Burton v Spragg
[2007] WASC 247
•12 OCTOBER 2007
BURTON -v- SPRAGG [2007] WASC 247
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2007] WASC 247 | |
| 25/10/2007 | |||
| Case No: | CIV:2041/2007 | 12 OCTOBER 2007 | |
| Coram: | EM HEENAN J | 12/10/07 | |
| 11 | Judgment Part: | 1 of 1 | |
| Result: | Ex parte interlocutory injunction granted on undertaking Liberty to apply Relisted for hearing on notice within 7 days | ||
| B | |||
| PDF Version |
| Parties: | PETER HORNER BURTON KRYSTYNA THERESA BURTON IAN SPRAGG VICKI SHIRLENE COWPER |
Catchwords: | Ex parte interlocutory injunction Trespass to land Infringement of right of support Excavation by owner of adjoining land below natural levels of the surface Threatened collapse of dwelling Refusal to cease operations or to install supports Imminent danger |
Legislation: | Nil |
Case References: | Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd [2001] HCA 63; (2001) 208 CLR 199 Bulli Coal Mining Co v Osborne [1899] AC 351 Cash Converters Pty Ltd v Hila Pty Ltd (1993) 9 WAR 471 Castlemaine Tooheys Ltd v The State of South Australia (1986) 161 CLR 148 Grundt v Great Boulder Pty Gold Mines Ltd (1937) 59 CLR 641 Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia [1998] HCA 30; (1998) 195 CLR 1 Temwood Holdings Pty Ltd v Asean Australian Assets Pty Ltd [2000] WASC 84 Tudorshine Pty Ltd v Seabrush Pty Ltd [1999] WASC 9 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- KRYSTYNA THERESA BURTON
Plaintiffs
AND
IAN SPRAGG
VICKI SHIRLENE COWPER
Defendants
Catchwords:
Ex parte interlocutory injunction - Trespass to land - Infringement of right of support - Excavation by owner of adjoining land below natural levels of the surface - Threatened collapse of dwelling - Refusal to cease operations or to install supports - Imminent danger
Legislation:
Nil
(Page 2)
Result:
Ex parte interlocutory injunction granted on undertaking
Liberty to apply
Relisted for hearing on notice within 7 days
Category: B
Representation:
Counsel:
Plaintiffs : Mr I R Freeman
Defendants : No appearance
Solicitors:
Plaintiffs : Lavan Legal
Defendants : No appearance
Case(s) referred to in judgment(s):
Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd [2001] HCA 63; (2001) 208 CLR 199
Bulli Coal Mining Co v Osborne [1899] AC 351
Cash Converters Pty Ltd v Hila Pty Ltd (1993) 9 WAR 471
Castlemaine Tooheys Ltd v The State of South Australia (1986) 161 CLR 148
Grundt v Great Boulder Pty Gold Mines Ltd (1937) 59 CLR 641
Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia [1998] HCA 30; (1998) 195 CLR 1
Temwood Holdings Pty Ltd v Asean Australian Assets Pty Ltd [2000] WASC 84
Tudorshine Pty Ltd v Seabrush Pty Ltd [1999] WASC 9
(Page 3)
1 EM HEENAN J: The plaintiffs are the registered proprietors of an estate in fee simple of land situate at and known as Lot 741 (No 37) Aztec Island Retreat, Halls Head, upon which a two-storey modern house has been erected. Lot 742 (No 39) Aztec Island Retreat, Halls Head, the land immediately adjoining the plaintiffs' property, is at present a vacant lot. It is said to be owned by one or both of the defendants. The two lots are located in a relatively new area on the north-west shores of the Mandurah Estuary. Development there comprises promontories surrounded by artificially-constructed canals branching off from the estuary, so producing lots in a premium area near the water's edge on which are constructed modern, high quality, homes. Because of the design of the subdivision, houses on the lots are constructed right up to the very edge of the lots, on the lateral boundaries between the lots. So it is that the external face of the side wall of the plaintiffs' home on Lot 741 is on, or only slightly within, the boundary between the two properties. The subterranean portions of that wall, the underlying supporting footings and the foundations for the wall of the house also terminate at their outer edges on that boundary.
2 The defendants, presumably in preparation for the construction of a dwelling on the adjoining land, have recently commenced excavations on Lot 742. These excavations are presently to a depth of approximately 2.8 m and extend for 15 m or so from the front of the defendants' block towards the rear, immediately adjacent to the plaintiffs' wall and footings. The evidence is that the defendants' excavations run a substantial length along the boundary with the plaintiffs' land and leave a vertical, or near vertical, unsupported earth or compacted-fill face below the plaintiffs' wall and footings. Indeed, in at least two places, the defendants' excavations extend into and beneath the plaintiffs' land, apparently to provide apertures into which the defendants or their agents or contractors have installed mechanical jacks to support the walls or footings of the plaintiffs' home at strategic points.
3 The plaintiffs have initiated this action, alleging infringement by the defendants of their right to have the surface of their land supported by the natural surface and subterranean earth of the adjoining property and for actual trespass by the incursions beneath their boundary and dwelling. They submit that the defendants' actions have produced a very real threat of imminent collapse of their house. Consequently, they seek urgent ex parte interlocutory relief to prohibit any continuation of the excavations or works which threaten the stability of their property and a positive injunction immediately requiring the defendants to restore, fill or otherwise support the exposed earth face along the lateral boundary
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- between the properties. They offer the usual undertaking as to damages in support of their application for urgent injunctive relief.
4 The rationale, the nature and purpose of, and the tests to be applied for the grant of an interlocutory injunction, were recently comprehensively re-examined in Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd [2001] HCA 63; (2001) 208 CLR 199. In that case, Gleeson CJ referred (at [13]), with approval, to the principles governing the grant or refusal of interlocutory injunctions expounded by Mason ACJ in Castlemaine Tooheys Ltd v The State of South Australia (1986) 161 CLR 148, where his Honour said:
In order to secure such an injunction the plaintiff must show (1) that there is a serious question to be tried or that the plaintiff has made out a prima facie case, in the sense that if the evidence remains as it is there is a probability that at the trial of the action the plaintiff will be held entitled to relief; (2) that he will suffer irreparable injury for which damages will not be an adequate compensation unless and injunction is granted; and (3) that the balance of convenience favours the granting of an injunction (153).
- Gleeson CJ, and the other members of the court, then went on to emphasise that where an interlocutory injunction is sought, it is essential to identify the legal (which may be statutory) or equitable rights which are to be determined at the trial and in respect of which final relief is sought. Obviously, in the present case, the plaintiffs are seeking relief for a continuing trespass (to the extent that the excavations intrude under their land and dwelling) and an injunction, damages or other relief in aid of the protection of their right to the support of their property from the adjoining land. There can be no doubt, therefore, that these are recognisable legal rights in respect of which the plaintiffs seek protection.
5 In respect of the mandatory injunction by which they seek to require the defendants to restore support to the exposed earth face along the boundary of their property, the plaintiffs, through their counsel, acknowledge that the court will generally require persuasion that the applicants' case is one that has a high degree of assurance of success at trial: Cash Converters Pty Ltd v Hila Pty Ltd (1993) 9 WAR 471; or that a particular mandatory injunction may be necessary to ensure the preservation of the subject matter or the protection of the rights said to have been infringed until the litigation can eventually be resolved: Tudorshine Pty Ltd v Seabrush Pty Ltd [1999] WASC 9. The plaintiffs submit that the ultimate question, in relation to applications for an interlocutory mandatory injunction, becomes whether, in the circumstances, the grant of a mandatory injunction in the terms sought will have the consequence of creating a greater risk of injustice if it is
(Page 5)
- granted, rather than withheld, at the interlocutory stage: Temwood Holdings Pty Ltd v Asean Australian Assets Pty Ltd [2000] WASC 84.
6 Another recent authoritative examination of the approach to be taken by a court to an application for a mandatory interlocutory injunction is contained in Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia [1998] HCA 30; (1998) 195 CLR 1, which involved the grant of an interlocutory mandatory injunction in a conspiracy case aimed at preventing the completion, or effecting, of the alleged conspiracy. Brennan CJ, McHugh, Gummow, Kirby and Hayne JJ said:
A court whose jurisdiction is invoked in a conspiracy case has power to grant an injunction to prevent the completion or effecting of the conspiracy. Where the acts contemplated by the conspirators have all occurred and the tort is complete, the remedy available to an injured plaintiff is ordinarily limited to the recovery of pecuniary damages. But for over a century it has been established that 'there is no rule which prevents the court from granting a mandatory injunction where the injury sought to be restrained has been completed before the commencement of the action'. Where the damage caused by tortious conduct is ongoing and is 'extreme, or at all events very serious', a mandatory injunction may issue compelling the wrongdoer to prevent the occurrence of further damage [33]. (footnotes omitted)
7 The following outline of the facts of the case, which I now sketch briefly, is taken, inevitably, from evidence adduced by the plaintiffs. This is because this hearing has been conducted on an ex parte basis, in view of the urgency of the matter. Therefore, this narrative of facts must not be regarded as incontrovertible because the defendants have had no opportunity to present their own version of the history of events. Nevertheless, some basic features, such as the location of the properties, the existence of the excavation, the exposure of the subterranean vertical face of a large portion of the boundary between the two properties and the apparent partial subterranean intrusions into the plaintiffs' land, appear to be well established by the photographic evidence which has been adduced.
8 Mr Peter Horner Burton, the first-named plaintiff, deposes that on or about Monday, 24 September 2007, he became aware that a substantial excavation was underway on the defendants' property near his 'party' wall. His reference to the party wall is to the lateral wall of his home, the outer face of which is on, or just within, the boundary. He noticed this because of substantial vibrations which were emanating through his house. He immediately went to the neighbouring property and saw that an earthworker had excavated along the party wall to a depth of
(Page 6)
- approximately 2.8 m and a width, back from the party wall, of approximately 15 m. He also noticed that as part of that excavation, holes were dug under the footings of the party wall. He says that there were five footings holes under the party wall and has produced photographic illustrations of some of these. The earthworker had put in some 'Acrow' jacks into these excavations, sitting on blocks of wood.
9 The following day, 25 September 2007, Mr Burton contacted the builder of his home and asked him to come to the site and to give advice. The registered builder, Mr Lee Goodwin, came quickly and organised a meeting with the local shire engineer. This meeting was also attended by the defendants' supervisor and engineer. According to Mr Burton's affidavit, the defendants' engineer advised that this form of excavation was structurally sound and that 'he does it all the time'. At the suggestion of the defendants' earthworker, and with the consent of the defendants' engineer and the shire engineer, the meeting agreed that concrete should be placed in the footing holes which had been 'Acrow-propped' to provide support. Mr Goodwin prepared a report to the plaintiffs which, in part, said:
Description of Problem:
• Construction has started on the property adjacent to 37 Aztec Island Retreat. Houspect [Mr Goodwin's employer] was called in because the owner has concerns about the undermining of his house foundations.
Inspector's comments:
• The soil adjacent to the north boundary wall has been dug away down about 2.5 meters below the house footings, exposing the house footings. The excavation contractor has underpinned the footings with 4 acrows and a timber prop. These support members stand on approximately 300 x 300 mm sole plates on natural canal backfill. (See photos)
• The council was contacted to make them aware of the situation and ask them to halt construction on the site until the area could be certified as safe for the adjacent building and workers.
• The Houspect representative received a call from Dave Nicholls, the consulting engineer on the project, to explain that the method of supporting the footings was adequate. As a certified structural engineer his opinion has to be accepted.
• The inspector from the council and the Houspect [representative] still have concerns about the underpinning, especially where the
- ground below the acrow supports will be compacted for proposed footings.
- • The excavation contractor has decided to pour concrete around the acrows and create large concrete columns. This is still a concern as the ground under the concrete columns has not been compacted.
• Peter Burton's property was inspected by Houspect on September 25 at 11.30 am and there are no cracks of any kind in the walls and cornice of his property on the affected side.
• There was no builder's sign on the construction site as required by law.
• There does not appear to have been a site survey done.
• The adjoining properties to the building site have not been inspected and documented regarding any existing cracking they might have.
• Cracking was noted to the opposite neighbour's boundary wall. (See photo)
Recommendations:
• Monitor closely for signs of cracking occurring. If cracking occurs contact Houspect or the council.
10 According to Mr Burton, the proposed remedy of pouring concrete into the footing holes and around the supporting Acrow jacks took place on Friday, 28 September 2007. On 4 October 2007, Mr Burton spoke to another registered builder of some experience, Mr John Bray. Mr Bray advised Mr Burton, and Mr Burton believed, that he should obtain expert engineering advice about what had been done.
11 The plaintiffs then approached their original builder who recommended that they should take legal advice. Having done so, they engaged a structural engineer, Mr Peter Airey, to inspect the excavation. They initially provided to Mr Airey photographs of the excavation. They received an urgent email response from Mr Airey on Thursday, 11 October 2007 at 9.05 am, as follows:
Peter Airey has looked at the photos you have supplied thus far and advises that, unless the soil is superfine cement injection grouted the structure is severely compromised. Collapse would be cataclysmic and without warning. You and your family should move out of the house.
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12 The next morning, Friday, 12 October 2007, the morning of the day when this urgent application was made and heard, Mr Airey attended the plaintiffs' property at Halls Head, inspected the situation and gave advice to Mr Burton. As a result, Mr Burton has now deposed that he believes that:
15.1 [The plaintiffs'] house [is] not properly supported due to the excavation and there [is] a strong possibility that [their] house would slide into the excavation;
15.2 [Mr Airey] advised [the plaintiffs] not to sleep [in] or go into the side of the house adjacent to the excavation due to this danger;
15.3 [Mr Airey advised that] immediate action [should be] taken to push soil back up against the excavation so as to provide a temporary measure to prevent the house slipping into the excavation;
15.4 [Mr Airey advises that] there needs to be a proper remedial course of action undertaken to ensure the longterm stability of [the plaintiffs'] home.
13 As a result, Mr Burton says, not surprisingly, that he has grave concerns that:
[U]nless proper engineering advice is obtained and followed with respect to the excavation to and under the party wall of [the plaintiffs'] house ... there is a serious danger of catastrophic collapse [and] also [of] longterm problems associated with the support [of the] house.
14 The plaintiffs rely on another affidavit, of Mr Robert David Shaw, sworn 12 October 2007. Mr Shaw is a legal practitioner advising the plaintiffs and deposes that, at about 12.15 pm on 12 October 2007, he telephoned the first-named defendant, Mr Ian Spragg, whom he understands to be the husband of the registered proprietor of Lot 742 (No 39) Aztec Island Retreat, Halls Head and the person carrying out the work on the property as an owner/builder. Mr Shaw deposes that he advised Mr Spragg that he acted for the plaintiffs and told Mr Spragg that the plaintiffs' engineer had advised that the house at Lot 741 Aztec Island Retreat, Halls Head was currently in danger of falling into the pit created by the excavation on Lot 742. According to Mr Shaw, Mr Spragg responded by saying that 'his engineer and the [s]hire engineer say otherwise'. Mr Shaw then asked Mr Spragg if he would provide a formal undertaking not to do any further work on his site until both his engineer and the plaintiffs' engineer had met. According to Mr Shaw, Mr Spragg's response was that he was in the process of getting his own engineer to certify that what had been done was structurally sound and that he
(Page 9)
- expected to receive that certificate over the weekend. According to Mr Shaw, Mr Spragg then said that he intended to carry on with further work on this site on the coming Monday and that he was not prepared to give any undertaking. As a result of that response, the plaintiffs have initiated the present action and brought this urgent application.
15 For present purposes, it is not necessary to go beyond the contents of a standard text book on real property to identify the legal rights which the plaintiffs seek to have protected by this action and by their present application. In Professor Peter Butt's, Land Law (4th ed, 2001), there is a presently sufficient explanation of the right to support enjoyed by a land owner. The learned author writes:
At common law, a land owner is entitled to have the land in its natural state supported by neighbouring land - or, more accurately, is entitled not to have that support removed: Dalton v Angus (1881) 6 App Cas 740 at 791. A neighbour who withdraws this support is liable in nuisance: Dalton v Angus. The fact that the neighbour has taken all reasonable care to prevent collapse does not negate liability; but there is no liability unless the damage was reasonably foreseeable: Fennell v Robson Excavations Pty Ltd [1977] 2 NSWLR 486 at 493. Usually the action is against the neighbour personally, but anybody whose activity on the land created the nuisance - such as an engineer or excavator - is liable: Pantalone v Alaouie (1989) 18 NSWLR 119.
The common law right to support, however, is closely circumscribed. First, it applies only to land in its unbuilt-upon state. There is no common law natural right to have the additional weight of buildings on land supported by adjoining land: Dalton v Angus. By 'buildings' here is meant any work or construction that increases the weight of the land or that changes the distribution of loads so as to increase the need for lateral support; examples are a dam [Xuereb v Viola (1990) Aust Torts Rep 69,667] or the addition of substantial fill: Hicks v Lake Macquarie City Council (No 1) (1992) 77 LGRA 261 at 265. A right of this kind can be acquired only by agreement with the adjoining owner, or by gaining an easement for support (whether by express grant, by implication, or by prescription). However, if the withdrawal of support would have caused the subsidence even without the weight of the building on the land, the landowner is entitled to recover (in addition to damages for subsidence) damages in respect of the building: Public Trustee v Hermann (1968) 88 WN (Pt 1) NSW 942 at 444 - 445. Secondly, there is no common law natural right to prevent a neighbour excavating in a way which, through not causing the unbuilt-upon land to subside, will impede or increase the expense of future building operations on the land. Thirdly, the natural right presupposes two parcels of land, in separate ownership: it does not exist where at the time of the excavation the same person owned both the excavated and the affected parcel, even though the subsidence occurs after sale of the affected parcel [218]. (some footnotes omitted.)
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16 In the present case, there is the additional feature of actual intrusion into the plaintiffs' land by the excavations made by the defendants' contractor or agent below the footings into which the Acrow jacks and then, later, the concrete, as an interim protective measure, were placed. Unauthorised subterranean incursions into a neighbour's property are a well-recognised species of trespass: Bulli Coal Mining Co v Osborne [1899] AC 351. Further, in the case of unauthorised or excessive incursions into subterranean resources when mining valuable ores, such a trespass, may well give rise to a liability, not merely for damages for injury done, but for conversion of the ore illicitly won: Grundt v Great Boulder Pty Gold Mines Ltd (1937) 59 CLR 641.
17 On the evidence submitted in support of this application which I have described, I am satisfied that the plaintiffs are the owners and occupiers of the house constructed on Lot 742 Aztec Island Retreat, Halls Head. I am also satisfied that the adjacent vacant lot on Lot 742 is owned by one or both of the defendants, and that the defendants have by servants or agents excavated the surface of Lot 742, as it appears to have existed following the approval of the use of the land in that area for building, to a depth of approximately 2.8 m. The excavation has been done right up to the very boundary between the two lots, upon which, or adjacent to which, is constructed the plaintiffs' house, side wall and footings.
18 The photographs in evidence appear to demonstrate that, aside from an unsupported wall of earth of some 2.8 m depth beside the plaintiffs' house extending below the footings of the house, there are excavations which appear to have intruded into the subterranean surface of the plaintiffs' property and to have undermined the footings. I am satisfied that there is a strongly arguable case that this constitutes undermining the support of the natural surface of the plaintiffs' land, and, to the extent that it intrudes into the plaintiffs' property, a trespass. That being so, the plaintiffs appear to have a strong arguable case to contend that the defendants have removed the natural support of the soil immediately adjacent to the boundary and that they may be liable in damages for nuisance and trespass, or both, and be subject to an injunction to restore that support.
19 Further evidence establishes that, in the opinion of the plaintiffs' builder and consultant engineer, there is an imminent threat of collapse. This would involve not merely the natural surface of the land sliding away, but the superimposed house collapsing into the hole in catastrophic circumstances involving the risk of major destruction to the house and injury to any occupants.
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20 The evidence also satisfies me that the plaintiffs' complaints have been brought to the notice of the defendants. The first-named defendant, Mr Spragg, maintains that no threat to the natural support of the soil is involved and seeks to claim endorsement of his actions from an unknown building inspector or shire officer. However, the state of the photographic evidence seems clear that there is an arguable trespass and a threat to the support of the plaintiffs' land.
21 The defendants were asked to give an undertaking not to carry out any further work or excavations on the property, but replied by refusing to give the undertaking and indicating that further work was intended on Monday, 22 October 2007. As a result, I made the following orders:
1. A prohibitory injunction be granted restraining the defendants from carrying out on Lot 742 Aztec Island Retreat, Halls Head ('Lot 742'), any further excavations, digging, undermining or other work likely to undermine the support of the natural surface of Lot 741 Aztec Island Retreat, Halls Head ('Lot 741'), or any other activity which would imperil the natural ground support for the natural surface of Lot 741; this order to continue in force until and including Friday, 19 October 2007 or until further order.
2. A mandatory injunction be granted requiring the defendants to cause solid material to be pushed into and up against the excavation site on Lot 742 so as to provide temporary support to the natural surface of Lot 741; this order to be carried out by not later than 12 noon on Wednesday, 17 October 2007.
3. An informal copy of the orders of the court be dispatched to the plaintiffs; and the plaintiffs do serve upon the defendants such orders, either personally or by facsimile or some other electronic means.
4. The matter be re-listed for hearing on Friday, 19 October 2007 at 10.30 am.
5. There be liberty to apply.
6. Costs be reserved.
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