290 square metres in area. The area is confirmed from information supplied by the surveyors Newton Denny Chapelle and does not include the unformed Crown Road reserve which crosses the proposed easement. They also agree that the total land area of the parent parcel lots, i.e. Lot 100 in DP 1045950 and Lot 36 in DP 755733, is 176.18 hectares. They also agreed in relation to the compensation assessment that is the value of the proposed easement and diminution in the value of the land they agreed on a diminution percentage of 55%. This was a meet halfway approach on each of the percentages used.
In relation to the compensation assessment that is the value of the proposed easement and the value of the land they agreed to adopt the rate per hectare used in Mr Northfield’s report of $10,000 per hectare to reflect the description of the improvements as stated in his report.
The calculation on the agreed diminution percentage of 55% valued the proposed easement area by multiplying 1,290 square metres at $10,000 per hectare with a diminution value in the land of 55% amounted to $709.50.
They both agreed that a blot on the title was worth $5,000. They also agreed that there should be a Special Value of $5,000. They also agreed that the Injurious Affection to the value of the rural land outside the easement was $5,000. In addition they both agreed that the diminution of the home sites is $6,150 apportioned between Lot 100 (at $310,000) apportioned at 0.5% and Lot 21 ($460,000) apportioned at 1% of the value. This totalled $6,150.
The valuers however disagreed on the compensation for disturbance. Ms Hunt said that the amount should be $3,000. The reason being was that the property had been used an access way between 1954 when the Council built the bridge and February 2016 when the bridge washed away. Ms Hunt’s view was that if the bridge had not been washed away the historical agreement providing the right of access across the subject land to the subject bridge would still exist and therefore the disturbance attributed as compensation should be $3,000 to compensate for disturbance which could be caused during the construction.
Mr Northfield on the other hand thought an amount of $15,000 was appropriate for disturbance. This was on the basis that if the easement were granted then the Defendant in the matter would have no control over who or what could enter over the site at any time of the day or night. Disturbance issues such as vehicular and mechanical noise, illegal campers, rubbish and visual amenity would arise not just in the short term but into perpetuity. Putting a value on the lack of control over a site was difficult. However Mr Northfield thought it was important to recognise that some degree of disturbance would be ongoing into the future and therefore he adopted a nominal sum of $15,000. Mr Northfield noted that courts in the past have ordered an annual fee for court ordered easements.
On their respective calculation Ms Hunt said her final valuation figure was $24,860. On the other hand on Mr Northfield’s calculation his figure was $36,860.
Counsel for the Plaintiffs requested that some additional questions be posed of the expert. There were ten in number. Six maps were attached to the questions. The questions in large measure turned upon the valuers being asked to make an assumption about the existence of a dam present on the Level Land and across Road Reserve therefore on DP 1045950.
The first question was upon the assumption that the dam was not present and the relevant Lot was not affected, what amount should be deducted from the compensation or blot on the title and other heads of compensation they had previously considered. A further question was posed namely that if the proposed easement was granted in the light of certain assumptions which included Mr Lever obtaining development consent for a subdivision in April 1998, were there any compensating advantages to Mr Lever should he wish to subdivide the subject land pursuant to the Development Consent because the road would be maintained by the Gordons as the dominant tenement. This in turn would save Mr Lever the costs of ongoing expenditure concerning maintenance of a road.
In relation to the first question they agreed on all figures, the total amount in the end came to $8,600. However one issue they still could not agree on was what compensation if any should be attributable to disturbance.
In relation to question 2, their view was that the road had been in existence since 1954 and had been maintained by the Gordons during this period and by the previous owners. In the hypothetical situation where the road was not present then if the easement were granted Mr Lever would benefit according to Mr Hunt.

Evidence of Ms Hunt

Ms Hunt was cross-examined on her report and on the answers she provided. First however she explained the hand written document and the differences that arose between herself and Mr Northfield. Ms Hunt explained that the handwritten document produced should properly be interpreted as $8,600 plus $3,000 (which she attributed to disturbance) and $8,600 plus $15,000 (which amount to Mr Northfield attributed to disturbance) (T122/1-5).
Ms Hunt was unable to put a figure on the benefit that would flow to Mr Lever on the basis that the Gordons maintained the road. However she thought there would be a benefit (T122/20-25). She indicated that she and Mr Northfield did not agree on this issue.
Ms Hunt explained that her figure of $3,000 for disturbance was predicated upon an assumption that Mr Gordon and his family from the entire time they had the land used it as had the previous owners. She understood there had been a binding agreement (T125/5-10).
Ms Hunt explained that if the bridge had not been washed away the court case would not have happened (T125/30-35).
She took into account the fact that there would be some initial noise by larger trucks brining in the materials to build the bridge but after that the vehicular activity would be minimal maybe once or twice a day and after all it was 170 hectares of land (T126/5-10).
Ms Hunt thought that the disturbance to Mr Lever’s house would be minimal. She described a steep slope between the access road and the house (T128/1-10).
Ms Hunt did assume that maintenance by the Gordons of the road would lead to betterment. She accepted however a road was already there but her response was that it was a good road because it has been maintained (T131/1-10).
Part of her reasoning process was that she assumed that in the event of a subdivision Mr Gordon would continue to be legally bound to maintain the road (T131/30-35).

Evidence of Mr Northfield

Mr Northfield explained the disagreement with Ms Hunt in relation to the subsequent question is on the basis that he thought initially only Lot 36 would be affected. Having reflected on it over lunch however he thought in addition there would be some diminution in the value to the house lot, namely Lot 21 (T133/1-9).
He would add $3,500 as an estimate around $3,500 but instead he would propose an increase in disturbance costs. He would now assess that at $25,000 as a ballpark although he had originally allowed $15,000 for disturbance which was based on an allowance of $500 a year over a period of 30 years (T133/10-30).
On the handwritten document therefore where the word Nil is written (question 3) he would suggest $3,000. Further he would increase disturbance costs by another $10,000 (T133/40).
The reason Mr Northfield thought the amount should increase is because the bearing on Lot 21 is greater (T134/1-2).
Mr Northfield explained that assuming the dam was not there the road was constructed on the Crown Road reserve then the visual amenity is diminished (T134/35-40).
It was put to Mr Northfield that the house was built in about 2000 and the Crown reserved the road as early as 1910 (T136/30-35).
Mr Northfield agreed that any person deciding to develop the land and build a house would have been fully aware of the affectations on the land including the existence of the Crown Road reserve (T138/10-20).
Notwithstanding that looking at the hypothetical that was posed if the closed road reserve were converted to a fully functional road there would still be a diminution in value because of the greater amount of traffic and the visual amenity being affected (T138/35-45).
Mr Northfield further explained that he had not considered a diminution in value of Lot 21 at the time, having done so he thinks compensation is reasonable (T139/20-35).
It was suggested to Mr Northfield that his approach was incorrect. He disagreed and indicated that it is appropriate to look at the immediate impact on the adjoining properties (T139/35-40).
On the question of disturbance Mr Northfield took the view that it was an appropriate amount given the fact that if an easement were granted Mr Lever would lose control over his land (T141/35-45).

Evidence of the lay witnesses

Evidence of Mr Madeley

Mr Geoffrey Charles Madeley swore one affidavit of 24 July 2017 (GM).
Mr Madeley is employed by the Defendant as Farm Manager and manages the day to day operations of the Lever farm. He has lived at Grevillia for approximately 15 years. He attends to the farm work seven days a week. He lives in a house approximately one kilometre from the entrance to Option 1 (GM [1]-[5]).
Mr Madeley said that since he has worked at the farm he has only ever known Option 1 to be used by Ms Dunn to take her children to meet the school bus. He also knows that her husband uses the road to get to work. He has rarely observed Mr or Mrs Gordon using the road. He has never observed any trucks with machinery or equipment used for farming purposes using the road to access Lots 7 and 40 (GM [7]).
Mr Madeley said he had never observed Mr or Mrs Gordon or any other person using Option 1 with a truck, heavy equipment machinery or other heavy vehicle (GM [9]).
Some four years ago he observed an Essential Energy vehicle carrying a new power pole to use the road access to Lot 7 (GM [10]).
Up until 2013 Mr Gordon carried on dairying operations at the Gordon farm. The cows would be milked on Lot 101. There is a dairy he also believed on Lot 7 which was used by the owners of Lots 7 and 40 (GM [11]).
He has been onto the Gordon farm and believes there is a fence on Lot 7 and 40 which runs parallel to the Richmond River. This divides the Gordon farm on that side of the river into essentially two sections (GM [13]).
Since ceasing dairying operations Mr Madeley observed the Gordon farm being used for grazing purposes. His observation was the cattle which are kept for sale are grazed on Lots 101 and 102. Cattle grazing on Lots 7 and 40 are kept for breeding purposes (GM [14]).
Mr Madeley agreed that the Essential Energy event he refers to was a one off occasion (T146/35-40).
Mr Madeley said he has had experience with dairy cattle (T148/5-15).
Mr Madeley agreed that when the botulism outbreak occurred the Gordons had to slaughter 117 cows (T149/25-30).
Mr Madeley said he crossed over the river which was not very deep to retrieve some cows (T150/35-40).

Evidence of Mr Gibson

Mr Gibson swore a number of affidavits on 24 April, 26 April and 23 May 2017.
He was cross-examined primarily on his attempts under section 88K(2)(c), but not, in my view, to much utility (T155-T170), as is evident in my findings below.

Evidence of Ms Dunn

Ms Jodie Louise Dunn swore two affidavits, 24 April (JD1) and 14 July 2017 (JD2).
Ms Dunn is the daughter of Mr Robert and Mrs Christine Gordon. She was born in 1975 as one of four children raised on Lot 101 (JD1 [2]-[3]).
In 2000 she commenced residing on Lot 7. There are two houses, a hay shed and other farming infrastructure on the Property (JD1 [4]).
She and her husband have lived on Lot 7 since 2003. He is employed at Boral Timber Mill in Kyogle some 36 kilometres from the home. She and her husband have two sons aged approximately 11 and 7. They attend the Rukenvale Public School in Years 5 and 1 respectively. School is approximately 11 kilometres away (JD1 [8]).
Up until December 2015 Ms Dunn said all access to Lot 7 by her family, friends, services, utilities, Council, emergency services, tradesmen and the like accessed the property via the access road, called Option 1. The only bridge crossing on the access road is located on Lot 36. Using the access road takes Mr Dunn 10 minutes to travel from Summerland Way to her front door in all weather. This includes opening and shutting gates at Summerland Way (JD1 [9]-[11]).
Ms Dunn said that a 2WD vehicle can access the road Option 1 day or night (JD1 [12]).
In December 2015 the bridge on Lot 36 was destroyed by flood. All access for her is through a track from Lot 10 through Lots 101, 102 onto Lot 40 and 7. However Ms Dunn asserted that the track can only be used in dry weather as it involves crossing the Richmond River. The dry weather route takes her about 15 minutes to get from Summerland Way to her front door and vice versa and she can only use the route she asserted in daylight hours. It involves opening and shutting two gates. In wet weather she needs to use the route indicated on yellow on the map attached to her statement. That takes her about 30 minutes in daylight hours and involves opening and shutting 4 or 5 gates. Ms Dunn said the route is too dangerous to use at night. If the water is too high she needs to use a 4WD vehicle (JD1 [13]-[18]).

Mr Lever agreed that in 1998 he applied for a Development Application to divide the land (T232/40-45).
Mr Lever said however that he was only applying for Lot 23 and not for the other Lots and that the Council did not approve all of the subdivision (T234/35-45).
Mr Lever agreed that preparing the Development Application EnviroLink did a map with the intention of doing boundary adjustments if the proposed subdivision went ahead (T238/5-15).
Mr Lever agreed a Development Application was granted in 1998 and varied in 2001 because the whole of the subdivision was not carried out. The only part of the subdivision which was carried out was in relation to Lot 21 (T239/15-30).
Mr Lever agreed that the dam was not part of the Development Application, he said because part of the land was a swamp anyway (T240/40-45).
Mr Lever agreed that the dam was constructed without any development consent (T241/1-2).
Although the Development Application was not subject to any conditions the Council enquired whether discussions were going to take place with Mr Coote about formalising a right of carriageway. However Mr Lever did not have those discussions (T244/46-50 – T245/1-10).
Mr Lever would not agree that Option 1 was a far more suitable and effective access than Option 4 for the Plaintiffs (T245/35-40).
Mr Lever did agree Option 1 was a dry access and that Option 4 was a wet access (T245/44-45).
When asked whether the Plaintiffs should put up with having to drive through water and the risk associated, Mr Lever said that he offered the Plaintiffs continued access if they fixed the bridge. He was worried about the property when the Plaintiffs are not there (T246/15-30).

Evidence of Mr Little

Mr Robert Thomas Little swore one affidavit of 24 July 2017 (RL), giving a historical overview of the means of access used by different owners of Lots 7 and 40. He was not called.
Mr Little has lived in the Grevillia area all of his life (RL [4]). While share faming on what is now the Gordon’s farm, Mr Little recalled Mr McLean who lived on Lots 101 and 102 would take his farming equipment to the Barlow’s property (which was Lots 7 and 40) across the river at what is referred to as Option 4. Mr Little did not recall Mr McLean taking any other route for those purposes (RL [6]-[8]).
Mr Little also said if Mr McLean was driving to Mr Barlow’s house, he would access the property by what is referred to as Option 3 in these proceedings (RL [9]).
Mr Little said Mr Barlow always entered and exited his property via Option 3 in his cars (RL [10]), and that the crossing was in exceptionally good condition (RL [11]).
Mr Little said Mr Barlow never used Option 1 for any purpose associated with dairying or his agricultural use of the land (RL [13]), nor for that matter, any purpose at all (RL [15]).
Mr Little recalled the major 1954 flood, and said Mr Barlow continued to use Option 3 after the flood to enter and exit his property (RL [14]-[15]).
When the Heads purchased Lots 7 and 40, Mr Little recalled Mr Head using Option 3 as the main entrance, and does not recall Option 1 existing at the time (RL [16]). However, Mr Little said it was “not long after this” that he first recalled Option 1 becoming a means of accessing the Head’s property. He said he has no knowledge of the Kyogle Council assisting in the constructing of the road, and believes Mr Peter Head did it himself (RL [17]).
Even after Option 1 came into existence, Mr Little said the Heads would still use Option 3 as the main means of accessing their property (RL [18]).
Mr Little said when the Coote owned the land, they would use Option 3 for their cattle trucks, and Option 1 for their car for convenient access to the township of Grevillia (RL [19]). Option 3 was still maintained and used on a regular basis for farming purpose, as well as for residential access purposes (RL [20]).

Consideration

Section 88K(1): Reasonably necessary

The threshold question under section 88K, and in my view the primary question in these proceedings, is whether the proposed Option 1 easement is reasonably necessary for the effective use of the property at Lots 7 and 40.
In terms of use, there is no dispute Lots 7 and 40 of the Gordon Land is used in the residential sense by the Plaintiffs, and in particular their daughter Ms Dunn and her family. I am also satisfied the land is used for agricultural purposes. While Mr Gordon’s farming operations have shifted in the recent years, Lots 7 and 40 are, on the evidence, still in use for beef cattle production (RG1 [42]-[45]; GM [14]).
The issue then turns to whether the proposed Option 1 easement is reasonably necessary for the effective residential and/or agricultural use of Lots 7 and 40.
As noted, the Plaintiffs’ proposed Option 1 easement is free from any conditions, thereby giving the owners of Lots 7 and 40 a right of access across the Lever Land in perpetuity, with no restrictions as to the time, type and frequency of use.
In my view, an easement in this form cannot be accepted as reasonably necessary for the effective use of Lots 7 and 40. Clearly in wet weather, subject to the proposed bridge being built and the road properly maintained, Option 1 is by all accounts the most serviceable option. It is also clearly the most convenient to Ms Dunn, being only a 10 minute route to the Summerland Way, and leading to the spot where he children are collected by the school bus. However, in my view these factors are not enough to render the Plaintiffs’ proposed Option 1 easement reasonably necessary for the effective use of the land.
I accept it can be seriously inconvenient, and at times impossible, for the Plaintiffs, and in particular Ms Dunn, to access the Summerland Way through use of Option 4, as evident in the issues Ms Dunn’s family faced in the months following Cyclone Debbie this year. However, the weather events of this year are not necessarily a trend for the future, and the evidence does not permit me to go that far. Various witnesses gave anecdotal evidence regarding weather conditions, the duration of certain weather conditions, and rainfall figures of various sorts (e.g. JD2 [17]-[18]; RG1 [48]-[51]; AL1 [77]-[83]). However, no witness could assist me in determining whether the heavy rain, flooding, and cyclones of the past 18 months would subsist in the future, nor was any expert called to do so.
On the evidence, I am therefore not satisfied that Option 4 is impassable more than on somewhat irregular occasions, and for varying periods. For example, based on Mr Gordon’s evidence, the Option 4 crossing was unpassable for several days in January, March and June this year (RG1 [55]). Even if this trend were to continue, this leaves Option 4 passable for the significant majority of time.
I am satisfied Option 4, in addition to being passable for most of the year, is a practical alternative to Option 1 for effective use of Lots 7 and 40.
There is little doubt that until the bridge was washed away in 2015, Ms Dunn and her husband used Option 1 as the primary, if not sole, means of accessing the Summerland Way (JD2 [6]). Further, when the Option 1 bridge was in better repair, I also accept Mr Gordon would take cattle trucks across it (RG1 [15]), and would drive smaller vehicles after the bridge’s condition had deteriorated (T199/19-23). While there is no evidence as to the frequency of this use, Mr Gordon presumably used the Option 1 bridge less after the disastrous loss of his dairy herd in 2006.
However, in my view the use of Option 1 was, for the most part, out of convenience rather than reasonable necessity. I am satisfied when the weather is dry Ms Dunn can, and has since December 2015, used what has been described as the pink or yellow lines which are part of the Option 4 access. Equally, I am satisfied Mr Gordon in the past used Option 4 or the crossing near Option 3 to move his cattle from time to time across the Richmond River, as evident in the photograph at CB 125.
Consistent with this, in my view neither Ms Dunn nor Mr Gordon’s current use of the land would in any material way be affected by having to use Option 4 when it is passable. In terms of agricultural use, it is true cattle may stray from time to time and theoretically if the river rose rapidly, they may be marooned on Lots 7 and 40. However that would not be disastrous since the cattle could simply graze on the other side until the river subsided sufficiently for them to cross again.
In terms of residential use, I acknowledge use of Option 4 means Ms Dunn will still need to drive along the Summerland Way to drop her children at the pick-up stop almost opposite the Option 1 access road (JD2 [10]-[11]). While this may add some time to Ms Dunn’s morning trips, in my view there is no evidence of real safety issues arising from this extra drive that warrants day to day use of Option 1.
Ms Dunn also asserted (JD1 [22]) it is currently impossible for an ambulance to access Lot 7 without Option 1 available. However, there is no evidence that at any time since Ms Dunn has resided at the property she or her family have required an ambulance to access the property (T174/25-30). Further, in my view there is no expert evidence to support Ms Dunn’s assertion helicopters or air ambulances would be unable to access her or her parents’ house because of overhead protruding wires (T174/34-43; T185/1-50-T186/43). Even if this is the case, in my view the chance of emergency services needing to access Lots 7 and 40 is not high enough so as to justify day to day access through Option 1 as the Plaintiffs’ proposed Option 1 easement would permit.
Further, the Plaintiffs purchased Lots 7 and 40 in 1998 knowing fully well that from time to time cattle would cross the river and have to be brought back for milking or he would want to bring them back in order to put them into a truck for sale purposes. When he allowed his daughter and her husband and children to live in the house on Lot 7, everyone including his daughter must have also been fully aware that from to time, at least for convenience purposes if nothing else, Option 4 would not be the preferred option to be used.
There was some factual controversy surrounding who built the bridge which was ultimately swept away in December 2015, and when it was built. What is clear is that it is not suggested either the Plaintiffs or the Defendant, apart from routine maintenance, made any contribution to the construction of the bridge. Further, such evidence was not the basis of a claim for equitable estoppel. In my view, the history of the bridge is therefore largely irrelevant to the question of reasonable necessity.
I should note, however, I do not accept the Defendant’s submissions as to the negative effect the easement will have on his land as the servient tenement. The Defendant’s acquiescence to the Plaintiffs (or at the least, Ms Dunn) using the Option 1 route until the bridge washed away in 2015, the location of the easement in relation to the location of the Defendant’s dwelling home, the fact the Defendant does not permanently reside on the servient land, and the benefit Mr Madeley will derive from use of a maintained road along Option 1 and a repaired bridge, in my view render the effect of the proposed easement on the Defendant’s land minimal.
Nonetheless, while the proposed Option 1 easement would not cause any measurable detriment to the Defendant or his land, an easement is still an imposition on property rights, being valuable rights parties should not be stripped of lightly; Khattar at [27].
On these grounds, in light of all the considerations detailed above, in my view the Plaintiffs have failed to make their case out for reasonable necessity. Accepting “reasonably necessary” does not amount to “vital” or “essential,” I am still satisfied the proposed Option 1 easement in the terms specified by the Plaintiff, falls short of being reasonably necessary for the effective use of Lots 7 and 40.
In my view however, for the times Option 4 is impassable, a limited easement along Option 1 is reasonably necessary for the effective residential and/or agricultural use of Lots 7 and 40. It is clear where Option 4 is impassable, significant problems arise, not least the which include Ms Dunn’s children being unable to attend school, and her husband being unable to go to work (JD1 [16]-[17]). Such circumstances do, in my view, justify the imposition of an Option 1, but importantly one which only gives a right of access when Option 4 is impassable.
Consistent with the Defendant’s submissions (Defendant’s closing submissions [82]), I am satisfied an Option 1 easement limited to circumstances where Option 4 is unsafe to pass could be drafted and imposed with sufficient precision. The measures I had in mind include placing pegs in the river bed at Option 4, with the parties agreeing (possibly with the benefit of an independent expert) on a height the water must reach on those pegs to render Option 4 unsafe, and justify use of Option 1. This should apply to both residential and agricultural use of Option 1, with Ms Dunn for example still able to drop her children to the school bus, and Mr Gordon able to transport stock, silage and machinery where it is unsafe to do so across Option 4.
In my view it is within my power under section 88K(3) to impose conditions and restrictions on the enjoyment of an easement in such a way, and appropriate in the circumstances; Moorebank v Tanlane at [183]-[184].

Section 88K(2) Considerations

An order for a limited Option 1 easement can only be ordered if the requirements of section 88K(2) are satisfied.
There was little dispute regarding the satisfaction of section 88K(2)(a) and (b) when considering the Plaintiffs’ more broadly drawn Option 1 easement, and hence in my view there is next to no controversy regarding these sub-sections when considering the proposed limited Option 1 easement. Both parties agree it is in the public interest to ensure the Plaintiffs and Ms Dunn and her family are not land-locked (Plaintiffs’ opening submissions [36]; Defendant’s opening submissions [44]), and the Defendant is satisfied he can be adequately compensated for any loss or other disadvantage that will arise from the imposition of the Option 1 easement (Defendant’s opening submissions [45]).
As to section 88K(2)(c), I am satisfied, contrary to the Defendant’s submissions, all reasonable attempts have been made by the Plaintiffs to obtain the Option 1 easement but have not been successful. The Plaintiffs’ solicitor Mr Gibson approached the Defendant some six months before commencing proceedings, requesting the creation of a right of carriageway along Option 1 (CB 503-504; JG1 [7]). Further, there was an offer of $7,500 by the Plaintiffs on 15 December 2016 (CB 522-524), which was increased to $20,000 on 8 February 2017 (CB 541). On the Defendant’s side, I note Mr Lever did not demonstrate a strong ability to compromise, waiting until the final moments of his cross-examination to give any consideration to an easement of any sort across the Lever Land (T246/20-37).
Although the Plaintiffs’ proposed Option 1 easement is not precisely what I am satisfied I can and should order, I am satisfied the Plaintiffs’ attempts to agree to the Option 1 easement before commencing proceedings amounts to reasonable attempts under section 88K(2)(c).

Compensation

The amount of compensation to be paid for the Option 1 easement was predicated on an unlimited Option 1 easement as proposed by the Plaintiffs. However, in my view, all valuations except for those calculated for disturbance are unaffected by an Option 1 easement which would only be in use for limited periods.
In terms of construction of the bridge, the difference between the estimates is around $10,000, which comes down to Mr Gordon asserting he can do some of the labour himself. In my view, given family vehicles and large trucks of cattle are likely to cross over it, the bridge ought to be properly constructed with an engineering certificate, quality building materials and all the necessary items so the bridge be fit for purpose. While I am not wedded to Mr McElroy’s estimate of $48,000 (McElroy Report at [3.1.10]) since it is clearly an estimate, in my view something of that order would be appropriate. I also note there appears to be no issue regarding capacity to pay, with the Plaintiffs asserting there is sufficient evidence to show they are able to pay $48,000 (T262/30-33).
In terms of road maintenance, the Plaintiffs agree they will continue to maintain the Option 1 road, consistent with the obligations of the dominant tenement (Plaintiffs’ submissions on regulatory framework and evidence [35]; T266/37-42). As noted, Mr McElroy suggested $36,674 as appropriate for road maintenance of the Option 1 access road along Lot 100 and Lot 36 across the Lever Land. I am not persuaded from drone footage (Exhibit P10) or photo evidence (eg Exhibit P11) that the level of maintenance suggested by Mr McElroy is immediately required. Every unsealed road in rural Australia can be improved. However, that is not to the point. In my view, the question is whether it is now appropriate to order compensation be made for road maintenance. In my view, it is not. On the evidence, the road appears to be perfectly usable, and apart from some commentary from Mr McElroy (see McElroy Report [3.1.2]), there is no obvious evidence of any material problem that needs urgent attention. I am therefore satisfied Mr Gordon, as the dominant tenement, should continue to maintain the access road from time to time, as is his obligation.
On the question of disturbance, the figures by the valuers are inapposite since they were predicated upon greater use of the more widely cast Option 1 easement. In light of this, in my view Mr Northfield’s final figure of $25,000 (T133/45-46) is too high and predicated on day to day use of Option 1. However, in my view Ms Hunt’s estimate of $3,000 is too low even though predicated on the Plaintiffs’ proposed Option 1 easement. I am satisfied Ms Hunt misunderstood the notion of disturbance, as submitted by the Defendant (Defendant’s closing submissions [73]). In my view, a figure of $5,000 is an appropriate reflection of the disturbance a limited Option 1 easement will cause given the construction of the bridge still needs to be done, the road needs to maintained, and large vehicles and trucks are still likely to use the access road at least several times a year.
In terms of reduction in value, I am satisfied Mr Northfield’s amended figure of $3,000 (T133/34) is appropriate. Any impediment on the land would be viewed as a deterrent to potential buyers, mild though it may be.
I am not satisfied there are any ‘special circumstances’ justifying a deduction in compensation. In the absence of cross-examination of the Defendant on this issue and evidence on the viability of a road reserve where the dam is placed, in my view the Plaintiffs have not provided sufficient evidence on this issue.
Further, I am not satisfied the evidence is clear on what the Plaintiffs claim are compensating advantages. As noted by the Defendant, correctly in my view, there is no evidence, beyond a 20 year old consent, of the Defendant intending to subdivide Lot 36. On these grounds no compensating advantages should be factored into the calculation of compensation.
The parties otherwise agree to the compensation figures which I also accept as appropriate, with $5,000 payable for blot on title, $4,000 payable for special value, $506.55 payable for valuation of the area of easement, and $3,750 payable for injurious affection.

Conclusion

In my view, the Plaintiffs’ proposed Option 1 easement is the most convenient, serviceable and preferable of the Options. However, I am not satisfied an Option 1 easement for all times and all purposes is so substantially preferable to the other Options so as to render it reasonably necessary for the effective residential and/or agricultural use of Lots 7 and 40. In my view, the imposition of such an easement would be broader than necessary to serve the purpose of enabling effective use of Lots 7 and 40. In light of this, I am satisfied the more appropriate order is to grant an Option 1 easement, but limit it to the conditions outlined in [364] above.

I invite the parties to draft an easement to conform with my reasons. I fully accept a surveyor will be needed for the purposes of position pegs in the riverbed, and determining along with any other expert if necessary, water levels that might be regarded as safe to cross.
In light of my findings, I invite the parties to prepare short minutes with the terms of the proposed easement and, if the need arises, to be heard on the question of costs.

**********

Figure 1: Map of Grevillia (the Map)

Decision last updated: 22 September 2017

Medium Neutral Citation:	Stanley Robert Gordon and Anor v Allen John Lever [2017] NSWSC 1282
Hearing dates:	31 July, 1, 2, 28 August 2017
Decision date:	22 September 2017
Jurisdiction:	Equity - Expedition List
Before:	Sackar J
Decision:	See [378]
Catchwords:	LAND LAW – easements – imposition of easements by Court – whether easement reasonably necessary for effective use of agricultural and residential land
Legislation Cited:	Conveyancing Act 1919 (NSW)
Cases Cited:	117 York Street Pty Ltd v Proprietors of Strata Plan No 16123 (1998) 43 NSWLR 504 D&D Corak Investments Pty Ltd v Yiasemides [2006] NSWSC 1419 Donnellan v Woodland [2012] NSWCA 433 ING Bank (Aust) Ltd v O’Shea [2010] NSWCA 71 Khattar v Wiese [2005] NSWSC 1014 Moorebank Recyclers Pty Ltd v Tanlane Pty Ltd [2012] NSWCA 445 Owners Strata Plan 13635 v Ryan [2006] NSWSC 221 Rainbowforce Pty Limited v Skyton Holdings Pty Limited and Ors [2010] NSWLEC 2 Wengarin Pty Ltd v Byron Shire Council (1999) 9 BPR 16,985
Category:	Principal judgment
Parties:	Stanley Robert Gordon (First Plaintiff) Christine Margaret Gordon (Second Plaintiff) Allen John Lever (First Defendant)
Representation:	Counsel: L Byrne (Plaintiffs) C Simpson (Defendant) Solicitors: John F Gibson, Solicitor Parker & Kissane, Solicitors & Lawyers
File Number(s):	2017/55270
Publication restriction:	n/a