Gordon and Anor v Lever

On 22 September 2017 I delivered judgment in the matter Stanley Robert Gordon v Allen John Lever [2017] NSWSC 1282 (principal judgment) after hearing the matter in July and August 2017.

The proceedings concerned an application for the imposition of an easement under s 88K of the Conveyancing Act 1919 (NSW) made by Mr Stanley Robert Gordon and Ms Christine Margaret Gordon (Plaintiffs) over land owned by Mr Allen John Lever and now his wife Ms Debra Ann Lever (Defendants) (principal judgment [1]). The parties are neighbouring farmers in the Northern Rivers region of NSW in the shire of Kyogle (principal judgment [2]).

In my judgment I was of the view that of the various options provided by the parties, the Option 1 easement was the most convenient, serviceable and preferable option. However, I proposed to limit the Option 1 easement to only those times when the Option 4 easement was deemed “impassable” (principal judgment [363]-[378]).

I invited the parties to draft an easement to conform to my proposal, anticipating that a surveyor may have been needed to place position pegs in the riverbed, determined with expert evidence if necessary, as to when water levels were such that the Option 4 easement was “impassable” or unsafe to cross (principal judgment [379]).

However, I did not formulate any precise orders in the primary judgment, and the parties could not agree as to what would constitute “impassable”. Even so, no application was made to relist the matter before me to resolve the remaining issues, until after a short hearing on 24 November when I made the following declaration and orders:

After making these orders the matter went on appeal. The Court of Appeal handed down judgment on 16 March 2018: Gordon v Lever [2018] NSWCA 43 (appeal judgment).

This current judgment concerns the remitted proceedings following the outcome of the appeal.

On 15 November 2018 I granted leave for the Plaintiffs to file an Amended Summons, which reflected that Mr Lever has since transferred the proposed subservient land to his wife Ms Lever and that there are now Defendants (plural) in the proceedings. I will refer to “Defendant(s)” periodically in this judgment to accommodate this change.

The Plaintiffs are the registered proprietors of five lots, namely Lot 40 in DP 755733, Lot 7 in DP 131323, Lots 101 and 102 in DP 1045950 and Lot 10 in DP 113613 (appeal judgment [27]).

The Plaintiffs have lived on Lot 101 since they purchased it in 1975. In 2000, their daughter Ms Jodie Louise Dunn commenced living in the dwelling located on Lot 7. Her partner (now husband) joined her in 2003. They and their children, born in 2006 and 2010, have remained in occupation of Lot 7 since (appeal judgment [30]).

The key problem is that Lots 7 and 40 are effectively landlocked in the sense that they have no direct access to a public road (appeal judgment [29]). The Defendants are the registered proprietors of four lots, namely Lot 100 in DP 1045950, Lots 36 and 87 in DP 755733 and Lot 21 in DP 883903, which have been in their family since the late 1800s (appeal judgment [32]).

Therefore, in order for the Plaintiffs to access Lots 7 and 40 there are, or have been in the past, four main routes from which access to Summerland Way can be achieved (appeal judgment [35]-[36]).

Both the Court of Appeal and I have previously provided descriptions of these four main options to access Lots 7 and 40. Of these four options, now only Option 1 and Option 4 remain as potential easements that have been seriously mooted by the parties.

Option 1 is marked by a red line on the figure provided. Although there is a dispute as to the extent to which the Plaintiffs used Option 1 prior to December 2015, there is no doubt that they did and that the Defendant(s) acquiesced to its use (appeal judgment [38]).

However in December 2015 a bridge on Lot 36 over a watercourse flowing into the Richmond River was destroyed by a rain event and since then the Option 1 route has been effectively unusable especially during rain (appeal judgment [38]).

The Option 1 route, from its intersection with Summerland Way, travels 109 metres in a southerly direction along Lot 100. It then reaches the road reserve and proceeds along the alignment of the road reserve. It then re-enters the Defendants’ land through Lot 36 and remains within Lot 36 for 242 metres until it reaches the boundary of Lot 40. The destroyed bridge over the watercourse was located approximately 62 metres from the boundary between Lots 36 and 40 (appeal judgment [40]).

Option 4 is marked by the pink and yellow lines on the figure provided, with the pink line as what the Plaintiffs identify as the “dry” route and the yellow line as the “wet” route (appeal judgment [47]). The Option 4 route commences at Summerland Way some distance to the east of the commencement of Option 1. It proceeds through Lot 101, passing close to the Plaintiffs’ house, and then along a well formed gravel road to the riverbank. Thereafter the pathway follows a road along the riverbank for about 120 metres until it reaches a shallow rock causeway crossing the Richmond River. From there the path enters Lot 40 on the Plaintiffs’ land (appeal judgment [47]).

It is uncontroversial in my view that the relevant properties are rural land, where the owners are undoubtedly well-acquainted with all aspects of the land and in particular the movements of the Richmond River, to the extent that the river as a natural phenomenon can be predicted. There is no evidence that people arrive or access the Plaintiffs’ land randomly other than by those persons who by implication have been invited. That is, none of the Plaintiffs’ properties are public or park property.

In the primary judgment I found that in wet weather, subject to the proposed bridge being built and the road properly maintained, Option 1 would be the most serviceable option (primary judgment [349]). I accepted it was seriously inconvenient, and at times impossible, for the Plaintiffs and in particular their daughter Ms Dunn and her family, to use Option 4 (primary judgment [350]). However, I was satisfied Option 4, in addition to being passable for most of the year, is a practical alternative to Option 1 for effective use of Lots 7 and 40 (primary judgment [352]). I further found Ms Dunn can, and has since December 2015, used the Option 4 access when the weather is dry (primary judgment [354]). In my view neither Ms Dunn nor Mr Gordon’s current use of the land would in any material way be affected by having to use Option 4 when it is passable (primary judgment [355]).

In the primary judgment, I stated in my view, for the times Option 4 was impassable, a limited easement along Option 1 would be reasonably necessary for the effective residential and/or agricultural use of Lots 7 and 40. I stated I was satisfied an Option 1 easement limited to circumstances where Option 4 is unsafe to pass could be drafted and imposed with sufficient precision, and invited the placing of pegs in the riverbed at Option 4 to determine when the river was “unsafe” or “impassable” (principal judgment [363]-[364]).

As to compensation, I found that the cost of a bridge adequate to carry family vehicles and cattle trucks on Lot 36 would be approximately $48,000 to facilitate Option 1 and replace the bridge that had been destroyed in December 2015 (principal judgment [371]). I also found that:

I concluded (principal judgment [378]-[380]):

Importantly, the Court of Appeal concluded that I had not had enough information to determine adequately each of the three pre-conditions set out in s 88K(2) and whether they had been satisfied, particularly as I had not been provided the precise terms of the proposed easement (appeal judgment [101]). The Court of Appeal therefore held that there was not enough information before the Court for me to determine the adequate compensation for the imposition of an easement (appeal judgment [101]).

The Court of Appeal also held that there was an absence of a sound evidentiary foundation for my conclusion that there would be no particular difficulty in drafting terms that would limit use of the proposed carriageway to circumstances where Option 4 was “unsafe to pass” or “impassable” (appeal judgment [115]-[117]).

In addition, the Court of Appeal held that without information as to the terms of the proposed easement it was not possible for me to determine whether the proposed easement was “reasonably necessary” for the purposes of s 88K(1) and the effect on the enjoyment of the servient tenement and the property rights of the servient tenement (appeal judgment [114]-[121]).

For those reasons the Court of Appeal did not think that I was in a position to make a declaration that finally resolved the issue of whether the proposed easement was reasonably necessary for the effective use or development of Lots 40 and 7.

Sackville AJA, with McColl and White JJA agreeing, stated (at [122]): “[i]t was necessary for further findings of fact to be made and for the terms of the proposed easement to be formulated with greater precision before a final determination could be made as to whether s 88K(1) of the Conveyancing Act was satisfied”.

The costs order was also set aside, with the Court of Appeal noting attention should be paid to s 88K(5) (appeal judgment [126]-[127]).

The matter was remitted, with the Court of Appeal noting it would be for me to determine whether the parties should be permitted to adduce further evidence in the proceedings, and if so, on what issues. It was also for me to determine if any further issues are to be raised (appeal judgment [131]).

The Plaintiffs seek the following updated draft terms of easement (previously Exhibit P4, now as provided on 7 December 2018):

After a series of amendments, the Defendants seek the following draft terms of easement:

The Annexure A referred to in both draft terms provides:

Annexure C referred to in the Defendants’ draft terms is below:

The notion of reasonable necessity in the context of easements is a concept of some longevity as is clear from the following history. Indeed, the statutory power of a Court to create easements which are “reasonably necessary” can be traced back to the original easements of necessity at common law, including as far back as in Nicholas v Chamberlain (1606) Cro Jac 121 (at 121-2) where the Court held with respect to water rights “if one erect a house and build a conduit thereto in another part of his land, and convey water by pipes to the house, and afterward sell the house with the appurtenances, excepting the land, or sell the land to another, reserving to himself the house, the conduit and pipes pass with the house; because it is necessary, et quasi appendant thereto; and he shall have liberty by law to dig in the land for amending the pipes, or making them new, as the case may require”. A selection of such historical cases follow.

In Clark v Cogge (1606) Cro Jac 170 the question was if one sells land, and afterwards the purchaser claims a way over that land (at 170) “he might well justify the using thereof, because it is a thing of necessity”. In Packer v Welsted (1657) 2 Sid 39 it was found that there was justified a form of (at 39) (translation) “necessary and private way” as “there was no other way to come at the land not aliened but over the other land”.

In Dutton v Tayler (1701) 2 Lut 1487 reference was made to a way of necessity by recourse to the public policy consideration that land should not be left unoccupied, which although distinguished by Hope J in North Sydney Printing Pty Ltd v Sabemo Investment Corporation Pty Ltd (1971) 2 NSWLR 150, echoes the public policy requirements of s 88K(2)(a).

In Domina Regina v Inhabitants of Cluworth (1704) 6 Mod 163 Holt CJ said (at 163) “every one that uses that river has, if occasion be, a right to a way by the brink of the water over that land, or farther in if necessary”, applying the test of necessity to the ability of those using a river to access some portion of the riverbank if need be.

In Reignolds v Edwards (1741) Willes 282 the Kings Bench rejected a claim for a right of way because it held the way could not be claimed as a way of necessity as it did not appear (at 287) “that there is no other way, but only that there was not any other way or passage then left open”: A Treatise on the Law of Easements by C J Gale (with G Cave) (7th ed, Sweet & Maxwell, 1899) at 159.

In Fitch v Rawling (1795) 126 ER 614 (at 615) submissions were made noting the distinction to be made between easements for necessity and easements for the public good. It was argued “the matters of easement which they may claim, are to be classed under two heads, such as are necessary for the enjoyment of their own estates, and such as are for the public good … it is not sufficient that they were merely for pleasure”.

In Morris v Edgington (1810) 3 Taunt 24, Mansfield CJ said (at 31):

In Buckby v Coles (1814) 5 Taunt 311 Dallas J said (at 318) “[t]he question on the issue is, whether there were any other way: the evidence on the defendant’s side is, that there was no other way; the Plaintiff meets that by evidence that there is another way, though not quite so convenient”.

In Holmes v Goring (1824) 2 Bing 76, Best CJ said (at 83-4):

More recently in Ewart v Cochranes (1861) 23 D (HL) 3 Lord Campbell, with whom Lord Chelmsford and Lord Kingsdown agreed, said (at 4) (emphasis added):

The concept of “reasonably necessary” with respect to easements included the famous remarks of Thesiger LJ in Wheeldon v Burrows (1879) 12 Ch D 31 (“Wheeldon v Burrows”), who said (at 49) (emphasis added):

Likewise in Jones v Pritchard [1908] 1 Ch 630 Parke J said (at 638) (citations omitted):

The principles enunciated in Wheeldon v Burrows remain relevant today, for example being considered by the House of Lord in Sovmots Investments Ltd v Secretary of State for the Environment [1979] AC 144 and cited by the New South Wales Court of Appeal in Horseshoe Pastoral Co Pty Ltd v Rixon [2018] NSWCA 121 (at [12]).

The common law approach to easements of necessity was, however, markedly changed as a result of the recommendations of the Law Commission for England and Wales in its Working Paper No 36 Transfer of Rights: Appurtenant Rights (1971) (at 57-61, 118-19).

The United Kingdom Working Paper recommended (at [117]-[118]):

Proposition 15 of the Working Paper was as follows:

The Working Paper noted alongside this proposition that the “public interest” element part of the proposition “represents entirely new law” and that “we think the time may have come for the law, in the public interest, to go some way towards helping an owner of land to acquire such rights as are essential to enable him to put his land to better use”.

The origins of s 88K of the Conveyancing Act 1919 (NSW) and, for example, similar legislation in Queensland and Tasmania (the “first generation” of this species of legislation), can be found broadly in the recommendations of the United Kingdom Working Paper.

The United Kingdom Working Paper was referenced, for example, by the Queensland Law Reform Commission in 1973 in its Bill to Consolidate, Amend, And Reform the Law Relating to Conveyancing, Property, and Contract and to Terminate the Application for Certain Imperial Statutes which recommended the Property Law Act 1974 (Qld). The Queensland Law Reform Commission recommended s 180 of the now Property Law Act 1974 (Qld), which provides for statutory rights of user in respect of land “where it is reasonably necessary in the interests of effective use in any reasonable manner of any land” (at [180]).

Section 88K of the Conveyancing Act 1919 (NSW), which was introduced in 1995 as a result of the Property Legislation Amendment (Easements) Act 1995 (NSW) mirrors this trend and is clearly broadly structured off the United Kingdom Working Paper in its reference to (1) public interest, (2) compensation and (3) reasonable attempts to obtain consent for the easement. Whilst a statutory power now in New South Wales and in other states, it is helpful to understand s 88K alongside the more ancient common law easements of necessity and those “necessary for the reasonable enjoyment” of land.

Section 88K of the Conveyancing Act 1919 (NSW) provides:

In 117 York Street Pty Ltd v Proprietors of Strata Plan 16123 (1998) 43 NSWLR 504 Hodgson CJ in Eq said (at 508-9) (emphasis in original):

His Honour further said (at 511-12) (emphasis added):

In Grattan v Simpson (1998) 9 BPR 16,649 Young J said (at 16,651) (emphasis added):

See also O’Shea v Athanasakis [2009] NSWSC 1150, where Forster J drew a distinction between simply those easements which are (at [124]) “convenient or nice to have” and those easements which are reasonably necessary.

In Rainbowforce Pty Ltd v Skyton Holdings Pty Ltd [2010] NSWLEC 2 Preston CJ observed (at [83]):

The Court of Appeal has made it clear that, if conditions are to be imposed on the enjoyment of an easement, they must be imposed on the terms of the easement itself, and not in any order or undertaking independent of the easement. This is because in Moorebank Recyclers Pty Ltd v Tanlane Pty Ltd [2012] NSWCA 445 the Court said (at [99]):

Importantly for the facts of this case, the Court also said in this case (at [158]):

In Shi v Abi-K Pty Ltd (2014) 87 NSWLR 568; [2014] NSWCA 293 Basten JA said (at [6]):

His Honour also said (at [14]-[16]):

Consistent with the above authorities “reasonably necessary” does not mean there must be absolute necessity, but the need must go beyond mere desirability or convenience: Tregoyd Gardens Pty Ltd v Jervis (1997) 8 BPR 15,845. There may still be a necessity for the easement sought, notwithstanding that there are alternative sites for an easement: Re Seaforth Land Sales Pty Ltd’s Land (No 2) [1977] Qd R 317, citing Stanford v Roberts [1901] 1 Ch 440 at 444 on “reasonably necessary” in the context of letting property. The “reasonably necessary” criterion requires an analysis of the “whole picture” including the effect on the proposed servient tenement: ING Bank (Australia) Ltd v O’Shea [2010] NSWCA 71.

In Govindan-Lee v Sawkins [2016] NSWSC 328 Darke J said (at [49]-[50]):

His Honour said (at [59]):

There was significant argument about the expert evidence tendered by both sides in this case, not only about the question of expertise but also the respective methodologies employed. I will return to this in due course.

However, in general, the Court will accept as a matter of practicality that it is appropriate to demand an expert outline the precise basis of their accumulated knowledge. That is, an expert needs to set out the precise basis of their expert knowledge accumulated by the usual maintenance and development of their professional opinion.

However, in Borowski v Quayle [1966] VR 382 Gowans J said (at 386):

In English Exporters (London) Ltd v Eldonwall Ltd [1973] 2 WLR 435 per Megarry J said (at 438-9):

The same conclusion may apply to reference to statistical evidence by an expert witness, as per R v Abadom [1983] 1 WLR 126 per the Court of Appeal (at 129-30):

In Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588; [2011] HCA 21 at [69] Heydon J (in dissent on the outcome) cited the common law standards expressed Borowski v Quayle [1966] VR 382, English Exporters (London) Ltd v Eldonwall Ltd [1973] 2 WLR 435 and R v Abadom [1983] 1 WLR 126 with approval.

In statute s 79 of the Evidence Act 1995 (NSW) provides:

In Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588; [2011] HCA 21 French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ said (at [32] and [37]) (citations omitted):

See also generally Albrighton v Royal Prince Alfred Hospital (1980) 2 NSWLR 542, HG v R (1999) 197 CLR 414; [1999] HCA 2 and BrisConnections Finance Pty Ltd (Receivers and Managers Appointed) v Arup Pty Ltd [2017] FCA 1268 (“BrisConnections”). In BrissConnections Lee J said (at [48]):

To this end there was considerable argument in particular about the reports of Mr Drew Bewsher. On 19 November 2018, I gave the Plaintiffs the opportunity to redraft and serve again a revised version of Mr Bewsher’s expert reports, having formed the view that they were as then impermissible in form and that the Plaintiffs should be given the opportunity to “mend its hand”: Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588; [2011] HCA 21 at [19]. These reports in their revised form were admitted on 20 November 2018.

The Plaintiffs, with reference to the Court of Appeal judgment, submit that it is open to me to grant an easement on the terms and conditions they contend, that is, without any limitation or reference as to when the Option 4 crossing is “impassable” (submissions [1]-[8]). That is, they contend that it is still open to me to revisit my primary findings and it is still open for the Plaintiffs to tender expert evidence on whether Option 4 is “impassable” and the flooding risks associated with the various options and easements proposed (submissions [8]). Their case is that an easement cannot be drafted with sufficient precision to require the use of Option 1 to be contingent on the “trigger” of Option 4 being passable (further submissions [1]).

The Plaintiffs’ position is that the expert evidence is that it is not feasible to define when the Richmond River is impassable, and that the existing Option 4 route should only be used as an alternative route for stock (submissions [9]-[12]). The Plaintiffs contend therefore that it is not feasible to use when the Richmond River is “impassable” as a trigger to use the Option 1 route, as it leaves open the subjective opinion of the individual approaching the river (submissions [13]). As is evident from the terms of their draft terms of easement, the Plaintiffs wish to impose an easement on the Defendants’ property in the form of the construction of a bridge on the Option 1 route to replace the one that was destroyed, and that use of this easement will not be limited to when Option 4 is “impassable” or otherwise.

In their opening submissions, the Plaintiffs criticised the Defendants’ draft terms of easement, and proposal to build a causeway on Option 4, as subject to approval from regulatory authorities, including the Department of Primary Industries (DPI) (submissions [15]). To the extent that the Defendants no longer propose the construction of a causeway, this submission is of little continued relevance.

In their further submissions, the Plaintiffs contend that the terms of any proposed easement cannot include any land not comprising the dominant and servient tenement. Upon this basis, they submit that any terms of easement contingent on the Option 4 river crossing is beyond power. This is because the Option 4 crossing requires use of Lots 101 and 102, which are not the subject of proceedings, and not parcels of land that can be characterised as a “dominant tenement” and “servient tenement” (further submissions [2]-[8]).

The Plaintiffs also criticise the Defendants’ proposed terms as lacking adequate precision, including because (further submissions [9]-[13]):

The Plaintiffs assert the Defendants’ terms of easement invite the possibility of dispute over the water level depth of Option 4, and “requires the person, at the time they elect not to use the river crossing, to have recorded the level of the river” (further submissions [14]-[20]). They contend that the Option 4 route nevertheless must require some form of construction on it to make it safe and would therefore require external approval (further submissions [21]-[26]). In addition, the Plaintiffs’ contend as an “alternative route” Option 4 must be assessed as if it were the “only access” or “sole access”, and as a sole access is unsuitable and unsafe for permanent access to residential dwellings and farmland (further submissions [27]-[33]).

The Plaintiffs do not dispute the amount of compensation assessed at the trial and primary judgment, although accept it is open to the Court to determine an additional amount for disturbance if the Plaintiffs’ proposed easement succeeds (submissions [17]). The Plaintiffs submit they would accept a further amount of $5,000 “for disturbance should be added to the determination of $21,256.55 by Sackar J” and contend a further “$20,000 as suggested by the Defendants is too generous given all the circumstances” (further submissions [34]-[43]).

The Plaintiffs, in their further submissions, raised the issue of the gates to access Option 1, stating the Plaintiffs should be provided with three keys to the lock on the gate at the Summerland Way entrance to the Defendants’ lot 100 (further submissions [44]). They made objection to the expert evidence of Mr Kenneth Paterson and Mr Stephen McElroy, including Mr Paterson’s reliance on the input of Ms Kelly Waring and Mr McElroy’s “highly partisan opinions”, contending the expert evidence of Mr Bewsher should be preferred (further submissions [45]-[68]).

The Plaintiffs otherwise rely on their submissions at first instance (submissions [19]).

The Defendants likewise, unsurprisingly, base their submissions on the Court of Appeal judgment and contend there were two difficulties with the primary judgment leading to the appeal allowed and remitter (submissions [1]-[9]):

The Defendants submit, therefore, that the Plaintiffs are now seeking to re-agitate issues that go beyond the scope of the Court of Appeal’s remitter, and that only the following issues require further consideration (submissions [10]-[14]):

Implicit in this submission is that the Defendants still wish the Option 1 easement to be limited or causally linked to the Option 4 route, and contend it is not open for the Plaintiffs now to seek terms of an easement referring to the Option 1 route alone (with no reference to alternative use of the Option 4 route).

Their case is that it is only open to me on this remitter to determine those issues relating to the safety of Option 4 in adverse conditions, and that my finding that Option 4 was a practical alternative to Option 1 during dry weather was not overturned by the Court of Appeal, and should not now be contested by the Plaintiffs (submissions [15]-[18]). The Defendants provided a Schedule of factual findings that they wish me to make, including:

The Defendants reject much of the lay evidence now served by the Plaintiffs as impermissibly traversing undisturbed factual findings (submissions [20]-[22]). The Defendants also therefore make objection to the expert report of Mr Bewsher served by the Plaintiffs, both as re-agitating undisturbed findings and based impermissibly on the views and evidence of others (submissions [23]-[24]). However, I will deal with the expert report of Mr Bewsher in more detail in consideration.

The Defendants contend, however, that there is nevertheless an agreement on the expert evidence that the depth at which the Option 4 river crossing is “impassable” or “unsafe” is 300mm, and that it is agreed between the experts the river level will never rise so suddenly as to surprise a vehicle whilst crossing. Given this, the Defendants state Option 1 should only be used when the Option 4 crossing exceeds 300mm (submissions [25]).

Initially, the Defendants’ draft terms of easement proposed requiring the Plaintiffs to construct concrete blocks on their property across the Option 4 river crossing. However, following oral submissions, the Defendants conceded that the Court does not have power to order the Plaintiffs to develop their land as a prerequisite for ordering an easement, noting there is no known authority where the Court has used s 88K to impose an obligation on the owner of the dominant tenement to spend money on their land as a prerequisite for ordering an easement (further submissions [1]-[9]). The Defendants provided revised draft terms of easement on 3 December 2018 reflecting this concession. These revised terms concede that emergency vehicles can use the Option 1 easement at any time, and that there is a presumption in favour of those using the Option 1 easement that the river is above 300mm (submissions [29]-[31]).

The Defendants therefore desire an easement in which the Plaintiffs must repair and maintain the Option 1 route, including the road and bridge (submissions [26]-[28]). The Defendants submit that because Option 4 is an available alternate route that is safe a majority of the time, the Court should not impose an unlimited easement over Option 1 because it is not reasonably necessary (further submissions [10]-[20]). They contend the Court need only order an easement in the more limited terms of their draft terms of easement (further submissions [21]-[22]).

Ms Dunn swore two affidavits on 24 August 2018 and 13 November 2018.

In her first affidavit (24 August 2018) she said she was the daughter of the Plaintiffs and resides in the main house of Lot 7 in DP 131323 which is one of the parcels of land mentioned above. She said her husband is a Type 1 diabetic and her son has been diagnosed with bronchial asthma, meaning that they may require emergency care.

She described an incident on the 2-7 March 2018, where her youngest child was taken to hospital, stating “I was able to get out and take him to Kyogle Hospital, but it may have been that he needed an ambulance at our home”. She said the gate to the Defendants’ property was unlocked on 7 March 2018 in the event that there was an emergency. She said since the loss of the bridge on Option 1, she has been totally reliant upon Option 4.

The remainder of her first affidavit outlined various vehicles’ access to her property, historical use of Options 1 and 4 and certain photos. However, much of this material was limited by operation of s 136 of the Evidence Act 1995 (NSW) as statements of belief or understanding, but not as proof of fact.

Ms Dunn’s second affidavit (13 November 2018) commented on the expert reports of the Defendants, and was largely limited in a similar manner by s 136 of the Evidence Act 1995 (NSW).

Given my rulings on her affidavit evidence, Ms Dunn was not required for cross-examination.

Mr Gordon (the First Plaintiff) swore one affidavit on 24 August 2018.

In his affidavit he said following the hearing of this matter he had contacted the DPI about the ability to use Option 4 as the primary source of access to Lots 7 and 40. However much of his evidence was limited by s 136 of the Evidence Act 1995 (NSW) as statements of belief or understanding.

He said as the drought worsens he has had to buy “pods” of molasses in 1 tonne units to keep his livestock going, and has not been able to access his storage facilities in Lot 7. At the time of writing he estimated his daughter and her family living on Lot 7 had 6 weeks of drinking water left.

Given my rulings on his evidence, Mr Gordon was not required for cross-examination.

Ms Gordon (the Second Plaintiff) swore one affidavit on 24 August 2018.

In her affidavit she said she had read the primary judgment and the judgment delivered by the Court of Appeal. She said that Lots 7 and 40 were currently owned by her and her husband. Otherwise, the substantial remainder of her affidavit evidence was limited including by s 136 of the Evidence Act 1995 (NSW).

Given my rulings on her evidence, Ms Gordon was not required for cross-examination.

Mr Gibson swore one affidavit on 16 November 2018.

This affidavit was likewise admitted subject to s 136 of the Evidence Act 1995 (NSW) and essentially attached relevant correspondences.

Mr Gibson was not required for cross-examination.

On the first day of trial the Plaintiffs sought to tender the two affidavits of Mr Drew Bewsher of 23 August 2018 and 15 November 2018. The Defendants objected to the entirety of the affidavits on the basis that they failed adequately to explain the connection between his specialised knowledge, the facts assumed or before him and his expert opinions. Objection was particularly taken to Mr Bewsher’s reports’ reliance on communications with Mr Jonathan Yantsch of the DPI, Mr Tony Lickiss who is Kyogle Council’s Director of Assets and Management and Dr Stephen Yeo of Flood Focus Consulting Pty Ltd. The basis of this objection was that Mr Bewsher’s opinions were not based on his own specialised knowledge but on the opinions and knowledge of other persons.

On 19 November 2018 I gave ex tempore reasons indicating my view that consistent with s 79 of the Evidence Act 1995 (NSW) and the views expressed by the High Court in Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588; [2011] HCA 21 and HG v R (1999) 197 CLR 414; [1999] HCA 2, Mr Bewsher’s reports were not admissible in their current form. With respect to Mr Bewsher and his communication with the abovementioned individuals, I said in my ex tempore reasons:

On 20 November 2018 the Plaintiffs tendered two affidavits of Mr Bewsher of 20 November 2018 which contained his revised expert opinions. Whilst the Defendants again objected to their admissibility I allowed the reports into evidence and noted that certain matters may be pursued in cross-examination (T92/7-T93/16).

In Mr Bewsher’s first updated affidavit and attached expert report (20 November 2018) he said he is an expert hydrologist and flood risk specialist, with also general civil engineering expertise. He has more than 35 years’ experience and has worked on flood risk management issues in almost all of New South Wales’ major river valleys. He has a Bachelor of Engineering (Hons) from the University of Tasmania and a Master of Science in Civil Engineering from the California Institute of Technology. He has assisted approximately 30 New South Wales councils in developing their ‘Floodplain Risk Management Studies and Plans’. He has written numerous papers concerning flood risk management for example concerning flood risk management for caravan parks and water management. He has experience in environmental planning and environmental impact assessment.

He concluded (at Section H of his first updated report):

In his second updated affidavit and report (20 November 2018) Mr Bewsher purported to reply to the reports of Mr Paterson and Mr McElroy who were the experts called by the Defendants.

With respect to Mr Paterson’s report Mr Brewsher said:

Mr Bewsher concluded “no council or road authority would allow the Option 4 crossing to be formalised” as the normal everyday access due to its safety risks, without first investigating the alternative everyday accesses that were available, despite such accesses requiring acquisition of an easement. His opinion remained that the Option 1 access is still necessary and should be legally formalised.

In cross-examination Mr Bewsher was taken by counsel to a paper he had delivered on flood risk management for caravan parks. He agreed that in summary, his view was that flood risk cannot be eliminated entirely, and that it was more a question of “risk management” (T104/27-32).

He was also taken by counsel to the DPI “Fisheries Policies and Guidelines” which he had read in preparing his expert report. He accepted that he was not a fish expert, however said he read the policy and guidelines “as a hydrologist” and understood those documents in that respect (T106/10-22).

Mr Bewsher said that when he received instructions of retainer from the Plaintiffs’ solicitor he did not have the understanding that he was producing a joint report with Dr Yeo, rather “Mr Gibson was asking Dr Yeo to write a report and he was asking me to write a report” (T107/31-36). He accepted he attended a meeting with counsel for the Plaintiffs together with Dr Yeo (T108/42-44). He was asked by counsel for the Defendants whether he thought Dr Yeo had a contribution of value to make to the expert reports, to which Mr Bewsher replied “[f]rom my perspective as a hydrologist, I don’t think that I am the founder [sic] of all wisdom. So I would certainly think he has a contribution to make” (T110/1-9). He also accepted that Dr Yeo had provided him with comments on his draft report (T119/16-17). Apart from Attachment C to his report, Mr Bewsher attested that Dr Yeo had not authored any parts of his report (T120/28-39). He said he did not consider in any way that his report was a “joint report” produced with Dr Yeo (T121/4-6).

He accepted he made contact with Mr Yantsch of DPI Fisheries of his own initiative (T110/49-T111/2). It was put to him that the reason he contacted Mr Yantsch was because he did not have knowledge or understanding of the fisheries and fishery permit issues. Mr Bewsher replied he certainly wanted to get information concerning “the broader fisheries issues in the Richmond River, which at that stage was something I was only broadly familiar with” (T111/4-9). He said based on a “known standing of the policies and guidelines of the Department of Fisheries” and based on his experience in dealing with fisheries and crossings it was his opinion that the proposed causeway would likely not be approved by DPI Fisheries (T137/50-T138/6). He denied he was just guessing in this assessment (T138/17-25).

Mr Bewsher was also taken to his communications with Mr Lickiss of the local council, including the email he sent to him on 31 October. In this email Mr Bewsher asked whether a development approval would need to be lodged with counsel for a proposed causeway, and was asked by counsel whether this was “a rather loaded email” to which Mr Bewsher replied “no” (T117/1-29). He disagreed his contact with Mr Lickiss was put forward on the basis of urging a response from council that would reject a development application (T118/1-5).

He accepted that his letter of instructions did not ask him to provide any economic assessment of the proposed options, but said “[t]hose words may not appear in my instructions but it was my understanding that that’s the sort of advice I was to provide as an engineer” (T125/11-15). He said he had studied engineering economics (T125/40-44).

Mr Bewsher accepted that he was content as an expert “off my own bat” to undertake investigations without having received instructions by speaking to council and to DPI Fisheries (T127/36-39). He denied he had no interest in being a balanced and impartial independent expert (T127/49-T128/2).

He said that from 300mm of depth of water and above small cars can float and become destabilised, hence crossing the boundary between low hazard and high hazard (T132/11-27). He said irrespective of velocity, the limit in stability is 300mm (T132/44-48). He rejected counsel’s suggestion that “low hazard” could equate to being “generally safe” and preferred to use terminology relating to the stability of the vehicle (T133/19-43). He said concrete depth markers would be of questionable assistance in determining the water depth (T134/9-13) and did not deal with water velocity (T134/42-46). Mr Bewsher accepted that, irrespective of velocity, he agreed that 250mm of water depth would not destabilise vehicles at the crossing he had looked. This was because at that site, he had agreed that water would never flow with such a velocity to destabilise a vehicle at below 250mm of depth (T136/25-T137/4).

Mr Bewsher affirmed that from his understanding of current best practice and in his experience, “no council or road authority would allow the Option 4 crossing to be formalised” (T140/26-34). He accepted that the crossing could have flood lighting and reflective strips to indicate the water level (T144/32-50).

The Defendants indicated they did not read the affidavit of Mr Peter Jon Little affirmed 13 November 2018 (T28/23-31).

The Defendants read the affidavit Ms Kelly Waring affirmed 20 November 2018. She described how during the preparation of Mr Paterson’s report in these proceedings, he advised her during a telephone conversation that it would be worth downloading river data from Lavelles from the NSW Water website river level records, which she did in the form of an Excel spread sheet. After obtaining this data, she and Mr Paterson discussed it and he said “you could run a find formula in excel to place a certain value in a new column if a certain criteria is correct in another column, for example the discharge column”.

After conducting this find formula, she said that Mr Paterson advised her to do a number of calculations to the data provided, such as by dividing the data in the discharge column by 86.4 and calculating total river flow by multiplying it by 153.5 and dividing by 339.5. After setting out further detailed commands she undertook on the spread sheet, Ms Waring said she provided the worksheet to Mr Paterson, which is now replicated in Table 2A of his report.

Ms Waring was not required for cross-examination.

Mr Kenneth William Paterson affirmed two affidavits on 2 November 2018 and 13 November 2018 annexing his expert reports prepared on behalf of the Defendants.

In his first report (2 November 2018) Mr Paterson provided the following opinions:

In Mr Paterson’s second report he provided updated analysis of the river discharge and related calculations, which was evidently done with the assistance of Ms Waring who provided the relevant understanding of computers.

In cross-examination Mr Paterson said that he did consult with both Mr Matthew Gordos and Mr Pat Dwyer of the DPI Fisheries, and did not mention these conversations in his report (T175/29-36). He said his enquiries were regarding remediation measures and fish passage (T175/39-48). He said he did not discuss with them directly his proposal for a causeway or depth markers (T176/7-39).

Mr Paterson accepted his proposal still required approval, and that he had not consulted DPI Fisheries with a firm proposal (T182/40-44). He said the causeway would also require approval under the Water Management Act (T183/44-46) (that is presumably the Water Management Act 2000 (NSW)).

Mr Paterson accepted that the approval of box culverts at the Option 4 crossing would be idiosyncratic, in that its approval would depend upon the precise characteristics of the site and how they were determined by the regulatory authority (T193/19-26). He agreed there was a flash flooding risk category in the river (T199/10-12). He disagreed his use of an average flow measure would be less accurate than an instantaneous flow measure (T199/28-34). He did not agree that his proposed causeway would get covered, for example by weed (T203/7-50). He said he had provided for a rough finish on his proposed causeway to ensure it did not get slippery (T204/1-5). He said it was ridiculous to suggest the concrete blocks he had proposed could get washed away downstream (T207/29-33).

Mr Stephen Paul McElroy affirmed one affidavit on 2 November 2018 attaching his expert report.

Mr McElroy inspected the site and surrounding locality on 22 May 2017 and 10 September 2018. He said he conducted a “series of inspections” on 10 September 2018 in the company of an “Expert Hydrology Engineer” Mr Bill Paterson and solicitor for the Defendants Ms Kelly Waring. He then said two further inspections were undertaken by himself and surveyor Mr John Wade.

Mr McElroy provided his expert opinions as follows:

Mr McElroy concluded as follows:

Mr McElroy estimated the following costs for upgrades on the Option 1 route:

Mr McElroy disagreed with Mr Bewsher over the grade of the Option 4 route, stating it is 17.49% not 25.50%.

Beyond providing costing Mr McElroy did not provide a detailed analysis of flooding, and stated both options “have benefits and deficiencies”.

He concluded Option 4 is a more “versatile option” and suggested construction of a concrete ford or causeway on this crossing would not be difficult and would provide a “well defined, safe and structurally sound permanent crossing”. His estimate of the upgrades to Option 4 allowing access to all vehicles “in all weather conditions, except when the Richmond River is impassable” was $63,714.00 (report [10.2]).

In cross-examination Mr McElroy said that there would need to be realignment of the road leading to Option 1 to allow for larger vehicles to use it, and that this did not matter whether the bridge was 12.5 or 16m in length (T213/14-27). He said he proposed the scenario of a 19m semi-trailer simply as a standard suite of vehicles he used to test the proposed bridge (T213/31-36). Mr McElroy said he had done some costing and assessment of whether the Option 4 crossing could be used by a 19m semi-trailer (T215/25-41).

With respect to Mr Wade who assisted him, he said Mr Wade’s contribution was to provide the technology that permitted him to do a greater number and more accurate survey readings (T217/35-39). He said there was no intentional difference between his previous report on Option 1 and his 2018 report on Option 1 (T220/1-26). He denied his report was now asserting that Option 4 was really the only option available (T225/45-48). He disagreed that Option 4 had a steep curve approaching it (T226/11-30). He said it also was an acceptable alignment for any rural road (T228/23-29). He said erosion could still be a problem (T228/37-48).

He further said there would need to be approval from DPI Fisheries, but denied there would need to be development consent from Kyogle council (T229/3-16). He said there would need to be approval from DPI Water and there would be a time and cost involved with that application, who would assess whether or not the matter would be referred to DPI Fisheries (T231/38-48). He said he had not investigated this issue, and it would likely be out of his area of expertise (T232/1-20).

Mr McElroy said with respect to the Option 4 causeway he had costed a concrete slab at approximately $28,000 and a round culvert option at $43,571 (T239/14-23).

I have already indicated the procedural history and various iterations which were involved in the production of the Plaintiffs’ expert report of Mr Bewsher. Objection was centred upon the form of his reports and in particular his consulting of various third parties: Mr Lickiss, Mr Yantsch and Dr Yeo.

Experts usually should provide their expert opinions given a set of factual assumptions provided to them, which the calling party is obliged to prove. It is not appropriate, especially if uninvited, for experts to engage in their own sleuthing or investigations.

There are obvious dangers with this course of independent investigation, principally because the expert is uncontrolled and may be influenced by inadmissible or untested evidence. It is imperative that in their letter of retainer and during conferences solicitors keep in mind the necessity of keeping control over expert witnesses: Harrington-Smith v Western Australia (No 2) (2003) 130 FCR 424; [2003] FCA 893 at [18]-[19] per Lindgren J and Jango v Northern Territory of Australia (No 2) [2004] FCA 1004 at [9]-[10] per Sackville J.

Clearly an expert may introduce factual materials into evidence as part of the giving of their expert opinion, for example in the case of a medical expert by examining a party to express an opinion as to their physical or medical condition. Experts may, as they have done in this case, attend a physical location to assess it or may inspect a physical object. In this sense, the expert introduces factual material such as their measurements or readings, in respect of which they may ultimately express an opinion. Experts may also refer to learned journals, authoritative textbooks and the reported data of fellow scientists.

However, it is imperative that an expert should set out in detail what was observed, read or undertaken to elucidate whether their opinions are based upon their expert knowledge. In this case, as has been traversed, I was concerned by the form of Mr Bewsher’s original reports as inappropriately implying he may have been influenced by others and expressing their joint views not his own. I offered Mr Bewsher the opportunity to amend his reports, to ensure the views he expressed were based on admissible material, which I then allowed in evidence.

I also note that Mr McElroy said his inspections were undertaken by himself and surveyor Mr John Wade, although did not provide any detail as to the contribution of Mr Wade to his ultimate report apart from in cross-examination stating Mr Wade’s contribution was limited to providing advanced surveying equipment to be used by Mr McElroy (T217/35-39).

Mr Paterson’s evidence is also not without its difficulties associated with his use of the solicitor for the Defendants Ms Kelly Waring to operate a computer program to manipulate data. Whilst I am satisfied Ms Waring did indeed only conduct a mechanical exercise, as explained by Mr Paterson and Ms Waring in her affidavit, and this was essentially resolved by Mr Paterson and Mr Bewsher providing a note setting out the key points of difference in their views in Exhibit P6, I do note this practice is again undesirable (T168/48-T169/5).

I also note the undesirability of a number of letters which the Plaintiffs sought to bring into evidence in the remitter.

The Plaintiffs attempted to procure letters from Kyogle council relating to the council’s apparent views on the various options and the likelihood the council would approve the developments associated with the various options. They also attempted to tender the views expressed by the DPI. The clear and obvious purpose of attempting to procure these letters was to support a case that any causeway at Option 4 would not be approved. The letters were procured solely for use in litigation and in my view could never be admissible. The view of third parties such as these were not open to be tested and their use in litigation in inappropriate.

The documents received in this form are of little assistance, as they do not elucidate whether or not the council officer in question is an expert, or whether or not the officer purports to speak on behalf of council. Therefore, I have not permitted these letters into evidence to prove anything as to the views of council or the Department of Primary Industries or otherwise.

In addition, on 28 November 2018 the Plaintiffs emailed my Associate the “Reducing the Impact of Road Crossings on Aquatic Habitat in Coastal Waterways – Northern Rivers, NSW” report and the “Policy and Guidelines for Fish Habitat Conservation and Management”. The aquatic report was before me at the primary trial (“Bundle of NSW Government Publications”) as was the fish habitat report (T267/40-T268/5). These documents are not unimportant, but of limited utility as any application to the relevant regulatory authorities will depend on the precise merits of the application.

With respect to the lay witnesses I have already made findings with respect to their evidence. For example, I noted how Ms Dunn said in 2017 that due to access problems her children had lost 85 hours of school in that last year (primary judgment [226]). She gave evidence about emergency services and utilities accessing the farm and the wear and tear on vehicles having to travel over the rugged terrain (primary judgment [227]). She also described how from 30 March to 14 April 2017 her house was cut off entirely due to flood water, wherein she and her husband had to erect a footbridge to get the children to school (primary judgment [228]).

I likewise noted Mr Gordon’s evidence, for example, that he has been unable to transport his cattle directly from Lot 7. That when he needs to sell cattle he is required to move them approximately 1 kilometre across the current crossing and to yards located on Lot 102 (primary judgment [251]). This is more time consuming, labour intensive and stressful on stock (primary judgment [251]). Mr Gordon also expressed he was prepared to build a replacement bridge on the access road, had obtained a quote for that purpose, and intended himself to work on the bridge to supply the decking (primary judgment [254]). He described, again for example, the extensive repair works he had to undertake to make the Option 4 crossing safely passable after Cyclone Debbie (primary judgment [261]).

The evidence of Ms Dunn and Mr and Ms Gordon provided for this remitted hearing likewise has continued the theme of their difficulties in using the Option 4 crossing and the flooding that can prevent them from crossing into Ms Dunn’s home. They were not required for cross-examination and I accept their evidence and the other Plaintiffs’ lay witnesses as generally truthful. However their evidence has got to be seen against my previous judgment and findings that Option 4 is safely passable for most of the year and is a practical alternative (primary judgment [352]). The evidence in the remitter of the lay evidence did not change my views as to the status of Option 4, including in addition in light of the expert evidence.

But I should say in passing there was likely some element of exaggeration in both Mr Gordon and Ms Dunn’s evidence. It is the fact that since the bridge was washed away at Option 1 in 2015, both Mr Gordon and Ms Dunn clearly must have utilised Option 4 on many occasions when it was not only passable, but entirely safe, the water being most likely at 300mm or less.

Notwithstanding the above difficulties regarding the reports of expert witnesses, in particular Mr Bewsher, they have assisted me to focus on what I see to be the key controversy in resolving whether the easements proposed by the parties are “reasonably necessary” and satisfy s 88K of the Conveyancing Act 1919 (NSW). This key controversy in my view is clarified by an analysis and comparison of the expert witnesses, particularly Mr Bewsher and Mr Patterson, as to the safety and availability of Option 4 as an alternative route for the Plaintiffs’ use and development of their land (which clearly informs upon the reasonable necessity of an easement at Option 1).

First, Mr Bewsher and Mr Paterson both accept that at 300mm or lower of water depth at the crossing at Option 4 the crossing is “low hazard” irrespective of velocity (T132/21-T133/47). I have no reason to reject this evidence and am satisfied this assessment should be accepted as appropriate in the circumstances.

Secondly, however Mr Bewsher and Mr Paterson disagree as to the number of days which the crossing at Option 4 is above 300mm. Mr Paterson has estimated the number of days where Option 4 in its current state (without improvement) would be above 300mm and therefore “high hazard” would be 18 days per year (first report [4.37]). Mr Bewsher provides a table that is far less easy to understand but estimates the number of days when Option 4 would at least be 400mm as at its highest 54 days (first updated report [35]). I am more than satisfied to find that as a rough estimate and taken at its highest the river at Option 4 will be above 300mm at best on average 54 days per year. That is in the converse that the Option 4 crossing is a low hazard (on average) 311 days per year (or 85% of the year).

Thirdly, Mr Bewsher and Mr Paterson disagree as to the involvement of public authorities in the improvement (if any) of the Option 4 crossing. Mr Bewsher expressed the opinion that from his analysis of the policies and guidelines of DPI Fisheries a causeway would not be approved across Option 4 (T137/50-T138/6). Mr Paterson, on the other hand, was more indefinite as to the likelihood of approval from public authorities. He expressed the opinion that a causeway would require approval from DPI Fisheries and under the Water Management Act (T182/40-46), however accepted this would be an idiosyncratic exercise depending on the precise circumstances of the site and the proposal (T193/19-26). Mr McElroy also purported to express an opinion concerning the involvement of approval authorities in cross-examination (T231/26-30):

Mr McElroy however accepted he had not investigated the issue of approval by DPI, and it would likely be out of his area of expertise (T232/1-20).

Fourthly, and most significantly, Mr Bewsher concluded (in section H of his first updated report) that the “use of Option 4 as the only access, or its use as the primary access (i.e. where an alternative access is available), is inappropriate and unsafe because of the flood safety risks” and that “[i]n my opinion the existing ford to the River should only be used for occasional stock movements as part of farming activities and should not be used for vehicle access to a residential dwelling”. Mr Paterson and Mr McElroy clearly disagreed.

With these four broad points of comparison between the experts, in my view the most significant distinction between the parties on the expert evidence is the extent to which Option 4 is “high hazard” or “unsafe” or “unpassable” and therefore not available as an alternative route to the Option 1 easement.

To this end, I largely reject the expert opinions of Mr Bewsher. Whilst I am sure Mr Bewsher did his best to provide candid and thoughtful answers, and has a good deal of expertise concerning hydrology and flooding, I am of the view his conclusion is untenable. This is because it is based in my view on a faulty reasoning process. As best as I understand his opinion, Mr Bewsher starts with the premise that at 300mm or under the river at Option 4 is safe irrespective of velocity. He then seems to reason a water crossing is inherently unsafe because in times of flood it can rise at short notice and destabilise a vehicle, and this particular river has been subject to flash flooding and at times is unsafe to cross. Subsequently, he concludes notwithstanding that the river is safe at least on average 311 days per year, because it is unsafe to cross on some occasions, it is therefore always unsafe or should be so regarded. He also concludes, in addition, the Option 4 crossing will not be improved by any of the innovations proposed by the Defendants and in any event they would not be approved by the relevant public authorities.

In my view this is an illogical conclusion not based upon a thoroughly objective analysis or reasoning process. It is a logical misstep to state in effect the Option 4 the river is unsafe on some occasions and therefore is always unsafe or should be regarded as such.

In addition, I reject Mr Bewsher’s opinion as contrary to the facts as I have found them, including that in addition to being safe to traverse for much of the year the Option 4 route is a practical alternative to Option 1 (primary judgment [352]). In addition, as was implicit in cross-examination in the primary trial, and in accordance with my finding that Ms Dunn has used the Option 4 access since December 2015 when the weather is dry (primary judgment [354]), the Plaintiffs have been using Option 4. For Mr Bewsher to provide an opinion (at Section H of his report) that Option 4 should not be used as the “only access” or the “primary access” and “should not be used for vehicle access” is contrary to the fact that the Plaintiffs and their family have indeed been using Option 4 since December 2015. Importantly, it is also contrary to the reality that once the Option 1 bridge is constructed, the Plaintiffs will not be forced to use Option 4 as the “only access” and will not be landlocked, having the capacity to use the bridge when the river is above 300mm.

Until final submissions, the case was conducted on the basis of the Plaintiffs seeking an unlimited Option 1 easement that would not involve use of Option 4. The Defendants sought an amalgam of Option 1 and Option 4, with the suggestion of concrete blocks and a concrete causeway at Option 4. As a result of discussions in oral submissions, the question of the Court’s power to order the Plaintiffs to build on their land as a prerequisite to the easement arose. In light of this change which I think is wholly reasonable, in my view a reassessment of compensation is appropriate.

Given the above analysis of the experts, the fundamental question is how the expert evidence translates into “reasonably necessary” and my assessment of s 88K. In accordance with the authorities, “reasonably necessary” is to be determined in light of the present circumstances. The “reasonably necessary” analysis although enshrined in s 88K clearly has its traditions in the more ancient common law easements of necessity, which asked: is there another way for the applicant to cross without encroaching on another property?

Further, a s 88K analysis takes into account all of the relevant circumstances, including the various options proposed by the parties, the expert evidence as to the safety of Option 4 and the other expert evidence as to the time and cost involved in the various alternatives.

In my view the Richmond River at Option 4 is safe to cross for much of the year (on average 85% of the year at least). The experts agree that at 300mm or less of water depth it is safe to cross in a 2WD vehicle, irrespective of the velocity of the water. I do not accept Mr Bewsher, who extrapolates from a maximum of 54 days per year to a conclusion that the crossing at Option 4 is entirely unsafe as providing any guide on the question of reasonable necessity.

Option 4, when under 300mm of water depth, is a safe and alternative route. How safe and stable that alternative route is a matter for the Plaintiffs and his family. The Plaintiffs, their family and guests can cross the river at Option 4 as it is if they are of the view it is safe to use the river without any construction works done to it, or they can construct a causeway or concrete ford if they see fit. I do not consider I have the power, nor would I as a matter of discretion, direct the Plaintiffs to adopt a particular solution or a particular construction at Option 4.

This is because the compensation referred to in s 88K is directed to compensation to the servient tenement for the blot on title and associated matters. There is no scope in the section in my view for “compensation” which involves expenditure by the dominant tenant. In any event, as a matter of my discretion, I would not order the Plaintiffs expend any money on their property. However, the availability of alternative routes is clearly a consideration in determining what is reasonably necessary. On the facts as I have found them the river at Option 4 is safely passable for much of the year on average, and any improvements to Option 4 is a matter for the Plaintiffs. It should not and cannot be the subject of an order of the Court, although does weigh in my analysis of reasonable necessity. In other words, the extent of any alternative access is a matter which informs the extent of any reasonable necessity, including as asserted by the Plaintiffs.

In addition, as to how the Plaintiffs, their family and those who enter their property as invited assess the river and its safety is a matter for them, and whether they wish to install concrete blocks to assess when the river is above 300mm is a matter for them in that they are free to do what they want on their property.

In their updated draft terms of easement, the Defendants have made concessions which in my view are wholly reasonable to address the Plaintiffs’ concerns, or I should say more accurately their daughter’s concerns as this litigation has to some extent been a proxy case, with the Plaintiffs purporting to act on behalf of their daughter and her family. The Defendants have conceded first that emergency vehicles will be able to access Option 1 at any time (when the bridge is built) and second that in the event of some dispute of the height of the water at 300mm the presumption is in the Plaintiffs’ favour.

I do not consider the cost of a causeway or difficulties in obtaining consent from the DPI or any other public authority renders Option 4 all year an unsafe option, so as to make Option 1 the only reasonably necessary route in perpetuity. I am not satisfied on the state of the evidence that if the Plaintiffs choose to enhance the Option 4 crossing, although it would involve time and money, that it would be impossible to do so. The evidence in my view does not go that far.

Therefore, the crux of my reasoning is that for much of the year the river at Option 4 is below 300mm, which is low hazard on the expert evidence, and therefore for much of the year is an alternative route that renders an easement over Option 1 in perpetuity is not reasonably necessary as per s 88K and the principles it enshrines. I am of the view that the terms of easement proposed by the Defendants are, however, reasonably necessary as they accommodate the necessity for the Plaintiffs to have access to Lots 7 and 40 when the river is above 300mm, noting the allowance for emergency vehicles and the presumption in favour of those using the Option 1 easement.

Further on the state of the evidence and in light of the concessions made by the Defendants as to a presumption in favour and emergency use, the Defendants proposed terms of easement in my view are clearly certain on the facts and with sufficient clarity indicate when the Option 1 easement is to be used (cf, Duncan v Cliftonville Estates Pty Ltd [2001] NSWSC 968). The presumption will clearly support the Plaintiffs and those seeking to rely on the easement if a view is formed that the river is above 300mm and/or unsafe to cross.

In their further submissions provided to the Court on 7 December 2018, the Plaintiffs raised a number of further issues which arose out of the concessions made by the Defendants. In my view it is appropriate to address these issues separately and explain why they do not ultimately satisfy me that the Plaintiffs’ proposed easement is reasonably necessary.

First, there was some suggestion by the Plaintiffs that the Defendants’ terms of easement requires an assessment of the level of the river at Option 4 by the Defendants themselves, and would require a trespass onto the Plaintiffs’ land to visually sight the water level to determine its depth. This submission is without basis, because on the clear construction of the Defendants’ proposed easement there is a presumption in favour of the person seeking to rely on the water level at Option 4. To suggest that easement should be construed as creating a trespass or right of access for the Defendants in order to assess the water depth is incorrect. The assessment of water depth is to be done by the person desiring to cross the Option 4 river and is a matter for the person crossing and the presumption acts in that person’s favour. It is true that the presumption may be rebutted by objectively sustainable evidence, however, this does not require any trespass. Whilst the Plaintiffs may in the future sell or transfer Lots 101 and 102 to a third party, this is a matter which may be subject of a variation of the easement. In my view the Plaintiffs’ submission on this point is contrary to the terms of the easement and imports a layer of meaning that in my view is not supported by the language of the Defendants’ terms.

Secondly, the Plaintiffs’ further submissions proceed on the assumption that Option 4 as an alternative route should be assessed as the “only access” to Lots 7 and 40. In my view this is clearly incorrect, as it ignores the fact that the Option 1 bridge will be built and will provide all-weather access to Lots 7 and 40, meaning that Lots 7 and 40 will not be landlocked. It is incorrect to suggest Option 4 will be the “only access” as per the Defendants’ terms of easement, especially given the concessions for emergency vehicles and use of Option 1 made by the Defendants.

Thirdly, the Plaintiffs raised the issue of the gate to the Defendants’ land. This issue was not the subject of debate before me on the remitted hearing and is not included in the Defendants’ draft terms of easement which I propose to make. In my view it is not appropriate or reasonably necessary to order the Defendants to keep the gate perpetually unlocked and would go beyond that which is contemplated in an easement. I do not propose to make orders concerning the gate and repeat the Defendants’ draft terms of easement are the appropriate terms under s 88K.

Finally, I note that the Plaintiffs’ proposed terms of easement contemplate the agricultural use of the Option 1 bridge. In my view this is an imprecise and unnecessary provision. Again, the Defendants’ terms of easement more generally contemplate, and allow for the use of Option 1 “by pedestrians and other vehicles” which accommodates the residential and agricultural use of Option 1 when the Option 4 crossing is above 300mm, consistent with my prior findings (primary judgment [364]). As was clear in my primary findings, the Plaintiffs use Lots 7 and 40 as part of their working farm but primarily for grazing beef cattle (primary judgment [6], [346]). In terms of agricultural use, I noted that the Plaintiffs’ cattle could stray onto Lots 7 and 40 and theoretically may be marooned there by the river, however this would not be disastrous as they could simply graze until the river lowered sufficiently to allow them to cross again (primary judgment [355]). On this evidence, there is nothing to suggest there is a reasonable necessity for Lots 7 and 40 to be accessed by Option 1 for agricultural use, confirming my view that in reality the Plaintiffs’ case is one really acting to buttress the wishes of their daughter Ms Dunn who lives on Lot 7.

As to s 88K(2)(b) and the question of compensation, I am likewise satisfied the owner of the land to be burdened can be adequately compensated for any loss or other disadvantage that will arise from the imposition of the limited Option 1 easement. As noted by the Court of Appeal the “loss or other disadvantage” is not limited to the personal inconvenience of the servient owner(s) and can include, for example, any diminution in the value of the servient tenement by reason of the imposition of the easement (appeal judgment [102]).

In accordance with my assessment at the primary trial, which likewise contemplated conditional use of Option 1, I assess a reduction in value at $3,000 (primary judgment [374]), blot on title at $5,000, special value at $4,000, value of area of easement at $506.55 and injurious affectation at $3,750 (primary judgment [377]). To reflect the Defendants’ concessions, and reflecting use by emergency vehicles and the presumption, I assess compensation for disturbance at $10,000 (cf, primary judgment [373]).

In addition, in accordance with the expert report of Mr McElroy which I accept on this point and consistent with the draft terms of easement provided by the Defendants (particularly a bridge of a “reasonable and safe standard consistent with its use”) the Plaintiffs should pay for the cost of works to the Option 1 track assessed at $36,674 and costs of construction of a basic 10.5m span timber bridge at $48,884 (report [10.1]). The bridge can be weighted to carry 30 tonnes which I was informed by counsel does not add any cost and indeed complies with the Plaintiffs’ own version of proposed easement (T283/10-16). This likewise reflects use by emergency vehicles and the presumption.

In light of the use by emergency vehicles at all times and the presumption in favour of the Plaintiffs and those that use the easement, I am of the view that consistent with the Defendants’ draft terms of easement, and as a result, the Plaintiffs should attend to the refurbishment of the road on Option 1 within the easement area. The Plaintiffs would as they accept (as is clear from their draft terms of easement) be responsible for its ongoing maintenance.

I will make orders imposing the Defendants’ proposed terms of easement and invite the parties to provide short minutes giving effect to my reasons.

I will hear the parties on the question of costs if necessary and the impact of s 88K(5).