Ward v Hull

[2019] QSC 32

SUPREME COURT OF QUEENSLAND

CITATION:

Ward v Hull [2019] QSC 32

PARTIES: 

GRAHAM JOHN WARD
(applicant)
v
MICHAEL EDWARD HULL
(respondent)

FILE NO/S: 

SC No 61 of 2016

DIVISION: 

Trial Division

PROCEEDING: 

Application

ORIGINATING

COURT: 

Supreme Court at Mackay 

DELIVERED ON: 

21 February 2019

DELIVERED AT: 

Townsville

HEARING DATE: 

12 and 13 February 2018

JUDGE: 

North J

ORDERS: 

1.   The applicant and the respondent are to submit, within 28 days, a draft of the orders for the imposition of a statutory right of use consistent with these reasons.

2.   Within 28 days, if not otherwise agreed, the applicant and the respondent are to submit written submissions concerning costs and such submissions not to exceed two (2) pages.

3.   The question of costs be determined on the papers without further hearing.

4.   Liberty to apply on four business days notice in writing concerning order 1.

CATCHWORDS:

REAL PROPERTY – EASEMENTS – EASEMENTS GENERALLY – CREATION – BY EXPRESS AGREEMENT OR UNDER STATUTE – STATUTORY EASEMENTS – where an easement was sought over a pipeline on agricultural property – where the respondent accepted that the proposed easement was reasonably necessary in the interests of the effective use of the applicant’s land – where the respondent accepted that the proposed easement would be in the public interest - whether the respondent’s refusal to accept the imposition of the easement was unreasonable in the circumstances

LEGISLATION:

Property Law Act 1974 (Qld), s 180

CASES:

Peulen & Anor v Agius & Anor [2015] QSC 137
Bradshaw v Griffiths [2016] QCA 20
Rainbowforce Pty Ltd v Skyton Holdings Pty Ltd [2010] NSWLEC 2
2040 Logan Road Pty Ltd v Body Corporate for Paddington Mews CTS [2016] QSC 40

Naylor & Anor v Pierce & Anor [2010] QSC 399

COUNSEL:

P Cullinane for the applicant

S McLennan for the respondent

SOLICITORS:

SB Wright & Wright and Condie for the applicant

Beckey, Knight & Elliott for the respondent

Introduction

1. NORTH J: Pursuant to s 180 of the Property Law Act 1974 (Qld) the applicant seeks that a statutory right of user in the form of an easement be imposed upon the land of the respondent in favour of the land owned by the applicant.[1]

   [1]  Originating application filed 14 November 2016.

2. The application concerns sugar cane farms on lands near Mount Martin, not far from Mackay. The applicant is the owner of the “dominant land” in these proceedings,[2] on which he has grown sugar cane for most of his life.[3] The respondent is the owner of the adjoining “servient land” which is currently leased to a third party who also grows sugar cane on the property.[4] Exhibit 1 is a survey map which depicts the common boundary of the two properties, the location of the pipeline the subject of the proceedings and the location of McGregor Creek which runs through the servient property to join with Silver Creek. The location of the pipeline was done, in part, by using ground penetrating radar by the surveyor Mr Dobbie.[5]

   [2]…