PETER MICHAEL FULLSTON v MS CAROLYN JANE SCHULTZ [2026] SADC 14

First Applicant: PETER MICHAEL FULLSTON Counsel: MR D BILLINGTON KC - Solicitor: VON DOUSSAS First Respondent: MS CAROLYN JANE SCHULTZ Counsel: MS S HEIDENREICH - Solicitor: MELLOR OLSSON LAWYERS Second Respondent: MR MICHAEL PETER RUMSEWICZ Counsel: MS S HEIDENREICH - Solicitor: MELLOR OLSSON LAWYERS Hearing Date/s: 14/04/2025, 15/04/2025, 16/04/2025, 27/05/2025, 28/05/2025, 12/06/2025 File No/s: CIV-23-014388 B DISTRICT COURT OF SOUTH AUSTRALIA (Civil) DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment. The onus remains on any person using material in the judgment to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court in which it was generated. FULLSTON v SCHULTZ & RUMSEWICZ [2026] SADC 14 Judgment of his Honour Judge Burnett 27 February 2026 TORTS - NUISANCE - PRIVATE NUISANCE - PARTICULAR CASES TORTS - NUISANCE - PRIVATE NUISANCE - WHAT CONSTITUTES AND GENERALLY TORTS - NUISANCE - REMEDIES - INJUNCTION These proceedings concern respective claims in nuisance made by the applicant and the first respondent, who are the owners of neighbouring properties at Cape Jervis, in relation to a right of way that burdens the land of the applicant for the benefit of the land owned by the first respondent. The property of the applicant, at its northern boundary, fronts onto Sorata Street, Cape Jervis. The first respondent owns a property that is adjacent to, and immediately south of, the applicant’s property. The first respondent’s property does not have direct access to Sorata Street but has the benefit of a free and unrestricted right of way over a portion of the applicant’s property (the Right of Way). The Right of Way is approximately 6 metres in width at the boundary of the applicant’s property and Sorata Street but expands to about 23 metres at its widest, and most southerly point, adjoining the first respondent’s property. The Right of Way is about seventy metres in length. The applicant has erected a gate at the northern boundary of the Right of Way, near Sorata Street. It is not the practice of the respondents to always close the gate after using the Right of Way. The applicant claims that the use by the respondents of the Right of Way in this manner constitutes a nuisance. The applicant further claims that by not closing the gate, the respondents have breached an implied term of an agreement that the parties entered into to resolve previous proceedings between them (the Settlement Agreement). The Settlement Agreement permitted the applicant to erect a gate at the boundary of the Right of Way and Sorata Street. The applicant contends that it is an implied term of the agreement that the respondents close the gate after use. -- 1 of 59 -- The applicant seeks a mandatory injunction requiring the respondents to shut the gate after using the gate for access or egress. The applicant also seeks damages in the sum of $4,533.78 for loss caused by the death of his dog, Rex, who escaped through the gate and died from eating poisoned oats. The respondents oppose the claims made by the applicant. They contend that they are under no obligation to close the gate. They deny that failing to close the gates constitutes a nuisance or breach of the Settlement Agreement. The respondents have issued a cross-claim against the applicant in which they allege that the applicant has interfered with their use of the Right of Way by placing building materials and other items on the Right of Way. Held: (1) The applicant had genuine and legitimate reasons for erecting the gate at the boundary of the Right of Way and Sorata Street. These reasons included personal security, the safeguarding of equipment that was used on the property and the prevention of animals from entering onto the property or escaping from the property. There is only relatively minor inconvenience suffered by the respondents in having to open and close the gate. In these circumstances, the applicant is entitled to erect the gate, and by doing so, has not interfered with the reasonable rights of the respondents as users of the Right of Way. The applicant has not therefore committed a nuisance by the erection of the gate: Pullen v Smedley [2017] NSWSC 1721, Barrett-Lennard v River Wind Pty Ltd [2019] WASC 125, Hender v Gohl [1928] SASR 325 applied. (2) The respondents’ use of the Right of Way, without closing the gate, constitutes a substantial and unreasonable interference with the property of the applicant and is therefore a nuisance. A nuisance is committed, inter alia, if a person interferes with another person’s use or enjoyment of land in a way that it is both substantial and unreasonable: Hunt Leather Pty Ltd v Transport for NSW [2025] HCA 53 applied. (3) The closing of the gate helps secure the legitimate purposes for which the gate was installed: Gohl v Hender [1930] SASR 158 considered. The use of the Right of Way, without closing the gate, constitutes a substantial interference with the property of the applicant because the legitimate purposes for which the gate was installed cannot be fulfilled. (4) Once it is established that the interference was substantial, the onus is on the respondents to establish that their use was reasonable: Hunt Leather Pty Ltd v Transport for NSW [2025] HCA 53 applied. The respondents must show that the use of the property was a common and ordinary use and was conveniently done. The respondents did not establish that it was the common and ordinary use of the Right of Way to not shut the gate after use. The respondents had not established that use of the Right of Way without closing the gate was conveniently done-i.e. done with proper consideration for the interests of the applicant. (5) It is not necessary that there be actual damage before the Court will grant relief in nuisance. A justified present apprehension of future damage is capable of constituting a nuisance: Barbagello v J & F Catelan Pty Ltd [1984] 1 Qd R 245 applied. Even though there is a justified present apprehension of future damage which would normally entitle the applicant to a mandatory injunction requiring the respondents to close the gate after use, the gate was not on the Right of Way or on the Property of the applicant but on Council land. In these circumstances, the Court will not grant an injunction requiring the respondents to close a gate that is not on the Property. (6) It was an implied term of the Settlement Agreement that the gate be closed after use: BP Refinery (Westernport) Pty Ltd v President, Councillors and Ratepayers of the Shire of Hastings (1977) 180 CLR 266 applied. (7) The claim of the applicant for damages for the death of his dog, Rex, is dismissed. Although Rex escaped through the open gate, there were multiple other locations from which he could have escaped from the property of the applicant. The applicant has not -- 2 of 59 -- established that “but for” the nuisance committed by the respondents, Rex would not have escaped. (8) The claims of the respondents that the obstacles placed on the Right of Way by the applicant amount to substantial and unreasonable interference with the use of the Right of Way and therefore constitute a nuisance are dismissed. The respondents did not have the right to use the Right of Way in a manner that is wholly unobstructed by the applicant: Owners Corporation of Strata Plan 42472 v Mendala Pty Ltd (1998) 9 BPR 16,337, Stewart v Cooper [1986] Tas R (NC) N applied. None of the obstacles placed on the Right of Way create substantial interference with the use of the Right of Way, or are more than an inconvenience: Pullen v Smedley [2017] NSWSC 1721 applied. The obstacles had no practical effect on the use of the Right of Way by the respondents. (9) The user of the Right of Way is not necessarily limited to one point of access but is entitled to as many points of access as are reasonable: Timpar Nominees Pty Ltd v Archer [2001] WASCA 430. The respondents had not established that it was not the placement of any of the obstacles placed on the Right of Way that prevented a second point of access nor have they established that the creation of a further point of access was something that was being reasonably contemplated by the respondents. Planning, Development and Infrastructure Act 2016 (SA) ss 105, 106, 107; Planning, Development and Infrastructure (General) Regulations 2017 (SA) Cl 14; Real Property Act 1886 (SA) s 89, Schedule 5, referred to. Barbagello v J & F Catelan Pty Ltd [1984] 1 Qd R 245; Barrett -Lennard v River Wind Pty Ltd [2019] WASC 125 ; BP Refinery (Westernport) Pty Ltd v President, Councillors and Ratepayers of the Shire of Hastings (1977) 180 CLR 266; Buckley v Timbury [2013] 17 BPR 32,187; Butler v Muddle (1995) 6 BPR 13,984; Caltex Oil (Australia) Pty Ltd v The Dredge Willemstad (1976) 136 CLR 529; Caltex Properties Ltd (in liq) v Love (1997) 95 LGERA 132; Celsteel Ltd v Alston House Holdings Ltd [1985] 2 All ER 562; Con-Stan Industries of Australia Pty Ltd v Norwich Winterthur (Australia) Ltd (1986) 160 CLR 226; Denton v Phillpot (1990) NSW ConvR 55-543 ; Dresdner v Scida [2003] 12 BPR 22,629; Dunell v Phillips [1982] 2 BPR 9517; Elliott v Reading [1999] WASCA 11; Geber Super Pty Ltd v The Barossa Assessment Panel [2023] SASC 154; Geoghegan v Henry [1922] 2 IR 1; Gohl v Hender [1930] SASR 158; Hargrave v Goldman (1963) 110 CLR 40; Hender v Gohl [1928] SASR 325 ; Hunt Leather Pty Ltd v Transport for NSW [2025] HCA 53; Hooper v Rogers [1975] Ch 43; Howard Electrical Ltd v AJ Mooney Ltd [1974] 2 NZLR 762; Kiddle v City Business Properties Limited [1942] 1 KB 269; March v E & MH Stramere Pty Ltd (1991) 171 CLR 506; Markos v O R Autor [2007] 13 BPR 24, 487; Oldham v Lawson (No 1) [1976] VR 654; Owners Corporation of Strata Plan 42472 v Menala Pty Ltd (1998) 9 BPR 16,337.; Painter v Reed [1930] SASR 295; Pullen v Smedley [2017] NSWSC 1721; Pettey v Parsons [1914] 2 Ch 653; Phillips Electronique Grand Public SA v British Sky Broadcasting Ltd [1995] EMLR 472 ; Properties (WA) Pty Ltd v Executive Director of the Department of Conservation and Land Management (2012) 42 WAR 287; Robson v Leischke (2008) 72 NSWLR 98; Shirlaw v Southern Foundries (1926) Ltd [1939] 2 KB 206; Sinclair v Jutt (1996) 9 BPR 16,219 ; Southern Properties (WA) Pty Ltd v Executive Director of the Department of Conservation and Land Management (2012) 42 WAR 287; Southward BC v Mills [1999] 4 All ER 449; Staley v Pivot Group Pty Ltd [No 6] [2010] WASC 228; Stewart v Cooper [1986] TAS R (NC) N1; Timpar Nominees Pty Ltd v Archer [2001] WASCA 430; Trewin v Felton [2007] 13 BPR 24, 579 ; Uren v Bald Hills Farm Pty Ltd [2022] VSC 145; Wellington v Huaxin Energy (Aust) Pty Ltd [2019] QSC 18; Wellington v Huaxin Energy (Aust) Pty Ltd [2020] QCA 114; Westfield Management Limited v Perpetual Trustee Company Ltd (2007) 233 CLR 528, applied. -- 3 of 59 -- -- 4 of 59 -- FULLSTON v SCHULTZ & RUMSEWICZ [2026] SADC 14 Civil Introduction 1 This judgment concerns respective claims in nuisance made by the applicant and the first respondent, who are the owners of neighbouring properties at Cape Jervis, in relation to a right of way that burdens the land of the applicant for the benefit of the land owned by the first respondent. 2 The applicant is the owner of the property known as Lot 24, Sorata Street, Cape Jervis (the Property). The Property fronts onto Sorata Street, which is to the north of the Property. The first respondent owns the property known as Lot 50, Sorata Street, Cape Jervis (the First Respondent’s Property). The First Respondent’s Property is adjacent to, and immediately south of, the Property. The Frist Respondent’s Property does not have direct access to Sorata Street but has the benefit of a free and unrestricted right of way over a portion of the Property (the Right of Way). The Right of Way is approximately 6 metres in width at the boundary of the Property and Sorata Street but expands to about 23 metres at its widest, and most southerly point, adjoining the First Respondent’s Property. The Right of Way is about seventy metres in length. 3 The applicant, Mr Peter Fullston (the applicant or Mr Fullston), has erected a gate near the northern boundary of the Right of Way, close to Sorata Street. It is not the practice of the respondents to always close the gate after using the Right of Way. The respondents will frequently drive through the gate, leaving it open. The applicant claims that the use by the respondents of the Right of Way in this manner constitutes a nuisance. The applicant further claims that by not closing the gate, the respondents have breached an implied term of an agreement that the parties entered into to resolve previous proceedings between them. That agreement permits the applicant to erect a gate at the boundary of the Right of Way and Sorata Street. The applicant contends that it is an implied term of the agreement that the respondents close the gate after use. 4 The applicant seeks a mandatory injunction requiring the respondents to shut the gate after using the gate for access or egress. The applicant also seeks damages in the sum of $4,533.78 for loss caused by the death of his dog, Rex, who escaped through the open gate and died from eating poisoned oats. The claim for damages represents the cost of purchasing a new dog ($3,500) and the costs incurred in picking up the new dog from an address in Sydney. 5 The respondents oppose the claims made by the applicant. They contend that they are under no obligation to close the gate. They deny that failing to close the gate constitutes a nuisance or breach of the settlement agreement. The respondents have issued a cross-claim against the applicant in which they allege that the applicant has interfered with their use of the Right of Way by placing building -- 5 of 59 -- [2026] SADC 14 2 materials and other items on the Right of Way. The respondents accept that only the first respondent has standing to bring this claim as the second respondent is not the owner of the First Respondent’s Property and no exceptional circumstances exist that would give him standing to sue in nuisance. 6 The respondents have pleaded six different instances of the applicant placing materials on the Right of Way. It is alleged that the applicant, by placing these materials on the Right of Way, has committed a nuisance. The respondents seek an order or mandatory injunction requiring the applicant to remove the materials that have been placed on the Right of Way and an injunction preventing the applicant from placing materials on the Right of Way in the future. The cross-claim also included a claim for damages and an injunction restraining the applicant from allowing any animal owed by him to interfere with the Right of Way. The respondents did not pursue those latter claims at trial. 7 The applicant denies that he has committed any nuisance. In relation to some of the obstacles, the applicant says that the materials have been removed. In other instances, the applicant contends that the placing of the materials does not substantially or unreasonably interfere with the reasonable enjoyment of the Right of Way by the respondents and therefore did not constitute a nuisance. 8 The location of the Right of Way and the gate and other obstacles that give rise to the claims in nuisance are understood by reference to the detail and level survey map, a copy of which is annexed to these reasons, (page 285 of exhibit 1). The outline of the Right of Way is marked highlighted in pink. Issues to be determined 9 The claim and cross-claim raise the following issues for determination: (1) Does the use of the Right of Way by the respondents, without closing the gate, constitute a nuisance? (2) What orders should be made if a finding of nuisance is made, including the making of declarations, the granting of an injunction or the awarding of damages? (3) As to damages, did the leaving of the gate open, cause, in a legal sense, the death of the applicant’s dog, Rex, and therefore the incurring of the expenses associated with purchasing a new dog, Kaiser? (4) Was there an implied term of the settlement agreement that the gate would be closed by the respondents after use? If so, was there a breach of that term by the respondents and did that breach cause the death of Rex? (5) What materials have been placed by the applicant on the Right of Way? -- 6 of 59 -- [2026] SADC 14 3 (6) Does the placement of those materials on the Right of Way constitute a nuisance? (7) If the applicant has committed a nuisance, what orders should the Court make, including the granting of an injunction. 10 The parties have reached a stage in their relationship where there is no “give and take”. Each party insists on what they consider their strict legal rights and seek orders vindicating their asserted rights and dismissing the claims of the other party. While such absolute positions are unfortunate, it is the responsibility of the Court to determine the respective claims of the parties according to their legal rights and not whether the insistence of those rights might be considered to be unreasonable. The comments of Brereton J in Trewin v Felton1 are instructive: While it is regrettable that there cannot be some give and take and accommodation between neighbours, ultimately the function of the law is to provide rules governing their relations to the extent that they are unable to agree. Each party has sought to rely on what it understands to be its strict legal rights. Ultimately, this dispute must be resolved according to the legal rights of the parties, and not according to whether either or both have acted unreasonably. Although in construing the easement there is a question as to what is reasonable user of the easement, the concept of reasonable user is quite distinct from whether either party has acted reasonably or unreasonably. It is conceivable that the reasonableness of a party’s conduct might bear on credit in some circumstances, but ultimately nothing turns on credit in this case. Accordingly, I propose to determine what are the legal rights of the parties, and not whether either or both have acted unreasonably. 11 It is also the case that an insistence on a legal right could be motivated by malice or some ulterior motive.2 There is no evidence of malice or ulterior motivate in this case. The trial 12 At the commencement of the trial, the Court and the parties travelled to Cape Jervis to conduct a view of the properties and the Right of Way. What was observed and said on the view is not evidence. The view assists the Court to understand the evidence that was given about the various locations that were visited on the view. 13 There were a large number of documents tendered at trial. The evidence of the witnesses was, in many respects, uncontroversial except for evidence relating to their motivations in undertaking certain actions or adopting particular positions. The oral testimony supplemented the documentary evidence and put it into context. 14 The applicant called four witnesses, including himself. The evidence of the applicant (and the respondents) must be considered in the context of the poor relationship between the applicant and the respondents. Each party viewed their 1 (2007) 13 BPR 2, 24,579; [2017] NSWSC 851, [8]. Affirmed in Barrett-Lennard v River Wind Pty Ltd [2019] WASC 125, [66]. 2 See Pullen v Smedley [2017] NSWSC 1721, [220]. -- 7 of 59 -- [2026] SADC 14 4 position as correct and had difficulty in accepting or even understanding the other party’s view. Each party maximised the difficulties posed by a position taken by the other. This attitude was reflected in the evidence given by the applicant. For example, the applicant tended to engage in speculation about the potential difficulties posed by the use of an automated gate. He tended to blame the respondents for difficulties that occurred in the progress of the building works that he was undertaking on the Property, including difficulties with the Council. 15 The respondents submitted that Mr Fullston’s evidence lacked credibility, at least in some respects, and must be considered in light of various factors including his age (Mr Fullston was 79 years of age), relative infirmary, inability to engage with written materials, evasiveness and non-responsiveness, confusion and conflict, and unfounded conspiracies. 16 I do not consider that the age or health of Mr Fullston resulted him in not being able to give clear evidence or not responding, in general, to the questions that were asked. His answers to questioning reflected an understanding of the issues in dispute. Mr Fullston did rely upon his lawyer in relation to written communications but that is not a matter that detracts from his credibility. 17 I do not accept the entirety of his evidence about the conversations that were held during the mediation at which the settlement agreements were signed and consider that he engaged in reconstruction in recounting those conversations. However, these matters do not cause me to form a negative view about his overall credibility or the reliability of the other evidence that he gave. In particular, the applicant was frank about the materials that he had placed on the Right of Way and the reasons for doing so. The evidence that the applicant gave about the reasons why he wanted a gate on the Property and at the boundary of the Right of Way were cogent. I accept that evidence. 18 The applicant called one expert witness, Mr Benjamin Wilson. Mr Wilson is a traffic engineering consultant. He prepared an expert report dated 15 November 2024 in which he examined vehicular access and manoeuvrability on the Right of Way, both with the obstacles that had been placed on the Right of Way and without them. He also prepared a further diagram in which he considered the turning movements on the Right of Way of vehicles of the size used by the Country Fire Service (CFS) at Cape Jervis (exhibit A8). Mr Wilson was qualified to give evidence on these topics. I accept his evidence. There was no suggestion that his opinions were wrong. 19 Ms Natasha Hudson, the applicant’s partner gave evidence. Her evidence was only minor. She did not live at the Property but visited frequently. She gave some evidence about members of the public who would attend at the Property before the gate was installed and their presence afterwards. She also gave evidence about the applicant’s dogs, Rex and Kaiser, and her role in driving to Sydney to collect Kaiser and the expenses that she incurred when doing so. The credibility and reliability of Ms Natasha Hudson was not challenged and her evidence is accepted. -- 8 of 59 -- [2026] SADC 14 5 20 Ms Mija Hudson, the daughter of Ms Natasha Hudson, gave evidence. Her evidence was also minor. She gave evidence about her use of the gate, her observations of Rex and Kaiser and her part in the trip to Sydney to collect Kaiser. She was not subject to any cross-examination. The Court accepts her evidence. 21 The respondents called three witnesses. Both of the respondents gave evidence as well as a neighbour, Mr Phillipe Portella. 22 I accept, with the qualifications referred to below, Ms Schultz as a credible and reliable witness. She was prepared to concede matters where appropriate, even if that concession might be considered to be against her interest. She also accepted when she could not recall matters or on one occasion when she was mistaken about the evidence that she had given. The reservations that I have in relation to the evidence of Ms Schultz regards her evidence about the inconvenience that might be posed by the obstacles on the Right of Way to fire trucks and how important that matter was to her. The respondents have not called any witness from the Country Fire Service (CFS) nor is there any evidence that the respondents sought to make enquiries from the CFS regarding any difficulties the obstacles may pose to fire trucks if the CFS was called to the Property. The potential inconvenience that might be suffered by the CFS and how it might impact upon them is a matter of speculation. Further, her evidence about desiring a second access point to her property was overstated. 23 Mr Portella, a neighbour of both the applicant and the respondents, was also a minor witness. He gave evidence about the use of the gate and his observations about Rex and his behaviour. He has had some disputes with the applicant. However, his evidence was cogent and there was no reason to reject his evidence. I accept his evidence as credible and reliable. 24 Mr Rumsewicz is the second respondent and the husband of the first respondent. He gave evidence about the work that the applicant has undertaken on the Property, the use by the respondents of the Right of Way, including the gate, the obstructions placed on the Right of Way by the applicant, the mediation and his observations of Rex. Again, the evidence given by Mr Rumsewicz was cogent and there was no reason to reject his evidence. I accept his evidence as credible and reliable. Creation of the Right of Way 25 The creation of the Right of Way is the subject of documentary evidence and is not in dispute. The Court makes the following findings. 26 In the period between 1950 and 1961, three allotments were created out of a larger farming allotment (portion of section 102, Hundred of Waitpinga). Two of these allotments comprised the land where the Property and the First Respondent’s Property are now situated. In 1993, there was a re-subdivision of the land comprised in the three allotments and other adjoining land. In this re-subdivision, four allotments were created (see exhibit A2). Allotment 4 was a large farming -- 9 of 59 -- [2026] SADC 14 6 allotment, then owned by the Christie family. Allotment 1 was the land adjacent to Saratoga Road (then owned by the Clark family), to which access is taken from Saratoga Road. Allotment 2 (which forms part of the land now owned by the applicant and was then owned by Mr Malcolm Amos) had the benefit of the Right of Way (in its current form) which burden was on allotment 4. Allotment 3 (which comprises the land now owned by the first respondent) had the benefit of the same Right of Way. That is, both Allotments 2 and 3 had the benefit of the Right of Way. 27 The first respondent purchased Allotment 3 in 2001. There was a house on the property at that time although it was later extended by the respondents. The first respondent had the benefit of the Right of Way. Following a further re-subdivision in 2017, the first respondent’s land was renamed Allotment 50 of DP 81413 (certificate of title register book 6052/193). 28 In about 2009, the applicant purchased Allotment 2 and at that time also had the benefit of the Right of Way. In 2017, the applicant purchased some further land which had previously been part of Allotment 4 to create the new allotment 24 of DP 114461 (see page 195 of exhibit A1, certificate of title 6191/174). As a result of this purchase, the applicant became the owner of the Right of Way. That had the effect of extinguishing the Right of Way which had been granted in favour of the land that the applicant had initially purchased in 2009. The Right of Way still existed in favour of the First Respondent’s Property which is now allotment 50 of DP 81413. 29 The Right of Way was as at 2017 (and still remains) just under 70 metres in length from the boundary of Sorata Stret and the Property (at the northern boundary of the Right of Way) to the southern boundary of the Right of Way which forms part of the boundary with the First Respondent’s Property. At the northern (Sorata Street) boundary, the Right of Way is about 6 metres in width. It continues at that width for about 37 metres. From that point, the Right of Way becomes progressively wider so that at its southern boundary, adjacent to the First Respondent’s Property, it is about 23 metres in width. Undertaking of works on the Property by the applicant 30 The applicant has lived at the Property since about 2012. Prior to that time, and from 2009-2012, he rented out the Property for holiday accommodation. 31 The respondents do not live at the First Respondent’s Property on a full-time basis. They generally reside at the property on weekends or extended weekends, although as they near retirement, they are tending to spend more time at the property. The respondents are members of various volunteer groups who attend at their property from time to time and also have friends who visit on occasions. 32 The applicant gave evidence about the state of the Right of Way when he moved into the Property in 2012 and the work that he undertook on the Right of Way at that time. I accept that evidence which was not challenged. He said that -- 10 of 59 -- [2026] SADC 14 7 when he moved into the Property in 2012, there was a narrow track (on the Right of Way) about 4.4 metres wide to the First Respondent’s Property (see page 115 of exhibit A1) and a wire fence alongside the Right of Way. There was at the time a small spur to the right upon which three point turns could be performed. The applicant said that when he moved into the Property, he removed trees and rubbish from the Right of Way. He said that he also deposited tonnes of soil on the Right of Way which had the effect of raising the level of part of the Right of Way by about a metre and made the Right of Way in that area flatter and more trafficable. The area on the Right of Way upon which the materials were placed (the turning circle situated in the southern area of the Right of Way, near the First Respondent’s Property), because of the additional height created by the placement of materials, became about a metre higher than the lower part of the Right of Way (in the south eastern corner of the Right of Way). 33 The applicant in about May 2020 (page 399 of exhibit A1) submitted a development application to the District Council of Yankalilla in which he proposed the erection of a new house with a garage and swimming pool. The respondents opposed the development and submitted representations to Counsel on 19 May 2020 (pages 40-41 of exhibit A1). Although there was some dispute as to conversations that occurred in relation to that opposition, it is clear that the opposition to the development by the respondents caused the deterioration of the relationship between the applicant and the respondents. Since that date, both parties have from time to time installed cameras which monitor the Right of Way. 34 From 2012 (when the levelling work was undertaken), and again from 2017 when the applicant purchased the additional land, there has been various obstacles placed on the Right of Way by the applicant. Mound of white limestone rocks 35 The first obstacle that has been placed on the Right of Way is a mound of white limestone rocks near the entrance to the Right of Way at Sorata Street (on the eastern side of the Right of Way). Mr Fullston gave evidence about the limestone rocks and their placement on the Right of Way which was not disputed. That evidence is supported by documentary evidence and photographs. 36 The Court makes the following findings. First, the limestone rocks were part of the residue from the work done by the applicant on the levelling of the turning circle of the Right of Way. Secondly, the applicant placed those limestone rocks on the Right of Way near Sorata Street in about 2012 when he levelled the turning circle. Thirdly, the applicant gave evidence that the limestone rocks acts as a wind shield and barrier for animals, but there was no evidence that they were placed there, or remain there, for that purpose. Fourthly, these rocks are about 12 metres in length and 3 metres in height. Fifthly, as shown in the survey report (pages 267—318 of exhibit A1 at p 275), the bottom of this rock pile extends into the Right of Way by about .9 of a metre. -- 11 of 59 -- [2026] SADC 14 8 Wistow slate 37 The second obstacle that has been placed on the Right of Way is the Wistow slate. The Wistow slate is located about 2-3 metres from the southern boundary of the Right of Way (i.e. the boundary near the First Respondent’s Property). The pile of Wistow slate is about 11 metres in length, .5 of a metre wide and 1 metre high. Mr Fullston accepted that the Wistow slate intruded onto the Right of Way. He said that he had not measured the extent of that intrusion but said that it was perhaps 3-4 metres. That estimate broadly corresponds to the survey (page 285 of exhibit A1). This had the effect of reducing the available area of the turning circle on the Right of Way, but does not affect driving along the Right of Way. 38 Mr Fullston gave evidence that the Wistow slate was placed on the Right of Way at the time that he carried out work on the turning circle in about 2012 which included removing trees and vegetation. In carrying out the work on the turning circle (which also involved levelling the turning circle) on the Right of Way, the applicant had placed some 30 tonnes of soil on the Right of Way. This resulted in raising the level of that part of the Right of Way by about a metre and creating a drop of about 1 metre in depth between the turning circle and the south eastern edge of the Right of Way. Mr Fullston gave evidence that he placed the Wistow slate there because he was going to build a wall there for safety’s sake but that was stopped by Mr Rumsewicz. Mr Fullston said that there was a drop of about 1.2 metres from the Wistow slate to the gabion wall. 39 Mr Fullston said that he intends to use the Wistow slate for a fountain type fish pond area on his Property. He said that after he used the slate for this purpose, he intended to batter down the turning area to the same level of the lower, south- eastern, part of the Right of Way, so that people would not fall off the ledge of the Right of Way where it was higher. Mr Fullston agreed in cross-examination that he could remove the slate tomorrow if he wanted to and could place fill and compact it and recreate the full width of the Right of Way but chooses not to do so. He said that eventually, he will do that work and make it level. He agreed that he had not asked the respondents if they wanted the Wistow slate placed on the Right of Way. 40 The evidence in relation to the time when the Wistow slate was placed on the Right of Way is not precise. However, it is not necessary to determine the exact time that it was placed on the Right of Way. It was placed on the Right of Way some time prior to December 2018 as there is a photograph of the Wistow slate on the Right of Way on that date (page 929 of exhibit A1). Mr Fullston agreed that the Wistow slate was there at least prior to 2018. 41 The Court accepts the evidence of Mr Fullston about the circumstances of the placement of the Wistow slate on the Right of Way and the extent that it intrudes onto the Right of Way. The Court also accepts his evidence about the drop off between the Wistow slate and the gabion wall of about 1 metre. -- 12 of 59 -- [2026] SADC 14 9 Track to the south eastern side of the Right of Way 42 The third obstacle that has been placed on the Right of Way is the creation of a track leading down from the Right of Way to the eastern side of the Right of Way and the south eastern area of the Property. Mr Fullston gave evidence about the circumstances in which the track was cut which was not disputed. The Court accepts that evidence and make the findings set out below. 43 Mr Fullston cut a track into the Right of Way in about January 2024 immediately to the north of the Wistow slate. The applicant did this so as to obtain access to the south eastern area of the Property. He created the track by lowering the battered wall. Mr Fullston required access to the south eastern area of the Property as that is the area in which he is constructing a shed. When the shed is completed, the track could be filled in. 44 The creation of the track has, by itself, minimal effect of the turning area on the Right of Way as that area had already been reduced by the work performed by building up the area where the Wistow slate is situated (see page 515 of exhibit A1) and by the Wistow slate itself. Mr Fullston said that at the time that he moved in to the Property in about 2012, the track between Sorata Street and the first respondent’s property was very narrow and was about 4.4 metres in width. A lot of trees and rubbish had accumulated on the Right of Way and the turning circle on the Right of Way. 45 Mr Wilson considered the extent to which these obstacles (the track and Wistow slate) might impact on the use of the Right of Way and in particular on the ability of vehicles to undertake turning manoeuvres on the Right of Way. Mr Wilson prepared a report in which he set out his conclusions (page 319 of exhibit A1). I accept that report and his evidence. His conclusions were not seriously challenged and there was no evidence contradicting his report. There was no opposing expert report. 46 Mr Wilson’s conclusions were that the turns could be accommodated despite the obstacles but in some cases, the placing of the obstacles required additional turning movements to be made. He provided the following opinions; (1) without obstacles, a 99th percentile design vehicle (which represents a large domestic vehicle such as a large SUV or light van) could complete turnaround movements to reverse into the First Respondent’s Property within the Right of Way via a single loop but with obstacles, would require a three point turn; (2) without obstacles, a 99th percentile design vehicle with a trailer could complete turnaround movements to reverse into the First Respondent’s Property within the Right of Way via a single loop but with obstacles, would require a three point turn; -- 13 of 59 -- [2026] SADC 14 10 (3) without obstacles, a small rigid vehicle could complete turnaround movements to reverse into the First Respondent’s Property within the Right of Way via a three point turn and with obstacles, would also require a three point turn; (4) without obstacles, a medium rigid vehicle could complete turnaround movements to reverse into the First Respondent’s Property within the Right of Way via a three point turn and with obstacles, would require a five point turn. 47 Mr Wilson also prepared a supplementary diagram (exhibit A8) showing the ability of CFS fire trucks to undertake a turning manoeuvre on the Right of Way. Mr Wilson undertook that analysis using what he described as the typical pumper used by the CFS which was the larger vehicle that is located at the Cape Jarvis CFS station. He considered that, with the obstacles in place, the vehicle could complete a three point turn on the Right of Way. He said that the CFS had, in his experience, accepted such an arrangement. In cross-examination, Mr Wilson said that the fire truck was in the mid-way range between the classifications of small rigid vehicles and medium rigid vehicles. In cross-examination, Mr Wilson accepted that the Ministers Code for undertaking development in Bushfire Protection Areas (pages 959-986 of exhibit A1) at clause 2.3.3.1 specified fire- fighting vehicles to be able to travel in a continuous forward movement. He also accepted that a three point turn was not a continuous movement. The Planning and Design Code in the section entitled Hazards (Bushfire-Medium Risk) Overlay also imposes a requirement that fire-fighting vehicles travel in a continuous forward movement around driveway curves. In re-examination, Mr Wilson said that irrespective of the placement of obstacles, the pumper fire appliance used by the CFS would need to undertake a three point turn on the Right of Way to change direction and could not travel in a continuous circle. Excavation materials 48 The fourth obstacle that was placed in the Right of Way was some excavation materials that were placed immediately to the west of the Wistow slate. They were placed in that position in about 2024. Ms Schultz agreed in cross-examination that these materials had been removed. She said that they were there for a few months although she was not definitive about that fact. Brick pallets 49 The fifth obstacle placed on the Right of Way are some brick pallets. They were placed at the south-western edge of the Right of Way (see page 285 of exhibit A1). Mr Fullston gave evidence that at the time of the survey in July 2024, there were brick pallets in the area marked “extensive brick pallets”. He said that only a couple of brick pallets are now left there, about 120 bricks in total. He said that one of these pallets might be sticking out into the Right of Way at one edge by a small amount. He said that the remaining pallets have been moved into the garage. The survey map (page 285 of exhibit A1) shows very minimal intrusion into the -- 14 of 59 -- [2026] SADC 14 11 Right of Way. There was no dispute about these matters. The Court finds that any intrusion onto the Right of Way by the brick pallets is minimal. 50 Mr Fullston said that he uses some bricks, three or four, each day that he works on the Property. He said that he didn’t notice that they were spilling onto the Right of Way and that the next time that he was on the fork lift, he would push them back off the Right of Way. Ms Schultz said in cross-examination that the brick pallets were placed there in June 2023 but were moved back from the Right of Way sometime between June 2023 and July 2024. Gabion wall 51 The sixth obstacle placed on the Right of Way is a portion of a structure known as the gabion wall. Planning approval was required for the erection of the gabion wall and was obtained in June 2023. Building consent was obtained in October 2023. Both the applicant and the respondents gave evidence as to the plans for the erection of the gabion wall, the work that has been undertaken to date including the erection of the posts and the intrusion of the gabion wall into the Right of Way. Mr Rumsewicz gave evidence, which I accept and which was not contradicted, that the gabion wall was first discussed with him in about 2017. None of the matters relating to the gabion wall are in dispute and the findings set out below are made. 52 The gabion wall is planned by the applicant to be erected in the south eastern corner of the Property and intrudes about .8 of a metre onto the Right of Way at the south eastern aspect of the Right of Way. The wall is planned to be about 17.01 metres in length. The applicant first discussed the erection of the gabion wall with the second respondent in about 2017. The posts for the gabion wall were erected in about 2019 but the wall itself has not been erected. The trench works for the gabion wall have also been completed. The post that extends furthermost into the Right of Way has been erected. That marks the end of the gabion wall. The structure of the gabion wall essentially comprises two walls that have 2.4 metre square section cages (2.4 metre wide and 2.4 metre high) and which extend the length of the wall. Rocks are placed in the gabion wall between sheets of stainless steel. There is some dispute as to whether the structure of the gabion wall was varied in the time between the discussions held by the parties at the mediation in 2022 and the submission of the development application in 2023. That matter will be discussed later in these reasons. Mediation 53 The applicant and respondents had a number of disagreements which resulted in two proceedings being taken in the Magistrates Court. The first of these proceedings, number CIV-21-004545 (the 4545 proceedings), concerned an action taken by the applicant in the Magistrates Court in relation to a proposed fence that was to be erected on the Property. The second set of proceedings, number CIV-21- 002282 (the 2282 proceedings), concerned a claim by the respondents against the applicant in relation to nuisance arising from the Right of Way. -- 15 of 59 -- [2026] SADC 14 12 54 A mediation was held in respect of both sets of proceedings on 30 July 2021 at which the mediator appointed by the Court, a Mr Kent Hopkins, attended on site. The applicant and his partner, Ms Natasha Hudson, and the respondents participated in the mediation. Ms Schultz gave evidence that she was not present at the commencement of the mediation but arrived late. Ms Schultz said that she believed that it was an expert appraisal that was conducted by Mr Hopkins and not a mediation. The record of outcome refers to the negotiations being a mediation and the topics agreed upon also reflect a mediation rather than an expert appraisal. Nothing turns on the distinction. 55 One of the topics raised at the mediation was the installation by the applicant of a gate on the boundary of the Right of Way and Sorata Street. The applicant said that he raised the topic of the gate at the mediation and said that he wanted a lockable gate because of the value of the equipment that he had on the Property. He said that the respondents did not agree to a locked gate. Mr Fullston then gave evidence that he said that he would have an unlocked gate and that they then discussed whether there was a need to shut the gate after use. Mr Fullston said that it was agreed by all parties that the gate would be shut after use. 56 Ms Hudson gave evidence that she also attended the mediation and the issue of the gate was discussed. She said that at the mediation, the applicant said that he was planning to install a gate. She said that she could not recall a discussion about shutting the gate. 57 Ms Schultz gave evidence that she could not recall the details that were discussed about the physical characteristics of the gate but she does not believe that the opening and closing of the gate was mentioned. She accepted in cross- examination that it was agreed that the applicant could erect a gate at the entry of the Right of Way. She also accepted in cross-examination that she did not remember whether there was a discussion about closing the gate. 58 Mr Rumsewicz gave evidence that Mr Fullston described in some detail the type of gate that he wished to install. Mr Rumsewicz also gave evidence that there was no discussion about closing the gate. 59 The Court finds that there was a general discussion about the applicant wishing to install a gate at the boundary of the Right of Way and Sorata Street. The Court does not find that there was a discussion and agreement about closing the gate after use. Such a finding would be contrary to the evidence of the second respondent which I accept. It would also be expected that if there was a discussion and agreement about the closing of the gate, there would have been a term in the Settlement Agreement requiring the gate to be closed after use. 60 Another topic discussed at the mediation was the erection by the applicant of the gabion wall. Mr Fullston gave evidence that the post that marks the end of the gabion wall (and which is situated on the Right of Way) was pointed out at the mediation and is the post to which the Settlement Agreement makes reference. Mr -- 16 of 59 -- [2026] SADC 14 13 Fullston says that it was his intention to build to that post. Mr Fullston said that it was agreed at the mediation that the gabion wall would be built to that post and that the post would mark the limit of the wall. Ms Hudson also gave evidence that the topic of the gabion wall was discussed at the mediation. 61 Ms Schultz gave evidence it was discussed at the mediation that one of the posts on the western most side of the gabion wall was actually .6 of a metre onto the Right of Way. She said that the respondents agreed that the gabion wall could be built to that post and therefore, to that extent, intruded onto the Right of Way. She said that the discussion of the length of 18 metres for the gabion wall arose because the western most post of the gabion wall was on the Right of Way. 62 Mr Rumsewicz gave evidence that the respondents agreed at the mediation that the gabion wall could be built to the post that was about 60 cm onto the Right of Way. Mr Rumsewicz said that later he changed his mind and that despite the Settlement Agreement, he did not agree to the gabion wall being built onto the Right of Way because he considered that the applicant was in breach of the Settlement Agreement. 63 At the time of the mediation, Mr Fullston intended to commence building the gabion wall prior to Christmas 2021. At that time, Mr Fullston was also constructing a shed. He had made application to the District Council of Yankalilla for permission to build the shed in June 2020, but approval was not ultimately granted by the Council until January 2022. 64 Although there are minor differences about the exact amount of the instrusion of the gabion wall into the Right of Way, the evidence of both parties was that the gabion wall would be built into the Right of Way to the post that had already been erected and which was identified in the course of the discussions. It was agreed that was furthest extent of the instruction of the gabion wall onto the Right of Way. The Court finds accordingly. The Court also finds that other than the erection of the posts and the completion of trench works, the gabion wall has not been constructed. 65 Another related topic discussed at the mediation was the Wistow slate. Ms Schulz said that there was a discussion about the Wistow slate being on the Right of Way. She said that there was also a discussion about removing the slate but no time frame was set. She agreed that there was a discussion that the slate could stay for some, indeterminate, time. She said that the reference to bluestone rocks in the settlement agreement was a reference to the Wistow slate. Mr Rumsewicz gave evidence that Mr Fullston said that he would remove the slate in the near future. 66 The Court finds in accordance with the evidence of Ms Schultz that there was a discussion about removing the Wistow slate, but no time frame was set for its removal. -- 17 of 59 -- [2026] SADC 14 14 67 Settlement agreements were entered into and signed in relation to each of the proceedings on the date of the mediation, that is, on 30 July 2021. The 4545 Settlement Agreement provides: (1) Michael and Carolyn [the respondents] agree that Peter [the applicant] can construct a Gabbion [sic] Wall on his property abutting our boundary from a point commencing on the SE corner of Peter’s block to the SE corner of the Right of Way a distance 18m approx. (2) The western end of the Gabbion [sic] wall will be the existing 50 x 50 stainless steel post. (3) On removal of the bluestone rocks the edge of the right of way shall be made safe. (4) It is proposed the Gabbion [sic] wall will be built in conjunction with the creation of Peter’s new shed which will be commenced prior to Christmas 2021. (5) Michael and Carolyn shall refrain from placing position baits on their property unless under the supervision of Council and Department of Environment and Water. Peter shall be given 7 days notice in writing, email or text Natahsa Hudson [text address inserted]. (6) We agree to erect a 1200mm high boundary and post and wire mesh rural fence to control rabbits commencing at a point in the east corner of Michael and Carolyn’s home to the western boundary of our properties. We shall each obtain 1 quote each and share with each other the quotes. The cheapest quote shall be accepted unless one person wishes to pay the additional costs. The fence shall include a gate at the cost of Michael and Carolyn. (7) Michael and Carolyn shall relocate their external cameras so that it’s view is restricted to the boundary line with no oversight of Peter’s property. 68 The 2282 Settlement Agreement contains the following terms: (1) Hole at entrance of Right of Way; Peter has agreed to fill in the hole in 7 days. (2) Brick stack and solid timber wall: Peter agrees to remove the protruding section within 3 months. (3) (no item 3). (4) Metal framework for fence and gate: Peter agrees to remove from Right of Way within 3 months. -- 18 of 59 -- [2026] SADC 14 15 (5) Peter proposed to erect a gate at the entry of the Right of Way at Sorata Street entrance. The gate must be openable at all times without a key. (6) Where construction of a gate across restricts access to the entry to the right of way Peter will allow Michael and Carloyn the use of his driveway. (7) All construction activities on the right of way shall be done with due diligence. (8) Access to the right of way shall be available for delivery vehicles/visitors, etc. Construction and use of the gate 69 In about April 2023, the applicant erected a gate at the boundary of the Right of Way and Sorata Street (the Right of Way Gate) and shortly after, a gate on his Property further to the east (the Lower Gate). The Right of Way Gate is opened and closed manually. It does not have a lock but is fastened by use of a chain and dropping pins. The Lower Gate is made of three panels and is about 14 metres wide. Mr Fullston said that the Right of Way Gate is a temporary gate and that he intends to replace the current structure with a stainless steel gate, with materials imported from Japan. He said that he had purchased those materials which are currently stored in his shed on the Property. The Right of Way Gate can be described as a farm gate. 70 Mr Fullston gave evidence as to why the gate was installed. He said that the main reason was to stop kangaroos coming into the Property as they had previously destroyed his garden. He said that a second reason was to look after his animals, in particular his dogs. A third reason was personal security because he once was almost run over by a vehicle on the Property. He also said that he did not want equipment stolen. Mr Fullston said that the installation of the gates had achieved these purposes. He said that before the gates were installed, people had come into the Property, camped overnight in a tent, walked through the Property to the Heysen Trail, used horses and motorbikes and driven on the Property. He said that he estimated this occurred at least a hundred times a year. 71 Mr Fulltson, at least for a period of time, kept a diary in which he recorded when the respondents left the Right of Way Gate open. That diary records that the respondents left the Right of Way Gate open on a frequent basis. That fact is not in dispute. 72 Mr Fullston also gave evidence about a proposal made by the respondents for an automated gate. He said that this proposal was made about a year ago. The proposal was part of a wider settlement offer that included other aspects of the dispute between the applicant and the respondents (exhibit R14). The proposal was that the applicant install a new solar powered, battery backed-up, single swinging automated gate. He said that the respondents agreed to put $2,000 towards an -- 19 of 59 -- [2026] SADC 14 16 automated system. Mr Fullston said that he had concerns about that proposal and such a system. He said that amount would not be sufficient, the gate may break down or not work in windy conditions, the gate might not be sufficiently powered and the solar panels or other parts of the gate may be stolen. 73 Ms Natasha Hudson gave evidence that prior to the installation of the gate, members of the public would frequently come in and walk around the Property. She also gave evidence that only on one occasion has she had difficulty in unlatching or opening the gate. She has not observed anyone else having difficulty. 74 Ms Schultz gave evidence that following the letter she and Mr Rumsewicz sent to Council on 19 May 2020 (page 409 of exhibit A1) in which they expressed concerns about the development of the applicant, the applicant told them they could no longer park cars on the Right of Way. From that time the relationship deteriorated, and the parties ceased talking to each other. The respondents sent a further letter to Council expressing their concerns about the development on 18 January 2021 (pages 813-816 of Ex A1). 75 Ms Schultz gave evidence that when the Right of Way Gate was first erected, it consisted of two overlapping gates. The gate is now a paired gate. She said from the outside, it is quite difficult to put the pin down and she would generally just use the chain, but from the inside she would also put the pin down. Ms Schultz gave evidence that it was her position that if the applicant erected perimeter fencing that fully enclosed the Property, she would be happy to close the Right of Way Gate after use and would request that her visitors do the same. 76 Ms Schultz gave evidence that on 10 June 2023 she had a major incident when she was not able to get the gate open as the chain was twisted and tight. At that time, the two panels of the gate were overlapping. She said that she eventually managed to open the gate using a spanner but it caused her considerable delay and stress. She said that this was the only time when she had that level of difficulty opening the gate and needed tools to open the gate. She said that there were other times when it took a certain amount of jiggling or moving around to get the gate open. In cross-examination, Ms Schultz agreed that the gate was differently configured on 10 June 2023 when she had the difficulty in opening the gate. The pair of gates now meet perfectly. She said that on occasions the gate is now sticky or difficult to lift but there has not been any occasion when she has not been able to open the gate. She said that the gate was overlapping for a period of about two months. 77 Ms Schultz said that it is her practice, if she is driving, to open one panel of the gate, generally the eastern panel, drive through and then leave the gate open. She said that if she was walking, she would generally open and close one of the panels of the gate. 78 Ms Schultz also gave evidence about the use of the Right of Way and the Right of Way Gate by visitors. She said that on a typical weekend, she and -- 20 of 59 -- [2026] SADC 14 17 Mr Rumsewicz might have one or two visitors. However, they would have a larger number of visitors on weekends when they held a working bee. She said that for some visitors, the presence of a large dog such as Rex or Kaiser, could be frightening if the visitors were on foot on the Right of Way. Ms Schultz also gave evidence that tradespersons would visit their property from time to time. She said that she and Mr Rumsewicz also engage a cleaner, who is frightened of dogs, to clean their house. Ms Schultz said that she would leave it to the cleaner to decide whether or not to close the gate. In relation to the use of the Right of Way Gate by visitors, Mr Rumsewicz said that visitors tended to shut the gate when passing through. 79 Mr Portella gave evidence that the gate could be tricky to open when he or his wife use the gate to visit the respondents. 80 Mr Rumsewicz gave evidence that the applicant first raised the question of installing a gate at the northern boundary of the Right of Way in about August 2020. He said that the applicant first raised the issue of a gate not long after the respondents had made a representation opposing the proposed development of the applicant (i.e. the 19 May 2020 letter), Mr Rumsewicz said that the applicant had advised that he would be putting up a gate which would be padlocked. He said that he would be also erecting a fence. Mr Rumsewicz said that he replied that he did not think that the applicant could do that. Mr Rumsewicz also gave evidence of a conversation that he had with Mr Fullston in about September 2017 when Mr Fullston said words to the effect that “if you’re nice to me, I’ll be nice back, but if you’re nasty to me-I will be nasty ten times worse.” This statement indicates a breakdown in the relationship between the parties and their inability to compromise. 81 The Court makes the following findings about the construction and use of the Right of Way Gate. 82 First, the Right of Way Gate was constructed in about April 2023. Shortly after, the Lower Gates were also constructed. The structure of the Right of Way Gate changed from an overlapping gate to a paired gate. These matters were not in dispute. 83 Secondly, the applicant had good reasons as to why he wished to erect the gate. They were, in summary, for the security of the Property, including the equipment that was located on the Property and to prevent or deter members of the public and animals from entering the Property. These reasons accord with commonsense and logic. At the time that the Right of Way Gate was installed, the applicant was commencing building works such that it could be expected that equipment would be on the Property. For those reasons, I do not accept the contention of the respondents that the concerns of the applicant were not genuine, or that the Right of Way Gate was only installed as an irritant to the respondents. It is true that at the time that the applicant first brought up the erection of the gate, the relationship between the parties had broken down. That fact does not lead to -- 21 of 59 -- [2026] SADC 14 18 the conclusion that the applicant did not have valid reasons for the erection of the Right of Way Gate and that he erected the gate only for the purposes of irritating or annoying the respondents and not for any genuine purpose. 84 The only objective matter raised by the respondents in support of their contention that the applicant did not have valid or genuine reason for the erection of the Right of Way Gate is the evidence regarding the timing, in August 2020, of the applicant first advising the respondents of his plans to erect the gate. The erection of the gate was discussed not long after the relationship between the applicant and the respondents deteriorated as a result of the respondents making representations to Council opposing the applicant’s development. I do not consider that from those facts the Court should conclude that the applicant’s reasons for erecting the gate were not genuine. The representation to the Council was made approximately 3 years before the gate was erected. The erection of the gate was discussed a year later at the mediation. The applicant has consistently sought the erection of the gate over a period of time. 85 Thirdly, the Right of Way Gate, as installed, is a temporary gate which the applicant intends to replace with a stainless steel gate, the material for which are currently stored in his garage. This is not in dispute. 86 Fourthly, the respondents have proposed an automated gate. Some of the concerns raised by Mr Fullston in relation to the automated gate involved matters of speculation (such as the possibility of the gate being stolen or breaking down because of animals or being insufficiently powered). These were not matters within his expertise and there was no objective evidence to support his concerns. The position taken by Mr Fullston reflected the lack of trust between him and the respondents and an unwillingness to work together. However, notwithstanding those matters, it was reasonable for Mr Fullston to have concerns that the automated gate might be more costly in the long term and more frequently break down. It was also reasonable for Mr Fullston to install a typical farm gate, rather than an automated gate. 87 Fifthly, the Right of Way Gate is not on the boundary of the Right of Way and Sorata Street but is on land wholly owned by the Council. It is a short distance from the northern boundary of the Right of Way. In cross-examination, Mr Fullston accepted that the Right of Way Gate was on land owned by the Council but said that he had permission from the Council to erect the gate there. If such permission had been granted, it was clearly informal and was not an official approval and does not provide a legal basis for the Court to conclude that the applicant was entitled to erect the Right of Way Gate on land owned by the Council. 88 Although in giving evidence, the applicant accepted that the Right of Way Gate was not on the Property, the applicant submitted in his closing address that there was an arguable case that the western leaf of the gate and its support post were on the Property and not on Council land. The applicant accepted that the -- 22 of 59 -- [2026] SADC 14 19 eastern leaf of the gate was on Council land. The applicant submitted that it was not possible to be more conclusive as the survey (page 285 of exhibit A1) was a detail and level survey and not a boundary survey. The detail and level survey indicates that other than possibly the western post, the Right of Way Gate is entirely on Council land. That accords with the evidence of Mr Fullston. The Court therefore is satisfied that, on the balance of probabilities, that the Right of Way Gate is wholly on Council land and not on the Property except for possibly the western most post of the gate. 89 Sixthly, the respondents frequently do not close the gate after use, particularly when the first respondent is driving a motor vehicle. That is not in dispute. It is not necessary to make any more precise findings about that matter. 90 Seventhly, the respondents, and in particular the first respondent, has had some difficulties on occasion in opening and closing the gate. On one occasion, the first respondent had particular difficulties in opening the gate but that was when the gate was not in its present configuration. The first respondent still has some minor difficulties on occasions in putting the pin down when outside the gate. 91 Eighthly, the first respondent accepted that she would be happy to close the Right of Way Gate after use if the applicant erected perimeter fencing. That does not, by itself, provide a justification for refusing to close the gate. The reasons for the installation of the Right of Way Gate still exist notwithstanding that the Property is not fully fenced. 92 Ninthly, the boundary of the Property to the east of the Right of Way Gate is not fenced between the Right of Way Gate and the Lower Gate. There is vegetation to the immediate east of the Right of Way Gate which acts as some form of barrier but there are multiple places where a person or animal can walk through the boundary. An olive grove forms part of the eastern boundary as it meets the northern boundary and there are gaps between the olive trees which are wide enough for a dog to escape. There are also gaps on the western boundary through which a dog might escape. Mr Fullston accepted that the Property was not fully fenced in cross-examination. 93 Tenthly, the presence of large German Shepherd dogs on the Property can be frightening to visitors of the respondents, and to tradespersons if they are on foot or when outside of the motor vehicles on the Right of Way. Rex escaping from the Property 94 Mr Fullston gave evidence about his German shepherd dog, Rex. As at 2023, Rex was six years old. Rex was well-trained and not aggressive and friendly to the respondents and visitors. Mr Fullston agreed that there were a lot of areas where a dog would be able to leave the Property. Mr Fullston agreed that Rex would sometimes run out through the western boundary of the Property to greet hikers on the Heysen Trail. -- 23 of 59 -- [2026] SADC 14 20 95 Mr Fullston gave evidence that at about 5-5.30pm on 25 August 2023, he and Rex were inside his house. Mr Fullston said that Rex became very agitated and wanted to get outside. He said that he opened the door and went outside to turn on the light switch and Rex suddenly took off and disappeared. He said that there was drizzly rain. There was a truck at the bottom of Sorata Street which had its lights on and was making a lot of noise. He said that he could hear Rex barking and was calling out to him, but Rex did not appear to hear him calling because of the wind and the noise of the truck. He said that he followed Rex’s footprints and those footprints continued through the Right of Way Gate. He said that one panel of the gate was open. He said that the footprints showed that Rex was running. Mr Fullston gave evidence that Rex would not have escaped if the gate had been closed, but I consider that to be self-serving and speculative evidence. I do not accept that it was virtually impossible for Rex to escape at night or that his training would have meant that he would not have escaped. 96 Mr Fullston then searched for Rex for a number of hours but without success. The following morning, Mr Fullston received a telephone call from a neighbour saying that they had found Rex at the bottom of a nearby beach, Morgans Beach. Mr Fullston then immediately drove to Morgans Beach and found Rex in a very distressed condition. He gave Rex some water and Rex vomited up some oats. He took Rex home, but Rex died soon after. 97 The properties in the area suffer from an abundance of rabbits. Poisoned oats are laid out by the Council about once a year to kill the rabbits. The poisoned oats were dyed blue. There had been two previous occasions within the previous 12 months when Rex had eaten poisoned oats and become ill. It appears likely that because he had eaten poisoned oats previously, Rex’s immune system had been compromised. Ms Natahsa Hudson observed that Rex had suffered a decline in health. Although poisoned oats are not usually laid in the winter months, I accept the evidence of Mr Fullston that he observed Rex vomiting up poisoned oats when he found him. The observations made by Mr Fullston when he found Rex are consistent with the poisoned oats causing his death, although his compromised immune system was a contributory factor. 98 Ms Schultz gave evidence that she had seen Rex outside of the Property and on Sorata Street on his own on a number of occasions. She had not actually seen him leave the Property. Mr Portello gave evidence that the Property was not enclosed. He said that when Mr Fullston constructed the gate there was no fence in the area around the gate. He said that the gate was the only place which was fenced. Mr Rumsewicz gave evidence that Rex could leave the Property whenever he liked and that he had seen Rex on a number of occasions leave the Property on the eastern side (the Royans side). He said that he had seen Rex outside the Property and on the northern side of Sorata Street, not in the presence of the applicant. 99 Ms Schultz gave evidence that she had been out in the afternoon of 25 August 2023 and had returned home at about 4.30pm-4.45pm. She agreed that when she -- 24 of 59 -- [2026] SADC 14 21 came back home at that time she left the Right of Way Gate open. At that time, Mr Fullston was home. Mr Rumsewicz also gave evidence that he arrived home shortly before Ms Schultz that afternoon. He said the Right of Way Gate was closed when he left the Property for a walk at about 4 pm and he closed it when he returned shortly after. The inference from the evidence was that Ms Schultz was the last person to use the Right of Way Gate on 25 August 2023, before Rex escaped, and she had left the eastern panel of the gate open. 100 The Court makes the following findings about the escape of Rex. First, Rex escaped on 25 August 2023 through the Right of Way Gate which had been left open by the first respondent. Rex had become very agitated and suddenly ran off and did not respond to calls from the applicant to return. There was noise which was likely to have stopped him responding. The first respondent accepts that she left the gate open on the late afternoon of 25 August 2023. The applicant has given evidence as to the circumstances in which Rex escaped which the Court accepts. 101 Secondly, Rex died from eating poisoned oats. His resistance to such oats was compromised from two previous occasions when he had been poisoned. 102 Thirdly, Rex had previously left the Property without being in the presence of applicant. This accords with the evidence of the respondents and also Mr Portello. The Property was not fully fenced and there was vegetation acting as the boundary on the eastern side of the Right of Way Gate which provides an easy escape for Rex and other animals. Purchase of Kaiser 103 After the death of Rex, the applicant purchased Kaiser. Ms Natasha Hudson and her daughter, Ms Mija Hudson, travelled to Sydney to purchase Kaiser. Ms Natasha Hudson spent money travelling to Sydney for this purpose. Ms Hudson used the applicant’ bank card to pay for most of the expenses. Some of the money spent concerned expenses relating to accommodation, petrol and food. These expenses were reasonably incurred. There were also some minor expenses incurred in relation to dog toys and items for Kaiser. These amounts were very minor and were reasonably spent. The sum of $3,500 was paid for the purchase of Kaiser. $2,500 was transferred to the seller and the remaining $1000 paid in cash. There is a letter of receipt confirming the payment of the sum of $3,500 for the purchase of Kaiser. 104 The Court is also satisfied, having regard to the evidence of Ms Natasha Hudson and the documentary evidence, that the applicant incurred the following additional expenses: (1) dogs toys in the sum of $93.68; (2) petrol in the sum of $307.55; (3) overnight accommodation in the sum of $576.63; and -- 25 of 59 -- [2026] SADC 14 22 (4) food purchases in the sum of $55.92. 105 Insofar as some minor expenses were paid for by Ms Natasha Hudson, the Court is satisfied that the applicant is required, upon request, to re-imburse Ms Hudson for those expenses and they are properly characterised as an expense incurred by the applicant in the purchase of Kaiser. 106 Mr Fullston gave evidence that Kaiser is about halfway through his training. He is not aggressive. Legal principles Construction of the terms of the Right of Way 107 The certificate of title of the Property (certificate of title volume 6191, folio 174) refers to the land being subject to a free and unrestricted right of way over the land marked B. The title of the property of the first respondent (certificate of title volume 6052, folio 193) refers to having the benefit of a free and unrestricted right of way. 108 Section 89 of the Real Property Act 1886 (SA)(the RPA) provides that a free and unrestricted right of way in any instrument shall be deemed to imply the words set forth in Schedule 5 hereto so far as they shall be applicable as fully and effectually as if set out at length in such instrument. Schedule 5 of the RPA provides that: A full and free right and liberty to and for the proprietor or proprietors for the time being taking or deriving title under or through this instrument, so long as he or they shall remain such proprietors, and to and for his and their tenants, servants, agents, workmen, and visitors, to pass and repass for all purposes, and either with or without horses or other animals, cart, or other carriages. 109 The evidence that may be admitted when the court embarks on the task of construing easements which are registered on a Torrens Title is more limited than that which may be admitted on the construction of a contract inter partes. In Westfield Management Limited v Perpetual Trustee Company Ltd,3 Gleesson, Gummow, Kirby, Hayne and Heydon JJ held:4 …To put the matter shortly, rules of evidence assisting the construction of contracts inter partes, of the nature explained by authorities such as Codelfa Construction Pty Ltd v State Rail Authority of NSW, did not apply to the construction of the Easement. …The third party who inspects the Register cannot be expected, consistently with the scheme of the Torrens system, to look further for extrinsic material which might establish facts or circumstances existing at the time of the creation of the registered dealing and placing the third party (or any court later seized of a dispute) in the situation of the grantee. 3 (2007) 233 CLR 528, [173]; [2007] HCA 45. 4 Ibid, [37], [39]. -- 26 of 59 -- [2026] SADC 14 23 110 It follows from these statements of principle that evidence relating to the intentions and expectations of the parties at the time that the easement is created is inadmissible (except insofar as it is evident from the terms of the grant of the easement and documents referred to in the grant of easement), in construing the easement.5 Evidence of mutually known surrounding circumstances at the time that the easement was created will not be admitted.6 111 The servient landowner, Mr Fullston, retains full dominion over the Property, subject to the rights of the dominant owner, Ms Schultz. Ms Schultz only holds such rights as are expressly, or by necessary implication, found in the terms of the Right of Way. Mr Fullston retains all ownership rights except for those rights inconsistent with the exercise of rights conferred under the Right of Way in favour of Ms Schultz as the dominant owner.7 Nuisance 112 A nuisance occurs where a party unduly interferes, in a way recognised by the law, with the use and enjoyment with the property of an applicant.8 That interference may arise as a result of: (1) an encroachment onto the neighbour’s property; (2) physical damage being caused to the property or any building, works or vegetation on the property; (3) unduly interfering with the comfortable and convenient enjoyment of the land 9 113 In this case, the primary issue is whether there has been interference with the comfortable and convenient enjoyment of the land. There has been such interference if a person interferes with another person’s use of or enjoyment of their land in a way that is both substantial and unreasonable. The High Court recently in Hunt Leather Pty Ltd v Transport for NSW (Hunt Leather)10 confirmed that to constitute a private nuisance, the interference must be both substantial and unreasonable. In Uren v Balds Hills Farm Pty Ltd,11 Richards J referred to the following passage from the judgment of Windeyer J in Hargrave v Goldman,12 where liability for nuisance was described in the following way: In nuisance, liability is founded upon a state of affairs, created, adopted or continued by one person (otherwise than in the reasonable and convenient use by him of his own land) 5 Pullen v Smedley [2017] NSWSC 1721, [173]. 6 Barrett-Lennard v River Wind Pty Ltd [2019] WASC 125, [72(4)]. 7 Ibid, [72(1)]. Staley v Pivot Group Pty Ltd [No 6] [2010] WASC 228, [93]. 8 Robson v Leischke (2008) 72 NSWLR 98, [54]; [2008] NSWLEC 152. 9 Ibid. 10 [2025] HCA 53, [15], [177], [259]. 11 [2022] VSC 145, [15]. 12 (1963) 110 CLR 40,62. -- 27 of 59 -- [2026] SADC 14 24 which, to a substantial degree, harms another person (an owner or occupier of land) in his enjoyment of his land. 114 Therefore, if the servient owner acts in a manner that is inconsistent with reasonable exercise of a dominant’s owners’ rights, in a manner which causes substantial interference, there is an actionable nuisance which the court may restrain by an injunction.13 115 The two requirements of unreasonable use and substantial interference are distinct and involve different considerations. However, both substantial interference and unreasonable interference are objective assessments that involve questions of fact about the character of the interference with the use and amenity of the applicant’s land in all the circumstances.14 Obstruction to be actionable must be substantial 116 Interference to property, including in this case, a Right of Way, to be actionable must be substantial.15 There must be real and substantial interference with the common and ordinary use of the claimant’s land arising out the respondent’s use of the land.16 A substantial interference may involve property damage, personal injury, or harm to an occupier’s use or enjoyment of land; for example, by air pollution, vibration, noise or dust. Damage to chattels (which in the present case, includes damage to Rex) are recoverable if an actionable nuisance is established.17 In Pullen v Smedley,18 Ward CJ in Eq quoted with approval the following passage from the Owners Corporation of Strata Plan 42472 v Menala Pty Ltd19 The defendant’s right of way does not entitle the defendant to have the whole of the six- meter strip cleared of any obstruction as if it were a billiard table. The plaintiff continues to be the owner of the plaintiff’s land, and may use it in any way and maintain on it any structure if it does not create a real substantial interference with the enjoyment of the right of way. If enough space is left free for passage without any real substantial interference with the right to pass and re-pass, the defendant cannot insist on more. 117 A similar point was made in Stewart v Cooper20 where Neasey J held that the owner of the dominant tenement does not have a right of access or use of the right of way wholly unobstructed by any limitation placed upon such use by the owner of the servient tenement. Only a substantial interference with the enjoyment of the right of way is actionable. As long as the owner of the dominant tenement is given 13 Barrett-Lennard v River Wind Pty Ltd [2019] WASC 125, [72(3)]. 14 Hunt Leather Pty Ltd v Transport for NSW [2025] HCA 53, [177]. 15 Barrett-Lennard v River Wind Pty Ltd [2019] WASC 125, [72(3)]. [72(10)]. 16 Hunt Leather Pty Ltd v Transport for NSW [2025] HCA 53, [26], [274]. 17 Howard Electrical Ltd v AJ Mooney Ltd [1974] 2 NZLR 762. 18 [2017] NSWSC 1721, [240]. 19 (1998) 9 BPR 16,337. 20 [1986] TAS R (NC) N 1, [17]; [1986] TASSC 3, [17]; [1987] ANZ ConvR 631 cited in Pullen v Smedley [2017] NSWSC 1721, [208]. -- 28 of 59 -- [2026] SADC 14 25 reasonable access to, and use of the right of way, there is not substantial interference with its enjoyment. 118 The cases provide some examples and guidance as to when there might be substantial interference with a Right of Way. In Celsteel Ltd v Alston House Holdings Ltd,21 the holder of the servient land proposed to erect a car wash on a right of way. The effect of the car wash, if it were constructed, would reduce the width of the driveway (the right of way) over which the lessees of flats had the use to access their garages. The lessees sought an injunction to restrain the construction of the car wash. In relation to the lessee of garage 50, Scott J held that access to and egress for the garage would be interfered with to some extent by the proposed car wash. However, it was still possible, albeit with a little relatively easy manoeuvring, for even a large car to reverse into the garage and exit forwards or enter forwards and reverse out. Scott J found that the small degree of extra difficulty did not represent substantial interference.22 However, in respect of some other of the lessees, they had been granted a right of way over a 9 metre driveway. The proposed block of flats would have reduced the width of that drive to 4.14 metres. Scott J held that the permanent narrowing of the driveway from 9 metres to 4.14 metres would not leave the driveway as convenient for the reasonable use of the lessees. The construction of the driveway would represent a substantial interference with the right of way.23 119 In Pullen v Smedley, Ward CJ in Eq held that metal shipping containers (one of the obstacles present on the right of way that was the subject of claims in that case) that obstructed the vision of users of the right of way constituted real and substantial interference with the reasonable use of the right of way and should have been removed.24 It was accepted that there were other places where the containers could have been easily relocated without undue expense. Two factors led to this conclusion of substantial interference: (1) the fact that the shipping containers could have easily been placed elsewhere; and (2) the shipping containers impeded the vision of oncoming traffic of wildlife around the curve of the right of way.25 Reasonable use of the right of way 120 Nuisance is concerned with the conflicting interests of the parties, often neighbours. It is for this reason that nuisance employs the concept of the reasonable user. As Lord Millet held in Southward BC v Mills,26 the governing principle is good neighbourliness which involves reciprocity. The landowner must show the 21 [1985] 2 All ER 562. 22 Ibid, 573. 23 Ibid, 573-574. 24 [2017] NSWSC 1721, [242]. 25 Ibid, [6]. 26 [1999] 4 All ER 449, 464. -- 29 of 59 -- [2026] SADC 14 26 same consideration for his or her neighbour as they would expect the neighbour to show to them.27 This has led the courts to impose a requirement that the interference, must, in addition to being substantial, also be unreasonable. 121 The burden shifts to the person who created the substantial interference to show that it is reasonable. In Hunt Leather,28 Beech-Jones J held: The approach of Gordon and Edelman JJ, with which I agree, places the burden of proof on the claimant to establish that there was a substantial interference with the common and ordinary use of the claimant's land arising out of the defendant's use of his or her land. If the claimant establishes such an interference, the defendant bears the legal onus of proof of establishing that his or her use was common and ordinary and was conveniently done; ie, that it was undertaken with a proper consideration for the interests of the claimant (although there is an evidentiary onus on the claimant to identify the respects in which the defendant's use of land is not conveniently done). This approach to the onus of proof accords with what can be reasonably expected of the party undertaking the activity that occasions the substantial interference with the other's use and enjoyment of the land. That party is in the best position to demonstrate that what he or she was doing was "conveniently done". If that party asserts that the impugned acts were carried out with appropriate expedition and by taking reasonable steps to minimise the inconvenience to the claimant, then that party ought to be the one to prove it. If it is said that there are reasonable steps available to the claimant, consistent with the claimant's common and ordinary use of the land, to mitigate the effects of the defendant's conduct then the defendant must demonstrate what those steps are and their effect. 122 Unreasonableness in nuisance refers to the reasonable expectations of a normal person occupying the claimant’s land. The focus of reasonableness is on the character and extent of the interference with the claimant’s land and not that the defendant’s use of its own land is unreasonable-i.e. in colloquial terms, what is it reasonable for the claimant to put up with29. However, the reasonableness or unreasonableness of the use of the respondent’s property inevitably bears upon the reasonableness or unreasonableness of a normal person in the position of the applicant being required to put up with the consequences of the use and so bears upon whether a nuisance is established.30 123 Gordon and Edelman JJ in their joint judgment in Hunt Leather and Beech- Jones J in a separate judgment provided some clarity on how the issue of reasonableness should be analysed in cases of private nuisance. Beech-Jones J held that the approach to unreasonableness should not be a broad open-textured inquiry or simply balancing various factors under the rubric of reasonableness.31 Instead, Beech-Jones J followed the approach of Gordon and Edelman JJ and held that once the applicant had established substantial interference with the common and ordinary use of their land, the burden was on the respondent to show that their use of the land was a common and ordinary purpose and was conveniently done-i.e. 27 Ibid. 28 [2025] HCA 53. 29 Ibid, [21]. 30 Ibid, [23]. 31 Ibid, [270]-[274]. -- 30 of 59 -- [2026] SADC 14 27 that it was undertaken with proper consideration for the interests of the claimant.32 Gordon and Edelman JJ elaborated on what was meant by a common and ordinary use of the respondent and proper consideration for the interests of the claimant. They held that the identification of whether a purpose is common and ordinary should be made at the proper level of generality by reference to reasonable expectations based upon what is common and ordinary in a locality.33 The assessment of whether the respondent’s activity is conveniently done requires consideration not merely of the convenience of the respondent but the convenience of the applicant-i.e. it involves consideration of the relative interests of each of the parties in all of the circumstances.34 124 The range of considerations that might be involved in an assessment of whether the activity of the defendant is conveniently done involves ‘weighing the respective rights of the parties in the use of their land to make a value judgment as to whether the interference is unreasonable’.35 There are a range of considerations that may be relevant to the question of reasonableness. Richards J in Uren v Bald Hills Wind Farms Pty Ltd 36 referred to the range of considerations which had been specified by the Court of Appeal of Western Australia in Southern Properties (WA) Pty Ltd v Executive Director of the Department of Conservation and Land Management:37 To constitute a nuisance, the interference must be unreasonable. In making that judgment, regard is had to a variety of factors including: the nature and extent of the harm or interference; the social or public interest value in the defendant’s activity; the hypersensitivity (if any) of the user or use of the claimant’s land; the nature of established uses in the locality (eg residential, industrial, rural); whether all reasonable precautions were taken to minimise any interference; and the type of damage suffered. 125 In Barrett-Lennard v River Wind Pty Ltd, Curthhoys J also observed that when assessing reasonableness, the character, duration and time of the interference and its effects are relevant.38 A common sense approach to reasonableness should be made.39 Harris J in Oldham v Lawson (No 1)40 held that what constitutes reasonable standards must be determined by common sense which includes what the court considers to be the ideas of reasonable people, the general nature of the neighbourhood, the nature of the location and the character, duration and time of the occurrence of the alleged nuisance. In Painter v Reed,41 Richards J held that a 32 Ibid, [274]. 33 Ibid, [107]. 34 Ibid, [113]. 35 [2022] VSC 145, [17]. 36 Ibid. 37 (2012) 42 WAR 287, [119], [336]. 38 Barrett-Lennard v River Wind Pty Ltd [2019] WASC 125, [72(12)], [74]. 39 Ibid, [72(12)]. 40 [1976] VR 654, 655. 41 [1930] SASR 295. -- 31 of 59 -- [2026] SADC 14 28 use was unreasonable because not all available precautions to reduce the noise had been taken.42 Installation of gates 126 A particular issue raised in the present case is whether the installation of a gate on the Right of Way constitutes an actionable interference with the enjoyment of the Right of Way that is sufficient to grant relief. 127 The general proposition is that the owner of the servient tenement is entitled to erect an unlocked gate on the right of way although there may be some circumstances in which the erection of a gate will create a real and substantial interference with the use of the right of way. In Barrett-Lennard v River Wind Pty Ltd,43 the following passage from Trewin v Felton44 was cited: As has been seen, generally speaking, a servient owner may erect a gate across a right of way, provided that it is not a substantial obstruction and is left unlocked [Pettey v Parsons; Gohl v Hender; Powell v Langdon, 139; Deanshaw v Marshall]. In Johnstone v Holdway [1963] 1 QB 601, the servient owner erected a gate with a spiked chain and combination lock to exclude members of the public, but offered the dominant owner the combination for the lock. The dominant owner's suit for a mandatory injunction to remove the spiked chain failed, the Court of Appeal holding that there was no substantial interference with the right of way: the dominant owner had the means of access through the gate. 128 The applicant referred there to a presumption that the holder of the servient tenement was entitled to fence or erect a gate on a right of way. That presumption was said to arise because the holder of the dominant tenement is entitled only to reasonable use of the Right of Way.45 The emphasis on reasonable use means that the holder of the servient tenement is prima facie entitled to fence the right of way but not so as to interfere with the reasonable use of the right of way by the dominant owner. The reasonable user may require gates at a number of places and may determine from time to time the points of access which may vary over the years.46 129 In support of the contention that he is entitled to erect a gate on the Right of Way, the applicant relied upon the decision of Waddell J in Dunell v Phillips.47 In that case, Waddell J held that in cases where a right of way is wide enough to permit the purpose for which it was intended and in the absence of any provision in the grant to the contrary, and in the absence of the purpose for which the right of way requiring otherwise, the servient owner was entitled to fence the common boundary and install a gate. Waddell J then went on to refer to the natural presumption, but given these earlier observations, I do not consider that he was 42 Ibid, 304. 43 Barrett-Lennard v River Wind Pty Ltd [2019] WASC 125, [73]. 44 [2007] NSWSC 851, [81]. 45 Barrett-Lennard v River Wind Pty Ltd [2019] WASC 125, [72(2)]. 46 Trewin v Felton [2007] NSWSC 851, [81]. 47 [1982] 2 BPR 99517, 9522. -- 32 of 59 -- [2026] SADC 14 29 referring to some form of legal presumption. If he were, the other cases to which I refer below, do not support the imposition of a legal presumption. 130 In Pullen v Smedley,48 Ward CJ in Eq referred to the decision in Denton v Phillpot49 where Young J found that even in the case of a gate that was locked, if there is good reason for having the gate, such as the interests of security, and the dominant owner is provided with the key to the gate, the Courts have not been over-anxious to find that there has been a substantial interference. 131 The Full Court in Hender v Gohl50 reached a similar conclusion about the erection of gates. In that case, Murray CJ held that he was inclined to the opinion that the words of the certificate of title and the Act were not sufficient to negative the right to erect a gate provided that it was kept unlocked. Napier J held that in some circumstances an unlocked gate might amount to a real and substantial interference with the use of the right of way, but that is not always the case. 132 Whether the installation of gates is a nuisance will depend on the facts of each particular case. In Dresdner v Scida,51 it was held that the installation of gates did create a real and substantial interference with the enjoyment of the right of way. If the erection of the gates was motivated by malice or some ulterior motive, it is likely to be a nuisance.52 In Sinclair v Jutt,53 Santow J held that the difficulty in negotiating the opening and shutting of the internal gates was such that there was a real and substantial interference with the right of way, and noting that on the evidence there was a reasonably viable alternative to the placement of the internal gates. In Pettey v Parsons,54 it was held that the servient owner was entitled to erect a gate between the right of way and the dominant land provided the gate was kept open during business hours. Shutting of the gates 133 A further issue arises, namely whether the respondents are required to shut the gate after use. In legal terms, this question can be framed in the following terms: “does the conduct of the respondents in leaving the gates open amount to unreasonable use of the right of way.”55 If it does, then depending on the question of damages, it will be actionable. 134 At least in farming cases, there will generally be an obligation to leave the gate as it is found. In Pullen v Smedley,56 Ward CJ in Eq held: 48 [2017] NSWSC 1721, [212]. 49 (1990) NSW ConvR 55-543. 50 [1928] SASR 325. 51 (2003) 12 BPR 22,629; [2003] NSWSC 957. 52 See Pullen v Smedley [2017] NSWSC 1721, [205] citing J Gaunt Gale on Easements (20th ed, 2016, Sweet & Maxwell), 13-15. 53 (1996) 9 BPR 16,219 referred to in Pullen v Smedley [2017] NSWSC 1721, [218]. 54 [1914] 2 Ch 653. 55 See Pullen v Smedley [2017] NSWSC 1721, [246]. 56 Ibid, [255]-[256]. See also Barrett-Lennard v River Wind Pty Ltd [2019] WASC 125, [167]. -- 33 of 59 -- [2026] SADC 14 30 In other words, absent pressing circumstances that on a particular occasion may give rise to a reasonable excuse for the gates to be left open, I consider that it is incumbent on the Pullens, as part of their reasonable use of the right of way, to leave the gates on the right of way as they find them when passing through (open, if the gate was open on arrival at the gate; closed, if the gate was closed on arrival at the gate). Any other conduct on their part in a rural area where the right of way crosses paddocks in which cattle are known from time to time to graze would in my view be unreasonable. Having the benefit of the easement does not equate to ownership of that strip of land. The Pullens' conduct in deliberately leaving gates open along the right of way; in demanding that there be no cattle on the right of way or grazed in unfenced paddocks from which they could have access to the right of way; and in the manner in which they have argued this case, suggests that they think otherwise [254] [256] 135 Ultimately, Ward CJ in Eq in Pullen v Smedley57 and Curthoys J in Barrett- Lennard v River Wind Pty Ltd58 found that the need to open and close gates was an inconvenience rather than a substantial interference with a reasonable user of the right of way. 136 The question of an obligation to shut the gate was discussed by the Full Court of the Supreme Court of South Australia in Hender v Gohl.59 In that case, the Court which heard the matter at first instance, did not have jurisdiction to grant an injunction or seek a declaration and therefore the case involved only a claim for damages.60 Therefore, in order to succeed, the plaintiff in that case had to prove actual damage which they failed to do.61 However, the Court made some observations about leaving open gates. Napier J held: Assuming that the plaintiff was entitled to maintain his gate, I agree with the Chief Justice that every omission to close it is not necessarily a breach of duty, giving a right of action; but I think with him that it might be an unreasonable use or exercise of the rights of way to open the gate and leave it open and if actual loss or damages resulted I think that this would be an unreasonable and therefore an authorised interference with the plaintiff’ use of and enjoyment of the servient land. 137 Murray CJ referred to the Irish case of Geoghegan v Henry62 where it was held that an obligation was cast on the defendant to close the gate because if he failed to do so, the gate would cease to serve its legitimate purpose. The Court found that no actual damage had been sustained, but the action would lie without proof of damage. Murray CJ disagreed with the proposition that the claim could succeed without proof of damage.63 138 The respondents relied upon the statements made by Murray CJ and Napier J in Hender v Gohl as supporting the proposition that merely leaving a gate open 57 [2017] NSWSC 1721, [223]. 58 [2019] WASC 125, [172], [175]. 59 [1928] SASR 325. 60 Ibid, 330-331. 61 Ibid. 62 [1922] 2 Ir. R 1, 3. 63 [1928] SASR 325, 329. -- 34 of 59 -- [2026] SADC 14 31 is not an injury and that there must be actual damage consequent upon the gate being open. However, Hender v Gohl was a case where the only remedy sought was damages. There was no claim for an injunction nor did the primary court have jurisdiction to grant an injunction. It is in this context that the comments of Murray CJ must be read. 139 Following the decision of the Full Court in Hender v Gohl,64 the owner of the servient land brought a further case against the dominant tenant in which actual loss and damage was proven.65 In that latter case, Gohl v Hender,66 Napier J adhered to the views that he had expressed as a member of the Full Court in Hender v Gohl. In Gohl v Hender, Napier J held that it was the natural and necessary incident to the enjoyment of the plaintiff’s land that it should be fenced. Therefore, in the circumstances of that case, it was not unreasonable that persons using the right of way should open and close the gate, which was reasonably erected for that purpose, when they pass through the plaintiff’s property.67 Napier J went on to hold that:68 …[I]n the ordinary course of things I think that any person who is entitled to open the gate in the exercise of the right, and thereby to interfere with the plaintiffs’ property for the purpose of passing through it, acts unreasonably if, having opened the gate, he leaves it open when he knows, or ought to know, that it is, or may be, necessary to keep in the stock depastured on the land. 140 Ward CJ in Eq expressed a similar view in Pullen v Smedley69 where her Honour held: In other words, absent pressing circumstances that on a particular occasion may give rise to a reasonable excuse for the gates to be left open, I consider that it is incumbent on the Pullens, as part of their reasonable use of the right of way, to leave the gates on the right of way as they find them when passing through (open, if the gate was open on arrival at the gate; closed, if the gate was closed on arrival at the gate). Any other conduct on their part in a rural area where the right of way crosses paddocks in which cattle are known from time to time to graze would in my view be unreasonable. 141 Slattery J in Buckley v Timbury70 held: More recently Young J, as his Honour then was, considered the authorities dealing with whether gates should be considered to be a substantial interference with a right of way Denton v Phillpot (1990) NSW ConvR 55-543 ("Denton v Phillpot"). In addition to the authorities already cited, his Honour considered and applied the following statements of principle: Denton v Phillpot at 590,029. It is not unreasonable that the person entitled to use the right of way should be subjected to the slight inconvenience which the maintenance 64 Ibid. 65 Gohl v Hender [1930] SASR 158,161. 66 Ibid, 162. 67 Ibid, 163. 68 Ibid. this passage was quoted in Pullen v Smedley [2017] NSWSC 2017, [247]. 69 [2017] NSWSC 1721, [255]. 70 (2013) 17 BPR 32,187; [2013] NSWSC 1009, [103]. -- 35 of 59 -- [2026] SADC 14 32 of protected gates imposes on his user: Siple v Blow (1904) 8 OLR 547 at 554. Even the locking of a gate is not necessarily a substantial interference, but the Courts will easily find that locked gates do amount to actionable disturbance of rights of way: Jackson on the Law of Easements and Profits at p155. But if there is a good reason for having a gate, such as the interests of security, and the dominant owner is given a key to the gate, then Courts have not been over anxious to find that there has been a substantial interference: Denton v Phillpot at 590,030. Remedies 142 As nuisance raises a cause of action in tort, actual damage must normally be proved.71 There is an exception in cases involving an interference to a right of way or an easement. This is based on the principle that an easement holder has an absolute right to the enjoyment of the easement, so that any infringement of that right will imply damage, even though the extent of that damage may be nominal.72 143 A justified present apprehension of future damage is capable of constituting a nuisance. In Barbagello v J & F Catelan Pty Ltd (Barbagello),73 McPherson J held that a justifiable present apprehension of a future injury is capable, even without subsidence (i.e. actual damage), in resulting in a diminution of existing rights of enjoyment and consequential pecuniary loss. 144 The usual remedy for private nuisance are damages or an injunction, although in appropriate circumstances, declaratory relief may be obtained.74 An injunction quia timet may be granted where harm is reasonably feared to be imminent but no actual harm has occurred. In Barbagello,75 McPherson J quoted from the decision in Hooper v Rogers76 where Russell LJ held that “imminent” was used in the sense that the circumstances are such that the remedy that is sought is not premature. Russell LJ observed that different phrases had been used to describe the circumstances in which mandatory and quia timet injunctions will be granted. He went on to say that there was no absolute standard as to the degree of probability of future injury and what is to be aimed at is justice between the parties having regard to all of the relevant circumstances. Determination Applicant’s right to erect the Right of Way Gate 145 In their defence, the respondents did not expressly admit that the applicant had the right to erect the Right of Way Gate. The respondents did not expressly admit that by erecting the gate, the applicant had not acted in a way that caused substantial and unreasonable interference with the respondents’ use of the Right of Way. However, the question of any obligation to close the gate cannot be considered in isolation from the reasons why a gate is required to be erected. I 71 Barrett-Lennard v River Wind Pty Ltd [2019] WASC 125, [72(13)]. 72 Ibid. 73 [1984] 1 Qd R 245,249, 74 Barrett-Lennard v River Wind Pty Ltd [2019] WASC 125, [72(13)]. 75 [1984] 1 Qd R 245, 253. 76 [1975] Ch 43, 50. -- 36 of 59 -- [2026] SADC 14 33 therefore propose to examine as an antecedent question the right of the applicant to erect the Right of Way Gate. 146 The Court has found that the applicant had genuine reasons for the erection of the Right of Way Gate on the Property. The erection of the gate was not motivated by malice or for some other ulterior motive. The reasons for the erection of the Right of Way Gate were that the gate would: (1) prevent animals from entering into the Property; (2) prevent the applicant’s dogs from escaping from the Property; (3) provide security for goods and equipment that the applicant uses on the Property; and (4) provide security for the applicant himself and deter members of the public from entering onto the Property. 147 The Court has found that there has not been any real difficulty in the opening of the Right of Way Gate by the respondents or other users of the Right of Way. There was one occasion when the first respondent had some difficulty in opening the gate but at that time the gate was differently configured. Had the gate been consistently difficult to open, this might have provided grounds to say that it had created a real and substantial interference with use of the Right of Way. I consider that the statement made by Ward CJ in Eq in Pullen v Smedley77 is apposite: the presence of the gates amounts to no more than an inconvenience in relation to the added time that it takes to open and close the gate and is not a substantial and real interference with reasonable rights of use of the Right of Way by the respondents. 148 The applicant has given evidence that the current Right of Way Gate is a temporary gate and is to be replaced by a more permanent structure, using the materials from Japan that the applicant has imported. That does affect the right of the applicant to install a gate. However, it could be the case that if this new gate proved to be difficult to open, that it might constitute a substantial and real interference with the reasonable use of the Right of Way by the respondents. That is not a matter that can be determined in these proceedings. 149 The Right of Way Gate has been erected about a metre from the boundary of the Right of Way and is in fact wholly on Council land (except possibly the western most post of the gate). There has been no plea by the respondents in relation to the matter. In fact the respondents in their defence admit that the applicant erected a gate at the boundary between the Property and Sorata Street and across the Right of Way. The applicant said that if this matter had been raised, he would simply have moved the gate a metre or so to be on the boundary of the Right of Way. I accept that evidence. In these circumstances, nothing, with the qualification below, turns on the fact that the Right of Way Gate is just off the boundary. That 77 [2017] NSWSC 1721, [223]. -- 37 of 59 -- [2026] SADC 14 34 qualification is that the Court will not grant an injunction to require the respondent to do something on land that is not on the Right of Way or on the Property but is on land wholly owned by the Council. 150 In the circumstances described above, and in accordance with the principles described in cases such as Barrett-Lennard v River Wind Pty Ltd, Trewin v Felton, Pullen v Smedley, Hender v Gohl and Denton v Phillipot, the Court finds that the applicant is entitled to erect the Right of Way Gate and that by doing so he has not interfered with the reasonable rights of the respondents as users of the Right of Way. The applicant has not therefore committed a nuisance by the erection of the gate. 151 Had it been necessary, the Court would have also found that the erection of the Right of Way Gate was permitted by the 2282 Settlement Agreement which provided, inter alia, that “Peter [the applicant] proposed to erect a gate at the entry of the Right of Way at Sorata Street and that the gate must be openable at all times without a key”. These words convey an agreement by the respondents to the proposal to erect the gate. There is an agreement as to how the gate will operate. 152 As the 2282 Settlement Agreement permitted the installation of the Right of Way Gate, even if, (contrary to my earlier finding), there had been real and substantial interference with the Right of Way, the installation of the gate was made with the consent of the respondents. Consent is a defence to a claim in nuisance.78 A requirement to close the Right of Way Gate after use 153 The applicant claims that the respondents’ use of the Right of Way without closing the Right of Way Gate, constitutes an unreasonable interference with the Property and is therefore a nuisance. Alternatively, the applicant submits that it was an implied term of the 2282 Settlement Agreement that the parties would keep the gate shut when not utilising the Right of Way for access or egress and that by not shutting the Right of Way Gate after use, the respondents breached the Settlement Agreement. In his closing address, the applicant framed the implied term in slightly different terms, namely that “The gate contemplated by clause 5 [of the 2282 Settlement Agreement] will be shut and fastened after use”. Nothing turns on the different wording although the latter formulation is preferable. 154 In their defence, the respondents deny that they have committed a nuisance or breached any implied terms of the settlement agreement. The respondents also submitted, although it was not pleaded, that the Right of Way Gate was not on the Right of Way or on the Property but was wholly on land owned by the Council. 155 The first respondent freely admitted that when driving through the Right of Way Gate, it was her practice not to close the gate after use. She also admitted that she had not closed the gate on the day that Rex escaped and later died. It was an 78 Kiddle v City Business Properties Limited [1942] 1 KB 269, 274. -- 38 of 59 -- [2026] SADC 14 35 agreed fact that from time to time Ms Schultz and Mr Rumsewicz leave the Right of Way Gate open behind them when entering or exiting the Right of Way via Sorata Street. 156 The Court has found that the applicant had legitimate reasons for installing the Right of Way Gate. As referred to earlier in these reasons, those purposes were preventing animals from entering into the Property, keeping the applicant’s dogs from escaping from the Property, providing security for the goods and chattels and equipment that the applicant uses on the Property, and providing security for the applicant himself and deterring members of the public from entering the Property. 157 These purposes could only be fulfilled if the gate was closed after use. Clearly, animals could both enter and leave the Property if the gate were left open. Security concerns would not be addressed if the gate was left open. The closing of the gate therefore helps secure the legitimate purposes for which the gate was installed in accordance with the statements made in Geoghegan v Harry (which was referred to in Hender v Gohl) and by Napier J in Gohl v Hender. 158 A further justification for closing the Right of Way Gate after use is that it is the general practice in rural properties that gates should be left as they are found. Therefore, if, prior to access, the gates are closed, they should be closed after a user passes through the gates. The applicant gave evidence that it was his practice to keep the gate closed at all times. There was no dispute that this was the case. 159 The respondents submit that there is no requirement to close the Right of Way Gate after use and therefore they have not committed any nuisance by not closing the gate. The respondents have advanced a number of reasons in support of that position. 160 First, the respondents submitted that the general practice of leaving the gate as it was found and the proposition that a gate should be closed after use applied to farming properties and that the Property was not a farming property. The respondents submitted that the basis of the decision of Ward CJ in Pullen v Smedley79 was that cattle might escape if the gate was not shut and that rationale was not relevant to this case. The respondents further submitted that all cases which had imposed a requirement to close a gate after use were farming cases which involved different considerations to those applicable in the present case. 161 While the Property is not a farming property, it is situated in a rural setting and is somewhat remote. That setting provides an additional reason why the purposes for the installation for the gate are legitimate purposes which can only be fulfilled by the closing of the gate after use. I accept that the general practice of closing gates after use is more applicable to farming properties than non-farming properties, but that does not mean that where there are legitimate purposes for the 79 [2017] NSWSC 1721. -- 39 of 59 -- [2026] SADC 14 36 closing of the gate in a non-farming setting, the general proposition that a gate should be closed after use is not applicable. 162 Secondly, the respondents referred to the inconvenience in shutting the gate after use, but I have already found that inconvenience not to be significant. That inconvenience does not provide a reason for concluding that it was reasonable not to shut the gate. I consider that it is in accordance with the statements made by Ward CJ in Pullen v Smedley,80 that the presence of the gates amounts to no more than a slight inconvenience in relation to the added time that it takes to open and close the gate. 163 Thirdly, the respondents submitted that there was no actual damage suffered by the applicant. That is the case (given my findings about Rex) but it is a sufficient basis to grant an injunction if there is a present apprehension of future damage. There is such an apprehension in the present case. 164 Fourthly, the respondents referred to the fact that Rex, and now Kaiser, were often on the Right of Way and that visitors to their property were sometimes nervous in encountering a large German Shepherd dog on the Right of Way. That matter may provide a justification for visitors not closing the gate but does not provide a justification for the respondents not to do so. The respondents were aware of the general good nature of Rex and Kaiser and would commonly walk along the Right of Way and open and close the gates to their property. In addition, they open the Right of Way Gate when leaving the Property. 165 Fifthly, the respondents referred to the fact that the Property is not fully fenced and therefore the purposes for which the gate has been installed, will not be achieved. That does not follow. The gate, even though unlocked, will deter visitors and animals from entering onto the Property. It may not be wholly effective but is likely to have a significant effect in deterring visitors and animals from entering the Property. 166 The Court finds that the respondents’ use of the Right of Way, without closing the Right of Way Gate, constitutes substantial and unreasonable interference with the Property and therefore a nuisance. As McPherson J held in Barbagallo, justifiable present apprehension of future injury is capable of resulting in diminution of existing rights of enjoyment.81 For the reasons stated the apprehension of the applicant of future loss is justifiable: the reasons why he seeks the gate to be closed will not be satisfied if the gate is left open. The interference is therefore substantial. Given there is no valid reason proffered for not closing the gate, other than what I have found to be relatively minimal inconvenience, the failure to close the gate is not reasonable. 167 By way of summary, the Court finds that the respondents’ conduct, when using the Right of Way, but not closing the Right of Way Gate after entering or 80 [2017] NSWSC 1721, [223]. 81 [1984] 1 Qd R 245, 249. -- 40 of 59 -- [2026] SADC 14 37 leaving the Property, constitutes substantial interference with the applicant’s enjoyment of the Property. It does so because the legitimate purposes of having a gate cannot be fulfilled if the gate is not closed. For the sake of completeness, I do not consider, as the applicant contends, there to be substantial interference, because the applicant has to close the gate if it is left open or monitor the situation to see whether the gate is open or shut. 168 Taking into account the nature of the location, the minimal inconvenience occurred in shutting the gate, and the lack of any justifiable reason in not closing the gate, the failure to close the gate is not reasonable. There is foreseeable risk of future damage capable of resulting in diminution of the enjoyment of the Property. 169 In terms of the framework set out in Hunt Leather, following the finding that there has been substantial interference, the respondents have not established that their use was reasonable: that is, using the Right of Way without shutting the gate was a common and ordinary use of the Property and was conveniently done. The only evidence produced by the respondents to establish that the use was a common and ordinary use of the Property was the general evidence as to the locality of the Property and its character as a semi-rural rather than farming property. That location and character of the Property are not sufficient in themselves to conclude that is the common and ordinary use of the Property not to shut the gate after use. Further, for the reasons that have been expressed, the respondents have failed to establish that the use of the Right of Way without closing the Right of Way Gate was conveniently done-i.e. done with proper consideration for the interests of the applicant. 170 Normally, these findings would entitle the applicant to a mandatory injunction requiring the respondents to close the Right of Way Gate after use. The respondents however contend that the applicant does not have title to sue in nuisance. Although that matter is not pleaded, it is not in dispute that the Right of Way Gate is not on the Property but is on land owned by the Council. It might be the case, as the applicant submits, that at least the support post for the western leaf of the gate is on the Property, but that cannot be ascertained with certainty. However, the evidence of the applicant was clear that the gate is on the Council land. The detail and level survey map (page 285 of exhibit A1) supports this conclusion. 171 The Court would not grant an injunction requiring the respondents to do something in respect of a gate that is not on the Property. However, that is a matter that can be easily remedied. The applicant gave evidence, which I accept, that if it had been pleaded that the relief should not be granted because the Right of Way Gate was on land owned by the Council, he would have put the gate on the boundary. That would not have been an extensive task. In circumstances where the applicant pleaded that he has erected a gate at the boundary between the applicant’s property and across the Right of Way and the respondents have admitted that allegation, and have not sought to withdraw that admission, the fact that the Right of Way Gate is on Council land is not an answer to the whole of the applicant’s -- 41 of 59 -- [2026] SADC 14 38 claim. The respondents cannot raise as a defence that the applicant does not have title to sue. 172 However, the failure to plead that the applicant does not have standing to bring a claim in nuisance does not mean that the Court should grant an injunction when it knows that the gate is not on the Right of Way and is on Council land. The Court does not have power to order something be done on land that does not form part of the Property. 173 Given the findings made by the Court that the reasonable use of the Right of Way by the respondents required the closing of the Right of Way Gate after use, it is not strictly necessary to consider whether the 2282 Settlement Agreement contained an implied term that the gate be closed after use. The basis for the implication of a term in a contract is well settled. In order to justify the implication of a term, the term must: (1) be reasonable and equitable; (2) be necessary to give business efficacy to the contract, so that no term will be implied if the contract is effective without it; (3) be so obvious that it goes without saying; (4) be capable of clear expression; (5) not contradict any express term of the contract.82 174 The applicant contends that there is an implied term of the 2282 Settlement Agreement that the applicant and the respondents shut the Right of Way Gate after use. The applicant submits that the term should be implied from the agreement that the applicant could erect a gate at the boundary of the Right of Way and Sorata Street. The respondents contends that such a term does not satisfy the criteria for the implication of the term set out above. In particular, the respondents submit that the term is not necessary for the business efficacy of the 2282 Settlement Agreement because, in particular, the Property is not wholly fenced. The respondents also submit that the term is not reasonable because it did not operate so as to prevent either people or animals from entering or leaving the Property. 175 Addressing the first of these criteria, it is reasonable and equitable that the gate be closed after use. The 2282 Settlement Agreement must be construed in the context in which it was made and facts mutually known to the parties. In this case, the mutually known facts include that the Property was in a semi-rural setting, the applicant kept a dog on the Property and the applicant was undertaking building works and had equipment on the Property. In these circumstances, the commercial objectives of the 2282 Settlement Agreement, insofar as it provides for the 82 BP Refinery (Westernport) Pty Ltd v President, Councillors and Ratepayers of the Shire of Hastings (1977) 180 CLR 266. -- 42 of 59 -- [2026] SADC 14 39 installation of a gate, is to provide some form of security to the applicant in respect of the matters referred to above. In that sense, because the gate performs a legitimate function, it is prima facie reasonable and equitable. The fact that the gate might not entirely succeed in securing that objective does not mean that it is not of substantial benefit to the applicant. Animals and people are likely to be deterred from entering the Property because of the presence of the gate even if they are not wholly deterred. 176 It would, however, not be reasonable and equitable, if the closing of the gate imposed a significant burden on the respondents. It would impose such a burden if it created a significant inconvenience. In the present case, the additional burden imposed by closing the gate is minimal. It is a slight inconvenience for the respondents to have to get out of the motor vehicle and shut the gate. There is even less inconvenience if they are on foot. This is not a case where the shutting of the gate would affect the respondents in their use of the Property (e.g. if they were running a business from their property and customers were frequently attending the property). The slight inconvenience does not detract from the conclusion that the implication of the term is reasonable and equitable. 177 The second matter that could affect a conclusion that the term is reasonable and equitable is the presence of a large German Shepherd dog, initially Rex and now Kaiser, at the Property. At the time of the entry into of the Settlement Agreement, it was known to both parties that the applicant kept Rex. The evidence suggests that Rex was well behaved and that the respondents were not fearful of him. It could be expected that there may be occasions when closing a gate (after entry) that Rex might be unaccompanied on the Property although the evidence was that he was usually with the applicant. Further, the respondents frequently walked on the Right of Way. They had gates at their entrance to their Property. They were in the practice of closing their gates when leaving their property. They would also have to open their gates when arriving at their property. In both instances, they would have to get out of their car on the Right of Way and potentially encounter Rex. The presence of Rex, in the circumstances described above, does not detract from the conclusion that the implication of the term was reasonable and equitable. 178 Addressing the second criteria, it is necessary to imply the term to give business efficacy to the term of the 2282 Settlement Agreement permitting the installation of gates. The implication of the term is necessary to fulfill the objective of the term namely to provide security to the applicant. The fact that the Property is not wholly fenced, does not alter that conclusion to the reasons that have been expressed in relation to whether the term was reasonable and equitable. 179 The third criteria requires that the Court be satisfied that the implication of the term is so obvious that it goes without saying. This requirement was first stated -- 43 of 59 -- [2026] SADC 14 40 by MacKinnon LJ in Shirlaw v Southern Foundries (1926) Ltd83 where his Honour held that: Prima face that which is any contract is left open to be implied and not be expressed is something so obvious that it goes without saying: so that, if, while the parties were making their bargain, an officious bystander were to suggest some express provision for it in their agreement they would testily suppress him with a common “oh, of course”. 180 A proposed implied term may not satisfy this requirement if it is adverse to the interests of one of the parties84 or is one of a number of alternative implications.85 In the present case, it is clearly only in the interests of the applicant that the term be implied. This is therefore a matter that might suggest that the implication of the term is not obvious. There is not a range of alternative implications. 181 However, given the necessity for the gate to be closed, if it is to achieve its legitimate purposes and further the only slight inconvenience that would be suffered by the respondents if required to close the gate, the Court should conclude that the proposed implied term was obvious. The closing of a gate goes hand in hand with the installation of the gate. The gate serves no useful purpose if it is allowed to remain open. The officious bystander would have said “of course” if the matter had been raised. 182 The fourth requirement is that the proposed implied term must be capable of clear expression. It must be capable of being expressed with a sufficient level of precision.86 There is no suggestion or submission that the term was not clearly expressed. 183 The fifth requirement is that the proposed implied term must not contradict any express term of the contract. There is no term in the Settlement Agreement that is contrary to the proposed implied term. 184 For the reasons that have been expressed, the Court finds that the requirements for the implication of an implied term has been satisfied and that it is an implied term of the 2282 Settlement Agreement that the Right of Way Gate be closed after use. Damages for death of Rex 185 The applicant has claimed damages for the death of Rex in the sum of $4,533.78. That claim for damages could be either in tort (nuisance) or for breach 83 [1939] 2 KB 206, 227. 84 Con-Stan Industries of Australia Pty Ltd v Norwich Winterthur (Australia) Ltd (1986) 160 CLR 226, 241. 85 Phillips Electronique Grand Public SA v British Sky Broadcasting Ltd [1995] EMLR 472, 481. See also Parker J in Caltex Properties Ltd (in liq) v Love (1997) 95 LGERA 132, 138; Elliott v Reading [1999] WASCA 11, [37]-[41]. 86 Wellington v Huaxin Energy (Aust) Pty Ltd [2019] QSC 18, [105]; affirmed on appeal in [2020] QCA 114, [84]-[85]. -- 44 of 59 -- [2026] SADC 14 41 of the implied term of the 2282 Settlement Agreement. The Court is satisfied that the applicant has incurred costs in the amount claimed for the purchase of Kaiser, as a replacement for the death of Rex. The Court is also satisfied that Rex escaped through the Right of Way Gate that had been left open by the first respondent and that Rex died following his escape from the Property as a result of eating poisoned oats. 186 However, to succeed in his claim for damages, the applicant must prove that the death was caused by the act of the first respondent in leaving the Right of Way Gate open. Counsel for both parties accepted that in determining this issue, the Court should adopt the “but for” test of causation. That requires the court to inquire whether, on the balance of probabilities, the applicant would have suffered the damage but for, in this case, the nuisance committed by the first respondent. If the damage would have occurred regardless of the nuisance, then the nuisance would not be found to be a cause of the damage. The “but for” test is factual and the applicant must satisfy the test on the balance of probabilities. 187 In the present case, the applicant has not satisfied the “but for” test. The evidence from the applicant was that Rex was very agitated and wanted to get outside. When the applicant opened the door, Rex suddenly bolted and disappeared. The applicant said that because of the noise of a nearby truck and the wind, Rex did not appear to hear the applicant calling. The applicant further gave evidence that from his observation of the footprints, Rex was running. 188 The evidence of the circumstances in which Rex escaped, demonstrate that he had become very agitated and was desperate to escape to investigate whatever matter was causing his agitation. He was not heeding or possibly even hearing the commands of the applicant. 189 It was not in dispute that there were a lot of areas where Rex could leave the Property without going through the Right of Way Gate. The Property was not fully enclosed. It was an agreed fact that the Property was not fully fenced and that it was partially enclosed by a variety of penetrable and impenetrable barriers including trees, bushes, hedging plants, retaining walls, wire fencing in various states of repair, rock barriers and the side wall of a shed. It was also an agreed fact that animals could exit and enter the Property other than by way of the Right of Way Gate. 190 Rex could escape through the vegetation on the eastern side of the Right of Way Gate or the eastern boundary of the Property. There were gaps in that vegetation. The hedge created by the olive trees also had gaps. The evidence from Mr Rumsewicz was that he had seen Rex leave the Property other than through the Right of Way Gate. Ms Schultz had also seen Rex outside the Property although she had not seen how he had escaped. In these circumstances, it cannot be said that “but for” the act of leaving the gate open, Rex would not have escaped. -- 45 of 59 -- [2026] SADC 14 42 191 In general, the same test for causation applies in contract as it does in tort.87 The but for test is described as a common, but not sufficient, test for causation88 but will commonly exclude causation if it is not satisfied. Both parties have agreed that the “but for” test should be applied in this case. Given this agreement, it is not necessary to consider the limits of that test in contract cases. For the same reasons that have been expressed in relation to the claim in nuisance for damages, the claim for contractual damages is dismissed. Obstacles placed on the Right of Way 192 The first respondent has claimed that the applicant has placed a number of obstacles on the Right of Way that amount to substantial and unreasonable interference with the use of the Right of Way and therefore constitute a nuisance. The second respondent does not have any legal interest in the First Respondent’s Property and it was accepted by the respondents that he did not have standing to sue in nuisance. 193 There is no dispute that the applicant placed the obstacles on the Right of Way although in a couple of instances, the obstacles have now been removed. The first respondent contends that there is a physical impediment of the Right of Way and also a justified present apprehension of future injury by the placement of the obstacles on the Right of Way because of the restrictions they cause to emergency vehicles accessing the Property and turning around. The first respondent contends that the interference created by the obstacles is substantial having regard to reasonable standards for the use and enjoyment of her property, common sense, the ideas of reasonable people and the nature of the location of the Property and the time, duration and effect of the obstacles being placed on the Right of Way. The first respondent further contends that the placement of the obstacles is unreasonable. The relevant test that should be applied is not whether the remaining access is reasonable but whether the insistence by the applicant on the means of access precluded (or restricted) by the interference is reasonable.89 12 metre long pile of limestone rocks (paragraph 7.5 of the cross-claim) 194 The limestone rocks have been placed on the eastern side of the Right of Way and near the entrance to Sorata Street. They have been at that location since about 2012 when the applicant levelled out the turning circle. The rocks are about 12 metres in length and 3 metres in height. The limestone rocks extend onto the Right of Way by about .9 of a metre. At that point, the Right of Way is about 6 metres wide. 195 There was no evidence that the limestone rocks impeded the first respondent in any way or any user of the Right of Way. The first respondent agreed that as a matter of practical reality, the limestone rocks do not hinder a vehicle using the Right of Way. The rocks do not in any way impede the safe access by the first 87 Caltex Oil (Australia) Pty Ltd v The Dredge Willemstad (1976) 136 CLR 529. 88 March v E & MH Stramere Pty Ltd (1991) 171 CLR 506, 515-516. 89 Celsteel v Alton House Holdings Ltd [1985] 2 All Er 562, 572-3. -- 46 of 59 -- [2026] SADC 14 43 respondent to her property. The first respondent agreed in cross-examination that the mound of limestone rocks would not have been of sufficient importance to her to raise except for the fact that the applicant was suing her. 196 The respondents do not have the right to use the Right of Way in a way that is wholly unobstructed by any limitation placed on the Right of Way by the applicant as the owner of the servient tenement (see Owners Corporation of Strata Plan 42472 v Mendala Pty Ltd90 and Stewart v Cooper91). The applicant, as the owner of the servient tenement, has all the rights of owner except those rights that are inconsistent with the exercise of the rights conferred on the first respondent, as the owner of the dominant tenement, by the Right of Way.92 197 It is only substantial interference with the enjoyment of the Right of Way that is actionable. As Neasey J held in Stewart v Cooper,93 and approved by Slattery J in Buckley v Timbury,94 it is only a real substantial interference with the enjoyment of the right of way that is actionable. 198 In these circumstances, there has been no substantial interference with the Right of Way and hence any action for nuisance in respect of this placement of the limestone rocks will fail. The limestone rocks do not create any real interference with the respondents or anyone else entering or leaving the Property. 199 For the sake of completeness, had the Court found that the interference was substantial, the Court would not have found that the interference was reasonable. The applicant accepted that the limestone rocks could be placed elsewhere with no great expense. The limestone rocks had been on the site for over 12 years. To insist on the respondents using the Right of Way in those circumstances would have been unreasonable had the Court found there to be substantial interference. The use of the Property by the applicant in placing the limestone rocks on the Right of Way would not, in that instance, have been conveniently done. Excavation materials placed on the Right of Way (paragraph 7.2 of the cross- claim) 200 These materials were placed immediately to the west of the Winslow slate. There was no dispute that the materials have been removed. In these circumstances, no order for an injunction would be made, even if these materials had created substantial and unreasonable interference with the enjoyment of the Right of Way. There would be no utility in making such an order. There was no evidence that the first respondent had suffered any damage by the placement of these materials, nor any contention or submission that she was entitled to damages as a result of the placement of that material. 90 (1998) 9 BPR 97717. 91 [1986] Tas R (NC) N 1; [1986] TASSC 3. 92 Markos v O R Autor [(2007) 13 BPR 24,487; 2007] NSWSC 810, [57]. 93 [1986] TASSC 3, [17]. 94 (2013) 17 BPR 32,187; [2013] NSWSC 1009, [102]. -- 47 of 59 -- [2026] SADC 14 44 Placement of brick pallets on the Right of Way (paragraph 7.4 of the cross-claim) 201 At the south-western edge of the Right of Way, the applicant had placed some brick pallets that extended onto the Right of Way. In the survey map, they were described as extensive brick pallets although they extended onto the Right of Way only to a minor degree. The brick pallets have almost entirely been removed from the Right of Way and into the garage of the applicant. There remains only a very small number of bricks, about 120 in total, some of which extend onto the Right of Way. 202 There was no evidence or contention that either the bricks that have been left on the Right of Way or the bricks that have been removed from the Right of Way have in any way created a substantial and unreasonable interference with the enjoyment of the Right of Way. There was no evidence or contention that the respondents had suffered any damage or loss arising from the placement of the brick pallets on the Right of Way. 203 In these circumstances, the claim for nuisance in respect of the bricks pallets fails and is dismissed. The gabion wall extending onto the Right of Way (paragraph 7.6 of the cross- claim) 204 The gabion wall is planned to be erected in the south eastern corner of the Property and extends onto the Right of Way by about .8 of a metre. The respondents describe the extent of the intrusion as .6 of a metre but nothing turns on that difference. The wall itself is yet to be constructed but the posts and trench works for the wall have been erected. The Right of Way is about 23 metres in width where the gabion wall is to be constructed. 205 At mediation, it was agreed between the applicant and the respondents that the applicant could erect the gabion wall to a particular post that was identified and agreed upon by the parties. That post is in fact about .8 of a metre onto the Right of Way. The 4545 Settlement Agreement records in respect of the gabion wall provides that the respondent agreed that the applicant can construct a gabion wall and that the western end of the Gabbion [sic] wall will be the existing 50 x 50 stainless steel post (i.e. the post identified and agreed upon by the parties and which extends onto the Right of Way by about .8 of a metre). 206 There was no evidence or contention that the intrusion of the gabion wall (through the post and trench works) into the Right of Way by about .8 of a metre interfered in any way with the respondents’ use of the Right of Way. The amount of the intrusion, compared with the extent of the Right of Way at that point, was minimal. There was no substantial interference with the enjoyment of the Right of Way. 207 The respondents contended that the construction of the gabion wall was required under the 4545 Settlement Agreement to commence by Christmas 2021. -- 48 of 59 -- [2026] SADC 14 45 Construction did not commence at that time and when development approval was obtained, the wall was a different structure entirely. Those matters do not affect the question whether the instruction of the post onto the Right of Way creates a substantial interference with the enjoyment of the Right of Way. The respondents have not asserted that they have suffered any loss arising from the delayed construction of the gabion wall. Further, the respondents have not rescinded the 4545 Settlement Agreement. Ms Schulz gave evidence that she and Mr Rumsewicz were prepared at the mediation to agree to the gabion wall protruding to resolve everything. Therefore, the rights and obligations under that agreement remain. One of those rights is an agreement by the respondents that the gabion wall can extend to the post that is about .8 of a metre onto the Right of Way. 208 Ms Schultz has given evidence about how the proposed gabion wall differs from the wall that was agreed to by them. If it does, that might give rise to some further dispute between the parties, but that does not affect the consent that has been given in relation to the post which had already been erected at the time of the mediation. There is currently no other interference with the Right of Way posed by the gabion wall. If the structure of the gabion wall is different from what they agreed, the respondents could either seek to restrain the construction of the gabion wall (in its new form) or rescind the agreement. 209 Even if there had been a substantial interference with the respondents’ use of the Right of Way (contrary to the above finding), such an interference would not have constituted a nuisance because the respondents had consented to the intrusion of the gabion wall onto the Right of Way in the 4545 Settlement Agreement.95 Placement of the Wistow slate on the Right of Way (paragraph 7.1 of the cross- claim) 210 The Wistow slate is located on the Right of Way about 2-3 metres from the southern edge and is about 11 metres in length, .5 of a metre wide, and 1 metre high. It intrudes onto the Right of Way by about 3-4 metres. The Wistow slate was originally placed on the Right of Way when the applicant deposited building materials to build up the turning circle area and marks the edge between the built up turning circle area and the drop off to the south eastern area of the Right of Way. The applicant agreed that he could remove the Wistow slate at any time but chooses not to do so. He said that he eventually will remove the slate. The applicant said that the Wistow slate serves as a barrier and warning of the drop off which exists between the turn around area and the area where the gabion wall is located. 211 Any inconvenience likely to be suffered by the respondents and their visitors because of the presence of the Wistow slate on the Right of Way is minimal. In most cases, users of the Right of Way will be travelling to the first respondent’s property. The presence of the Wistow slate on the Right of Way will make turning around more difficult for a normal vehicle and sometimes convert what would have been a continuous loop into a three point turn. However, when vehicles are 95 Kiddle v City Business Property Limited [1942] 1 KB 269. -- 49 of 59 -- [2026] SADC 14 46 traveling directly to the respondent’s property, vehicles will not be executing that manoeuvre and the presence of the Wistow slate will not impede them at all. The Right of Way is about 23 metres wide at that point. The vehicles, with or without the presence of the Wistow slate, would need to undertake a three point turn when leaving the first respondent’s property. 212 In the context of large vehicles, and in particular medium rigid vehicles similar to that used by the CFS, the Wistow slate will, to some extent, impede such vehicles turning around in the turning area. A turn that would have been completed in a three point turn, becomes a five point turn. 213 Ms Schutlz gave evidence that she holds concerns about firefighter access. These concerns must be considered in the context of the relationship between the parties, where each party is seeking to raise points in opposition to each other. The respondents have done that in the case of the firefighter access. The respondents have not taken any steps to contact the CFS to understand if they might have concerns about the access. The respondents have not undertaken any of the precautions that are sometimes taken to protect their property from bushfires. Ms Schultz said that she rated her concerns about bushfires as 4 out of 10. These matters suggest that the respondents concerns about the firefighter access are not grounded in any reasonable belief but are grounded in speculation as to what the CFS might require. 214 The placement of the Wistow slate amounts to no more than an inconvenience. There is no evidence that the CFS would not attend the Property because of the turning cycle or that the turning manoeuvre would cause the CFS concern. No witness was called from the CFS to say what difficulties the presence of the Wistow slate imposes on them. The comments of Ward CJ in Eq in Pullen v Smedley96 are apposite: In my opinion, the presence of the gates amounts to no more than an inconvenience in relation to the added time that it takes to open and close the gates and the fact that it may be dark or raining when that happens. There is no suggestion that the rural fire brigade or bushfire management protocols take issue with the number or style of gates here erected (and presumably if there were a threat of imminent bushfire, steps could be taken to secure open access by the opening of the gates to the property). Similarly, in the case of other emergency services, there is no evidence to suggest that the potential added time in getting to the property is so serious an issue as to amount to a real and substantial inference until access of the right of way. Delays are presumably experienced by emergency services due to all sorts of factors. I am not persuaded that an extra 5 minutes’ potential response time to a hypothetical future emergency event is such as to make the habitual closing of gates on the right of way a substantial and real interference with the reasonable rights of use by the Pullens of the right of way. 215 For the reasons that have been expressed, the Court does not consider that the presence of the Wistow slate creates a substantial interference with the first respondent’s enjoyment of the Right of Way. The Court accepts the submission of 96 [2017] NSWSC 1721, [223]. -- 50 of 59 -- [2026] SADC 14 47 the applicant that the presence of the Wistow slate has no practical effect on the first respondent’s use of the Right of Way. 216 The respondents have submitted that the applicant has failed to take all reasonable steps to minimise the nuisance. That would provide a reason as to why a use might be unreasonable. However, it is not relevant to the inquiry as to whether an interference is a substantial interference. Had the Court found that the interference was substantial, the fact that the Wistow slate had been there for a long period of time and the relative ease by which it could be removed and relocated elsewhere, suggest that it would have been unreasonable on the part of the applicant to insist upon its remaining at its current position. 217 The respondents contended that the Planning and Design Code required fire- fighting vehicles to be able to turn around. The part of the Planning and Design Code entitled Hazards (Bushfire-Medium Risk) Overlay-Assessment Provisions sets out Deemed-to-Satisfy Requirements (DTS)/ Designated Performance Features (DPF) that provide that fire-fighting vehicles travel in a continuous forward movement around driveway curves. The Planning and Design Code relevantly provides: PO 5.2 Access to habitable buildings is designed and constructed to facilitate the safe and effective: access, operation and evacuation of fire-fighting vehicles and emergency personnel evacuation of residents, occupants and visitors. DTS/DPF 5.2 Access is in accordance with (a) or (b): a clear and unobstructed vehicle or pedestrian pathway of not greater than 60 metres in length is available between the most distant part of the habitable building and the nearest part of a formed public access road driveways: do not exceed 600m in length are constructed with a formed, all- weather surface are connected to a formed, all-weather public road with the transition area between the road and driveway having a gradient of not more than 7 degrees (1-in-8) have a gradient of not more than 16 degrees (1-in-3.5) at any point along the driveway -- 51 of 59 -- [2026] SADC 14 48 have a crossfall of not more than 6 degrees (1-in-9.5) at any point along the driveway have a minimum formed width of 3m (4m where the gradient of the driveway is steeper than 12 degrees (1-in-4.5)) plus 0.5 metres clearance either side of the driveway from overhanging branches or other obstructions, including buildings and/or structures (Figure 1) incorporate passing bays with a minimum width of 6m and length of 17m every 200m (Figure 5) provide overhead clearance of not less than 4.0m between the driveway surface and overhanging branches or other obstructions, including buildings and/or structures (Figure 1) allow fire-fighting services (personnel and vehicles) to travel in a continuous forward movement around driveway curves by constructing the curves with a minimum external radius of 12.5m (Figure 2) allow fire-fighting vehicles to safely enter and exit an allotment in a forward direction by using a 'U' shaped drive through design or by incorporating at the end of the driveway either: a loop road around the building or a turning area with a minimum radius of 12.5m (Figure 3) Or a 'T' or 'Y' shaped turning area with a minimum formed length of 11m and minimum internal radii of 9.5m (Figure 4) incorporate solid, all-weather crossings over any watercourse that support fire- fighting vehicles with a gross vehicle mass (GVM) of 21 tonnes. -- 52 of 59 -- [2026] SADC 14 49 218 Clause 14 of Schedule 8 of the Planning Development and Infrastructure – (General) Regulations 2017 (SA) provides: An application for planning consent, building consent or consent under section 102(1)(c) or (d) of the Act that relates to development within a Hazards (Bushfire—General Risk) Overlay, Hazards (Bushfire—High Risk) Overlay, Hazards (Bushfire—Medium Risk) Overlay, Hazards (Bushfire—Outback) Overlay, Hazards (Bushfire—Regional) Overlay or Hazards (Bushfire—Urban Interface) Overlay under the Planning and Design Code must be accompanied by, or incorporate, the plans, drawings, specifications and other documents or drawings detailing any additional requirements required under any relevant Ministerial building standard or the Planning and Design Code, insofar as they are relevant in the circumstances of the particular case. 219 However, the Court has found that irrespective of the placement of obstacles, the pumper fire appliance used by the CFS, would need to undertake a three point turn on the Right of Way to change direction and could not travel in a continuous circle. 220 Further, the Planning and Design Code is used to assess proposed developments. It does not have application to a determination by the Court as to whether an obstacle placed on the Right of Way substantially interferes with the reasonable user of the Right of Way. 221 Still further, the deemed to satisfy requirements in the Planning and Design Code and the designated performance features are one way, but not the only way in which the performance outcome may be met and planning consent granted. Under s 103 of the Planning, Development and Infrastructure Act 2016 (SA) (the PDI Act), development is divided into 3 categories for the purposes of planning consent: accepted development, code assessed development and impact assessed development. Section 105 provides that development falls within the category of code assessed development if it is classified under the Code as deemed-to satisfy development or does not fall within either the categories of accepted or impact assessed development. Sections 106 and 107 then set out how the process of making an order granting planning consent in cases of deemed-to satisfy developments. Those sections relevantly provide: 106—Deemed-to-satisfy assessment (1) If a proposed development is classified as deemed-to-satisfy development, the development must be granted planning consent. (2) If a relevant authority is satisfied that development is deemed-to-satisfy development except for 1 or more minor variations, the relevant authority must assess it as being deemed-to-satisfy (and that determination will then have effect for the purposes of this Act). (3) A planning consent under this section must be granted without undertaking a process for public notification or submissions in relation to the proposed development. -- 53 of 59 -- [2026] SADC 14 50 (4) A planning consent under this section will apply subject to conditions imposed under this Act and subject to such conditions or exceptions as may be prescribed by the regulations or the Planning and Design Code, and subject to any other provision made by this Act or applying under the regulations. (5) A condition under subsection (4) may provide that a proposed development assessed under subsection (2) will be undertaken so as to address any minor variation in order to make it consistent with the deemed-to-satisfy requirement. (6) Nothing in this section requires the assessment of an element of a development that may be classified as accepted development. 107—Performance assessed development (1) In a case where proposed development is to be assessed as code assessed development and the development cannot be assessed, or fully assessed, as deemed-to-satisfy development, the development will be assessed on its merits against the Planning and Design Code. 222 In Geber Super Pty Ltd v The Barossa Assessment Panel,97 Blue J discussed designated performance features (DPF) and held:98 A DPF provides a guide to a relevant authority as to what is generally considered to satisfy the corresponding performance outcome but does not need to necessarily be satisfied to meet the performance outcome, and does not derogate from the discretion to determine that the outcome is met in another way, or from the need to assess development on its merits against all relevant policies. … The designated performance features also assist in the interpretation of the performance outcomes. They identify a standard outcome that will generally meet the corresponding performance outcome. However, they are not policies in their own right. On the one hand, merely because the designated performance features for a corresponding performance outcome are met does not entail that the performance outcome is met because the Code states that the features are only a standard outcome that will generally meet the performance outcome. On the other hand, merely because the designated performance features are not met does not entail that the performance outcome is not met. 223 It follows from these statements that the deemed to satisfy requirements and designated performance features are guides only to when a performance outcome is satisfied and failure to meet those standards does not preclude planning consent. They do not impose any prohibition in relation to the use of the Property. That is made clear by the introduction to the Planning and Design Code which describes a designated performance feature as a guide to what is generally considered to satisfy the corresponding performance outcome but do not necessarily need to be satisfied to meet the performance outcome and do not derogate from the discretion to determine that the outcome is met in another way. 97 [2023] SASC 154. 98 Ibid, [84]-[88]. -- 54 of 59 -- [2026] SADC 14 51 224 The requirements under the Planning and Design Code do not cause the Court to re-consider or alter its conclusion that the presence of the Wistow slate on the Right of Way does not constitute substantial interference with the respondent’s enjoyment of the Right of Way. Therefore, contrary to the first respondent’s submissions, there is no justified apprehension of future damage. 225 The respondents also referred to the Ministers Code for Undertaking Development in Bushfire Protection Areas 2009 (the Ministers Code). The Ministers Code provides that it had been written to assist applicants seeking to undertake development in Bushfire Protection Areas and the professional who assesses development applications. It further provides that a development application in a bushfire zone must be assessed taking into account the mandatory provisions of the Ministers Code. One of the mandatory provisions in the Ministers Code is that fire-fighting vehicles travel in a continuous forward movement by constructing curved roads and driveways with curves that have a minimum external radius of 12.5 metres). 226 The provision in the Ministers Code mirrors the deemed-to satisfy- requirements under the Planning and Design Code. The Ministers Code also applies to the circumstances in which a development application must be assessed. The provisions in the Ministers Code do not apply to the exclusion of the requirements under the PDI Act and the Planning and Design Code. Further, in this case, the turning area did not ever meet the requirements of the Ministers Code-i.e. there has never been a turning area with a 12.5 radius. 227 The fact that the Ministers Code relates to a development application and how it is to be assessed means that it has no relevance to a determination whether there has been substantial interference with the reasonable user of the Right of Way. 228 The respondents further submitted that it was open for the Court to infer that the flared Right of Way was designed to allow firefighting vehicles to access Lot 50 (and before that Lot 23 as well as Lot 2) in the manner contemplated by the Ministers Code. There is no basis for such an inference. There is no evidence that supports that inference. Further, the “flared” Right of Way was created in 1993, well prior to the introduction of the Ministers Code (see exhibit A2). 229 The claim for nuisance in respect of the Wistow slate fails and is dismissed. Creation of a track into the Right of Way (paragraph 7.3 of the cross-claim) 230 The respondents submit that the creation of the track in about January 2024 created a substantial interference with the reasonable user of the Right of Way. Ms Schultz gave evidence that the track was created in about January 2024. Insofar as it is contended that the track reduced the turning area in the Right of Way, the same considerations and conclusions apply as was discussed in relation to the Wistow slate. -- 55 of 59 -- [2026] SADC 14 52 231 There was no evidence as to how the creation of track itself reduced the use of the Right of Way, either by itself or in conjunction with the Wistow slate. The applicant gave evidence that he used an excavator to cut the track down towards the shed area because it was too steep to otherwise go to that area. He said this reduced the turning area. The complaint made by the first respondent appears not to relate to the track itself but the previous earthworks that had been undertaken by the applicant. In their letter to Council on 18 January 2021 (page 813 of exhibit A1), the respondents stated that the previous earthworks which created the drop off had restricted their enjoyment of the Right of Way and denied them free and unrestricted access. That submission to Council was made prior to the creation of the track in 2024. There is no plea or cross-claim that the earthworks created a nuisance. That would be an entirely different case involving questions of consent to the earthworks. 232 The first respondent also contended that the creation of the track prevented a further entry onto their property to the east of the gates to her property. That entry is not presently in existence. The first respondent contends that she and Mr Rumsewicz would like to use this entrance in the future. The first respondent gave evidence that there is a second parking area under the gum tree to the east of their current driveway. She said that they would also like to be able to drive along the eastern edge of the Right of Way and enter the eastern side of their property and park cars there as well. The first respondent submitted that she was entitled to multiple access points to her property. 233 In support of her contention, the first respondent referred to the decision in Celsteel Ltd v Alton House Holdings99 where Scott J held that the holder of the dominant title who has two alternative access points, is entitled to adopt either alternative, if the right of way so permits, and therefore suffers actionable interference if one alternative is precluded. In Timpar Nominees Pty Ltd v Archer,100 the Court of Appeal reviewed cases that dealt with the issue of whether the holder of the dominant tenement were entitled to multiple points of access to their property from a right of way. These cases held that the user of the right of way was not necessarily limited to one point of access, but was entitled to as many points of access as were reasonable.101 234 In the particular circumstances of the present case, the prevention of the second entry point does not create a substantial interference with a reasonable use of the Right of Way. The Court considers that the respondents do not have any real intention to create the entry point to their property or that the second entry point is a viable option. The Court has come to that conclusion because: (1) the creation of that entry point would require the respondents to build up their land to be level with the land on the Right of Way. 99 [1985] 2 All ER 562. 100 [2001] WASCA 430. 101 Butler v Muddle (1995) NSW ConvR 55-745. -- 56 of 59 -- [2026] SADC 14 53 (2) the creation of that entry point would not be possible because of the presence of the Wistow slate. (3) it is not the creation of the track that would prevent the second entry point to the First Respondent’s Property but the creation of the two levels when the applicant undertook the work to create the turn around area. He did that by depositing soil on the turn around areas (where the Wistow slate has been placed) and creating a drop of about 1 metre to the lower part of the Right of Way where the gabion wall is situated. There is no complaint or allegation about that work in the cross-claim. The relevant allegation for these purposes is in relating to the creation of the track. That itself does not prevent the second point of access; (4) there is no evidence that the respondents had taken any steps to investigate the possibility of such access or reasonably require that access; (5) The respondents have not established how the creation of the track prevents the second entry point to the First Respondent’s Property. For all of these reasons, the Court does not consider that the creation of the track, by denying the respondents access to a potential further access point to their Property, is a substantial interference with the Right of Way. The claim for nuisance because of the creation of the track fails. Conclusion 235 For the reasons that have been expressed, the Court makes the following findings: (1) the applicant is entitled to erect a gate on the boundary of the Right of Way and Sorata Street. (2) the conduct of the respondents in leaving such a gate open amounts to unreasonable use of the Right of Way. (3) the Right of Way Gate is not on the Right of Way but on land owned by Council. The Court will not grant an injunction requiring the respondents to shut a gate that is on the property of someone who is not a party to the proceedings. (4) the applicant’s claim for damages arising out of the death of Rex is dismissed. (5) the cross-claim of the respondents that the applicant has interfered with their reasonable use of the Right of Way and thereby committed a nuisance is dismissed. -- 57 of 59 -- [2026] SADC 14 54 236 In his written submissions, the applicant also sought declarations that he was entitled to maintain the Right of Way Gate or any gate not less convenient. He further sought a declaration that the first respondent, their visitors and invitees were under a duty to shut and close the gate after use. The declarations were not sought as part of the claim. The parties should be given the opportunity to consider what are the appropriate orders to be made in accordance with these reasons. 237 I will hear the parties as to the formal orders to be made and costs. -- 58 of 59 -- [2026] SADC 14 55 -- 59 of 59 --