Pullen v Smedley [2017] NSWSC 1721

Supreme Court New South Wales

Medium Neutral Citation: Pullen v Smedley [2017] NSWSC 1721 Hearing dates: 24, 25, 26, 27 July 2017; 1 August 2017 Date of orders: 13 December 2017 Decision date: 13 December 2017 Jurisdiction: Equity Before: Ward CJ in Eq Decision: In the easement proceeding (2016/00140145) (1) Order the defendants to remove the Metal Shipping Containers off the right of way referred to in these reasons as Right of Way "B" (being the right of way on Lot 21 DP 1163020 (Lot 21) indicated on that deposited plan and created by the s 88B instrument registered on 5 April 2011 (Right of Way "B"). (2) Declare that the conduct of the plaintiffs/cross-defendants in leaving open any of the three farm gates erected across Right of Way "B", after opening and passing through those gates in the exercise of their rights under the said s 88B instrument, amounts (in the absence of sufficient reason or excuse to do so on any particular occasion, as explained in these reasons) to an unreasonable use of their rights under the said s 88B instrument and is not permitted thereby. (3) Declare that the conduct of the plaintiffs/cross-defendants in leaving open the second farm gate erected across the right of way referred to in these reasons as Right of Way "A" (being the right of way on Lot 20 DP 1163017 (Lot 20) indicated on that deposited plan and created by the s 88B instrument registered on 5 April 2011 (Right of Way "A"), (referred to in these reasons as G2), after opening and passing through that gate in the exercise of their rights under the said s 88B instrument, amounts (in the absence of sufficient reason or excuse to do so on any particular occasion, as explained in these reasons) to an unreasonable use of their rights under the said s 88B instrument and is not permitted thereby. (4) Note that the Court does not accept a fear of cattle to amount to sufficient reason or excuse to leave any of the said farming gates open after having opened them in the exercise of rights under respective s 88B instruments. (5) Declare that the placement, deposit and spreading by the plaintiffs/cross-defendants of material (the Road Material) in the period August to September 2015 on part of Right of Way "A" and on Right of Way "B", constitutes a trespass to land by reason of being carried out without the consent of the defendants/cross-claimants and not being within the rights conferred on the plaintiffs/cross-defendants pursuant to either of the respective s 88B instruments creating the respective rights of way. (6) Order that the plaintiffs/cross-defendants notify the local Council and the Environment Protection Authority (EPA) in writing within 7 days as to the discovery of the fragment of asbestos on Right of Way "A" and provide copies to those authorities of the expert reports obtained from Dr Martens and Mr de Silva and tendered in these proceedings; and that the plaintiffs/cross-defendants comply with any direction by the EPA as to the containment or removal of part or all of the Road Material and thereafter remediate the rights of way so far as possible to restore them to their former condition as they existed prior to the placement, deposit and spreading of the Road Material. (7) For the avoidance of doubt if the EPA determines that the Road Material cannot be appropriately contained and should be removed, or otherwise is not able or not prepared to determine within a reasonable time a regime for the containment or removal of the Road Material, the defendants/cross-claimants have liberty to apply on reasonable notice for the making of orders for the removal by the plaintiff/cross-defendants of the entirety of the Road Material and remediation of the land at their cost. (8) Declare that the damage caused by the plaintiffs/cross-defendants to several large boulders on and in the vicinity of the respective rights of way in the course of road works carried out by them in or about August- September 2015 constitutes a trespass to land, by reason of it not being carried out with the consent of the defendants/cross-claimants and not within the rights conferred on the plaintiffs/cross-defendants pursuant to either of the respective rights of way. (9) Order that the damaged boulders each be replaced by the plaintiffs/cross-defendants at their cost with boulders of comparable size and appearance brought from off the plaintiffs/cross-claimants' property. (10) Reserve question of damages for trespass pending compliance with orders 6, 7 (if applicable) and 9 above. (11) Otherwise dismiss the plaintiffs' claims in the proceedings. (12) Reserve the question of costs. (13) Direct that written submissions as to costs be served within 7 days with the intent that costs will be determined on the papers. (14) Liberty to the parties to apply on 3 business days' notice for any amendment or variation of these orders and for directions in relation to the assessment of damages. In the transferred proceeding (2016/00366908) (1) Declare that the respondents have carried out work (Work) on land being Lot 20 DP 1163017 and Lot 21 DP 1163020 (the Land) being development for the purposes of a private road, or alternatively for the purposes of a dwelling house, by constructing a road surface using imported fill being the access road to their dwelling house on adjoining land within their rights of way over the Land but without development consent, when development consent was required for the carrying out of work for either purpose within the E3 Environmental Management zone applying to the land under the Wyong Local Environmental Plan 2013, contrary to 76A Environmental Planning and Assessment Act 1979 (NSW). (2) Further declare that the respondents by carrying out the Work have carried out prohibited development on the Land being development for the purposes of a waste facility, which is an innominate prohibited use under the Wyong Local Environmental Plan 2013, contrary to 76A Environmental Planning and Assessment Act 1979 (NSW). (3) Declare that the respondents have used the Land as a "waste facility" contrary to s 144 of the Protection of the Environment Operations Act 1997 (NSW) by placing, depositing and spreading on the Land material within the definition of "waste" in that Act being imported fill being building waste and crushed concrete waste derived from concrete, brick, tile and pipe and trace pieces of steel, alloy and timber (the Road Material). (4) Note and confirm the orders made in the associated (easement) proceeding (2016/00140145) in relation to the notification to the local council and Environment Protection Authority (EPA) as to the discovery of asbestos and for compliance with any direction by the EPA as to the containment or removal or part or all of the Road Material. (5) Reserve the question of costs. (6) Direct that written submissions as to costs be served within 7 days with the intent that costs will be determined on the papers. (7) Liberty to the parties to apply on 3 business days' notice for any amendment or variation of these orders and for directions in relation to any further relief to be granted following compliance with the orders made in the associated (easement) proceeding. Catchwords: REAL PROPERTY – Easements – Rights of way – Construction – Whether easement implicitly precludes grazing of cattle by servient tenement owner – Meaning of "all weather" access standard – Whether dominant tenement owner liable to contribute financially to the cost of certain works