Bogart & Ors v Wah Day & Ors [2000] QSC 371

L'.\ ooc4 5c oo / 37 , State Reporting Bureau 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 No 7 of 1999 REVISED COPIES ISSUED State Reporting Bureau Date b I ID1 c_,;OOO MACE BOGART, JUDITH MERLE BOGART, Plaintiffs EDWARD VON NIDA & ROGER SMITH and LAURENCE GEORGE WAH DAY, ALFRED WILLIAM WAH DAY, HENRY WAH DAY & DAVID WAH DAY CAIRNS .. DATE 05/10/2000 .. JUDGMENT Defendants 1 4th Floor, The Law Courts, George Street, Brisbane, Q. 4000 Telephone: (07) 227 4360. Facsimile: (07) 227 5532 -- 1 of 18 -- 05102000 D9 Turn 1 LJR (Jones J) HIS HONOUR: The applicants are each freehold owners of separate parcels of land which are respectively described as follows: Lot 6370 Crown Plan SP 119100 and LAAP 2132 County of Nares, Parish of Trinity (hereinafter referred to as "the Von Nida land"), Lot 102 on Crown Plan NR 6840 and Ll or PER 208454 County of Nares, Parish of Trinity ("the Bogart land"), Lot 56 on Crown Plan NR 2045 County of Nares, Parish of Trinity ("the Smith land"). Each lot is contiguous with land owned by the respondents, which is described as Lot 36 on registered plan 749582 County of Nares, Parish of Trinity ("the Wah Day land"). Each parcel of land has a frontage to Trinity Inlet and each owner carries on business to which water access is critical. In the case of the Von Nida land, the business is a seaplane 10 20 base; in the case of the Bogart land, a commercial slipway; 30 in the case of the Smith land, a prawn trawler base; and in the case of the Wah Day land, an aquaculture business. Each allotment is in difficult terrain with land comprising what was originally predominantly "low lying mangrove swamp which is subject to water inundation" (report of Mr Teves, ~ (Exhibit 16). The clay pans of the tidal bases ~nd mangroves are interspersed with natural sand ridges. Prior to 1986, all of the above lands of the applicants were held in various types of Crown leasehold for which the only access was by water, Trinity Inlet, and this was expressly stated as being the provision for access. JUDGMENT 2 50 60 -- 2 of 18 -- 05102000 D9 Turn 1 LJR (Jones J) The first discussions about dedicating roads to service the applicants' respective properties occurred in September 1983 (see the affidavit of Laurence Wah Day (Exhibit 21, paragraph 24)). Deliberations on this task moved slowly. By 1986, the Wah Day family had lodged a survey plan for a road layout which was associated with a sub-divisional approval (see document LWD18 to Exhibit 21). The local authority (Mulgrave Shire Council) imposed conditions to which the parties could not agree and the project was abandoned, but the informal access arrangements continued. 10 Mr Bogart, in evidence, denied that he was involved in those 20 negotiations, but nothing turns on this issue. The present road access to the respective allotments is by an internal road system which follows sand ridges and bunker walls and in other places where the land has been purposely 30 filled above tidal inundation level. These roads essentially follow the alignments which were adopted in that early proposal to the Mulgrave Shire Council. Much of the land surrounding the roadways is in a tidal basin and, in parts, is covered by marine plant, mainly mangrove growth and regrowth. It is therefore an ecologically sensitive area. Current government policy prohibiting (or at least strictly controlling) the destruction of marine plant constrains the development of business infrastructure and the location of roadways. These topics are canvassed in the evidence of Dr Robert Coles and Ms Anne Clarke, both of whom are scientists with the Department of Primary Industries. JUDGMENT 3 40 50 60 -- 3 of 18 -- 05102000 D9 Turn 1 LJR (Jones J) The documents tendered in this case evidence a history of dealings by the parties with various government agencies and local authorities which confirm these matters. Between 1985 and 1987, moves were made to freehold the various parcels of land. In the freeholding, the Lands Department did not reserve any land for access roads. Since that time, the respective landholders have developed the businesses referred to above. These developments have given rise to more intensive use of the informal access ways to 10 the respective lands of the applicants. This, in turn, has 20 given rise to conflict between the parties which, regrettably, continues to the present day. It is not necessary to deal with the various approaches to local authorities, government departments and to the State 30 Ombudsman which have been made. Many issues were agitated in these proceedings which do not need to be discussed or adjudicated upon. They simply identify the depth of feeling and the causes of conflicts which have arisen between the parties, which even now remain largely unresolved. It is sufficient to say that after injunctions were granted by this Court on 25 November 1998, as part of these proceedings, the applicants have pursued their quest for formal access arrangements to be made. JUDGMENT 4 40 50 60 -- 4 of 18 -- 05102000 D9 Turn 1 LJR (Jones J) The issues to be dealt with now relate to the nature of the right of user, the type of access and the compensation and conditions which attach to that right of user. The application is brought pursuant to section 180 of the Property Law Act 1974 which, inter alia, provides: "(l) Where it is reasonably necessary in the interests 10 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 20 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 as or otherwise, and may be declared to be exercisable - (a) by such persons, their servants and agents, in such number, and in such and subject to such conditions; and (b) on 1 or more occasions; or (c) until a date certain; or manner (d) in perpetuity or for some fixed period; 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 - JUDGMENT 5 30 40 50 60 -- 5 of 18 -- 05102000 D9 Turn 1 LJR (Jones J) (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." The manner in which ss. 1 and 3 are to be considered was identified in Nelson v. Calahorra Properties Pty Ltd and Ors, an unreported decision of Mr Justice Thomas, number 88 of 1984, decided on 5 December 1984 where his Honour said (at p. 10): "The test which enlivens the Court's jurisdiction is a composite one - reasonable necessity in the interests of effective use in a reasonable manner of the applicant's land. All such cases should be approached with caution having regard to the fact that a compulsory change of registered property rights is sought and that this is not likely to be undertaken. There are three requirements spelt out in ss. 3 but these do not replace what I have called the composite test. They are simply express pre-conditions that must be satisfied before an order can be made." In an appeal against that decision, the Full Court acknowledged the correctness of the test proposed by his Honour (see 1985 Queensland Conveyancing Reports, Case 54-283) This test has been applied in a number of cases to which I was referred during the submissions, particularly the case of Lynch v. White [1986] Queensland Conveyancing Reports ~4-224 and the decision of Justice Wilson in Re: Hodgkinsen which, too, is unreported, being OS 2895 of 1999, 20 September 1999. JUDGMENT 6 10 20 30 40 50 60 -- 6 of 18 -- 05102000 D9 Turn 1 LJR (Jones J) The relevant approach having been identified, it is immediately apparent in the circumstances of this case that the composite test is met in respect of the two applications which I am now able to deal with, those made by Mr Von Nida and Mr and Mrs Bogart. The application by Mr Smith is to be adjourned because there has not yet been given to a 10 leaseholder of affected land, Tropical Mariculture ·pty Ltd, the opportunity to be heard. That the composite test is met in respect of those two applications is virtually conceded by the respondent. The 20 land of each of those applicants is land-locked. Neither applicant could continue to carry on the respective businesses in a reasonable manner without land access. The need for access is amply demonstrated by the informal use of the roadways on the Wah Day land, which have been in use now 30 for in excess of 30 years. What is sought by this application is the formal right of user in lieu of the informal access which has given rise to so much conflict. I am satisfied, therefore, that the 40 applicants, Von Nida and Bogart, have demonstrated that "it is reasonably necessary in the effective use in a reasonable manner" of their respective lands that an easement be granted over land owned by the respondents. I am satisfied also that each of the pre-conditions set out in ss. 3 have, in the circumstances of this case, been met. The fact that the easement will be used by customers and suppliers of the applicants' respective businesses as well as for the normal JUDGMENT 7 50 60 -- 7 of 18 -- 05102000 D9 Turn 1 LJR (Jones J) domestic use of the families suggests that easements should be formally registered. The first easement location is virtually agreed between the parties to be broadly in accordance with the alignment described as Option A in the report of Kevin Malone, registered valuer, in Exhibit 22. This involves the use of an existing gravel road-formation along the western boundary of the Wah Day land from Lee Yan Road to a point where that road deviates to the southeast. The easement would then 10 continue in a southerly direction adjacent to the power line 20 easement given in favour of FNQEB in March 1981. The easement should continue to the Esplanade on Trinity Inlet. Subject to the formal surveying of this easement, the width of the easement will generally be 5. 72 metre-s. Obviously 30 there will be some variations in width at various places to take account of topographical difficulties. This easement, for the purpose of easier identification in these proceedings, shall hereinafter be called easement X and this will also avoid confusion with other easements that are referred to in various plan exhibits with alphabetical initials of A, Band C. Easement X with this alignment will allow Mr Von Nida access to his property via the adjoining Unallocated State Land over part of which he holds a Permit to Occupy. The applicants, to make effective use of the easement, will have to construct a roadway from the point where the present road JUDGMENT 8 40 50 60 -- 8 of 18 -- 05102000 D9 Turn 1 LJR (Jones J) deviates from this alignment. The line of access to the Bogart land from this easement presents the first real conflict that has to be resolved. Mr and Mrs Bogart propose that the easement should continue following the line of the existing roadway. The respondents 10 propose two alternatives to this: firstly, the construction of a new roadway along the Esplanade or, secondly, a roadway on the Wah Day land immediately adjacent to the Esplanade. A roadway on the Esplanade, it is submitted, would have the advantages of being in an area dedicated for road purposes 20 and would therefore not require payment of compensation. Both routes would require the taking of some Wah Day land contiguous with the western boundary of the Bogart land to allow access to the rear of the Bogart premises. The Bogart business uses the Esplanade pursuant to a permit to occupy in a way that prevents the access to their land from the Esplanade itself. The building which houses the slipway winch encroaches slightly on both the Esplanade and the Wah Day land. The alignment which would allow the minimum use of the Wah Day land is shown in Exhibit 46 being a plan prepared by Austroads. Both of the alternatives proposed by the respondents would however require the construction of new embankments to provide a roadway above tidal height. This would require the destruction of mangroves, the installation of culverts and generally interference with an ecologically sensitive area. Apart from the significant expense of such work in terms of time, JUDGMENT 9 30 40 50 60 -- 9 of 18 -- 05102000 D9 Turn 1 LJR (Jones J) labour and materials, there would be an involvement with government agencies whose approvals would be necessary before the work could be undertaken. The basis of the respondents urging either of these alternatives is simply to provide as much separation as possible between the vehicle movements and the Wah Day aquaculture ponds. The nearest of these ponds is in excess of 100 metres from the Esplanade. The relocation of the roadway would achieve an increase in the separation of approximately 15 to 20 metres but it would not alter the fact that, in any event, vehicles using any of the roadway will terminate the journey where they presently do with the existing road formation. It is at this point where there is the most intensive vehicle movement. On the present scale of the respondent's aquaculture operation, the influence of traffic to the Bogart land does not warrant, in my view, the creation of a new road embankment with all the attendant expenses and difficulty. The Wah Day family have given evidence of plans to expand the aquaculture activities by adding a mud crab hatchery. The infrastructure requirements for such expansion is illustrated in document DWD15 to the affidavit of Mr David Wah Day filed on 15 August 2000. The location of the infrastructure elements brings into focus the need to, balance the demands of that business, the effects on it of the Bogart business and the location of reasonable access for the Smith land. The expansion proposal is yet to JUDGMENT 10 10 20 30 40 50 60 -- 10 of 18 -- 05102000 D9 Turn 1 LJR (Jones J) progress to the seeking of the approval of the very demanding government agencies and the local authority. A previous attempt to do so has been frustrated by the existence of these Court proceedings and the by-play associated with these proceedings. I should not proceed on the basis that what may or may not be a future development will be granted as a matter of certainty. Any such change in the future can be accommodated by the provisions of section 180(4) (d) which provides that the orders which I am about to make: "(D) may, on the application of the owner of the servient tenement or predominant 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 circumstances has taken place since the order imposing the statutory right of user was made." JUDGMENT 11 10 20 30 40 50 60 -- 11 of 18 -- 05102000 men (Jones J) I propose, therefore, to order that an easement with an approximate width of 5.7 metres extend from Easement X to the Bogart land in accordance with a survey plan to be prepared broadly in accordance with the alignment of the existing road formation and to take advantage of that formation. That easement, for the purpose of these reasons, 10 will be identified as Easement Y. The respondents will have the right to traverse both Easement X and Easement Y for the purpose of maintaining their present and future infrastructure needs which require access to Trinity Inlet. As a condition of granting this easement, I propose also to order that the respective easements be fenced. The respondents requested that the fencing be to a standard of a security fence 2.4 metres high, detailing the basis for 20 their concerns as the security of their aquaculture business 30 which is sensitive to external contamination. I agree that there is a need to secure the respondents' land, particularly from vehicular intrusion. The applicants oppose the making of this condition and led evidence in the cross-examination of Mr David Wah Day, which indicated in his evidence before a recent hearing of the Fisheries Tribunal, he was not in favour of fencing. Not withstanding this, it is important in my view that the security of the respondents' business be protected by a fence, which would have the effect of preventing vehicular access onto their internal road system, which gives access JUDGMENT 12 40 50 60 -- 12 of 18 -- 05102000 men (Jones J) to their ponds and to the prawn hatcheiy. The standard of fencing I propose would be of a kind that is consistent with the other properties in the region which, I apprehend, is in the nature of a three or four strand barbed wire fencing. The expense of providing that fencing, of course, must be borne by the applicants, but that expense, like questions of 10 compensation, I cannot order at this stage since the applicants have sought the opportunity to consider these matters between themselves in the hope that there will be agreement between them as to the way in which these expenses will be apportioned. 20 The valuation of the Wah Day land affected by the imposition of these statutory users was attempted by two registered valuers, Mr Teves on behalf of the applicants, and Mr Malone on behalf of the respondents. Each of them adopted the 30 approach of identifying sales and analysing those sales to determine the land value. Each of them, then, sought to apply that value to the land to be taken or affected by these orders. There was some disputation between them about the choice of sales, and in one instance about the analysis of a particular sale. The real difficulty, however, is the application of any sale-determined land value to the subject land. Mr Malone, for example, typified the highest and best use of the Wah Day land as an aquaculture farm and, by reference to sales, assessed a global valuation of $50,000 per hectare. The application of such a value to the land in question, JUDGMENT 13 40 50 60 -- 13 of 18 -- 05102000 men (Jones J) described as it is in the valuation reports is, of course, a nonsense. Neither valuer adopted a "before or after'' approach, which seems to me would have revealed the true impact of the proposed orders. I have been greatly assisted in my appreciation of the impact by having had two inspections of the property: one, during the northern wet 10 season at the commencement of the Year 2000, and the second last week, during a prolonged dry period. The land affected by Easement Xis virtually along the western boundary of the Wah Day land and is adjacent to the powerline easement. It is a strip of land 5.72 metres wide. On the immediate 20 eastern side, apart from a low sand ridge and man-made bund walls and land formations, the land is part of a tidal basin. The subject land, apart from the bund wall, has not been used productively and it is unlikely it ever would have been since, for the most part, it is subject to tidal inundation. The first section of Easement Xis a bund wall of what, in evidence, is described as Pond 6. That bund wall was initially constructed as a sea wall to provide reclamation of land which was intended to be used for agricultural purposes (see affidavit of Laurence Wah Day, Exhibit 21, paragraph 19). It is of large dimensions and of an irregular shape. In short, it is quite different to Ponds 1-5, which are specially developed for the purpose of aquacultural business. The pond, so far as I understood the evidence, has not been used in connection with aquaculture and in its present configuration could not be used in any JUDGMENT 14 30 40 50 60 -- 14 of 18 -- 05102000 men (Jones J) efficient way. If that area of the Wah Day land is to be used for aquacultural or even agricultural purposes, there may well be a necessity to construct a new bund wall. That task, however, would not in my view attract the cost of $55,050, which was suggested by Mr Malone. The land has been described in the reports and I have set out the details of my observation of the land itself. Some parts of that 5.72 metre strip would be usable, since some part of it has been subject to improvement, but it is not in my view capable of being used productively either for the purposes of agriculture or aquaculture. In short, I do not see any profound effect on the respondents' businesses by the imposition of a statutory user over this strip of land. 10 20 Dealing with Easement Y, this will involve the taking of the 30 land from the Wah Day land. It will involve also a severance of the balance of the Wah Day land between that road formation and The Esplanade. That land is not used productively, save for it providing an access way for pipelines for the collection of water or the discharge of water to Trinity Inlet. Nonetheless, it is land to which a value must be ascribed and I will treat it as having the same value as the land which is to be taken as the strip of Easement X. I should mention, also, that between Easement X and the boundary there are some small areas of the Wah Day land which has been severed, but the comments I made to the JUDGMENT 15 40 50 60 -- 15 of 18 -- 05102000 men (Jones J) subject land by the user applies to that land generally also. The approach to compensation that I adopt will be to provide a single per hectare value to all lands, which are the subject of the imposition of the user and are all affected 10 by the severance as a consequence of that user. In evidence, both Mr Teves and Mr Malone spoke of this land, in certain circumstances and adopting particular scenarios such as the difficulty of gaining permission from relevant 20 authorities, see Teves (T170-1; 173; 176, Malone (T320-2), as having a nominal value. Because I have not accepted the valuation approach by either valuer, being particularly disadvantaged by not having a "before and after" method followed, I have to do the best I can with all of the 30 evidence and impose a value of the land which I consider fair and reasonable in all the circumstances. The value which I would apply to the area of land affected both by the imposition of the user and by severance is $1,000 per hectare. That valuation applies only to the lands affected by Easements X and Y and will be a guide, but not necessarily determinant, of any future valuation with respect to the application made by Mr Smith. JUDGMENT 16 40 50 60 -- 16 of 18 -- 05102000 men (Jones J) That, it seems to me, is as far as I can take the current 1 proceedings. It is necessary that a survey be undertaken. That should be done at the expense of the applicants. That survey should identify not only the alignment of the easement but also the area of land taken. And it should also identify the area of the land which is affected by the 10 severance. Once that is determined, then the compensation can be ordered in respect of the land. In relation to the loss of the bund wall along which the road formation exists from Lee Yan Road to the point of deviation referred to above, I allow the sum of $15,000 as additional compensation for the loss of use of that bund wall. 20 I believe that is all the matters that affect compensation. 30 But, in any event, if that is not the case, the parties can raise that with me at a later time when it will be necessary for me to determine orders relating to compensation. In that respect I give each of the parties liberty to apply upon giving notice of 7 days to the other party. The question of specific orders against specific applicants will be adjourned to Friday, 13 October when the matter of the application of Smith will be further mentioned. The issue of costs will be determined after the determination of the application of Mr Smith. Of course, I JUDGMENT 17 40 50 60 -- 17 of 18 -- 05102000 men (Jones J) am conscious of the statutory provisions relating to the cost to the respondents in cases such as this. THE COURT ADJOURNED AT 10.25 A.M. UNTIL 9.30 A.M. ON FRIDAY, 13 OCTOBER 2000 JUDGMENT 18 10 20 30 40 50 60 -- 18 of 18 --