Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Gordon v Lever (No 2) [2019] NSWCA 275 Hearing dates: 5 August 2019 Date of orders: 13 November 2019 Decision date: 13 November 2019 Before: Bell P at [1]; Payne JA at [103]; Emmett AJA at [104] Decision: 1. Appeal allowed in part. 2. Vary order 1 made on 18 December 2018 by replacing "Annexure B to those orders" with "Annexure 1 to the reasons of the Court of Appeal delivered on 13 November 2019". 3. Order that the respondents pay the appellants' costs of the appeal. Catchwords: REAL PROPERTY – Conveyancing Act 1919 s 88K – Easements – "Reasonably necessary" – where terms imposed on and limiting re use said to be uncertain in their practical operation – where terms in effect required use of alternative means of access in circumstances that were not readily capable of being assessed – where terms in substance required an alternative access route to be used in particular circumstances but where that alternative route would involve traversing property in breach of Crown Land Management Act 2016 Legislation Cited: Conveyancing Act 1919 (NSW) ss 88K, 89 Crown Land Management Act 2016 (NSW) s 13.3(6) Crown Lands Act 1884 (NSW) s 8, Sch New South Wales Government Gazette, No 56, 11 May 1923 Water Management Act 2000 (NSW) Pt 3 Cases Cited: 117 York Street Pty Limited v Proprietors of Strata Plan No 16123 (1998) 43 NSWLR 504; (1998) 98 LGERA 171 Gordon v Lever [2018] NSWCA 43 Govindan-Lee v Sawkins [2016] NSWSC 328 Grattan v Simpson (1998) 9 BPR 16,649 House v R (1936) 55 CLR 499; [1936] HCA 40 King v Carr-Gregg [2002] NSWSC 379 Moorebank Recyclers Pty Ltd v Tanlane Pty Ltd [2012] NSWCA 445; (2012) 16 BPR 31,257 Owners Strata Plan 13635 v Ryan [2006] NSWSC 221 Re Seaforth Land Sales Pty Ltd's Land (No 2) [1977] Qd R 317 Shi v Abi-K Pty Ltd (2014) 87 NSWLR 568; [2014] NSWCA 293 Woodland v Manly Municipal Council [2003] NSWSC 392; (2003) 127 LGERA 120; (2004) NSW ConvR 56-071 Texts Cited: Brendan Edgeworth, Butt's Land Law (7th ed, 2017, Thomson Reuters) Category: Principal judgment Parties: Stanley Robert Gordon (First Appellant) Christine Margaret Gordon (Second Appellant) Allen John Lever (First Respondent) Debra Ann Lever (Second Respondent) Representation: Counsel: M R Hall SC, L Byrne (Appellants) G A Sirtes SC, C Simpson (Respondents) Solicitors: John F Gibson (Appellants) Parker & Kissane Solicitors (Respondents) File Number(s): 2019/11223 Decision under appeal Court or tribunal: Supreme Court of New South Wales Jurisdiction: Equity – Expedition List Citation: [2018] NSWSC 1888 and [2019] NSWSC 571 Date of Decision: 14 December 2018 and 17 May 2019 Before: Sackar J File Number(s): 2017/55270 [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Headnote [This headnote is not to be read as part of the judgment] The appellants (the Gordons) and the respondents (the Levers) owned neighbouring properties adjacent to the Richmond River in the Northern Rivers region of New South Wales. For many years, the Gordons accessed their property through land owned by the Levers until a bridge passing over a gully wholly on the Levers' property and forming part of the access route to the relevant Lots belonging to the Gordons washed away in December 2015. Following this, the only means of accessing the Gordons' land was by crossing the Richmond River over a ford. At certain times of the year, however, it was either not possible or not safe to cross at the ford. Additionally, as the ford was Crown land, its use would involve a breach of s 13.3(6) of the Crown Land Management Act 2016 (NSW). The Gordons applied for an easement over the Levers' land, following the route which had been used, and whose use had been acquiesced in by the Levers, until the bridge was washed away in 2015. To be effective, any such easement would require the construction of a new bridge over the gully which would be wholly on, but provide little practical benefit to, the Levers' land. The primary judge ordered the creation of such an easement for a right of carriageway over the Levers' land, in favour of the Gordons, but imposed terms which included a limitation on the period during which persons (other than emergency vehicles) wishing to access the Gordons' land could use the easement to those times when the river at the ford was 300mm or more above the level of the riverbed at that location, this being assessed to be "low hazard" and safe. The Gordons appealed from the decision to the Court of Appeal. The principal issues on appeal were: 1. Whether the primary judge erred in imposing limitations on the easement in circumstances where the appellant contended that the easement was "reasonably necessary" all, and not only some, of the time. 2. Whether the primary judge erred in imposing restrictions on the terms of the easement which the appellant contended were not practically or legally workable, and/or were uncertain in their practical operation. The Court held (Bell P, Payne JA and Emmett AJA agreeing), partly allowing the appeal: 1. The primary judge erred in restricting the easement as to time, in circumstances where the Court considered that the easement was "reasonably necessary" within the meaning of s 88K of the Conveyancing Act 1919 (NSW) at all times, in all of the circumstances, including that use of the ford, which was Crown land, would involve a trespass to land: [54]-[55], [60] (Bell P); [103] (Payne JA); [106] (Emmett AJA). 2. The primary judge erred in imposing restrictions on usage of the easement which were not practically workable in all of the circumstances of the case: [61] Bell P; [103] (Payne JA); [106] (Emmett AJA). Judgment 1. BELL P: This is an appeal from two decisions of Sackar J (the primary judge), the principal decision relating to the grant of an easement on terms and the second decision relating to costs. The key issue 1. Section 88K(1) of the Conveyancing Act 1919 (NSW) (Conveyancing Act) provides for the creation of an easement where one is "reasonably necessary for the effective use or development of other land that will have the benefit of the easement." The appeal from the principal decision raises the question of a case where the easement sought is held to be reasonably necessary some, but not all, of the time. It is not put into question that terms can be imposed regulating its use, but it is put that where (as is said to be the case) the terms imposed are not practically or legally workable, or are not reasonably so, and/or are uncertain in their practical operation, the easement sought is reasonably necessary all of the time, that is to say, without restriction by terms of the kind imposed by the primary judge. Background 1. The primary judge ordered the creation of an easement for a right of carriageway on certain terms over land owned by Allen John Lever and Debra Ann Lever (the Levers) in favour of land owned by Stanley Robert Gordon and Christine Margaret Gordon (the Gordons): Gordon v Lever [2018] NSWSC 1888. 2. The parties are neighbouring farmers in the Northern Rivers region of New South Wales in the Shire of Kyogle. The dominant tenement is occupied and farmed by the Gordons' daughter, Jodie Louise Dunn (Mrs Dunn), and her family. 3. For many years, this property was accessed from Summerland Way, the principal road in the area, through land owned by the Levers, until a bridge passing over a gully wholly on the Levers' property and forming part of the access route to the relevant Lots belonging to the Gordons (the Lever Bridge) was washed away in or about December 2015. The arrangement between the parties as to access which existed prior to the washing away of the bridge was informal in nature. It was at best an informal, unwritten licence. Senior Counsel for the Levers characterised this as a "grace and favour arrangement that's been on foot for a number of years" which was "satisfactory in personam between the parties." 4. After the Lever Bridge was washed away, the only means of accessing the Gordons' land was by crossing the Richmond River over a ford that had hitherto principally been used by cattle to pass from one side of the river to the other, presumably when the river was at a suitably low level over the ford to permit this to occur. This means of access does not involve the Gordons, Mrs Dunn or her family passing over land owned by the Levers. Indeed, although different parcels of land needed to be traversed to reach the ford from Summerland Way, all were and indeed remain in the ownership of the Gordons. The difficulty is that, at certain times of the year, it is either not possible or not safe to cross the Richmond River at the ford. As shall be seen, the Gordons also have no legal right to do so, the ownership of at least the riverbed, a road reserve and, it would appear, a gravel track immediately adjacent to the river, remaining with the Crown. 5. This is the context in which an application was made by the Gordons for an easement over the Levers' land following the route whose use had been acquiesced in by the Levers until the washing away of the Lever Bridge in December 2015. To be effective, any such easement would require the construction of a new bridge over the gully where the Lever Bridge previously existed. This would be wholly on (but provide little practical benefit to) the Levers' land. 6. As noted above, the primary judge granted the easement on terms. Critically, one of the terms limited the period during which persons needing or wishing to access the relevant Gordon land could avail themselves of the easement to circumstances where the water level at the ford was 300mm or more above the level of the riverbed at that location. 7. Relevantly, the primary judge held, in accordance with expert evidence which had been led by both sides, that when the water depth at the ford was 300mm or lower, the crossing was "low hazard" irrespective of the velocity of the water: at [165]. His Honour further held that "as a rough estimate and taken at its highest" the river at the ford would be above 300mm at best on average 54 days per year: at [166]. This translated to a conclusion that, on average, crossing at the ford would represent a low hazard on 311 days or 85% of the year. 8. Thus, at [177]-[178], the primary judge held that the Richmond River at the ford was "safe to cross for much of the year (on average 85% of the year at least)", noted that "at 300mm or less of water depth it is safe to cross in a two wheel drive vehicle (2WD), irrespective of the velocity of the water" and concluded that "when under 300mm of water depth, [it was] a safe and alternative route" to that which had been utilised up until December 2015 with the washing away of the Lever Bridge. His Honour went on to say (at [178]) that: "How safe and stable that alternative route is a matter for the [Gordons] and [their] family. The [Gordons], 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." The reference to Option 4 was a reference to the crossing at the ford. Previous proceedings 1. This is the second occasion this dispute has reached the Court of Appeal. In Gordon v Lever [2018] NSWCA 43, this Court allowed an appeal from an earlier decision of Sackar J (Stanley Robert Gordon v Allen John Lever [2017] NSWSC 1282) in which his Honour made a declaration to the effect that an easement should be created, limited to circumstances in which the river crossing was "impassable", but did not formulate any precise orders in relation to that easement or the terms upon which his Honour contemplated it would be so limited. 2. The essence of the earlier decision of the Court of Appeal was that Sackar J had not been in a position to make a declaration that finally resolved the issue of whether the easement he proposed to impose was reasonably necessary for the effective use or development of the relevant Lots. The Court held that it 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 of the Conveyancing Act was satisfied. The Court said at [97]: "Th[e] emphatic language of s 88K(3) makes it clear that the court lacks power to make an order imposing an easement unless the terms of the easement are specified in the order itself. The purpose of the statutory requirement is to ensure that an easement imposed in the exercise of the power conferred by s 88K(1) will be registered in a form that includes all particulars of the easement, as envisaged by s 88K(7). Those particulars may have a marked impact on the respective rights and obligations of the owners of the dominant and servient tenements." 1. The Court further held (at [106]) that: "The terms defining the circumstances in which the Richmond River is impassable clearly would have to take into account safety considerations. The crossing might be passable for the driver of a tractor being driven by an experienced farmer, yet be impassable for a vehicle transporting children to school. A night time crossing in rainy conditions might be unproblematic for certain kinds of vehicles but fraught with danger for a sedan being driven by a visitor who is unfamiliar with the terrain." 1. The Court had noted that the evidence made it clear that the level of the Richmond River could change very quickly, depending on conditions, and thus that the width and depth of the crossing at the ford could vary considerably over short periods of time: at [48]. 2. The matter was remitted to Sackar J to be determined in accordance with the reasoning of the Court of Appeal, and it is from his Honour's second decision that this appeal is brought. 3. It is clear from the references at [9]-[10] that Sackar J explored the "passability" of the river and safety considerations in his second judgment. It should be noted, as the primary judge did at [174], that, up until final submissions, the Levers contended that a concrete causeway could be built in the location of the ford over the Richmond River. This was not pressed because, according to the primary judge, a question arose over whether or not the Court would have power to order the Gordons to build on "their own land as a prerequisite to the easement". As will be seen, the riverbed was not and had never been the Gordons' land. 4. Before considering the arguments raised by the parties, it is necessary to give a more precise description of the relevant properties in order to understand the need for the easement and the terms imposed by the primary judge limiting its use. The description of the relevant properties which follows draws upon that provided both by the primary judge and in this Court's earlier decision. The relevant properties 1. The Gordons 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 (Lot 10 is a narrow strip of land, formerly a road reserve). Lots 101 and 102 were purchased in about 1975, and are located to the north of the Summerland Way with each Lot extending over both sides of the road. 2. The Gordons purchased Lots 7 and 40 in 1998. These Lots adjoin each other and are separated from Lots 101 and 102 by the Richmond River. As the primary judge remarked, Lots 7 and 40 are effectively landlocked in the sense that they have no direct access to a public road: at [11]. 3. The Gordons have lived on Lot 101 since they purchased it in 1975. In 2000, their daughter, Mrs Dunn, commenced living in the dwelling 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 ever since. 4. Prior to the acquisition of Lots 7 and 40, the land was used for grazing. After 1998, the Gordons' land, including Lots 7 and 40, was used as a dairy farm. This use continued until 2013 when the Gordons switched to beef production. 5. The Levers 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. These Lots have been in Mr Lever's family since the late 1800s. For the past ten years or so, the Levers have lived in Brisbane and have visited their land about once per month. 6. Plan A, reproduced at [27] below, depicts the relevant Lots and also depicts the Summerland Way and the Richmond River. 7. The two options for access that were considered by the primary judge and which have been described in general terms in [5]-[6] above may more specifically be described as follows. 8. The first option (Option 1), which followed the route which had been used informally prior to December 2015, involved travelling from a point on the Summerland Way, 109m southerly along Lot 100 and, upon reaching the road reserve depicted on Plan A, proceeding along the alignment of the road reserve before re-entering land owned by the Levers through Lot 36 and travelling along Lot 36 for 242m until the boundary of Lot 40 was reached. This route is indicated approximately by the broken light blue line shown on Plan A. 9. The second option depicted by the unbroken pink/red line on Plan A and referred to in the Court below as "Option 4" and which involved the crossing of the ford, commenced from a different point on Summerland Way to Option 1 and then proceeded through Lot 101, passing close to the Gordons' house, into Lot 102 and then along a well-formed gravel road to the riverbank. From there the route required following a road along the riverbank for approximately 120m until reaching the ford and crossing the Richmond River at that point. This point is marked with an X on Annexure C referred to in the Terms of Easement for right of Carriageway which were referred to in the short minutes of order made by the primary judge on 19 December 2018. Those terms will be referred to more fully later in these reasons but Annexure C is reproduced immediately below. The marking of the X is far from clear on the annexure to the short minutes of order. For ease of reference, I have overlaid it with a white cross on the version set out below. 1. I have also transposed the location of the ford, as depicted by the letter X on Annexure C, to the following aerial view of the relevant land, this image being the same image reproduced as Plan A in the earlier judgment of the Court of Appeal subject to the transposing of the X. 1. It is plain from this image that, upon crossing the ford, a vehicle or person will not immediately reach Lot 40 but will remain on Crown land. This is also reflected by the Plan of Lot 40 reproduced at the end of this judgment. 2. On the assumption that the spot marked X on Annexure C, reproduced at [26] above and transposed onto Plan A at [27] above, is correct, and we must assume it is, then to the extent that the primary judge (at [17]) and the Court of Appeal in its earlier judgment (at [47]) suggested that a person crossing the ford immediately entered Lot 40 following that crossing, that suggestion would not appear to be precisely correct. Both Plan A and the plan of Lot 40 suggest that a vehicle or person so crossing would need to cross land not in the ownership of the Gordons or the Levers in order to reach Lot 40. The practical significance of this will be seen when discussing the practicality and legality of the terms imposed on the right of carriageway created by the easement. It is to that topic that I now turn. The easement granted and the terms of its use 1. The primary judge found that it was "reasonably necessary" within the terms of s 88K(1) of the Conveyancing Act to grant an easement consistent with Option 1 but, in light of the findings to which I have referred at [9]-[10] above, limited its use significantly. The orders made by the primary judge were as follows: "1. That pursuant to s88K(1) of the Conveyancing Act 1919 (NSW) an easement for a right of carriageway be created over the land of the defendants known as 3129 Summerland Way, Grevillia, being Lot 100 DP 1045950 and Lot 36 DP 755733, in the location shown as Right of Carriageway over Track in Use in the Plan annexed at 'A' to these Orders, in favour of the land of the plaintiffs known as 3051 Summerland Way, Grevillia, being Lot 40 DP 755733 and Lot 7 DP 131323; in accordance with the terms set out in Annexure 'B' to these Orders. 2. The plaintiffs pay the defendant[']s compensation in the amount of $26,257 in respect of the said easement, such compensation to be paid within 2 days of registration of the easement; 3. An order that the defendants execute and deliver to the plaintiffs a dealing in the form approved under the Real Property Act 1900 [(NSW)] setting out particulars of the easement imposed by the Court under s88K(1) of the Conveyancing Act 1919 [(NSW)] in favour of the plaintiffs over the land of the defendants; 4. An order that failing the defendants, within 28 days of the making of Order 1, delivering to the plaintiffs an executed dealing setting out particulars of the easement imposed by the Court under s88K(1) of the Conveyancing Act 1919 [(NSW)] in favour of the plaintiffs over the land of the defendants, the Registrar do all things necessary to give effect to Order 1 of the Court; 5. The plaintiffs are to pay the costs and disbursements associated with the preparation and registration of the instrument for the said easement; 6. The defendants undertake to the Court and to the plaintiffs to do all things reasonable and necessary to enable the said easement to be registered as soon as possible; 7. List the matter for directions before Sackar J on Friday 8 February 2019; 8. Costs reserved; 9. These Orders are to be entered forthwith." 1. The terms of the easement for a right of carriageway were as follows: "1. Following the registration of this easement the proprietor of the land benefited shall:- (a) construct a bridge on Lot 36 DP 755733 over the unnamed water course at point 'G' in the plan at Annexure 'A' hereto ("the Bridge"); and (b) undertake any works in relation to the upgrade of the road within the easement area ("the Road") required by these terms. ("the Works"). 2. The Bridge shall be constructed and maintained to a reasonable and safe standard consistent with its use. 3. The Road shall be upgraded and maintained to a standard consistent with its use. 4. In the doing of the Works the proprietor of the lots benefited must: (a) give one weeks' notice to the proprietor of the lots burdened of the intention to commence the Works; and (b) comply with any reasonable requirements of the Kyogle Council and the NSW Department of Primary Industries; and (c) cause as little inconvenience as is practicable to the proprietor and occupier of the lots burdened; and (d) cause as little damage as is practicable to the lots burdened and make good any damage. 5. In the period that the Works are being carried out the proprietor of the lots burdened: (a) must not frustrate or hinder the undertaking of the Works; and (b) must allow contractors to enter the lots burdened and remain there for any reasonable time necessary to do the Works. Terms of Use 6. Use of the right of carriageway is permitted pursuant to the terms of a right of carriageway detailed in Part 1 of Schedule 8 of the Conveyancing Act 1919 [(NSW)] subject to the following terms:- (a) No use is permitted until the Works are completed. (b) The right of the carriageway may be used: A. by any emergency vehicle at any time; and B. by pedestrians and other vehicles at the following times: (i) during the time when the water level at the Crossing is 300mm or more above the bed surface level at that location (being the level of the surface traversed by vehicles using the Crossing including any pavement, causeway or other structure built upon the riverbed); or (ii) if either the approach or exit track to the Crossing is damaged by flooding of the Richmond River to such an extent that it is not reasonably and safely passable by a 2 wheel-drive vehicle, for a period of 14 days following the occurrence of that damage (and may be used notwithstanding that, in that period, the water level in the river returns to a level below that specified in sub-paragraph (i) of this clause). (c) In the event of any dispute (including in any legal proceedings) as to whether, at any particular time, the water level in the Richmond River exceeded the level specified in sub-paragraph (b)B(i) of this clause, it is to be presumed, unless the contrary is proven, that the water level did exceed that level at that time. This clause may be relied on by any person who uses the easement, whether or not the proprietor of the land benefited. 7. For the purposes of these terms: (a) the 'Crossing' means the ford across the Richmond River at the location marked 'X' on the map at Annexure 'C' hereto; (b) 'emergency vehicle' includes (without limitation): (i) any ambulance, health professional's vehicle, paramedic's vehicle, fire (including rural fire) service vehicle, police vehicle, utilities provider's vehicle, emergency services vehicle (including any State Emergency Services vehicle); and (ii) any private vehicle traveling in circumstances of actual or perceived medical or fire emergency." 1. One way of understanding the primary judge's orders is that he considered that the easement over the Levers' land was reasonably necessary when the river at the ford was over 300mm but was not otherwise "reasonably necessary". This was his reason for the imposition of term 6(b)B which I shall refer to as "the 300mm Term". Section 88K of the Conveyancing Act 1. Section 88K of the Conveyancing Act is in the following terms: "(1) The Court may make an order imposing an easement over land if the easement is reasonably necessary for the effective use or development of other land that will have the benefit of the easement. (2) Such an order may be made only if the Court is satisfied that: (a) use of the land having the benefit of the easement will not be inconsistent with the public interest, and (b) the owner of the land to be burdened by the easement and each other person having an estate or interest in that land that is evidenced by an instrument registered in the General Register of Deeds or the Register kept under the Real Property Act 1900 can be adequately compensated for any loss or other disadvantage that will arise from imposition of the easement, and (c) all reasonable attempts have been made by the applicant for the order to obtain the easement or an easement having the same effect but have been unsuccessful. (3) The Court is to specify in the order the nature and terms of the easement and such of the particulars referred to in section 88 (1) (a)–(d) as are appropriate and is to identify its site by reference to a plan that is, or is capable of being, registered or recorded under Division 3 of Part 23. The terms may limit the times at which the easement applies. (4) The Court is to provide in the order for payment by the applicant to specified persons of such compensation as the Court considers appropriate, unless the Court determines that compensation is not payable because of the special circumstances of the case. (5) The costs of the proceedings are payable by the applicant, subject to any order of the Court to the contrary. (6) Such an easement may be: (a) released by the owner of the land having the benefit of it, or (b) modified by a deed made between the owner of the land having the benefit of it and the persons for the time being having the burden of it or (in the case of land under the provisions of the Real Property Act 1900) by a dealing in the form approved under that Act giving effect to the modification. (7) An easement imposed under this section, a release of such an easement or any modification of such an easement by a deed or dealing takes effect: (a) if the land burdened is under the Real Property Act 1900, when the Registrar-General registers a dealing in the form approved under that Act setting out particulars of the easement, or of the release or modification, by making such recordings in the Register kept under that Act as the Registrar-General considers appropriate, or (b) in any other case, when a minute of the order imposing the easement or the deed of release or modification is registered in the General Register of Deeds. (8) An easement imposed under this section has effect (for the purposes of this Act and the Real Property Act 1900) as if it was contained in a deed. (9) Nothing in this section prevents such an easement from being extinguished or modified under section 89 by the Court." 1. It is to be noted that s 88K(3) provides that the terms upon which an easement may be granted "may limit the times at which the easement applies". As has been seen, the terms imposed by the primary judge in one sense limited the "times at which the easement applies", not by reference to specific times expressed in terms of particular dates, hours or minutes, but rather by reference to an event, viz. the level of the Richmond River at the ford such that, at the times when it exceeded 300mm, the easement ordered could be used by those wishing to access the dominant tenement (there being an exception for emergency vehicles). 2. No issue was taken on appeal as to the primary judge's power to impose terms which limited the times during which an easement could be used by reference to the occurrence of an event or physical phenomenon, such as the level at a particular point of the Richmond River, although neither side pointed to an instance of where such a term had been imposed. This stance was no doubt taken in light of this Court's observation in Moorebank Recyclers Pty Ltd v Tanlane Pty Ltd [2012] NSWCA 445 at [183]; (2012) 16 BPR 31,257 (Moorebank) that s 88K(3) of the Conveyancing Act "imposes no limitation on the terms which can be imposed". It is necessary at this point to say something about the meaning of "reasonably necessary" as used in s 88K(1) of the Conveyancing Act. Implicit in the concept of reasonable necessity is a consideration of the alternative methods by which the proposed use or development could be achieved: Moorebank at [158]. Further, as the primary judge observed at [64], "[t]here 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". 3. The primary judge referred to the decision of Young J (as he then was) in Grattan v Simpson (1998) 9 BPR 16,649 who said at 16,651: "The cases show that the mere fact that there is some other means of access to the property does not of itself preclude an order being made under this particular section. However, where there are alternate means of access the evidence must show that in order to appropriate someone else's property there must be a considerable advantage in obtaining the easement rather than developing an alternative access." (emphasis added). 1. In Woodland v Manly Municipal Council [2003] NSWSC 392 at [7]; (2003) 127 LGERA 120; (2004) NSW ConvR 56-071 (Woodland), Hamilton J observed that: "In Re Naylor Benzon Mining Co Ltd [1950] Ch 567 at 575 Wynn-Parry J said that the expression 'reasonably necessary' is a nonsense or self contradictory, in that something is either necessary or not necessary and cannot be reasonably necessary. In one sense, his Lordship is correct. But courts are under an obligation to give effective operation to Acts of Parliament." 1. In Moorebank at [154], Bathurst CJ, Beazley JA and Meagher JA said: "The requirement that the easement be reasonably necessary for the effective use and development of the land means something more than mere desirability or preferability over the alternative means available: Rainbowforce supra at [76]. However, reasonable necessity does not mean absolute necessity. The correct approach to the question, in our opinion, was stated by Hodgson J (as his Honour then was) in 117 York Street supra as follows: 'It is clear that 'reasonably necessary' in s 88K(1) does not mean 'absolutely necessary', and thus that the requirement may possibly be satisfied even when the plaintiff's land could be effectively used or developed without the easement. In my opinion: (1) the proposed easement must be reasonably necessary either for all reasonable uses or developments of the land, or else for some one or more proposed uses or developments which are (at least) reasonable as compared with the possible alternative uses and developments; and (2) in order that an easement be reasonably necessary for a use or development, that use or development with the easement must be (at least) substantially preferable to the use or development without the easement. …'" 1. The observations of Darke J in Govindan-Lee v Sawkins [2016] NSWSC 328 at [49] may also be noted: "The plaintiff bears the onus of showing reasonable necessity and is best placed to adduce evidence about this alternative. It is unsatisfactory that the plaintiff has failed to bring forward evidence that would facilitate a more comprehensive assessment of this alternative, including of any difficulties or uncertainties involved in it." (emphasis added). 1. Whether or not an easement is "reasonably necessary" is to be assessed by reference to the circumstances as they exist at the time of the hearing: 117 York Street Pty Limited v Proprietors of Strata Plan No 16123 (1998) 43 NSWLR 504 at 511; (1998) 98 LGERA 171 (117 York Street); Moorebank at [96]. 2. Such a finding "involves the making of a value judgment, but not the exercise of a discretion": Woodland at [19](2); see also Moorebank at [159] where reference was made to the evaluative nature of the exercise. It was for this reason that, although Senior Counsel for the Levers, Mr Sirtes SC, sought in his written submissions to suggest that the decision at first instance entailed an exercise of discretion to which principles associated with House v R (1936) 55 CLR 499; [1936] HCA 40 would apply, this submission was not pressed with any vigour in the course of the hearing, and rightly so. 3. Consideration and assessment of the concept of reasonable necessity also requires consideration of the effect of the grant of the easement on the servient tenement: Moorebank at [156]. It is also relevant in this regard to consider what Rein J described as "the historical context of use of the land, both of the dominant and servient tenements": Owners Strata Plan 13635 v Ryan [2006] NSWSC 221 at [67]. In King v Carr-Gregg [2002] NSWSC 379 at [59], Foster AJ said: "When one also considers that the pipe has been in situ for twenty-five years and has, apparently, in conjunction with the pipes bringing drainage water from 9 Edward Street and 17 Rosedale Road, operated without significant malfunction or the occasioning of identifiable harm to the Carr-Gregg property, then, in my view, 'reasonable necessity' for the granting of the easement is amply demonstrated. Although the imposing of an easement lies in the discretion of the Court, in my opinion, not to so regulari[s]e this important segment of this long established drainage system would be an absurdity." Grounds of appeal and consideration 1. The principal thrust of the challenge to the primary judge's orders related to terms 6(b)B(i) and (ii), 6(c) and 7 governing the use of the easement, it being submitted that persons seeking to use the easement should be able to know with reasonable certainty what right they did or did not have to cross someone else's private land. So also it was put that potential acquirers of either the dominant or servient tenements should be able to know what rights or limitations or burdens applied to their prospective title. In both cases it was put that if the terms imposed on the use and enjoyment of the easement did not provide such certainty, an easement unqualified by such terms was reasonably necessary. 2. It was submitted that the terms conditioning and limiting the use of the easement were in breach of s 88K of the Conveyancing Act for the following reasons: "(i) The implementation and enforcement of the easement by its Terms is impossible without traversing land known as Lots 101 & 102 DP 1045950 which are not the subject of the proceedings, not the subject of the easement and not wholly owned by the [a]ppellants; (ii) By reason of the factual matters in the previous sub paragraph Lots 101 & 102 are physically impacted by the easement; (iii) The servient tenement (Lever) has no right to enter Lots 101 & 102 in the event of a dispute as to the level of water or repair of the tracks at the Crossing if he is concerned about an increased use of his land at Option 1; (iv) Term 7(a) and Annexure 'C' to the Terms purport to identify the 'Crossing' with an X on a map which is: (a) Land not owned by the dominant tenement or the servient tenement; and (b) a map which does not comply with the form and certification requirements of Division 3 of Part 23 Conveyancing Act, and is not capable of being registered; (v) Accordingly the Terms do not comply with s 88(1)(a) – (d) and Division 3 of Part 23 because Lots 101 and 102 are not the subject of the proceedings and cannot be specified in the Transfer granting Easement, but the use of Lots 101 and 102 are necessary for the implementation of the easement and yet the registered proprietor of Lots 101 & 102 has no legal obligation to either the servient tenement or the dominant tenement; and (vi) By reason of the matters stated above, in adopting the Terms his Honour erred in failing to follow the Court of Appeal's findings in Gordon v Lever [2018] NSWCA 43, at [24], [25] & [97], with respect to the application of s 88K(3) of the Conveyancing Act and s 88(1) and Division 3 of Part 23 referred to therein, on the remitter; (vii) His Honour erred in relying on the provisions of s 89 of the Conveyancing Act to vary the easement at a later date [186] to cure any change in ownership of Lots 101 & 102, when adding other land is not a permissible variation to an easement under s 89 of the Conveyancing Act." 1. In their written submissions in this Court, the Gordons put the nub of the matter as follows: "[S]hould the Gordons, the residents of Lot 7 and their visitors be required to use Option 4 [the ford] whenever the river level permits, and Option 1 only at times when the ford is impassable; or do the problems with Option 4 make a more general right of carriage way 'reasonably necessary' for the purposes of s 88K?" Another way of expressing this argument was to say that the limitation imposed on the easement by the 300mm Term was not warranted because the easement in fact granted was reasonably necessary at all times, even if the ford could in fact be used safely for large amounts of the year to access Lot 40, and from Lot 40 to Lot 7. 1. The "problems with Option 4" referred to in the extract from the Gordons' submissions set out above and which were explored in argument and referred to, albeit in part obliquely, in the notice of appeal, included: 1. the practicality of being able to assess or measure the depth of the water level in the Richmond River at the ford at any particular time, and the uncertainty that would consequently attend on the legality of any use; 2. the fact that the riverbed constituting what I have referred to as the ford was not in the ownership of the Gordons; 3. the fact that any installation of either a causeway or other building in the river, even if the Gordons owned the relevant portion of the riverbed, would require detailed approvals which could not be guaranteed; 4. the fact that the land (Lot 102) needed to be crossed in order to reach the ford, so an order to cross over to Lot 40 would not always necessarily be in the same ownership as Lot 40; and 5. the inability of the owners of the servient tenement to monitor compliance with the terms of the grant of the easement because to do so would involve a trespass over the dominant tenement. 1. Senior Counsel for the Gordons, Mr Hall SC, submitted that the learned primary judge erred by, in effect, applying a test of necessity as opposed to reasonable necessity, and pointed in this regard to his Honour's detailed consideration of case law predating the amendments to the Conveyancing Act, the introduction of s 88K and the test of "reasonable necessity". His Honour had traced the development of the law of easements from the early seventeenth century through to the introduction of s 88K in 1995 at [34]–[53] of his judgment. 2. Whilst it is correct that the primary judge dealt at some length with the pre-statutory case law, this was not to the exclusion of a proper consideration of the case law postdating the introduction of s 88K and his Honour was plainly conscious of the significant change that accompanied the introduction of s 88K, the review of the earlier case law serving only as a counterpoint in this regard. 3. Even so, Mr Hall was correct to emphasise that the relevant test was what was reasonably necessary, with the word "reasonably" qualifying a concept which, in its ordinary English meaning, has an absolute sense. He pointed to the fact that the primary judge had (at [183] of his judgment) said: "I am of the view that the terms of easement proposed by the [Levers] are, however, reasonably necessary as they accommodate the necessity for the [Gordons] 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." (emphasis added). 1. This statement was not to answer the question whether or not the easement was reasonably necessary when the river was below 300mm. Implicitly, however, the primary judge must be taken to have held that it was not. 2. Mr Hall also criticised the primary judge for engaging in the "naturalistic fallacy" of "reasoning from the is to the ought", that is to say, reasoning that because the Gordons had, of necessity, been constrained to use the ford for the previous four years following the washing away of the Lever Bridge, that established that the need for the proposed easement was not made out for the greater part of the year when the ford could safely be crossed. That fact may have established that the easement was not absolutely necessary for approximately 85% of the year but did not establish, so it was submitted, that it was not "reasonably necessary" for the entirety of the year. 3. There can be no doubt that, when the water level at the ford was at or above 300mm, which his Honour used as a proxy or surrogate for the ability to cross the river in a 2WD motor vehicle safely, the easement over the Levers' land was not only "reasonably necessary", but absolutely necessary. There was no other safe means of access. So much was recognised by the primary judge's reference to "necessity" in the passage I have extracted from [183] of his judgment reproduced at [49] above. 4. Consistent with the authorities referred to above, the fact that, when the water level was below 300mm, it was possible to access Lot 40 did not mean that the easement without any limitation as to its use was not "reasonably necessary". The question is whether the easement in such a circumstance was something more than merely desirable or preferable so as to be "reasonably necessary". As Hanger CJ observed in Re Seaforth Land Sales Pty Ltd's Land (No 2) [1977] Qd R 317 at 321, "it is a matter of degree". Adapting the language from 117 York Street, adopted in Moorebank, the "use or development with the easement" had to "be (at least) substantially preferable to the use or development without the easement." 5. In my opinion, the learned primary judge should have held that the use of Lots 7 and 40 with the easement met that description and that the easement, unlimited by the 300mm Term was, in all the circumstances, "reasonably necessary" within the meaning of s 88K of the Conveyancing Act. My reasons for that conclusion are as follows. 6. First, although used as a matter of fact and necessity since the washing away of the Lever Bridge in December 2015, the lawfulness of the use of the ford as a principal means of access to Lot 40 (and to Lot 7 via Lot 40) is very much open to doubt. In this context, s 13.3(6) of the Crown Land Management Act 2016 (NSW) (Crown Land Management Act) relevantly provides that: "The owner of the land is not entitled to any rights of access over, or to the use of, any part of the bed of a river if, before the commencement of section 172 of the Crown Lands Act 1989: (a) the bed of the river was reserved from sale or lease under the Crown Land Acts, and (b) land adjoining the river was subsequently alienated (including alienation under any form of tenure under the Crown Land Acts or any other Act relating to the alienation of land of the Crown): (i) as bounded by, by reference to, or by the margin or bank of, the river, or (ii) by metes expressed or shown to run to the river or to the margin or bank of the river." 1. Professor Edgeworth observes in Butt's Land Law (7th ed, 2017, Thomson Reuters) at [2.560] that: "Under s 172(5), (6) and (7) of the Crown Lands Act 1989 (NSW) and certain Gazette notices, ownership of land in New South Wales bounded by a river generally carries no rights of access over or use of any part of the river bed. These provisions do not in terms preclude "ownership" of the river bed up to the middle line; but in practical terms, by denying access and use, they achieve much the same result." 1. The bed of the Richmond River was reserved from sale or lease by gazettal on 11 May 1923. By the New South Wales Government Gazette, No 56, of that date, folio 2253, WE Wearne, the Minister for Lands, "notified in pursuance of the provisions of the 29th section of the Crown Lands Consolidation Act 1913 (NSW), the Crown Lands hereunder described shall be and hereby are temporarily reserved from sale or lease generally". The terms of the reservation were as follows: "All the beds of rivers, their tributaries and ana-branches in the Eastern and Central Divisions of the State, inclusive of all shingle, gravel, sand-beds, and alluvium thereon or adjacent thereto, and inclusive of all Crown Lands between the bank of such rivers or their tributaries or ana-branches, together with all Crown Lands between such banks and alienated or granted land bordering thereon; also embracing all beds of lakes, estuaries, and lagoons; 100 feet reservation, wherever situated not reserved from sale for a public purpose or held under special lease; also inclusive of all islands or parts of islands in the Divisions referred to, and those situate in harbours, inlets, bays, ports, estuaries, or off the sea coast within territorial limits not alienated, held under special lease, or reserved from sale for a public purpose other than under the reservation from sale under general notice of 17th April, 1862, revoked this day." (emphasis added). 1. The Eastern and Central Divisions were defined by s 8 and the Schedule to the Crown Lands Act 1884 (NSW). The plan of Lot 40 (reproduced at the end of this judgment) confirms that Lot 40 falls within the Eastern Division and discloses that its boundary comes close to but does not even abut the river's edge. 2. These points were made on behalf of the Gordons in submissions on the regulatory framework filed on 17 August 2017. That was prior to the final day of hearing on the first occasion the matter was before the primary judge. It was there submitted that if what is referred to as Option 4 was taken, "most of this land is Crown land, as either being part of the Richmond River or the Crown road reserve. The Gordons have no legal right of access over it, or right to use any part of the bed of the river and no part of the road reserve passed with the land when they purchased it." To the extent that Senior Counsel for the Levers stated in oral argument in the appeal that the Gordons had never raised any point about ownership of the riverbed, he was mistaken. 3. Where the means of access to otherwise landlocked property posited in the alternative to a proposed easement sought under s 88K of the Conveyancing Act requires users to breach the Crown Land Management Act, an easement by which access would be otherwise facilitated can, in my opinion, comfortably be described as "reasonably necessary". An owner, occupier or visitor to land should not be required to breach an Act in order to utilise the land in question, even if use of such a route is physically possible for a particular period of the year and even though authorities might turn or might have turned a "blind eye" to such a use. 4. Secondly, access to land, even if lawful, should not, in my view, require an assessment to be made by entrants to the land of the height of a river at a particular point in circumstances where that could not be readily or reliably measured, not only by regular users of the access route but by any users of the route such as persons making deliveries, guests, neighbours, service providers and the like. In this context, Mrs Dunn gave evidence, limited to a statement of her belief or understanding but nonetheless highly relevant in my opinion, that: "Since the loss of the bridge, no 2-wheel drive vehicle has been able to access my home on Lot 7. Only experienced 4-wheel drive users have been able to access my home via 'Option 4'. This has had a significant effect on our access to services and community contact and takes up a lot of our time in ferrying people and stock across the river. Examples of this are many, including:- a. The census could not be delivered to our home - they were not prepared to traverse the river using 'Option 4'. b. A horse that we attempted to sell had to be walked across the river as the new owner was not prepared to traverse the river at the 'Option 4' access road in his 4-wheel drive with horse float. c. Television service and repair man (Glotech Services Kyogle) was unable to access our property using 'Option 4' in his repair vehicle; d. I called the local carpet cleaner (Value Carpet Care) to have the carpet cleaned in our home to assist with our son's respiratory problems but after I explained the access at Option 4 he declined the job due to the potential damage to his vehicle and risk of getting stuck; e. All family and friends visiting since December 2015 to the present time, apart from those with 4WD experienced and willing to navigate Option 4, have been transported to the Pines by 4WD by either myself or Terry." 1. At [178] of his decision, the primary judge said: "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 [Gordons] and his family. The [Gordons], 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 [Gordons] to adopt a particular solution or a particular construction at Option 4." (emphasis added). 1. It was also suggested that concrete blocks could be installed to a height of 250mm to provide a visual cue so as to assess when the river was above 300mm. Thus, at [180] of the judgment, the primary judge said: "In addition, as to how the [Gordons], 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." (emphasis added). 1. The notion of installing concrete blocks was suggested as a means of identifying the river level by users of the ford for the purposes of crossing on to and from Lot 40. If a concrete block or blocks of 250mm were installed and water was below the height of that block or blocks so that the block(s) were still visible, that would indicate to a person planning to cross the river at the ford (and who knew of the existence and purpose of the blocks) that the easement could not be used and, on his Honour's findings, that it was safe, at least for a 2WD vehicle, to use the ford to cross the river. 2. It is not clear from the passage from the judgment extracted in [63] above whether or not the primary judge assumed that the ford was the property of the Gordons or whether he contemplated that the blocks would be constructed at the river's edge on either side of the river (although the emphasised portion of the passage extracted at [62] tends to suggest that he considered that the former was the case). If the former, as has been seen, that assumption was, with respect, incorrect. The ford is not the property of the Gordons. If the latter, as has also been seen, at least with regard to the river's edge on the southern side of the river, it was also incorrect for the same reason but, even if correct, constructing blocks at the river's edge would not necessarily have given guidance to a user as to the depth of the river unless the riverbed was (and remained) uniformly at the same level as the posited concrete blocks. 3. There were a number of other difficulties with this suggestion, even assuming that it would be lawful to install the posited concrete blocks in the riverbed or on either side of the river: 1. as already noted, it presupposed that the riverbed was and would remain at a uniform depth at or between the concrete block or blocks, whereas there was photographic evidence before the Court that the bed of the ford was uneven and rocky; 2. it assumed that visitors to the property would know of and understand the reasons for the existence of the concrete blocks, as well as the terms limiting the use of the easement; 3. if the entrant did not know of the existence of the concrete blocks and the purpose served by them, they would not know from the fact that the blocks were underwater that this meant that they could use the easement and that the river was not safe to cross; 4. partially to ameliorate this, it was suggested by the Levers' expert that signage and lighting could be installed, but this would have required power to be taken down to the ford on at least Lot 102; 5. there was also evidence from the Levers' expert, Mr Paterson, to the effect that "[d]epth markers on causeways are known to be ineffective in assisting motorists to assess safety with flooded water crossings". The Gordons' expert agreed with this statement in the Joint Expert Report; 6. finally, an assumption that "third party" entrants such as those instanced by Mrs Dunn in the passage I have set out at [61] above would be prepared to drive their two wheel drive car over the ford is not necessarily a safe one, even if in fact it were physically safe to do so in particular circumstances. 1. Moreover, with regard to the concrete blocks suggestion, when the posited blocks were not visible, somebody seeking to cross the ford in order to reach Lots 40 and 7 and who knew of their existence and their purpose (as well as the terms attaching to the easement) would know that the river was of such a height as to permit use of the easement. This would in turn require the entrant to reverse along the gravel road adjoining the river, turn his or her vehicle around, return to Summerland Way and use the easement via a different departure point along the Summerland Way. This is a matter that also bore upon the assessment as to whether or not the easement was reasonably necessary without the restrictions as to its use that were imposed by the primary judge. 2. Thirdly, it was submitted that anyone in two-wheeled vehicles (namely, motorcycles) – these being different from 2WD vehicles (referred to in term 6(b)B(ii)) which are four wheeled vehicles with only two of the wheels powered − would be unable to enter or leave except in times of flood when the easement could be used. Senior Counsel for the Levers submitted orally that there was no finding that pedestrians or two-wheel vehicles could not use Option 4, and stated that the primary judge had made a specific finding as to the safety for 2WD vehicles to use the crossing up to depths of 300mm. The position would, however, appear to be a fortiori, because of the lower degree of power and control of such vehicles. 3. Whatever the safety implications of a two wheel vehicle such as a motorcycle crossing the ford where there was less than 300mm of water sitting above it, one inescapable consequence of the primary judge's order was that any entrant seeking to visit Lot 7 or 40 on foot using the ford would need to wade through water unless the river was totally dry. 4. Fourthly, there was evidence before the Court (including pictorial evidence) indicating that, in times of and following flood or high waters, the gravel road along the river which, as noted in [26] above, needed to be followed for about 120m before reaching the ford, may be damaged and call for repair. 5. It was no doubt such evidence that led the primary judge to impose term 6(b)B(ii) as set out in [31] above as to permitted use of the easement, namely where: "if either the approach or exit track to the Crossing is damaged by flooding of the Richmond River to such an extent that it is not reasonably and safely passable by a 2 wheel-drive vehicle, for a period of 14 days following the occurrence of that damage (and may be used notwithstanding that, in that period, the water level in the river returns to a level below that specified in sub-paragraph (i) of this clause)." 1. This term was criticised on several bases. 2. First, the standard "to such an extent that it is not reasonably and safely passable… for a period of 14 days following the occurrence of that damage" required the potential user of the easement to make an assessment of the condition of the 120m approach or exit track before knowing whether he or she was lawfully entitled to avail him or herself of the easement over the Levers' property. 3. Moreover, the 14-day period built into this term assumed that a user would know when such damage occurred. An absence of knowledge of this fact, or uncertainty as to it, would leave a potential user of the easement at risk of trespass. 4. These two points were, in my opinion, well made and contribute to the conclusion that an easement unrestricted as to time was reasonably necessary. The inability to formulate terms in respect of the use of the easement that allowed clarity as to when it could and could not be used supports this conclusion. In an environment where neighbours have, for many years, evidently not been able to reach agreement as to access, a party wishing to use its land (and have others use it) should not be put at risk of trespass because of such terms. 5. I should note, parenthetically, that, contrary to one argument advanced by the Gordons, term 6(b)B(ii) did not impose an obligation on anyone to repair the approach or exit tracks to the river crossing within 14 days. 6. An additional criticism of term 6(b)B(ii) was reflected in the submission that, in instances where tracks to the ford were damaged by a weather event, the availability of the easement for 14 days after the damage and not thereafter, irrespective of whether the tracks could be repaired within 14 days of damage occurring, was unsatisfactory. 7. The Gordons submitted that it was "not far-fetched" that a damaged track would not be able to be repaired within 14 days, noting that the timeframe for such repairs was "entirely unexplored by the experts" and not the subject of any finding. Given that damage would have occurred as a result of flooding, any such flooding would unlikely be confined to a small area such that the call for the equipment and materials required to repair a 120m stretch of gravel road along the river's edge would likely be widespread, with demand for such materials and equipment not necessarily being able to be satisfied as expeditiously as the imposed 14 day period would require. Again, I consider that this argument was well made and highlighted the difficulty in formulating workable terms. 8. The Gordons also submitted that work within 40m of the river required approval from the NSW Department of Primary Industries under the Water Management Act 2000 (NSW) (WM Act), and that there was no finding that such approval could be obtained, let alone the work completed, within 14 days. This meant that even though the water levels at the ford could have subsided to a level below 300mm, that route may remain inaccessible because of the damage to the tracks so that the land would effectively be landlocked, the easement not being available outside the 14 day period. 9. There is force to the submission that works along the riverbed required approvals before they could be undertaken: see WM Act Pt 3. The terms of the reservation set out in [57] above and to which I have added emphasis also leave uncertain whether or not the 120m stretch of gravel road adjacent to the riverbed on the side of Lot 102 in fact formed part of Lot 102. If it did not, and there was no clarity as to this in the materials before the Court, that would render the terms imposed on and restricting the use of the easement even more problematic, because some or all of the land on which remediation work may need to be done would not be in the ownership or control of the Gordons. Other arguments 1. For completeness I should record that I do not think that there was any force in the points made on behalf of the Gordons which are reflected in [44(iv) and (v))] above. 2. First, as to the suggestion that the easement was defective because Lots 101 and 102 which it was necessary to traverse before reaching the ford would not always necessarily be in the same ownership as Lots 40 and 7, it was correctly submitted on behalf of the Levers that the Court is to determine easement applications in the circumstances as they exist at the time of the hearing: see Moorebank at [96]. It was also observed that, were the Gordons to sell any of their Lots, they would be able to reserve or grant a right of carriageway as necessary. Further, as the primary judge pointed out at [186] of his judgment, were the Gordons in the future to sell Lots 101 and/or 102 to a third party, this was a matter that may be the subject of a variation of easement. 3. As to the suggestion that the terms were defective because they would not permit the owners of the servient tenement (Lots 100 and 36) to police the use of the easement because, to do so, they would need to trespass upon Lot 40, this argument was dealt with by the primary judge at [186] where he said the following: "there was some suggestion by the [Gordons] that the [Levers'] terms of easement requires an assessment of the level of the river at Option 4 by the [Levers] themselves, and would require a trespass onto the [Gordons'] land to visually sight the water level to determine its depth. This submission is without basis, because on the clear construction of the [Levers'] 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 [Levers] 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." 1. The Gordons also submitted that the terms of the easement imposed by the primary judge were problematic in that they required that users cross Crown land, the bed of the Richmond River and Lots 101 and 102. They observed that the order of the Court was for an easement over Lots 100 and 36, the servient tenements, in order to benefit Lots 7 and 40, the dominant tenements. The Gordons noted that Lots 101 and 102 were not specified in the Court orders, and that "they could not be because this land was not the subject of the proceedings". The Gordons cited the terms of s 88K for the proposition that only parcels of land specified in the order of the Court are bound by the benefit and burden arising on registration of the easement. The Gordons submitted that the order confers no right to cross any other land. 2. The short answer to this argument was, as the Levers pointed out, that it "misstate[d] the easement actually ordered by the Court". They submitted correctly that the easement should not be viewed as a combination of Options 1 and 4, but, rather, as comprising only Option 1, with Option 4 explaining when the Option 1 easement was limited. The easement granted was solely over the Levers' land, and Lots 101 and 102, in the ownership of the Gordons, did not form any part of the easement. Costs 1. In the earlier appeal to the Court of Appeal, the Court made orders in relation to the costs of the appeal but, in remitting the matter to Sackar J, the Court also remitted to his Honour the question of the costs of the first set of proceedings before him. 2. By a separate judgment delivered on 17 May 2019, the primary judge ordered that, in both sets of proceedings before him, the Gordons pay the Levers' costs on an ordinary basis: see Gordon v Lever [2019] NSWSC 571 at [31]. 3. As noted at [33] above, s 88K(5) of the Conveyancing Act provides that "[t]he costs of the proceedings are payable by the applicant, subject to any order of the Court to the contrary." The primary judge declined to make an order to the contrary. The basis upon which this order had been sought by the Gordons was their contention that the Levers' course of conduct in the proceedings had been unreasonable and inconsistent. It was put that the Levers had changed their position significantly and, in particular, that the last minute abandonment of the concept of a causeway being built at the ford (see [16] above) involved significant wastage of expert expenses that had been incurred, with expert evidence being filed on both sides going to the cost and feasibility of building a causeway of the ford. 4. At [24]-[26] of his costs judgment, the primary judge held that: "The [Gordons] at all times opposed the easement proposed by the [Levers]. The [Gordons] never adopted a different position. In my view the [Levers] were entitled to contest the reasonable need of such an easement as contended for by the [Gordons]. The mere fact that positions may have changed from time to time or even in the course of proceedings, is not unusual in litigation. By its very nature litigation is dynamic. True it is that the [Levers] did not ultimately press for an easement in the terms they initially sought. The easement originally contended for in the 2018 proceedings was predicated upon the [Gordons] undertaking certain works over Option 4. As a result of discussion between myself and Counsel for the [Levers] during final submissions, the [Levers] conceded that in fact the Court had no power to order the [Gordons] to spend money on their own land (see [92] of my 2018 judgment in this matter). I do not think, however, that this change caused the [Gordons] any significant difficulties or prejudice. The [Gordons] never produced evidence at least, as I understood, that the costs of these proposed works were inhibitive or excessive. Rather, the [Gordons'] position always was, and remains, as contended by Mr Bewsher, that Option 4 was at all times unsafe and that a causeway could never be built for reasons that it would not be approved and/or opposed by either the local Council or the Department of Primary Industries. Apart from Mr Bewsher, no other expert evidence was called by the [Gordons] on the question of the causeway. Whilst the [Levers'] position can correctly be called a change in the position, and although it did indeed happen late in the case, the [Gordons] never themselves took the point that the Court did not have jurisdiction until the matter was expressly raised, (see [Gordons'] submissions on remitter [15]). At all times the [Gordons] resisted the causeway for reasons of safety or that it would not be approved. This position never changed." (emphasis added). 1. His Honour concluded at [31] that: "Both parties rightly or wrongly directed attention to some matters which turned out ultimately not to be relevant. However by and large all of the evidence was directed in my view relevantly to the question of reasonable necessity. I do not think it is appropriate in all of the circumstances, nor reasonable to provide for any other Order, other than that in both sets of proceedings the [Gordons] ought to pay the [Levers] costs on an ordinary basis." 1. What is curious about the debate going to wasted costs associated with the causeway suggestion is that the Gordons simply did not own the land on or over which it would have been constructed, even if approval had been given. The Gordons' lack of ownership of this land had been pointed out in their submissions on regulatory framework in August 2017, as I have referred to at [59] above. It was not a question of the Court having "no power to order the [Gordons] to spend money on their own land", to quote the primary judge. Rather, it was the more basic point that the Gordons never had any right or entitlement to build such a causeway. 2. In Shi v Abi-K Pty Ltd (2014) 87 NSWLR 568 at [98]; [2014] NSWCA 293, Basten JA, with whom Barrett and Ward JJA agreed, observed in relation to s 88K(5) of the Conveyancing Act that: "This proceeding was not a claim for damages, or any analogous form of compensation: it was a claim for an interest in property, for which appropriate compensation was required to be paid. The ordinary rule, that the applicant pay the costs of any proceeding, reflects the fact that an applicant for such an order has no right to the grant of an easement over the property of another. Further, the rule that the applicant pay the costs relates to proceedings which could only be brought after all reasonable attempts had been made (presumably by seeking agreement) but have been unsuccessful. The statutory scheme is not consistent with the proposition that an applicant can obtain a right to costs by offering more than the compensation ultimately ordered to be paid as a condition of the easement. The property owner is entitled to refuse to consent to the easement, thereby requiring the applicant to satisfy a court as to the various preconditions, including questions of the public interest, and that the grant of the easement is reasonably necessary in the sense provided by the section. Unless it has done more than reject reasonable offers of compensation, the property owner should not be put at risk of an adverse costs order in those circumstances." 1. Senior Counsel for the Levers pointed out that the present case was, in many respects, novel and there is some force to that submission. Further, the Levers' opposition to an unrestricted easement was understandable in light of the fact that the Gordons had made use of the ford out of absolute necessity for a number of years following the washing away of the Lever Bridge in 2015. Absolute necessity, of course, is different to the statutory concept of reasonable necessity, but the Levers' initial opposition was, as I have said, nevertheless understandable. To the extent that the introduction of evidence relating to a causeway was based on a mistaken assumption as to the Gordons' legal entitlement to do so, unnecessary expenses have been incurred. It would be very difficult, however, to disentangle this evidence from the general hydrology evidence that was led. 2. In their written submissions, the Gordons were critical of the costs that have apparently been incurred by the Levers in the proceedings to date. That is a matter that will no doubt be taken into account on any assessment of costs. It does not found a basis for departing from the presumption to which s 88K(5) of the Conveyancing Act gives effect. 3. I do not consider, in all the circumstances, that a case has been made out for a departure from the default position set out in s 88K(5) of the Conveyancing Act in relation to the two sets of proceedings at first instance before the primary judge. I also take into account the fact that the Levers will be required to pay the Gordons' costs of the appeal to this Court. Orders 1. I have already referred at [87] above to the costs orders made by the primary judge. 2. The relevant substantive orders in relation to the easement made by the primary judge on 19 December 2018 have been set out at [30] above. At the end of Order 1 of those Orders, his Honour referred to the terms of the right of carriageway as "in accordance with the terms set out in Annexure 'B' to these Orders." Those terms were the terms that are set out in [31] above. 3. The Gordons, consistent with their argument, contended for a different set of terms to those which his Honour imposed. The Levers, in separate written submissions filed following the hearing, advanced various drafting changes to the Gordons' proposed terms. 4. What is set out as Annexure 1 to these reasons is something of an amalgam of the terms proposed by both parties, formulated in a manner designed to give certainty to the parties and clarity as to their rights. 5. I should note that the Levers sought a term to the effect that: "The right of carriageway shall cease to exist 28 days after the happening of any of the following events: (a) the registration of a plan of subdivision for any or all of the parcel(s) of land forming the dominant tenement; (b) a planning authority grants its approval to the erection of an additional dwelling or dwellings on any of the dominant tenement; or (c) a planning authority grants its approval to any development application involving or ancillary to any proposed use of any part of the dominant tenement for a purpose other than (or additional to) residential use or cattle grazing." Whilst I would not impose such a term, nothing in these reasons would preclude the Levers from seeking a variation of the easement pursuant to s 89 of the Conveyancing Act in the event that any of the contingencies referred to in the additional term sought by the Levers eventuated and the conditions for a variation under s 89 of the Conveyancing Act were satisfied. 1. No submission was made by the Levers that the amount of compensation ordered by the primary judge should be altered depending on whether or not the appeal succeeded. As such, the orders that I propose be made do not disturb any of Orders 2-6 made by the primary judge as reproduced in [30] above. 2. It follows that I would propose the following orders: 1. Appeal allowed in part. 2. Vary order 1 made on 18 December 2018 by replacing "Annexure B to those orders" with "Annexure 1 to the reasons of the Court of Appeal delivered on 13 November 2019". 3. Order that the respondents pay the appellants' costs of the appeal. Plan of Lot 40 Annexure 1 TERMS OF EASEMENT FOR RIGHT OF CARRIAGE WAY 1. Full and free right for every person who is at any time entitled to an estate or interest in possession in the land benefited and the servants and agents of such proprietor, after obtaining all necessary approvals and consents and approvals required from NSW Water, NSW Department of Primary Industries and Kyogle Council, and in accordance with clauses 2 and 3 below, to enter onto the burdened lots with appropriate machinery in order to: 1. construct, on lot 36 DP 755733 over the unnamed water course at point "G" in the plan at Annexure A hereto, a bridge certified by an appropriately qualified engineer to be capable of carrying a gross weight of 30 tonne; 2. carry out any necessary upgrade of the road/access track leading to and from such bridge; and 3. repair and maintain such bridge and road/access track from time to time. 1. In carrying out the following works ("the Works") on the lots burdened the vehicles nominated may be used: 1. Construction of bridge: Crane, cement truck, contractors' vehicles (2 months depending on weather) 1. Upgrade of road/access track: Tip truck and excavator (1 - 2 weeks) 1. In the doing of the Works the proprietor of the lots benefited must: 1. Give one week's notice to the proprietor of the lots burdened of the intention to commence the Works; and 2. comply with any reasonable requirements of the Kyogle Council and the NSW Department of Primary Industries; and 3. cause as little inconvenience as is practicable to the proprietor and occupier of the lots burdened; 4. cause as little damage as is practicable to the lots burdened and make good any damage. 1. In the period that the Works are being carried out the proprietor of the lots burdened: 1. must not frustrate or hinder the construction of the bridge and upgrade of the road; and 2. must allow contractors to enter the lots burdened and remain there for any reasonable time necessary to do the works; and 3. must ensure that his stock are properly managed in this period. 1. Full and free right for every person who is at any time entitled to an estate or interest in possession in the lots benefited or any part thereof with which the right shall be capable of enjoyment, and every person authorised by that person, to go, pass and repass at all times and for all purposes with or without animals and with or without passenger vehicles or emergency vehicles, to and from the lots benefited or any such part thereof provided that the right of carriageway may be used by any truck, only between the hours of 9.00am to 6.00pm, Monday to Saturday (provided that the total number of truck movements must not exceed 10, in any calendar month). 2. For the purposes of this easement for right of carriage way: "emergency vehicle" includes, without limitation, any ambulance, paramedic's vehicle, fire engine or fire (including rural fire) service vehicle, police vehicle, essential utilities provider's vehicle, and State Emergency Services vehicle; "passenger vehicle" means any vehicle where the combined gross vehicle mass of the vehicle and the aggregate trailer mass of any trailer being towed by the vehicle does not exceed 3 tonnes; "truck" means any vehicle that is not a passenger vehicle or emergency vehicle; "truck movement" means any occasion of use of the right of carriageway by a truck travelling in either direction along it. 1. The bridge erected on the lots burdened shall be maintained by the proprietor of the lots benefited as necessary and be inspected by a Level Two bridge inspector every four years from the date of construction. 2. The road constructed on the lots burdened shall be maintained by the proprietor of the lots benefited to allow the passage of vehicles at all reasonable times having regard to weather conditions and/or damage occasioned by weather events from time to time. 1. PAYNE JA: I agree with Bell P. 2. EMMETT AJA: This appeal concerns the creation of an easement for a right of carriageway under s 88K(1) of the Conveyancing Act 1919 (NSW) over land owned by the respondents, Allen Lever and Debra Lever, for the benefit of land owned by the appellants, Stanley Gordon and Christine Gordon. Section 88K(1) relevantly empowers the Court to make an order imposing an easement over land if the easement is reasonably necessary for the effective use or development of other land that is to have the benefit of the easement. Such an order may be made only if the Court is satisfied that use of the land having the benefit of the easement will not be inconsistent with the public interest, the owner of land to be burdened can be adequately compensated for any loss or other disadvantage that will arise from the imposition of the easement, and all reasonable attempts have been made by the applicant to obtain the easement or an easement having the same effect but have been unsuccessful. 3. Mr and Mrs Gordon applied for an easement and a judge of the Equity Division (the primary judge) granted the easement on terms that limited the circumstances in which persons could avail themselves of the easement. Mr and Mrs Gordon appealed to this Court from the orders made by the primary judge, principally on the basis that the terms governing the use of the easement were such that persons seeking to use it would not be able to know with reasonable certainty whether the easement was capable of being exercised. 4. I have had the advantage of reading in draft form the proposed reasons of the President for concluding that the appeal should be allowed in part, varying the terms governing the exercise of the easement, removing the relevant uncertainty. I agree with the orders proposed by the President for the reasons proposed by him. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 13 November 2019