Drury v Paleologos

[2000] NSWLEC 3

Land and Environment Court

of New South Wales

CITATION:	Drury v Paleologos [2000] NSWLEC 3
PARTIES:	APPLICANT: Peter Ross Drury RESPONDENTS: Theo and Coralie Anne Paleologos
FILE NUMBER(S):	40151 of 1999
CORAM:	Talbot J
KEY ISSUES:	Costs - Orders :- Orders:- no utility Costs:- no order as to costs
LEGISLATION CITED:
CASES CITED:
DATES OF HEARING:	10/12/99, 13/12/99, 14/12/99, 17/01/00
DATE OF JUDGMENT:	01/21/2000
LEGAL REPRESENTATIVES:	APPLICANT: Mr J E Robson (Barrister) SOLICITORS: Jones Staff & Co RESPONDENTS: Mr P J McEwen SC With Mr S Burchett (Barrister) SOLICITORS: J Kartsounis & Co

JUDGMENT:

IN THE LAND AND Matter No. 40151 of 1999
ENVIRONMENT COURT Coram: Talbot J
OF NEW SOUTH WALES Decision Date: 21 January 2000

Peter Ross Drury
Applicant

v
Theo and Coralie Anne Paleologos

Respondents

REASONS FOR JUDGMENT


1. In these class 4 proceedings the applicant seeks various declarations that the respondents are in breach of conditions of both a development consent and building approval granted by Woollahra Municipal Council and orders seeking compliance. During the hearing it was agreed that Condition 56 could not be complied with and in any event it must be accepted that the question of breach had not yet arisen. Further, it was agreed that all other conditions referred to in the class 4 application had been satisfied.

2. Condition 35 of the development consent is as follows:-

35. In order to ensure the structural stability of the building and to minimise the risk of structural damage to adjoining properties, all recommendations made in the geotechnical reports by Jeffery and Katauskas P/L dated 13 March, 1998 and 22 October, 1998 are to be adopted. Additionally, further geotechnical and hydrological details are to be submitted to Council’s satisfaction addressing concerns raised by [the applicant] in his letter of correspondence to Council dated 14 April 1999, prior to the collection of the approved plans from Council.

3. Conditions 38 and 56 of the Building Approval state:-

38. Structural Engineering details and design calculations, prepared and certified by a Practising Structural Engineer are to be submitted for all reinforced concrete work, structural steel works, retaining walls, brick fences, shoring and underpinning, isolated piers, chimneys, parapets and other structural members required, to ensure the structural integrity of the building. These details shall be in accordance with Council’s special requirements (available from the Council on request) and the relevant SAA Codes.
56. A certificate, complying with Council’s Special Requirements for Structural Details, from a practising Structural Engineer certifying the adequacy of the existing retaining wall located on the alignment of the southern boundary, is to be lodged with the application for a Construction Certificate.


4. On 9 April 1998 the respondents lodged a development application with Woollahra Council. On 7 September 1998 development consent was granted to the respondents for the demolition of an existing building and erection of a residential dwelling at 22B Vaucluse Road, Vaucluse.

5. On 22 October 1998 Jeffery and Katauskas Pty Ltd reported to Edward Szewczyk and Associates Architects on an additional geotechnical investigation which had been undertaken. This report referred to both subsurface conditions and retaining walls on the subject property.

6. On 6 November 1998 the applicant, an adjoining owner, wrote to the council raising concerns in relation to the development application lodged with the council. The applicant stated in this letter that the “application as presented to council was dishonest and deliberately designed to mislead” .

7. On 31 March 1999 the council wrote to the applicant in response to objections received and also outlined modifications to the development consent. The applicant responded to this letter on 14 April 1999, detailing concerns in relation to the respondents’ conduct and further in relation to geotechnical and groundwater monitoring.

8. On 17 May 1999 the council modified the development consent by imposing certain conditions. These conditions included condition 35 which required that further geotechnical and hydrological details “are to be submitted to Council’s satisfaction addressing concerns raised by Mr P. Drury of No 8 Queens Avenue, in his letter of correspondence to Council dated 14 April, 1999, prior to the collection of the approved plans from Council.” Council also granted Building Approval subject to conditions including conditions 38 and 56.

9. Between 21 May and 6 July 1999 there was further correspondence from the applicant to the council detailing concerns regarding the adequacy of the various geotechnical reports and the potential safety risks.

10. On 8 July 1999 Mr Fitzhardinge, Geotechnical Engineer retained by the applicant, wrote to Jeffery and Katauskas Pty Ltd expressing concerns regarding the adequacy of material prepared by the respondents’ experts. On 9 July 1999 the applicant wrote to council indicating that the respondents had not met the council’s conditions of approval imposed on 17 May 1999.

11. Further correspondence between the applicant, his solicitors, the respondents and the council ensued and on 23 August 1999 Mr Fitzhardinge attended the site. A report was produced from this site inspection detailing the steps required to be undertaken before Mr Fitzhardinge was prepared to assure the applicant that the site was safe or that construction would not have long term effects on his property.

12. A Class 4 Application was filed and served over the next few days. On 26 August 1999 an application for interlocutory injunction to restrain the respondents’ underpinning of the upper retaining wall was dealt with by consent orders requiring the experts to confer.

13. Further correspondence continued over the following weeks including further reports from Mr Stubbs, Geotechnical Engineer, and Mr D’Ambrosio, Structural Engineer, as to the structural adequacy of the development.

14. After undergoing a site inspection on 12 October 1999, Mr Fitzhardinge expressed concern as to the expertise of Jeffery and Katauskas Pty Ltd as hydrologists as well as various other geotechnical issues. A further letter of 20 October outlines concerns about removal of walls and further underpinning work.

15. On 26 October 1999 Cowdroy J granted an injunction restraining the respondents from carrying out further excavation at the subject premises. By consent this injunction was discharged on 27 October 1999 by Pearlman CJ. Both sets of experts were once again ordered to confer and jointly report.

16. On 28 October 1999 a site meeting between Mr Fitzhardinge, Mr Stubbs, Mr D’Ambrosio and Mr Kanaan (the builder) took place. On 29 October 1999 a report by Mr Fitzhardinge following on from the site inspection agreed with the construction method proposed by Mr D’Ambrosio for the lower wall and stated that the method appropriately addressed his previous concerns. This “new and different design and method of construction” involved removing a number of short panels. As each short panel was removed a replacement was to be keyed into the remainder of the lower wall, providing a base for the upper wall. Thus, at all times the upper wall was to be supported by new panels on sections of the existing lower wall.

17. Mr Fitzhardinge gave evidence that he was initially of the belief that the entire lower wall was to be removed in one section. However, he did concede that this was never directly communicated to him. Rather, he based his understanding on the earlier removal of another wall and the fact that he had been shown no drawings prior to this site inspection which would show anything different. He had communicated his concerns about geotechnical issues to Mr Stubbs at various times and at no time did Mr Stubbs tell him how the wall was to be removed.

18. On 1 November 1999 Pearlman CJ granted leave to amend the class four application and an expedited hearing was granted. During November the work on the retaining wall was completed and excavation for the dwelling commenced.

19. The applicant submits that it has always claimed proper relief in this matter based upon well-founded concerns. Mr Robson for the applicant refers to a report of Mr Stubbs of 22 October 1998 in order to demonstrate that at that time Mr Stubbs had not looked at the wall closely and no hydrological material had been provided. Further, the applicant’s letter to council of 14 April 1999 outlines concerns about a “failure to clear vegetation” and “basic safety concerns not addressed” . Thus, the applicant insists that concerns were always justified.

20. Further, the applicant submits that Mr Fitzhardinge’s finding in his letter of 20 October 1999 that “thorough appropriate and adequate geotechnical and hydrological investigation and analyses is urgently required” , justified the applicant in moving the Court urgently on an ex parte basis. It was not until 29 October 1999 in the report based on the site inspection of 28 October 1999 that the concerns of Mr Fitzhardinge were met.

21. The respondents submit that at no time did their experts come up with “a new and different design and method of construction” as alleged by Mr Fitzhardinge in his report of 29 October 1999. The respondents’ experts were simply following the planned sequence of work up to that date and thus the actions of the applicant and the involvement of his engineer did not result in a change. Rather, in the respondents’ submission, whenever the applicant raised questions in relation to the construction and retaining wall, the experts directly addressed them. In fact, Mr D’Ambrosio stated that he shared the same concerns held by Mr Fitzhardinge.

22. The respondents further submit that after much correspondence between various experts, the architect and the builder, through March to June 1999, the council was satisfied with the concerns raised by the applicant’s letter of 14 April 1999. This is evidenced by the release by council of approved plans on 8 June 1999 and the inference that the council must have been satisfied as to condition 35 at this point.

23. In a report by Mr Stubbs of 29 June 1999 it is stated that “where retaining wall footings are not founded on the rock, they will be progressively underpinned” . Therefore, the respondents submit, contrary to the submissions of the applicant, that this demonstrates that the site inspection of 28 October 1999 involved nothing new in relation to the work. Further, in a letter of 17 September 1999 to the architects, Mr D’Ambrosio refers to “progressive stages” .

24. The respondents submit that nothing since the site inspection of 28 October 1999 and the resulting satisfaction of Mr Fitzhardinge’s concerns, can justify proceedings continuing beyond that date.

25. During the hearing it was agreed that condition 56 could not be complied with. The applicant nevertheless seeks a declaration that the respondents are in breach of this condition and an order to comply. First, the process has not reached the stage where a Construction Certificate is needed and thus this condition has not yet arisen and second, it was agreed that the adequacy of the existing retaining wall cannot be certified in any case.

26. In the Court’s opinion, the applicant was justified in bringing proceedings to at least establish that the respondents will never be able to comply with condition 56.

27. However, the Court finds that there is no utility to make the declaration regarding compliance with condition 56 sought in par 3 of the Amended Class 4 Application at this time or in the future to make Order 4 requiring compliance.

28. Although the applicant is not entitled to relief, he was nevertheless justified in bringing the proceedings and in one sense obtained a result by causing the respondents to comply with conditions 35 and 38 and resolving the issue whether condition 56 could be complied with.

29. Notwithstanding this achievement, it must be said that the applicant has not demonstrated that the actions of the respondents and their advisers were dilatory or that they at any stage proposed to act ultimately otherwise than in accordance with council’s conditions. There was however a distinct lack of candour and disclosure which the conditions of consent required. The council recognised the special interest of the applicant in condition 35 and the respondents and those advising them, together with their contractors, would have been well aware of the legitimate interest of the applicant in the manner of carrying out the relevant proposed works. The photographs and plans produced to the Court show that the excavation and structural works adjacent to and along the common boundary were major and posed a serious threat to the safety and maintenance of Mr Drury’s property. It required strict cooperation and diligence by all concerned.

30. By the time the matter came on for final hearing, the underlying issues had been resolved in all practical senses. It remains only for the respondents to deal with the outstanding problem in relation to condition 56.

31. The abovementioned findings go mainly to the determination of the question of costs. For the reasons outlined there are merits on both sides. Arguably the applicant may have been, to some extent, precipitous by commencing proceedings when he did, but on the other hand the respondents did little to avoid that consequence. Neither party has been wholly successful in the proceedings. The applicant obtained interlocutory relief at one stage. Those orders were discharged by consent when the parties embarked on a further course of consultation and investigation.

32. On balance, it is appropriate for each party to pay their own costs.

33. Accordingly, the Court makes the following orders:-

1. Application dismissed.

2. Each party pay their own costs.

3. The exhibits may be returned.