SUPREME COURT OF QUEENSLAND

CITATION:	Schoonwinkel v Queensland Rail Limited [2022] QSC 153 	
PARTIES:	WILLEM JOCOBUS ADRIAN SCHOONWINKEL
(applicant)
v
QUEENSLAND RAIL LIMITED 
(ACN 132 181 090)
(respondent)	
FILE NO/S:	BS No 4035 of 2022	
DIVISION:	Trial Division	
PROCEEDING:	Application 	
ORIGINATING COURT:	Supreme Court at Brisbane	
DELIVERED ON:	22 July 2022	
DELIVERED AT:	Brisbane	
HEARING DATE:	27 April 2022	
JUDGE:	Martin SJA	
ORDER:	1.	The application for an interim order is dismissed. 
2.	The name of the respondent in the Originating Application is amended by deleting Queensland Rail Transit Authority T/A Queensland Rail and inserting Queensland Rail Limited (ACN 132 181 090).
3.	This matter is placed on the Self-Represented Litigants List.
4.	I will hear the parties on further orders and costs.	
CATCHWORDS:	REAL PROPERTY – EASEMENTS – PARTICULAR EASEMENTS AND RIGHTS – RIGHTS OF WAY – CREATION – where the applicant applies for an order under s 180 of the Property Law Act 1974 for an easement for right of way over a rail line on the southern boundary of the property he owns – where the rail line is situated on Crown land – where the respondent holds a sub-lease over the property – where the respondent contends that orders for a statutory right of user are unavailable because s 180 does not apply to Crown land – where the respondent refers to authorities where entities were not bound by s 180(8) because they were trustees of the Crown – whether this position similarly applies to lessees of the Crown
REAL PROPERTY – EASEMENTS – PARTICULAR EASEMENTS AND RIGHTS – RIGHTS OF WAY – CREATION – where s 180(3)(c)(i) of the Property Law Act 1974 provides that an order for a statutory right of user shall not be made unless the Court is satisfied that the owner of the servient land has refused to agree to accept the imposition of such an obligation and the refusal was unreasonable – where the respondent provided the applicant with the application form for an occupational level crossing – where the respondent informed the applicant that a fee was required to be paid with the application – where the applicant has not paid the fee – where the respondent has not otherwise refused the application – whether a statutory right of user should be made
Acts Interpretation Act 1954, s 13
Property Law Act 1974, s 2, s 180
Queensland Rail Transit Authority Act 2013, s 6

Devine v Emu Park Historical Museum Society Inc [2013] 1 Qd R 23
	
COUNSEL:	The applicant appeared on his own behalf
C Jennings QC for the respondent
	
SOLICITORS:	The applicant acted on his own behalf
Clayton Utz for the respondent

[1]	
[1]	Mr Schoonwinkel owns a property of about 999 hectares situated about seven kilometres from the township of Tara (Lot 16).  It is largely untouched with no improvements.  Mr Schoonwinkel describes it as a “bush block”. 
[2]	Mr Schoonwinkel seeks, by way of an interim order, an order under s 180 of the Property Law Act 1974 (PLA) in the form of an easement for right of way (a statutory right of user) over a rail line on the southern boundary of the property he owns.  He also seeks a final order that two easements be granted over the track.  Other orders were sought with respect to surveillance which I need not deal with today.  
[3]	The respondent contends that orders for a statutory right of user are unavailable because s 180 does not apply as the rail line is on Crown land and that, in any event, the respondent has not unreasonably refused to accept the imposition of a right of user.
The physical circumstances of the property
[4]	Lot 16 is bounded:
(a)	on the north, by an unformed Council road reserve known as Crosbies Road;
(b)	on the eastern side, by one property;
(c)	on the western side, by two properties; and
(d)	on the southern side, by an unnamed, unformed Council road reserve.
[5]	Adjacent to the road reserve to the south of Lot 16 is a rail line on Lot 281 (the QR property). Adjacent to the QR property is Surat Developmental Road.  
[6]	Mr Schoonwinkel seeks an order that easements be created from his property such that he can cross the rail line and have access to Surat Developmental Road.  
[7]	The properties on the east and west of Lot 16 have developed access to the Surat Developmental Road and Mr Schoonwinkel has a temporary arrangement with the owner of one of those properties which allows him to use the right of way across the rail line from that property.  
[8]	The relevant certificate of title shows that:
(a)	the QR property is Crown land;
(b)	the State of Queensland (represented by the Department of Transport and Main Roads) holds a perpetual registered lease over the QR property; and
(c)	the respondent (QRL) holds a sub-lease over the QR property until 30 June 2110.
Does s 180 of the PLA apply?
[9]	No statute which has been passed since the commencement of the Acts Interpretation Act 1954 binds the Crown unless express words are used to so bind the Crown – see s 13 of that Act.
[10]	Express words to that effect are found in s 2 of the PLA which provides:
“This Act, except where otherwise provided, binds the Crown not only in right of the State of Queensland but also, so far as the legislative power of Parliament permits, the Crown in all its other capacities.”
[11]	Section 180(8) of the PLA does otherwise provide. The whole section needs to be set out because of some of the arguments which were advanced:
“(1)	Where it is reasonably necessary in the interests of effective use in any reasonable manner of any land (the dominant land) that such land, or the owner for the time being of such land, should in respect of any other land (the servient land) have a statutory right of user in respect of that other land, the court may, on the application of the owner of the dominant land but subject to this section, impose upon the servient land, or upon the owner for the time being of such land, an obligation of user or an obligation to permit such user in accordance with that order.
(2)	A statutory right of user imposed under subsection (1) may take the form of an easement, licence or otherwise, and may be declared to be exercisable—
(a)	by such persons, their servants and agents, in such number, and in such manner and subject to such conditions; and
(b)	on 1 or more occasions; or
(c)	until a date certain; or
(d)	in perpetuity or for some fixed period;
as may be specified in the order.
(3)	An order of the kind referred to in subsection (1) shall not be made unless the court is satisfied that—
(a)	it is consistent with the public interest that the dominant land should be used in the manner proposed; and
(b)	the owner of the servient land can be adequately recompensed in money for any loss or disadvantage which the owner may suffer from the imposition of the obligation; and
(c)	either—
(i)	the owner of the servient land has refused to agree to accept the imposition of such obligation and the owner's refusal is in all the circumstances unreasonable; or
(ii)	no person can be found who possesses the necessary capacity to agree to accept the imposition of such obligation.
(4)	An order under this section (including an order under this subsection)—
(a)	shall, except in special circumstances, include provision for payment by the applicant to such person or persons as may be specified in the order of such amount by way of compensation or consideration as in the circumstances appears to the court to be just; and
(b)	may include such other terms and conditions as may be just; and
(c)	shall, unless the court otherwise orders, be registered as provided in this section; and
(d)	may on the application of the owner of the servient tenement or of the dominant tenement be modified or extinguished by order of the court where it is satisfied that—
(i)	the statutory right of user, or some aspect of it, is no longer reasonably necessary in the interests of effective use of the dominant land; or
(ii)	some material change in the circumstances has taken place since the order imposing the statutory right of user was made; and
(e)	shall when registered as provided in this section be binding on all persons, whether of full age or capacity or not, then entitled or afterwards becoming entitled to the servient land or the dominant land, whether or not such persons are parties to proceedings or have been served with notice or not.
(5)	The court may—
(a)	direct a survey to be made of any land and a plan of survey to be prepared; and
(b)	order any person to execute any instrument or instruments in registrable or other form necessary for giving effect to an order made under this section; and
(c)	order any person to produce to any person specified in the order any title deed or other instrument or document relating to any land; and
(d)	give directions for the conduct of proceedings; and
(e)	make orders in respect of the costs of any of the preceding matters and of proceedings generally.
(6)	In any proceedings under this section the court shall not, except in special circumstances, make an order for costs against the servient owner.
(7)	In this section—
owner includes any person interested whether presently, contingently or otherwise in land.
statutory right of user includes any right of, or in the nature of, a right of way over, or of access to, or of entry upon land, and any right to carry and place any utility upon, over, across, through, under or into land.
utility includes any electricity, gas, power, telephone, water, drainage, sewerage and other service pipes or lines, together with all facilities and structures reasonably incidental to the utility.
(8)	This section does not bind the Crown.” (emphasis added)
[12]	Mr Jennings QC argued that, as the rail line is on Crown land, s 180 does not operate and no order can be made. He relied upon the analysis of s 180(8) undertaken by McMeekin J in Devine v Emu Park Historical Museum Society Inc. 
[13]	In Devine, an owner of a service station sought an order granting access to a neighbour’s property. The access sought was described as being crucial to the applicant’s business. The neighbour conducted an historical museum on Crown land which it held as trustee for (as to one part) and lessee from (as to another part) the Crown. 
[14]	In a careful analysis of the authorities, McMeekin J held that s 180 did not bind the respondent as it was a trustee for the Crown. Mr Jennings QC submitted I should follow that reasoning and apply it to his client as a lessee of Crown land. 
[15]	The cases upon which McMeekin J relied were concerned only with entities which were trustees for the Crown. His Honour noted that the approach of the courts had been consistent for over 100 years on this point and that there was nothing in the PLA which suggested that a different view should apply in the case before him.
[16]	In Devine, the respondent had been “appointed trustee to carry out the responsibilities of the Crown, the trustees being ‘persons who have some particular association or expertise with the reserve or land and its purpose or with the local community’ … Their ‘ownership’ and occupation is for and on behalf of the Crown.” It followed, then, that the respondent enjoyed the same immunity as the Crown.
[17]	The situation in this case is different. QRL is not a trustee but is a sub-lessee of a lessee from the State of Queensland. I do not think that a sub-lessee is in the same category as a trustee. QRL is doing nothing on behalf of the Crown. It is a wholly owned subsidiary of Queensland Rail – which is not a body corporate and which does not represent the State. 
[18]	It is not necessary, on this application for an interim order, that I resolve the issue of whether s 180 can apply because one of the requirements for the making of such an order has not been made out by Mr Schoonwinkel. 

Has QRL refused to accept the imposition of such an obligation?
[19]	Section 180(3)(c)(i) relevantly provides that an order for a statutory right of user shall not be made unless the Court is satisfied that the owner of the servient land has refused to agree to accept the imposition of such an obligation and the owner’s refusal is in all the circumstances unreasonable. 
[20]	The term “owner” is given a very wide definition in s 180(7) – it includes any person interested whether presently, contingently or otherwise in the relevant land. Thus, QRL, as a sub-lessee, is an “owner” of the relevant land as is, of course, the Crown.
[21]	Mr Schoonwinkel has engaged in correspondence with the Western Downs Regional Council in which he asked the Council to investigate an upgrading of the road reserve to a formed standard to allow for access to his property.  The access points which he sought required approval from both Queensland Rail and the Department of Transport and Main Roads.  He was informed by Queensland Rail that for access across the railway corridor to be allowed he had to make a formal application in order that an assessment could be made.  
[22]	The Council told Mr Schoonwinkel that it would consider constructing a formed track on a currently undeveloped road reserve from the formal open level crossing situated to the east of his property but would require confirmation of his acceptance of the proposed property access as well as confirmation that building or plumbing applications have been lodged for the construction of a house on Lot 16.  
[23]	In a letter dated 21 June 2021, QRL responded to Mr Schoonwinkel’s correspondence concerning the creation of a level crossing.  The following, relevant points were made:
(a)	All Queensland Rail level crossings have to be designed and operated in accordance with national safety standards and assessed using the Australian Level Crossing Assessment Model;
(b)	Queensland Rail manages its level crossings in accordance with requirements set out in the Department of Transport and Main Roads Level Crossing Strategy; and
(c)	Because of the significant safety risks that level crossings can present, the Office of the National Rail Safety Regulator does not support the construction of new level crossings.
[24]	The letter went on to advise that Queensland Rail is under no legal obligation to provide a level crossing for the purpose of access by landowners to their land.  The following then appears:
“That said, Queensland Rail seeks to be a good neighbour and is open to working with TMR and the local council on potential solutions to the matters you raise, while managing our obligations in ensuring safety requirements are met.
…
Should you wish to gain access to the level crossing west of your property, Queensland Rail would support a request from council to have the crossing reclassified as a Public Crossing.  If the crossing is not reclassified, you would be required to enter into an Interface Agreement with Queensland Rail.  Interface Agreements are a requirement of the Rail Safety National Law and define the roles and responsibilities of the crossing stakeholders, allowing for the better management of level crossing safety risks.  
While you are welcome to apply to Queensland Rail for consideration of a new crossing, you would be required to cover any associated costs.  The application fee is set at $3,000 which covers the cost of detailed investigations required to assess the proposed level crossing.  Furthermore, it is important to note that Queensland Rail, TMR and ONRSR maintain a strong focus on the elimination of level crossings.”
[25]	Mr Schoonwinkel then sent a letter to numerous people including the Minister for Transport and Main Roads, Queensland Rail, Western Downs Regional Council and the Premier.  In that letter he raised a number of matters which he thought were relevant but he did not undertake to make an application as outlined by Queensland Rail. 
[26]	On 5 August 2021, Queensland Rail provided Mr Schoonwinkel with a copy of the application form for an occupational level crossing and other relevant material. He provided a completed application on 9 August but did not pay the required fee. The completed application form was attached to an email from Mr Schoonwinkel in which he said, among other things: “Considering our past, all government parties and QR’s reluctance to negotiate in good faith, provide access or a timely response, I will begin construction, if QR has not completed their assessment and started the level crossing, by 23/8/2021.” 
[27]	In a letter of 17 August 2021, Queensland Rail informed Mr Schoonwinkel that the process for consideration of an application for an occupational level crossing commences when Queensland Rail receives a completed application form for such a crossing including the associated fee. He was also told it was Queensland Rail’s policy that all costs associated with the construction of a crossing and maintenance for a given period are to be met by the applicant because these crossings are not for the benefit or use of the community, rather that they are for the individual on private land.  
[28]	Later in the letter the following appears:
“Regarding your earlier correspondence, it is important to note that Queensland Rail has not denied your request for an occupational level crossing at your property nor entered any negotiations with you in relation to this matter.  Until 9 August 2021, Queensland Rail had yet to receive a completed application form for a crossing in this location.”
[29]	It was further pointed out that:
“… should you wish to gain access to the level crossing west of your property, Queensland Rail would support a request from Western Downs Regional Council to have the crossing reclassified as a Public Crossing.  If the crossing is not reclassified, you would be required to enter into an Interface Agreement with Queensland Rail.”
[30]	In an email from Mr Schoonwinkel to Queensland Rail of 6 October 2021, the following appears:
“In regards to my previous correspondence to you in relation to my request for access to my property located at Lot 16, Surat Developmental Road, Tara 4421 through the proposed crossing, it was remiss of me to not make Queensland Rail an offer of compensation for the granting of access.  Therefore, please consider my offer of $1,000 by way of compensation for access through your land.”
[31]	Queensland Rail did not accept that offer and repeated that it required payment of the application fee of $3,000.00.
[32]	In summary, Queensland Rail has offered to work with Mr Schoonwinkel to find a suitable solution. But, in doing so, it has required that he make the necessary application and pay the required fee.  He did not make the necessary application until 9 August 2021. He has not paid the associated fee.
[33]	The material demonstrates that the safety considerations outlined by Queensland Rail are substantial and necessary.  
[34]	The respondent has not unreasonably refused to accept the imposition of a right of user because:
(a)	the applicant has not paid the fee required to make an application for an occupational level crossing; and
(b)	the applicant has refused to engage with the respondent in any negotiation about the appropriateness of the crossing he requests or the alternatives available.
[35]	The respondent has not refused to agree to accept the obligation sought to be imposed.  The stance of the respondent in requiring that certain steps be taken is not unreasonable.  
[36]	In the light of those findings, the court cannot make an order of the kind sought by Mr Schoonwinkel as it is caught by the prohibition in s 180(3)(c)(i).  
Orders
[37]	The application for an interim order is dismissed.  
[38]	The name of the respondent in the Originating Application is amended by deleting Queensland Rail Transit Authority T/A Queensland Rail and inserting Queensland Rail Limited (ACN 132 181 090).
[39]	This matter is placed on the Self-Represented Litigants List.
[40]	I will hear the parties on further orders and costs.