Bogart & Ors v Wah Day & Ors [2001] QSC 229

·• i- fGK , 121l t 6l·l2q State Reporting Bureau t\~~:::.!'.'.:~~.~::;:::: Transcript of Proceedings Copyright in this transcript is vested in the Crown. Copies thereof must not be made or sold without the written authority of the Director, State Reporting Bureau. SUPREME COURT OF QUEENSLAND CIVIL JURISDICTION JONES J OS No 7 of 1999 MACE BOGART, JUDITH MERLE BOGART, EDWARD VON NIDA and ROGER JOHN SMITH and LAURENCE GEORGE WAH DAY, ALFRED WILLIAM WAH DAY, HENRY WAH DAY and DAVID WAH DAY CAIRNS .. DATE 12/06/2001 JUDGMENT REV!Sf':D Applicants Respondents 1 4TI I Floo1, Tl 1e Laoo Co ails 80111plex. Oeo1 ge Ob eel, Dlisba11e Q. 4880. Telepliu11e. (07) !9247 48S8. Facsiii tile. (07) 3247 5582 -- 1 of 15 -- 12062001 D.l Tl-2/CH M/T CNSl/2001 (Jones J) HIS HONOUR: On 5 October 2000, I delivered a partial judgment in the joint application by three property owners for statutory rights of user over property owned by the respondents. That judgment effectively determined the access to respective properties of the applicants Bogart and Von Nida. My reasons for judgment delivered then are applicable to this application by Mr Roger Smith and should be read in conjunction with the reasons I am now about to express. The question of access to the Smith property had to be adjourned to provide an opportunity to Tropical Mariculture Pty Ltd, a lessee of the respondents' land, to be served with the amended application and to respond to it. The land occupied by Tropical Mariculture is used as a prawn hatchery. The access proposal sought by Mr Smith passes close by the hatchery building and its use, the respondents argue, would affect that business. Though served with the amended 10 proceedings, Tropical Mariculture has not appeared and has not 20 otherwise sought to oppose the application. I must therefore determine the matter on the material before me at the original hearing, which includes the respondents' suggestion that the access along the existing roadway would interfere with the conduct of that business, as well as with the respondents' intention to expand its own aquiculture business. A further affidavit of Mr David Wah Day filed on 25 January 2001 has been read additionally to the evidence at the earlier hearing. 2 JUDGMENT 30 -- 2 of 15 -- 12~62001 D.l Tl-2/CH M/T CNSl/2001 (Jones J) As has been mentioned, the Smith land is Lot 56 on Crown Plan MR2045. Mr Smith uses the land for the residence of his family and as a base for his fishing operations. The only formal access to the Smith land is from Trinity Inlet. The informal access to his residence is along the internal roadways created by the respondents. Lot 56 is located in the south-west corner of the respondents' land. Despite this, the access to the Smith land must be gained from the north-eastern 10 boundary of the respondents' land because there is simply no prospect of establishing a more direct access to a public road because of the nature of the terrain. This is best illustrated by reference to the aerial photograph, annexure A to the affidavit of David Greenwood filed on 29 March 1999. Consequently, the statutory requirements of section 180 of the Property Law Act 1974, in conformity with the principles referred to in my earlier reasons, are satisfied in respect of the imposition of a statutory right of user in favour of the 20 Smith land. It was understood by all parties that my order of 5 October 2000, creating easement "X", was made for the benefit of the Smith land as well as for the lands of the other applicants. The problem now is to find the most suitable route for access to the Smith land which must necessarily cross the whole width of the respondents' land. Mr Smith acquired his property in August 1987 from a Mr Morley-Jones. The previous owner relied on an undertaking 3 JUDGMENT 30 -- 3 of 15 -- 12062001 D.l Tl-2/CH M/T CNSl/2001 (Jones J) that he could use the respondents' internal road for access to the property. That informal arrangement continued until the conflict which gave rise to these proceedings. The initial informal access was a continuation of the access to the Bogart land. This was closed at the Bogart land boundary by the erection of a fence in about 1997. That fence enclosed an area in which the prawn hatchery leased to Tropical Mariculture was built. As a consequence of this development 10 and the commencement of these proceedings, Mr Smith was subsequently allowed access along another internal road which passed beside Pond number 5 on the respondents' land and thence between the pond and the enclosure of the hatchery. The difficulties which the Smith family endured in the period between that road closure and this new arrangement are starkly illustrated in the affidavit of Mrs Julia Smith filed on 19 November 1998. Those difficulties highlight the necessity for all-weather safe access for the residents of and visitors to the Smith land. At the time of the hearing, the respondents gave evidence of their intention to expand the prawn hatchery facilities to occupy the total area covered by an aquaculture licence, which was granted initially to the respondents but then in 1997 transferred to Tropical Mariculture. The enclosed area used by Tropical Mariculture for the existing hatchery is only part of the permit area which totals .4 of a hectare, and in respect of which there is a permit to remove marine plant (Exhibit 57). 4 JUDGMENT 30 -- 4 of 15 -- 12062001 D.l Tl-2/CH M/T CNSl/2001 (Jones J) This proposed expansion was part of a much larger project which included the establishment of a crab hatchery. The details of the whole project are best illustrated in the plan which is exhibit "DWD15" to the affidavit of David Wah Day filed on 21 August 2000. Despite meetings with officers of various State government departments and local government and the provision of considerable information, the proposal was rejected by letter dated 16 January 2001 (exhibit "DWDl" to the affidavit of David Wah Day filed 23 January 2001) on the grounds of "conflict with DPI policies", to which later reference will be made. This leaves open for my consideration the proposed access broadly following the alignment of the roadway which currently services the Smith land. In these proceedings, this is called 10 Option F. See the affidavit of Kevin Malone filed 26 20 September 2000. The competing proposal urged upon me by the respondents (Option E) moves from easement "X" along the esplanade to the boundary of the Bogart land on its north- eastern side, and then follows the boundary of the Bogart land to connect with the esplanade on the south-western side, and thence by the esplanade proceeding to the Smith property. The respective routes are depicted in sketch plans, part of exhibit "KMl" to the affidavit of Mr Malone filed on 26 September 2000. 5 JUDGMENT 30 -- 5 of 15 -- 12062001 D.l Tl-2/CH M/T CNSl/2001 (Jones J) The esplanade is a gazetted but unformed road over which exist certain occupation permits. One of these allows Mr Bogart to have boats stand on the esplanade in front of his slipway business, but this does not affect the proposal Option E. More importantly, the esplanade is inundated at high tide and could not provide safe access at those times unless the roadway is built by filling to a level well above highest astronomical tide (HAT) and including drainage culverts to allow the tidal movement of water to the tidal basins within the respondents' land. There are virtually no other options for consideration because the surrounding land, which has not already been developed in some way, is subject to tidal inundation and/or carries marine plant which cannot be disturbed. Before discussing the relative merits of these two options, I observe that the extent of the use of the existing roadway by the Smith family is quite light. The occupants of the residence are Mr and Mrs Smith and their two children, aged respectively 10 years and five years. The most frequent use of the roadway is by Mrs Smith, who requires access for ordinary domestic purposes as well as taking the children to the public road - a distance of two kilometres - to catch the school bus. This level of activity would not have any effect on the businesses conducted either by the respondents or Tropical Mariculture. ' 1 10 ( 20"~ Mr Smith is a fisherman who operates one prawn trawler and two 30 mackerel boats. When not at sea, the vessels are moored at 6 JUDGMENT -- 6 of 15 -- 12062001 D.l Tl-2/CH M/T CNSl/2001 (Jones J) the Trinity Inlet access point to his property. Repairs and refits on the vessels are undertaken at this wharf. This means that he requires access for his own employees - seven in number - and for other tradesmen who are engaged from time to time on such repairs. However, the boats are mainly at sea, so traffic for the purpose· of the business is both light and intermittent. On a rare occasion access is required for a semi-trailer to bring parts to his prawn trawler. An example 10 of this is the cartage of a trawler boom which is a single, solid steel piece in excess of 10 metres in length. Such an event might occur once every few years and no doubt the applicant could make other arrangements for cartage of such a piece of equipment to the vessel at a different mooring point. One regular truck-related service to the property is for the purpose of waste disposal. This involves the ingress and egress of a truck designed for this purpose. It was this user which prompted the preparation of a plan by Austroads which 20 became Exhibit 46. This plan shows that a truck of an overall length of 8.8 metres could negotiate the course set out as Option E. A truck of any greater length would certainly have difficulty, if not impossibility, in making the journey. Mr Smith says he intends to continue to reside at that property, but I must have consideration to the nature and potential of the property rather than the needs of the present owner. Lot 56 has an area of 5,514 square metres and is zoned rural, but the constraints on development in this sensitive 30 environment mean that the actual uses to which the land could 7 JUDGMENT -- 7 of 15 -- 12062001 D.l Tl-2/CH M/T CNSl/2001 (Jones J) be put are quite limited. The respondents commenced their aquaculture business in 1984. This called for considerable financial investment on their part, as well as physical hard work and contending with the frustration of participating in emerging technology. The early years resulted in financial loss and it is only in recent years there is a confidence of the venture returning a 10 profit - see particularly the affidavit of Henry Wah Day. The cultivation of prawns is a sensitive operation. Good hygiene is crucial, as is a clean water supply. The operation has to be protected from dust, fumes and chemical contaminants. Air is drawn from the atmosphere to be pumped through algae and larvae tanks. Care must be taken to ensure a clean air supply, otherwise contaminants can spread quickly through the whole process. The work undertaken by Tropical Mariculture through its principal, Mr Quan Huang, is allied to the respondents' business. They draw their prawn larvae stock from Tropical Mariculture and are investors in the business. Mr Huang is a particularly skilled technician in the production of prawn larvae, a fact attested to by Mr Clive Keenan, principal research scientist at the Bribie Island Aquiculture Research Centre (transcript pp.152-3). Mr Huang is able to provide quantities of fry to this hatchery much higher than the industry standard. The expansion of the prawn hatchery is required because of a change in the industry practice, which \ 8 JUDGMENT 30 -- 8 of 15 -- 12062001 D.l Tl-2/CH M/T CNSl/2001 (Jones J) now relies on large scale seeding of ponds rather than periodic progressive seeding which was once the norm. The concerns expressed by the respondent about the user of the route Option Fare - * * * * * Creation of dust and noise and the effects on feeding ponds and hatchery The accumulation of litter which could affect the operation of the ponds Security of the ponds Security of the hatchery Separation of the ponds from the hatchery if fences are to be erected Some of the above, for example litter and security, related to generally expressed concerns about access through the respondents' land. Most of these concerns have been lessened 10 by the creation of easements "X" and "Y". I did not have the 20 impression that the respondents had any security concerns about the Smith family, although there may be some apprehension about business-related entrants. Option E gives rise to concerns from Mr Bogart as well as Mr Smith. The route for Option E, even though it is on the respondents' land, except for its passage along the esplanade, would give rise to problems for the Bogart business, particularly its painting operation, and the potential use of land for boat storage. The route would also be difficult for 30 the Smith family to traverse, but more importantly, the route 9 JUDGMENT -- 9 of 15 -- 12062001 D.l Tl-2/CH M/T CNSl/2001 (Jones J) unnecessarily impacts on marine lands to a degree which would make highly doubtful the. granting of approvals by various authority. Firstly, this route would require the destruction of marine plant and reclamation of lands below HAT. The sensitivity to this work is gauged from the DPI responses to various applications put forward by the respondents. I should not lightly make orders which would contravene the principles so 10 cogently expressed and enforced. Secondly, the proposed route has not been subject to the professional scrutiny of a civil engineer to determine precisely what works would be required to create such a road. The land is in a sensitive area requiring large amounts of fill and drainage works. Mr Grigg, whose estimates of the quantity of fill required the respondents relied upon, does not have that expertise nor has he. ever visited the site. The amount of fill and level of work necessary to create Option E would be much more, in my view, than has been contemplated by Mr Grigg. 10 JUDGMENT -- 10 of 15 -- 12062001 T3-4/LVT M/T CNSl/2001 (Jones J) Even after completion of the works, the access would have many unsatisfactory features and, in my view, is an unnecessary conflict with current departmental policies. The route of Option F does not offend any departmental policies. It is above HAT and has been used in its present location since 1998. The use by the Smith family has not given rise to any specific complaint from the respondents. Rather, the Smiths have been drawn into this much larger conflict, brought about by the history of the land development and having to deal with the access of the other applicants. The concerns of security and dust creation, I believe, can be ameliorated by simple and relatively inexpensive means. The right of user, I propose, will be of an easement over an access road of approximately 5.7 metres in width, commencing 10 at easement "X" and, thereafter, subject to formal survey 20 generally following the alignment of Option F to boundary of Lot 56. I shall call this statutory user for present purposes easement "Z". The easement should avoid encroachment on the permit area for the prawn hatchery, unless this conflicts with the desired width of buffer to Pond 5. The area of the permit extends some eight to nine metres beyond the present road alignment, but I would expect that proper survey will allow avoidance of that area. If not, the parties should bring the matter back 30 to me. 11 JUDGMENT -- 11 of 15 -- 12062001 T3-4/LVT M/T CNSl/2001 (Jones J) Easement "Z", at the junction with easement "X", shall include a turn-out of an appropriate width to allow easy turning of a standard truck. This turn-out should taper to a width of approximately three metres at a depth of approximately five metres, which will be fenced to link with the fencing of easement "X". At the end of the taper, the applicant shall install a security gate of a type agreed with the respondents or, failing such agreement, as will be determined by me. That 10 security gate should have the facility for communication with the Smith household and be able to be operated from the house. Given the light traffic volume generated by the Smith family, I do not propose to order that there be any further fencing of easement "Z". In my view, with the proper operation of the security gate there is no further advantage to the respondents in having this access fenced. It seems to me that to do so would cause a greater inconvenience to the respondents' aquaculture operation without adding any benefit. I am inclined to add a condition about dust control along that part of easement "Z" where dust generation might impact on the hatchery operation. This is a matter on which I asked the parties to undertake further discussion as to whether this should involve treatment of the road surface or perhaps provision of filters to the air intakes. If the road surface is to be treated, I would consider this should be by way of watering or by laying cut-back bitumen on the surface, rather than a full road seal. This treatment would be required only 30 12 JUDGMENT -- 12 of 15 -- 12062001 T3-4/LVT M/T CNSl/2001 (Jones J) upon the length of road which would give rise to dust nuisance to the prawn hatchery. Compensation: In assessing compensation I have regard to the fact that the road will continue to be used by the respondents and by Tropical Mariculture, and by their suppliers and contractors. I shall hear from the parties how this will be conditioned on the granting of the easement, but it seems to 10 me that the expression of a licence to the respondents and Tropical Mariculture over the easement "Z" should be sufficient. The compensation will therefore not be the same amount as if the respondents and Tropical Mariculture were excluded from the use of this part of their land. The proposed easement "Z", I anticipate, will not impact on any extension of the prawn hatchery, nor was the prospect of an easement a factor in the DPI refusal of the proposal to expand the crab hatchery. That refusal (Exhibit "DWDl" to the affidavit of David Wah Day filed 23 January 2001) includes the following passage which is relevant to the question of compensation: "This project, in its current format, is in conflict with DPI policies regarding the damage or removal of marine plants and the reclamation of lands below the highest astronomical tide (HAT) for construction of aquaculture production facilities. It is likely the Department will, 20 in this instance, refuse to issue a permit for the 30 removal of marine plants for reclamation of tidal lands to accommodate the hatchery development. This is because the land proposed for development is below HAT and outside the area of marine plant permit (M.98 NOCA 1574) for the maintenance of existing aquaculture facilities on site issued under Section 51 of the Fisheries Act 1994. 13 JUDGMENT -- 13 of 15 -- 12062001 T3-4/LVT M/T CNSl/2001 (Jones J) It is DPI policy not to issue a marine plant permit where other viable development alternatives exist. The Department considers that there appear to be other liable alternative locations on Lot 36 on which to locate the proposed facilities that would minimise disturbance to marine plants. This policy also applies to the disturbance of marine plants for the proposed duplication ' 1 of the existing access road and/or the proposed bung 10 barrier as other alternatives appear to exist (e.g. maintain existing access road and/or use of alternative buffer techniques)." The land over which the applicant Smith will have a shared right of user is more valuable than much of the land required for easement "X" and "Y". That is because the land is above HAT and is already improved by the development of a gravel road. Neither valuer has valued the land by reference to its 20 different characteristics from other lands, nor have any sales been analysed in this way. The expectation of Mr Malone is that the area of land to be taken for the easement is approximately 1,260 square metres. Consequently, the land component in the compensation calculation will not be large. There has to be some allowance for the severing effect the road will have in being used by others, and its impact on the respondents' business. This is not a case where the working of the respondents' business is, however, made greatly more 30 difficult. The road has, and will in the future, continue to serve the business. The adverse effect is simply of other persons passing through the business area in an irregular and intermittent way. I do not believe the approach of applying a calculation to accepted values of the severed land is appropriate here. I will simply have regard to the effect the projected use along 14 JUDGMENT -- 14 of 15 -- 12062001 T3-4/LVT M/T CNSl/2001 (Jones J) the access would have on the business of the hatchery and its relationship with the ponds. For both the loss of land of easement "Z" and the severance effect of its use upon the business of the respondents, I allow the respondents compensation of $20,000. HIS HONOUR: What I propose doing now is adjourning the matter for formal orders so that you can have those discussions. If you can agree upon the terms of the orders, you may produce to me a document initialled by yourselves. If you cannot agree, and you have the information I need to guide my making of orders, I will do so. .15 JUDGMENT 10 -- 15 of 15 --