The immigrant heritage of Atherton Tableland tobacco farming – and the arrangements among landowners for traversing their various plots – was before the Cairns Supreme Court last week to determine a newcomer’s obligation to honour a “decades long” practice to allow a neighbour to crisscross his property to gain access to their own farm.

In dispute was the history of two survey plans – one dating from 1932 and the other from 1982 – and the status of a “road” that only appeared on the latter.

When he purchased the former tobacco farm in 2006, grazier CJ McKean inherited an arrangement by which his predecessor had allowed neighbouring relatives unlimited vehicular access.

The neighbours, Giorgio and Anna Trevisin, had used the route for decades and did not take seriously McKean’s demands that they cease their trespass, nor his “understandable frustration” that extended to obstructing their passage – so they claimed – by placing nails on the road.

They sued the “plain-spoken” McKean to preserve their historical entitlement to use the track that arose from its appearance as a “public road” on the 1982 plan that was referred to (albeit, indirectly via a note on the earlier plan) on McKean’s title deed as an “exclusion”.

Close but not close enough, said the court. Notwithstanding the suggestive reference on the title deed, without “gazettal”  – which could not be proven – the road remained a mere proposal.

And regardless of its appearance on a plan, indefeasibility “fell to be determined by reference to the freehold land register as a whole” – including the Land Act requirement that a road is not a “public road” unless gazetted.

Not to be outdone, the Trevisins alternatively claimed relief under section 180 of the Property Law Act, alleging such access was “reasonably necessary for the effective use of their land”, ie that the track they were using was the only practical means of ingress and egress.

This argument too fell short, because an alternative “appropriate, affordable, all-weather access” could be relatively conveniently constructed for “a little over $8,000”, not a substantial sum in this context.

Henceforth ruled the court, they should required to enter and leave their farm from Wolfram Rd using routes on their own property namely, via “a sandy ridge to so-called No Name Road” which would provide access commensurate with country roads in the Dimbulah locality.

Such conclusion was reached regardless that heavy rainfall may delay vehicles for a few hours – ” not more than a day” – as such  burden was that which “one may reasonably expect to bear in these country conditions”.

The name “Dimbulah” is thought to refer to an indigenous word to describe the Walsh River that runs nearby the town. According to Wikipedia, the area received an influx of Italian immigrants in the early 1900s and in 1928 tobacco was introduced. At the peak of production, there were 800 growers in the area, producing over 8,000 tonnes (60% of national yield) of tobacco annually. Tobacco remained the dominant crop until the reduction in demand for the crop in recent years.

Giorgio Trevisin and Anna Maria Trevisin v Julatten Developments Pty Ltd as Trustee under Instrument 710018985 [2012] QSC 341 Cairns Chief Justice 9/11/2012


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