Bradshaw v Griffiths [2016] QCA 20

SUPREME COURT OF QUEENSLAND CITATION: Bradshaw v Griffiths [2016] QCA 20 PARTIES: JAN LAUREL BRADSHAW (appellant) v PETER GRIFFITHS (respondent) FILE NO/S: Appeal No 6931 of 2015 SC No 12194 of 2013 DIVISION: Court of Appeal PROCEEDING: General Civil Appeal ORIGINATING COURT: Supreme Court at Brisbane – [2015] QSC 176 DELIVERED ON: 12 February 2016 DELIVERED AT: Brisbane HEARING DATE: 24 November 2015 JUDGES: Fraser and Gotterson and Morrison JJA Separate reasons for judgment of each member of the Court, each concurring as to the orders made ORDERS: 1. The appeal be allowed. 2. Orders 1, 3 and 5 made on 25 June 2015 are set aside to the extent that they granted a statutory right of user in respect of Road D as depicted in plan number 213025-2 annexed to those orders, and ordered compensation in the sum of $35,000. 3. The parties are to submit a revised order in accordance with these reasons. 4. The parties have leave to make such submissions as they are advised on the question of the costs of the appeal, to be filed and served within 21 days of today. CATCHWORDS: REAL PROPERTY – EASEMENTS – PARTICULAR EASEMENTS AND RIGHTS – RIGHT OF WAY – where the respondent owned a large cattle property called Stuart Downs – where the respondent subdivided this property creating Laurel Downs – where the respondent kept Stuart Downs but sold Laurel Downs – where before the subdivision, there was a gravel road (Road A) leading from the respondent’s homestead and cattle yards, down through what became Laurel Downs, to the nearest public road – where the appellant purchased Laurel Downs many years later – where the respondent continued to -- 1 of 20 -- 2 use Road A by informal agreement with the appellant – where the respondent constructed a new gravel road (Road D ) some time later, which also went through Laurel Downs – where for the next 22 years the appellant permitted the respondent to transport cattle via Road D, using it for that purpose about five times a year – where the appellant and the respondent fell out – where the appellant denied the respondent permission to cross Laurel Downs – where the respondent started proceedings seeking a statutory right of user for Roads A and D pursuant to s 180 of the Property Law Act 1974 (Qld) – where the respondent succeeded in obtaining those orders from the learned trial judge – whether an easement should have been granted – whether only one easement should have been granted, rather than both Property Law Act 1974 (Qld), s 180 117 York Street Pty Ltd v Proprietors of Strata Plan 16123 (1998) 43 NSWLR 504; (1998) 98 LGERA 171, cited Griffiths v Bradshaw [2015] QSC 176, related Kent Street Pty Ltd v Council of the City of Sydney [2001] NSWSC 268, considered Lang Parade Pty Ltd v Peluso [2006] 1 Qd R 42; [2005] QSC 112, considered COUNSEL: D G Clothier QC for the appellant C Jennings for the respondent SOLICITORS: Murdoch Lawyers for the appellant Russells Law for the respondent [1] FRASER JA: I have had the advantage of reading the reasons for judgment of Morrison JA. I agree with those reasons and with the orders proposed by his Honour. [2] GOTTERSON JA: I agree with the orders proposed by Morrison JA and with the reasons given by his Honour. [3] MORRISON JA: Mr Griffiths once owned a large cattle property, called Stuart Downs. In 1972 he subdivided his property, creating Laurel Downs. He kept Stuart Downs and sold Laurel Downs. [4] Before the subdivision there was a gravel road (Road A) leading from his homestead and cattle yards on Stuart Downs, down through what became Laurel Downs, to the nearest public road, Red Range Road. That road was used by Mr Griffiths to transport his cattle in and out, and for personal use, driving to the nearest towns and collecting his mail from the letterbox at the corner of Road A and Red Range Road. [5] Mrs Bradshaw purchased Laurel Downs many years later. By informal agreement Mr Griffiths continued to use the Road A as before. [6] In 1991 Mr Griffiths built new cattle yards in a more central location on Stuart Downs. By informal agreement with the Bradshaws he constructed a gravel road (Road D) leading in a straight line down from the new yards to Red Range Road, crossing through Laurel Downs. For the next 22 years the Bradshaws permitted him to transport his cattle out to market via Road D, using it for that purpose about five times a year. -- 2 of 20 -- 3 [7] The Bradshaws and Griffiths fell out, and on 15 February 2013 Mrs Bradshaw denied permission to cross Laurel Downs. Therefore, Mr Griffiths started these proceedings seeking a statutory right of user for Roads A and D, pursuant to s 180 of the Property Law Act 1974 (Qld). He succeeded in obtaining those orders from the learned trial judge. [8] Mrs Bradshaw seeks to appeal from the orders. The issues raised by the appeal are: (a) whether the learned trial judge erred in finding that: (i) both easements were “reasonably necessary” in the interests of the effective use of Stuart Downs; and (ii) Mrs Bradshaw’s refusal to grant the easements was unreasonable in all the circumstances; (b) whether any easement should have been granted; and (c) whether only one easement should have been granted rather than both, and if so, which one. Background to the use of the roads [9] A brief synopsis of the facts is set out in paragraphs [1] to [7] above. A fuller understanding is necessary to consider the grounds of appeal. Much of what follows is taken directly from the reasons below,1 as the factual controversy was quite confined. The map attached as Annexure “A” to these reasons permits a full understanding of the properties, their use and the roads in question. [10] Stuart Downs is a Crown leasehold grazing property located near Wandoan in central Queensland. It has been held by Mr Griffiths since 1968. In 1972, Mr Griffiths subdivided the property into what are now known as Stuart Downs and Laurel Downs. [11] Laurel Downs is leased from the Crown by Mrs Bradshaw. It was sold by Mr Griffiths in 1974, and resold by those purchasers to Mrs Bradshaw in 1989. Mrs Bradshaw and her husband live on Laurel Downs. Mr Griffiths and Mr Bradshaw first met at boarding school more than 50 years ago. The Griffiths and Bradshaw families have been neighbours for decades. [12] Laurel Downs has an extensive frontage to Red Range Road, running roughly east/west. It is a gravel road connecting to the west with other roads to Wandoan, and to the east with Chinchilla. Laurel Downs is to the north of the road. [13] South of Laurel Downs, on the opposite side of Red Range Road, is another property called Red Range, which Mrs Bradshaw’s husband has owned for many years and was originally leased by his grandfather in 1936. [14] Stuart Downs is not landlocked. It has a road frontage to Red Range Road at the far eastern end of the property. The homestead on Stuart Downs is at the western end.2 Relatively close to the homestead are the original cattle yards (the old yards).3 [15] In 1972 there was an existing road (Road A) between the homestead on Stuart Downs and Red Range Road. The length of Road A from the homestead to Red Range Road 1 Griffiths v Bradshaw [2015] QSC 176, [1]-[18]. 2 Point D on the map. 3 Point C on the map. -- 3 of 20 -- 4 is about 5.5 kilometres.4 After the subdivision that created Laurel Downs about 2.2 kilometres of Road A crossed Laurel Downs.5 It is used by the Bradshaws and the Griffiths. Some of it is maintained by the local Council. [16] When Stuart Downs was subdivided in 1972, Mr Griffiths was asked by his solicitors to consider the question of access to a public road from each property. He was advised that “both blocks must have access to roads”. Mr Griffiths says that at the time, he thought that he could simply continue to travel across Laurel Downs over Road A, and that any government requirement that Stuart Downs have access to Red Range Road could be met by its having road access on the frontage at the eastern end of the property. At that time, access to (the new) Stuart Downs from Red Range Road was by three roads, Road A and two others which are not presently relevant. [17] In 1974, Mr Griffiths sold Laurel Downs. Mr Bradshaw says that at the time he was “fairly ropeable” that he had not been given an opportunity to buy Laurel Downs because of its proximity to his Red Range property. Not long after the sale, Mr Bradshaw says he asked Mr Griffiths where his road access would be. He recalls Mr Griffiths said that if necessary, he would construct access at the far eastern end of his property. [18] After the sale of Laurel Downs to the Hopkins, Mr Griffiths continued to use Road A without any apparent objection or incident. [19] The Bradshaws twice tried to buy Laurel Downs from the Hopkins, before Mrs Bradshaw finally purchased it in 1989. Her homestead on Laurel Downs is a transportable house that was installed at the end of 2000. Until then, the Bradshaws lived in a house on Red Range. [20] In late 1991 Mr Griffiths built new cattle yards (the new yards) in a more central location on Stuart Downs.6 He also constructed Road D, after gaining permission from Mr Bradshaw.7 Road D runs north from Red Range Road, across Laurel Downs for about 1.4 kilometres, before entering Stuart Downs, where 3.5 kilometres on, it reaches the new yards.8 Road D has been used for transporting cattle from the new yards. It is a straight road running along a ridge line, relatively smooth and easily maintained. It crosses no watercourses, hills or gullies. [21] Since its construction, Road D has been used for the carriage of almost all of the stock leaving Stuart Downs. The transport of cattle is mainly by B-double trucks, each of which carries the equivalent of three single semi-trailer loads. [22] Mr Griffiths has maintained the road since its construction. The Bradshaws have not been entirely happy with the grading of Road D. In 1999, Mrs Bradshaw told Mr Griffiths that he should not grade the road. This surprised him, but he refrained from grading it again until 2008. On that occasion, he asked for the Bradshaws’ permission to grade a particular area in Road D, to which they agreed. Subsequently, he graded Road D on three occasions but without seeking their permission, in order to make the road trafficable. 4 Points D to A on the map. 5 Points B to A on the map. 6 Point E on the map. 7 Whilst Mrs Bradshaw was annoyed that Mr Bradshaw had done so, she did not withdraw permission. 8 Between points J and E on the map; J to K is on Laurel Downs. -- 4 of 20 -- 5 [23] Over the four years to 2013, on average there were five cattle consignments per year from Stuart Downs, each of approximately 70 head of cattle. In some earlier years, there were as many as 10 consignments and in one year, none at all. Road D is occasionally used also for access to some paddocks on Stuart Downs for mustering, to attend to the weaning of cattle and to remedy the movements of stray cattle onto and away from Stuart Downs. [24] This dispute arose when Mr Griffiths received a letter of complaint from Mr and Mrs Bradshaw dated 15 February 2013. Their complaint was not about the use of any road across Laurel Downs. Rather, it was about a controversy involving the Bradshaws’ use of a bore on their property. They wrote as follows: “To whom it may concern at Stuart Downs, It is with great regret that we pen this letter but it has come to our attention that one or all of you have without consideration for [Mr and Mrs Bradshaw] … complained to Government Departments about water used from Laurel Downs bore. They would only be taking two thousand gallons an hour for a limited time while dust is bad, carting water from other bores or dams means more trucks on roads, more dust and more water needed and more damage to roads. It is less than 200 mts from our bore to the pipeline and no travelling on public roads. We also find it inappropriate that you consulted with other near neighbours but not with us about water being taken (for dust suppression) from Laurel Downs bore. We feel this matter wasn’t thought [through] and if it had you wouldn’t have proceeded therefore we would like this matter resolved by the end of this week. You leave us with no other option under these circumstances than to close the two roads that we allow you to use for access onto and off Stuart Downs. It may be in your best interest and ours as well as neighbours and anyone using the roads for the longer term if you reconsidered and withdrew your concerns about water usage from our bore.” [25] Mr and Mrs Bradshaw had agreed with Origin Energy, which was constructing a gas pipeline in the area, to supply it with bore water for a limited time, to be used for dust suppression on public roads. This was a matter of local controversy. Mr and Mrs Bradshaw believed that Mr Griffiths had said to a government agency that water from the Laurel Downs bore should not be used in that way. The Bradshaws’ response was this letter, by which they withdrew their longstanding consent to the use of Roads A and D, which are the two roads referred to in the penultimate paragraph of the letter. Their complaint did not suggest any grievance about the manner or extent of the use of Roads A and D. Particular aspects of the Griffiths’ use of the roads [26] Road A has always been used for the Griffiths’ personal travel to and from the Stuart Downs homestead. They prefer to use shops and other facilities in Taroom and -- 5 of 20 -- 6 Wandoan (west of his property), because there is less gravel and more sealed road, as well as better mobile phone coverage travelling in that direction. They therefore travel west once they reach Red Range Road. Their letterbox is also located at the junction of Road A and Red Range Road.9 [27] Road A is used between about 11 to 20 times each month by Mr Griffiths.10 Wandoan and Taroom are each about 75 kilometres from where Road A meets Red Range Road. Most of the journey to either town is on a sealed road and the journey takes about one hour. It takes another 10 or 15 minutes to drive along Road A from the homestead.11 [28] Road A has also been, and still is, used by the Griffiths to transport cattle from the old yards.12 This use utilises trucks smaller than B-double trucks. Mr Griffiths’ evidence was that Road A is not suitable for big cattle trucks because it is narrow, steep and winding.13 That evidence was contradicted by an experienced cattle transporter,14 who said that, whilst he preferred Road D, the B-double trucks could use Road A to reach the new yards, provided that the road between the homestead and the new yards would have to be widened, because it is “slightly” narrower than would be “preferred” for B-double trucks.15 [29] Road D has been used to transport cattle from the new yards.16 On average there were five cattle consignments per year from Stuart Downs, each of approximately 70 head of cattle. That has been by use of B-double trucks, each of which carries the equivalent of three single semi-trailer loads. The cattle are transported either to the Biggenden or Dalby saleyards, each of which is of approximately 260 kilometres by road from Stuart Downs, or to various meatworks or feedlots. The cattle are carried by contractors who charge on a per kilometre basis. [30] Road D has also been used by Mr Griffiths to bring weaners into Stuart Downs, and occasionally it has been used for access to some paddocks on Stuart Downs for mustering, to attend to the weaning of cattle and to control stray cattle. Distance and driving times [31] The evidence established the following travelling distances (using the location letters on the map): (a) Road A from the Stuart Downs homestead to Red Range Road: D to A, 5.5 km;17 (b) Road A solely on Laurel Downs: B to A, 2.2 km;18 (c) Road D from the new yards to Red Range Road: E to J, 4.9 km;19 (d) Road D solely on Laurel Downs: J to K, 1.4 km;20 9 Point A on the map. 10 There are two different findings as to this use. The first is in Reasons [34], at “20 times each month”; the second is in Reasons [65], at “two or three times a week” (averaged at 11 times per month). 11 Reasons [34]. 12 Point C on the map. Reasons [35]. 13 Reasons [37]. 14 Mr Williams, called by Mr Griffiths: Reasons [37]. 15 Points D to E on the map. Reasons [37]; affidavit of Mr Williams, paragraph 11. 16 Point E on the map. 17 Reasons [6]. 18 Reasons [6]. 19 Reasons [7]. 20 Reasons [7]. -- 6 of 20 -- 7 (e) Stuart Downs homestead to the new yards: D to E, 7.1 km;21 (f) from where Road A meets Red Range Road to the Stuart Downs homestead via the proposed new road and the new yards: A to G, then to F, E and D, 24 km;22 (g) from Stuart Downs homestead to Red Range Road via the new yards and the new proposed road: D to E, then F and G, 13 km;23 (h) from the intersection of Road A to intersection of proposed new road: A to G, 9.7 km;24 (i) from the intersection of Road A and Red Range Road to intersection of Road D and Red Range Road: A to J, 6.2 km;25 (j) Wandoan is 65 km, and Taroom, 75 km;26 and (k) Biggenden and Dalby from Stuart Downs, 260 km.27 [32] The evidence established the following travelling times (using the location letters on the map): (a) Stuart Downs homestead to the new yards: D to E, 20 minutes;28 (b) Stuart Downs homestead via Road A to Red Range Road: D to A, 10 to 15 minutes;29 and (c) to Wandoan or Taroom, about one hour.30 Proposed new road if Roads A and D cannot be used [33] If Road A and Road D could not be used, a new road would have to be constructed on Stuart Downs. It would run from the junction of Red Range Road and Stuart Downs31 in a north-westerly direction to the new yards. The likely route is shown on the map, from G to F and then to E. The homestead could then be reached by an existing road which runs west and then south-west from the new yards.32 [34] The road would require the construction of a crossing over a watercourse called Cockatoo Creek, which was described by the surveyor as having steep sides with many rocky waterholes and sandy washouts. The surveyor identified a particular point as the preferred location for the creek crossing. He described what would be necessary to accommodate B-double cattle trucks at the creek crossing: there would have to be an acceptable gradient on both sides and the construction of a stable crossing in the stream bed. He said that it would also require a major modification of an existing track involving substantial clearing of vegetation and major earthworks.33 21 Affidavit of Mr Bradshaw, paragraph 105(j). 22 Affidavit of Mr Griffith, paragraph 51(b) and (d). 23 Reasons [22]. 24 Affidavit of Mr Bradshaw, paragraph 105(i). 25 Affidavit of Mr Bradshaw, paragraph 105(d). 26 Affidavit of Mrs Bradshaw, paragraph 3. 27 Reasons [16]. 28 Mr Griffiths T 1-29 line 8, AB 29. 29 Reasons [34]. 30 Reasons [34]. 31 Point G on the map. 32 From point E to D on the map. 33 Reasons [22]. -- 7 of 20 -- 8 Disadvantages of the proposed new road [35] The learned trial judge identified the matters that, as he found, made the proposed road disadvantageous from Mr Griffiths’ point of view: (a) the new access road would be far from ideal from Mr Griffiths’ perspective; in the area where the road would cross Cockatoo Creek, the creek is deep and floods occasionally; in Mr Griffiths’ view, Stuart Downs would be “considerably less accessible in periods of wet weather because of extra travel time required and the type of country (tracked, unformed roads, across heavy black soil and lighter, sandy country which becomes soaked causing vehicles to become bogged), [through] which any alternative road must pass”;34 (b) because the Griffiths family shops and uses other amenities in Taroom or Wandoan, they must travel west on reaching Red Range Road; therefore, if they had to use the proposed new road, they would have to drive along Red Range Road past the point from which they have been able to reach it by the use of Road A, which would require a further 9.7 kilometres of travel along Red Range Road; it would involve two further crossings of Cockatoo Creek on that road; there would be a further 13 km of travel on the road to be constructed on Stuart Downs to and from the homestead; that includes the seven kilometres between the homestead and the new yard in the course of which seven gates are encountered. Therefore, to reach the junction of Red Range Road and Road A, Mr Griffiths and others would have to travel from his homestead a distance of nearly 24 kilometres instead of the present distance of about 5.5 kilometres;35 (c) having to use the proposed new road would add nearly 40 kilometres to a trip to Taroom or Wandoan or even to the mailbox;36 (d) the proposed road would not adversely impact on access to and from Stuart Downs to Red Range Road for emergency services such as a medical emergency or other serious incident at Stuart Downs; Mrs Bradshaw offered to permit Mr Griffiths, his family and visitors to use Road A “in the event of a genuine emergency” (be it medical or otherwise) for that purpose.37 [36] Further, Mr Williams, the cattle transporter, identified his concerns over the proposed road in terms of trucks taking cattle out. It was that a new road would travel through “foxbush” country, which tends to be “crusty on top and very sticky and boggy underneath” making transport vehicles tend to break through the crust of that land and become bogged. He said that this type of surface also tended to take a long time to dry out after heavy rain. By comparison, Roads A and D were on black soil which tended to dry out more quickly than “foxbrush” country.38 [37] Finally, the proposed road could be built but at substantial cost, at least $60,000 and possibly exceeding $100,000.39 34 Reasons [32]. 35 Reasons [33]. 36 Reasons [34]. That finding assumes that the letterbox would remain at the junction of Road A and Red Range Road. I am not convinced the assumption is correct if the proposed new road becomes the only access to Stuart Downs. There is no reason to think that in that case the letterbox would not be moved to the junction of Red Range Road and the proposed new road. 37 Reasons [36]. 38 Reasons [37]. 39 Reasons [59]. -- 8 of 20 -- 9 Findings as to Roads A and D versus the new road [38] The learned trial judge made a number of findings as to the importance of Roads A and D, and the comparison with the proposed road: (a) neither Road A nor Road D is absolutely necessary in the interests of the effective use in any manner of Stuart Downs; the proposed road could be built but at a substantial cost, between $60,000 and maybe over $100,000;40 (b) both Roads A and D are critical to the use of Stuart Downs as a grazing property; the proposed road could be used, but the road linking the new yard, the homestead and the old yard is not wide enough for B-double trucks;41 (c) the proposed road would disadvantage Mr Griffiths in several respects, compared with the use of Roads A and D; the drive from the homestead to the public road would be several times longer in distance and in time; the disadvantages in those respects are understated if described as matters of mere inconvenience;42 and (d) the new road is more likely to be closed after rainfall, particularly because of its different soil.43 Consideration of both easements versus only one [39] The learned trial judge held that both easements should be granted, not just one. His Honour’s reasons for the conclusion are expressed in these paragraphs:44 “[67] In this case, of course, two easements are sought. Mr Griffiths must make out a case for each to be granted in order to obtain both easements. I have considered whether the grant of one easement would put paid to the reasonable necessity for the other. But I have concluded that in each case the reasonable necessity criterion has been satisfied. If Road A but not Road D could be used, Mr Griffiths would have to widen at least the road between the homestead and the new yard in order to accommodate B-double trucks. This would still be an inferior road for transporting cattle from the new yard. Again, the impact or otherwise from imposing an easement for Road D must be considered and it is minimal. The use of Mr Griffiths’ property with Road D would be “substantially preferable” to its use without it, even with Road A. [68] Similarly, it is practically necessary in the relevant sense for the Griffiths’ property to have the use of Road A in addition to that of Road D. Without Road A, there would be the difficulties in travel to and from the homestead and the old yard. Again, there is the minimal impact of the use of Road A to be considered here.” 40 Reasons [59]. 41 Reasons [61]. 42 Reasons [60]. 43 Reasons [61]. 44 Reasons [67]-[68]. -- 9 of 20 -- 10 Impact on Mrs Bradshaw [40] The learned trial judge held that the impacts of the statutory rights of user on Mrs Bradshaw, in respect of both Roads A and D, would be minimal.45 Relevant to that were these findings: (a) any impact upon the value of Laurel Downs was minor and could be compensated;46 (b) the potential for cell grazing techniques to be used on Laurel Downs would not be significantly affected by the imposition of these two easements; Mrs Bradshaw had not yet divided her property into paddocks for that purpose, and if and when it was, it could be done around the two roads;47 (c) other concerns about the imposition of these roads were not of a nature or extent which would place a significant burden upon her or another owner of Laurel Downs; in that respect his Honour found that “Road D is used, usually, about five times per year” and “Road A is used two or three times a week”;48 and (d) Mrs Bradshaw’s longstanding consent to the use of Roads A and D demonstrates how little is the impact of that use upon her enjoyment of Laurel Downs; the extent of that impact would not be significantly different if that use was pursuant to easements created under s 180.49 The statutory test under s 180 of the Property Law Act 1974 (Qld) [41] Section 180 of the Property Law Act relevantly provides: “(1) Where it is reasonably necessary in the interests of effective use in any reasonable manner of any land (the dominant land) that such land, or the owner for the time being of such land, should in respect of any other land (the servient land) have a statutory right of user in respect of that other land, the court may, on the application of the owner of the dominant land but subject to this section, impose upon the servient land, or upon the owner for the time being of such land, an obligation of user or an obligation to permit such user in accordance with that order. (2) A statutory right of user imposed under subsection (1) may take the form of an easement, licence or otherwise, and may be declared to be exercisable— (a) by such persons, their servants and agents, in such number, and in such manner and subject to such conditions; and (b) on 1 or more occasions; or (c) until a date certain; or 45 Reasons [66]. 46 Reasons [63]. 47 Reasons [64]. 48 Reasons [65]. I have earlier referred to the fact that this finding is at odds with that made as to the frequency of use of Road A, at Reasons [34]. 49 Reasons [66]. -- 10 of 20 -- 11 (d) in perpetuity or for some fixed period; as may be specified in the order. (3) An order of the kind referred to in subsection (1) shall not be made unless the court is satisfied that— (a) it is consistent with the public interest that the dominant land should be used in the manner proposed; and (b) the owner of the servient land can be adequately recompensed in money for any loss or disadvantage which the owner may suffer from the imposition of the obligation; and (c) either— (i) the owner of the servient land has refused to agree to accept the imposition of such obligation and the owner's refusal is in all the circumstances unreasonable; or (ii) no person can be found who possesses the necessary capacity to agree to accept the imposition of such obligation. (4) An order under this section (including an order under this subsection)— (a) shall, except in special circumstances, include provision for payment by the applicant to such person or persons as may be specified in the order of such amount by way of compensation or consideration as in the circumstances appears to the court to be just; and (b) may include such other terms and conditions as may be just; and (c) shall, unless the court otherwise orders, be registered as provided in this section; and (d) may on the application of the owner of the servient tenement or of the dominant tenement be modified or extinguished by order of the court where it is satisfied that— (i) the statutory right of user, or some aspect of it, is no longer reasonably necessary in the interests of effective use of the dominant land; or (ii) some material change in the circumstances has taken place since the order imposing the statutory right of user was made; and (e) shall, when registered as provided in this section be binding on all persons, whether of full age or capacity or not, then entitled or afterwards becoming entitled to the servient land or the dominant land, whether or not such -- 11 of 20 -- 12 persons are parties to proceedings or have been served with notice or not. … (7) In this section— owner includes any person interested whether presently, contingently or otherwise in land. statutory right of user includes any right of, or in the nature of, a right of way over, or of access to, or of entry upon land, and any right to carry and place any utility upon, over, across, through, under or into land.” [42] Reasonable necessity in this context does not mean absolute necessity. A finding of reasonable necessity may be made, although there is an alternative means of access.50 [43] In Kent Street Pty Ltd v Council of the City of Sydney,51 Barrett J said that in this context “the ‘reasonably necessary’ criterion does not direct attention to what is indispensable”. His Honour adopted a statement of Hodgson CJ in Eq. in 117 York Street Pty Ltd v Proprietors of Strata Plan 1612352 that: “[U]se or development with the easement must be (at least) substantially preferable to the use or development without the easement.” [44] More recently, the principles were summarised by Douglas J in Lang Parade Pty Ltd v Peluso:53 “[23] The applicant usefully and accurately summarised the relevant principles on this issue as follows: (a) One should not interfere readily with the proprietary rights of an owner of land. (b) The requirement of ‘reasonably necessary’ does not mean absolute necessity. (c) What is ‘reasonably necessary’ is determined objectively. (d) Necessary means something more than mere desirability or preferability over the alternative means; it is a question of degree. (e) The greater the burden of the imposition that is sought the stronger the case needed to justify a finding of reasonable necessity. (f) For a right of user to be reasonably necessary for a development, the development with the right of user must be (at least) substantially preferable to development without the right of user. (g) Regard must be had to the implications or consequences on the other land of imposing a right of user.” 50 Re Seaforth Land Sales Pty Ltd’s Land (No 2) [1977] Qd R 317, 331 (D M Campbell J). 51 [2001] NSWSC 268 [12]. (Kent Street) 52 (1998) 43 NSWLR 504, 509. (117 York Street) 53 [2006] 1 Qd R 42 at 47-48 [23]. (Lang Parade) -- 12 of 20 -- 13 [45] The learned trial judge adopted these statements. Discussion - wrong test applied [46] When considering whether the test was met in terms of granting both easements rather than one his Honour said: “The use of Mr Griffiths’ property with Road D would be “substantially preferable” to its use without it, even with Road A.”54 [47] Senior counsel for Mrs Bradshaw seized on that sentence to contend that the learned trial judge had applied the incorrect test. The submission went:55 the test in s 180 is “reasonably necessary”, not “substantially preferable”; the statement above meant that the test of “substantially preferable” had been applied in respect of both easements; the phrase “substantially preferable” had been used in 117 York Street in respect of competing uses or developments, not in respect of whether a single use, which could be viably executed without an easement, would be more advantageously carried on with one; an inappropriately low test had been set. [48] I do not accept that contention. [49] In addition to referring to authority such as 117 York Street and Lang Parade, the learned trial judge stated the test correctly at paragraphs [56], [57], [62] and [69] of the Reasons. Further, at paragraph [59] of the Reasons his Honour also posed the test in terms of what reasonable necessity does not require, namely absolute necessity, drawn from the passage cited from Lang Parade. Then, at paragraphs [62] – [66] the learned trial judge examined the consequences for Mrs Bradshaw, if the easements were granted. That also is a consideration called for in Lang Parade. Finally, at the start of paragraph [67] of the Reasons, which end with the sentence at the heart of this contention, his Honour again referred to the test as one of reasonable necessity. [50] In my respectful view, when the learned trial judge used the phrase “substantially preferable” at the end of paragraph [67] of the Reasons, he had not forgotten the test of reasonable necessity, nor substituted another for it. His Honour was, once more, using one of the principles in Lang Parade to express his conclusion. Whether that conclusion is sustainable is another matter to which I will return. [51] This ground of appeal fails. Discussion - necessity for both easements [52] Critical to the learned trial judge’s conclusion that both easements should be granted, is that if Road A but not Road D could be used, “Mr Griffiths would have to widen at least the road between the homestead and the new yard in order to accommodate B-double trucks” and that road “would still be an inferior road for transporting cattle from the new yard”. [53] It is notable that there are two matters which the learned trial judge did not find. First, his Honour did not find that denial of access to Road D was significant in terms of its denial for purposes other than transportation of cattle out from the new yards. Some evidence was given about it being used to deal with mustering, weaning and governing stray cattle.56 Therefore the critical use is only that relating to transportation of cattle out from the new yards. 54 Reasons [67]. 55 Outline paragraphs 9-15. 56 Reasons [15]. -- 13 of 20 -- 14 [54] Secondly, his Honour did not find that there was any burden in respect of widening the road between the new yards and the old yards. None was suggested in the evidence of Mr Griffiths or Mr Williams: (a) Mr Williams had 42 years of experience in cattle transport, and 17 years driving heavy vehicles in Queensland;57 he said that the road between the Stuart Downs homestead and the new yards58 was “slightly narrower than would be preferred for “B-Double” trucks, however there appeared to be sufficient room for the road to be widened”;59 (b) Mr Griffiths owned a grader60 and a D8 bulldozer61 which could perform that work;62 there was no evidence from him that the work could not be done, or that it would be onerous, costly or impractical. [55] The second part of that finding was that the road between the new yards and the Stuart Downs homestead “would still be an inferior road for transporting cattle from the new yard”. It seems to be a comparison between using Road D and using Road A plus the road between the new yards and the old yards.63 [56] The learned trial judge did not identify why that was so. Nor was there any elucidation of the nature or extent of the inferiority, so that it is difficult to assess that finding against the test required for s 180 of the Property Law Act, that is, reasonable necessity in the interests of effective use. [57] There are a number of reasons why, in my respectful view, the finding cannot be sustained: (a) the type of ground over which the two routes travel is similar;64 (b) the relevant use is only an average of five times a year; (c) it is true that E to A is longer than E to J, by 7.7 km, but that is a distance that the cattle transporters will have to travel when taking cattle out from the new yards; it cannot impact on Mr Griffiths beyond the extra costs of transporting over those 15.4 km (7.7 km, both ways); the transporters charge an amount per kilometre per deck, but Mr Griffiths had no idea what extra might be charged for an extra 20 km;65 Mr Griffiths had not asked his cattle transporters what, if any, the extra cost might be for using the proposed road;66 there was no evidence that suggests that any extra cost impost would be an undue burden; (d) it is also true that Road D is straight and mostly downhill on the run out from the new yards, which the surveyor said was important for trucking cattle; the same cannot be said of the road between the new yards and the old yards; however that was a view expressed by a surveyor and not by the expert cattle 57 Affidavit of Mr Williams, paragraphs 2 and 3; AB 288-289. 58 Point D to E on the map. 59 Affidavit of Mr Williams, paragraph 11; AB 290-291. 60 Affidavit of Mr Griffiths, paragraphs 4(b), (f) and (h); AB 513-517. 61 Trial transcript T 1-48 line 20; AB 48. Affidavit of Mr Griffiths, paragraph 4(f); AB 516. 62 He had used that equipment to create and maintain Road D: affidavit of Mr Griffiths, paragraphs 4(f) and (g); AB 516-517. 63 In other words, comparing two routes on the map, E to J compared with E to A. 64 Reasons [37]. 65 Trial transcript T 1-33 lines 27-34; AB 33. 66 Trial transcript T 1-34 lines 32-34; AB 34. -- 14 of 20 -- 15 transporter, and made in respect of a comparison between Road D and the proposed new road, not the road between the new yards and old yards; Mr Williams, the cattle transporter said that B-double trucks could use the route between the new yards and the old yards, if it was widened; further, whilst he said he preferred Road D as it was the logical access point because it was a direct route and shorter than Road A, these views were expressed as mere preferences, not such that it amounts to reasonable necessity in the interests of effective use; (e) the same can be said of the surveyor’s opinion that Road D, as compared to the proposed new road, was shorter, safer and has less impact on the welfare of cattle being transported;67 (f) in any event when Mr Griffiths transports cattle internally on Stuart Downs he does not use a B-double, but a body truck;68 therefore no aspect of his personal haulage of cattle would be affected; (g) B-double trucks can already use Road A, and cattle are still taken out along Road A;69 (h) there is no issue in relation to weather affecting the use by transporters, as Mr Griffiths does not cart cattle when it is wet, nor do cattle transporters;70 (i) there is no issue as to Mr Griffiths travelling that road in the wet; he does travel the roads in the wet;71 (j) it is true that there are seven gates to negotiate between the old yards and the new yards,72 but there was no suggestion that that created any difficulty in terms of cattle transportation; in any event there are three gates between the new yards and Red Range Road going along Road D; and (k) there was no suggestion that the maintenance of the road between the new yards and the old yards was a burden, or would be an additional burden if that road was used to transport cattle out from the new yards; indeed the periodic grading that Mr Griffiths has done on Road D would no longer be necessary. [58] Mr Griffiths gave evidence that went to the issue of reasonable necessity in the interests of effective use. He said: “if Road D is shut off we will then make arrangement to alter our management to use road – the old yard if we’re granted access over [Road A] accordingly. You deal with what you’ve got.”73 In my view that evidence points directly to the fact that use of Road D is not reasonably necessary in the interests of the effective use of Stuart Downs. [59] Once it is found that the widened road between the new yards and the old yards is a suitable road for B-double transport of cattle, which can then link with Road A, the 67 Reasons [38]. 68 Affidavit of Mr Griffiths paragraphs 17(e), 27 and 56, AB 235, 237 and 245. Affidavit of Mr Griffiths in reply, page 8. Trial transcript T 1-48 lines 29-31, AB 48. 69 Reasons [35]. 70 Trial transcript T 1-30 lines 8-16; AB 30. Affidavit of Mrs Bradshaw, paragraphs 46-60, AB 300-302. Affidavit of Mr Bradshaw paragraphs 41-44, AB 409-410. 71 Affidavit of Mrs Bradshaw, paragraph 48, AB 300. Trial transcript T 1-30 lines 1-6, AB 30. 72 Reasons [33]. 73 Trial transcript T 1-43 lines 29-31; AB 43. -- 15 of 20 -- 16 case ceases to be one of Road D being “reasonably necessary in the interests of the effective use” of Stuart Downs. The preference for Road D in that circumstance becomes mere desirability or preference, and does not meet the test under s 180.74 [60] This ground of appeal succeeds. Discussion - necessity of an easement over Road A [61] Any consideration of whether an easement over Road A is “reasonably necessary in the interests of effective use in any reasonable manner” of Stuart Downs, inevitably raises matters that are different from those in respect of Road D. Road D was never used, or to be used, for the personal travel requirements of the Griffiths, nor by such tradesmen and service providers as may be required to attend at the Stuart Downs homestead. [62] The learned trial judge identified those matters that were relevant to the use of Road A: (a) Road A is not absolutely necessary in the interests of the effective use in any manner of Stuart Downs; the proposed new road could be built but at a substantial cost, between $60,000 and maybe over $100,000;75 (b) Road A is critical to the use of Stuart Downs as a grazing property;76 (c) the impact on Mrs Bradshaw, in terms of the value of Laurel Downs (for which she could be compensated), her intention to cell graze, and other matters, would be minimal;77 (d) without Road A there would be the difficulties in travel to and from the homestead and the old yards;78 (e) Road A is used about 20 times each month by Mr Griffiths; his letterbox is at the end of Road A on Red Range Road;79 (f) the old yards are still used, and cattle leave there via Road A; if Roads A and D could not be used, then the management of stock would be affected because the old yards would be further from the public road;80 (g) Road A was used for decades before there was any objection to its use; Mrs Bradshaw purchased Laurel Downs necessarily knowing of the already long-standing use of Road A; her longstanding consent to the use of Road A demonstrates how little is the impact of that use upon her enjoyment of Laurel Downs;81 (h) without Road A the distance to travel to town and the time taken would increase; as well, if access was not via Road A, but via the new yards there is the inconvenience of negotiating seven gates on each journey.82 74 Lang Parade Pty Ltd v Peluso [2006] 1 Qd R 42 at 47-48, [23]. 75 Reasons [59]. 76 Reasons [61]. 77 Reasons [62]-[66]. 78 Reasons [68]. 79 Reasons [34]. Even at the usage in the different finding at Reasons [65], that is still significant use. 80 Reasons [35]. 81 Reasons [66]. 82 Reasons [33] and see paragraphs [31] to [32] above. -- 16 of 20 -- 17 [63] Senior counsel for Mrs Bradshaw contended that the main imposition on the Griffiths, and Stuart Downs as a property, if an easement over Road A was not granted, is that the drive to Red Range Road would be longer in distance and time. He went on to submit that there was little in that factor, because that it should be viewed in the context that this is a rural property and that people who live in the country (and the Griffiths are an example) are accustomed to driving long distances, so the extra time and distance can be dismissed.83 [64] In my respectful view the learned trial judge was correct to find that the test of reasonable necessity was met for Road A. [65] It is, and has been for many years, the most direct way into and out of Stuart Downs. Not only was it the only route to transport cattle out until 1991 when the new yards were built, it is still used for that purpose. Any alternative route would necessarily entail a longer journey to reach Red Range Road, and then add extra distance because the point at which Red Range Road was reached would be east of the current junction, by at least 6.2 km: see paragraph [31](i) above. [66] On the basis of the conclusion reached above, that an easement over Road D cannot be justified under s 180, Road A then assumes a greater significance than it does now, as the logical route to transport cattle out from the new yards. [67] Therefore there are two bases upon which an easement over Road A is reasonably necessary in the interests of effective use, in any reasonable manner, of Stuart Downs. One concerns the personal use by the Griffiths, the other concerns the business use of the property. [68] As the learned trial judge held, the impact on Mrs Bradshaw is minimal. True it is that an easement over Road A, but not Road D, will likely result in greater use of Road A in the sense that transporting cattle out from the new yards will likely use that route, but that usage is only about five times a year on average. The evidence does not support the conclusion that the level will likely increase. [69] This ground of appeal fails. Reasonableness of the refusal [70] As far as Road D is concerned this issue need not be addressed in light of the success of the appeal on that ground. [71] The learned trial judge’s findings on this issue addressed both Roads A and D together, in paragraphs [71]-[73] of the Reasons. [72] His Honour listed some of the factors that led to his conclusion that Mrs Bradshaw was acting unreasonably. They included: the potential monetary impact of these easements upon her as the owner of Laurel Downs will be small and can be redressed by compensation; the intention to cell graze would not be affected; the other matters raised by her as reasons for her objection84 do not reveal a reasonable basis for her 83 Outline paragraph 19. 84 This referred to: the intention to cell graze, which would not be affected, particularly by use of Road A; the prospect of vehicles driving too fast along the roads, and creating a danger to children; and the encouragement of strangers and vandals to come onto the roads: Reasons [40]-[42], [43] and [44]. -- 17 of 20 -- 18 refusal; the impact of these easements would be minimal; her refusal came from quite a different and presently irrelevant consideration; and her persistence in that refusal has been unreasonable because she did not have a substantial reason for it. [73] I consider that it was open to his Honour to reach those findings. [74] Central to the findings on this issue are the two offers that Mrs Bradshaw made. Both were on the basis of a contribution to construction of a new road altogether, that is, on the basis that neither Road A nor Road D could be utilised. One was in September 2013, in the sum of $14,470, and the other was in November 2014 in the sum of $106,655. [75] Given the reason for Mrs Bradshaw withdrawing her consent to the use of each road had nothing to do with the manner or extent of use of the roads, but something extraneous to that, and given the evidence from the engineering and surveying witnesses about the difficulties that the new road posed, I consider it was open to the learned trial judge to find that Mr Griffiths was justified in refusing those offers. [76] Relevant also to the conclusion on this issue is the learned trial judge’s finding in paragraph [66] of the Reasons: “It is telling that these roads were used for decades before there was any objection to their use. Mrs Bradshaw purchased Laurel Downs necessarily knowing of the already long-standing use of Road A. She and Mr Bradshaw consented to the use of Road D from 1991. There were some disagreements between the parties as to the grading of Road D but not about whether its use should be discontinued. Eventually Mrs Bradshaw withdrew her consent to the use of these roads, not because of anything to do with the roads, but because of a grievance about another matter.” [77] In my respectful view it was open to the learned trial judge to reach the conclusion he did as to the unreasonableness of the refusal to consent. [78] This ground of appeal fails. Compensation [79] The learned trial judge held that the financial impact of an easement over Road A was $25,000. There was no challenge to that finding. The compensation for the easement over Road A should be $25,000. Conclusion and orders [80] For the reasons given above, the appeal succeeds in relation to the easement granted over Road D, but fails otherwise. [81] The form of the orders granting the easements was not a matter agitated on the appeal. It follows that the orders below should be set aside only to the extent that they deal with Road D, and the amount of compensation is to be $25,000. [82] The parties should be given the opportunity to address the question of costs, and to present an agreed form of order to reflect these reasons. -- 18 of 20 -- 19 [83] I would propose the following orders: 1. The appeal be allowed. 2. Orders 1, 3 and 5 made on 25 June 2015 are set aside to the extent that they granted a statutory right of user in respect of Road D as depicted in plan number 213025-2 annexed to those orders, and ordered compensation in the sum of $35,000. 3. The parties are to submit a revised order in accordance with these reasons. 4. The parties have leave to make such submissions as they are advised on the question of the costs of the appeal, to be filed and served within 21 days of today. -- 19 of 20 -- 20 Annexure “A” -- 20 of 20 --