Habchy v Sammut

[2024] NSWLEC 1079

Land and Environment Court

New South Wales

Medium Neutral Citation:

Habchy v Sammut [2024] NSWLEC 1079

Hearing dates:

12 February 2024

Date of orders:

27 February 2024

Decision date:

27 February 2024

Jurisdiction:

Class 3

Before:

O’Neill C

Decision:

The orders of the Court are:

(1)   Within 6 months of the date of these orders, or such later date as may be agreed between the parties, the applicant and the respondent are to have the failed retaining wall on their shared boundary (as depicted in the survey by Adam Clerke Surveyors PL dated 10 October 2023 as “brick wall” and “stone wall”) demolished and reconstructed upon the following terms:

(a)   The replacement retaining wall is to be positioned along the shared boundary in approximately the same location as the existing retaining wall.

(b)   The replacement retaining wall is to be capable of supporting a dividing fence.

(c)   The parties are to obtain three quotes for each of the stages of demolition, engineering design and construction of a replacement retaining wall, and accept the most cost-efficient quote.

(d)   The parties are to equally contribute to the cost of the demolition of the existing retaining wall, the engineering design of a replacement retaining wall and the construction of that wall.

(2)   The exhibits, other than Exhibits 1 and 3, are returned.

Catchwords:

ENCROACHMENT OF BUILDINGS – retaining wall encroaching on applicant’s land – retaining wall failing and should be removed – retaining wall benefits both landowners and should be reconstructed on the shared boundary

Legislation Cited:

Encroachment of Buildings Act 1922, ss 2, 3

Land and Environment Court Act 1979, ss 19, 34

Dividing Fences Act 1991

Cases Cited:

Gabriel v Billett (No 2) [2023] NSWLEC 123

Category:

Principal judgment

Parties:

Zahi Habchy (Applicant)
Annette P Sammut (Respondent)

Representation:

Counsel:
O Holpert (Agent)(Applicant)
A Sammut (Self-represented)(Respondent)

File Number(s):

2023/172339

Publication restriction:

No

Judgment

1. COMMISSIONER: These proceedings are an application for relief under the Encroachment of Buildings Act 1922 (Encroachment Act). Pursuant to s 19(c1) of the Land and Environment Court Act 1979 (LEC Act), the Court has jurisdiction to hear and dispose of the matter in Class 3 of its jurisdiction.

2. These proceedings were subject to conciliation on 15 September 2023, in accordance with the provisions of s 34 of the LEC Act. I presided over the conciliation. As agreement was not reached, the conciliation was terminated, pursuant to s 34(4) of the LEC Act. The parties agreed to me hearing and disposing of the proceedings pursuant to s 34(4)(b)(i) of the LEC Act.

3. The applicant is the adjacent owner (31 Burne Ave, Lot 32 DP 12563), and the respondent is the encroaching owner (33 Burne Ave, Lot 33 DP 12563), as defined under s 2 of the Encroachment Act.

4. The parties have been involved in a not unrelated dispute in NCAT in proceedings under the Dividing Fences Act 1991.

5. There are two sections of a retaining wall positioned on the shared boundary. There is a brick wall with a maximum encroachment on the applicant’s land of 160mm and there is a stone wall with a maximum encroachment on the applicant’s land of 330mm. The retaining wall is approximately 5m long and a maximum of 1m high when measured on the applicant’s side of the wall (Ex 1). There is a concrete low wall close to the street boundary where one corner of the wall encroaches on the applicant’s land by a maximum of 110mm. Both walls are located on both the applicant’s land and the respondent’s land.

6. There is a concrete block wall on the applicant’s land adjacent to the shared boundary and there is no dispute over this wall.

Extract of the survey of the shared boundary (Ex 3).

The respective positions of the parties

7. The parties disagree as to whether the retaining wall should be demolished.

8. The applicant seeks an order for the removal of the encroachments.

9. According to the applicant, the retaining wall and the low concrete wall should be demolished and reconstructed by the respondent on her land at her expense. In his view, the respondent benefits from the retaining walls along a portion of the boundary because it creates a levelled grassed area on her property.

10. The respondent seeks orders that the application be dismissed.

11. According to the respondent, the brick retaining wall and the concrete low wall encroachments were caused by the applicant’s excavation, demolition and/or deliberate acts resulting in damage to the structures. In her opinion, the existing retaining wall can be used as a plinth for mounting the supporting posts for the dividing fence on. In her view, the encroachments present no significant negative impact, detriment, or loss to the applicant.

12. The respondent alternatively offers that the encroachment could be the subject of a transfer or lease of land to the encroaching owner.

The evidence

13. The applicant relied on a geotechnical assessment prepared by Crozier Geotechnical Consultants, dated 14 July 2023 (geotechnical report) (Ex 1).

14. The applicant relied upon two surveys of the shared boundary prepared by Adam Clerke Surveyors Pty Ltd, dated 7 July 2023 (Ex 2) and dated 10 October 2023 (Ex 3). The latter survey shows the concrete block wall as having been reconstructed on the applicant’s land, whereas it was located on the respondent’s land in the earlier survey.

15. Both the applicant and the respondent relied upon their individual affidavits.

16. According to the geotechnical report (Ex 1):

“The retaining wall in question is up to approximately 1.0m in height above the ground level in your property and comprises brickwork (within the western end of thew wall) or stacked sandstone rocks (cobbles to small boulders) (within the east end of the wall and is approximately 5.0m in length. The brick section of the retaining wall appears to be deflecting whilst the sandstone rock section of wall also appears to be deformed and degrading. The section of the sandstone rock wall is supported by steel rod supports in front of the wall…

Sections of the retaining wall appear to be founded on bedrock comprising low to medium strength sandstone which does not appear to have been significantly excavated or cut.

The retaining wall supports the front garden of No.33, which comprises flat lawn, above the level of your property. Additional retaining walls have been constructed in the front garden of No.33 to apparently create usable space. To the east of the retaining wall lies a densely vegetated east dipping slope.

A review of the original survey drawing (Urbanex Surveyors, Reference BURNE_DT, Dated 27/02/2013) supplied as part of CGC Geotechnical Investigation did not indicate the presence of these wall within your property, however the survey was relatively limited in content.

As part of our original geotechnical investigation of ‘the site’ prior to the development works (Report referenced above) the following information was provided:

‘Behind the outcrop and stone retaining wall is another small gently sloping to level area of fill and sandstone boulders, with another 0.90m sandstone retaining wall which has been mostly submerged by fill material including soil and sandstone boulders. A brick retaining wall which defines the northern property boundary at this location has deflected into the property.’

The brick retaining wall referenced in the above extract from our original report is shown in Photograph 3, taken prior to the development [photograph included]…

Based on the topography, ground surface elevation and previous photographs, it is considered that the retaining wall has been constructed then backfilled to create a level lawn within the front of No.33 some time prior to 2013.

It is understood that the steel posts and mesh, along with rubble backfill, were installed adjacent to the base of these walls by you prior to excavation works within the site to prevent failure and deformation of the old retaining walls.

The construction inspections did not identify any noticeable lateral deformation or movement in the excavation side walls or the temporary support measures, and the development cut has since been supported by backfilled retaining walls.

Therefore, it is considered by me that the brick and sandstone rock wall in the current position would be indicative of their long-term position which is understood to encroach on your property (‘the site’).”

(Ex 1)

17. No evidence was adduced regarding the cost of demolishing and reconstructing the retaining wall, or the cost of removing the encroaching corner of the low concrete wall.

Relevant provisions of the Encroachment Act

18. The Court’s power in relation to the application is in the following terms, under s 3 of the Encroachment Act:

3   Encroachments

…

(2) On the application the Court may make such orders as it may deem just with respect to:

(a) the payment of compensation to the adjacent owner,

(b) the conveyance transfer or lease of the subject land to the encroaching owner, or the grant to the encroaching owner of any estate or interest therein or any easement right or privilege in relation thereto,

(c) the removal of the encroachment.

(3) The Court may grant or refuse the relief or any part thereof as it deems proper in the circumstances of the case, and in the exercise of this discretion may consider amongst other matters:

(a) the fact that the application is made by the adjacent owner or by the encroaching owner, as the case may be,

(b) the situation and value of the subject land, and the nature and extent of the encroachment,

(c) the character of the encroaching building, and the purposes for which it may be used,

(d) the loss and damage which has been or will be incurred by the adjacent owner,

(e) the loss and damage which would be incurred by the encroaching owner if the encroaching owner were required to remove the encroachment,

(f) the circumstances in which the encroachment was made.

Consideration

19. I am satisfied by the expert opinion of the author of the geotechnical report that the retaining wall, as described, should be demolished because the walls are deflecting, deforming and degrading.

20. Regarding the observation in the geotechnical report, “A review of the original survey drawing… supplied as part of CGC Geotechnical Investigation did not indicate the presence of these wall within your property, however the survey was relatively limited in content”, I note that the survey does not indicate the retaining wall on the shared boundary at all, either on the applicant’s land or the respondent’s land.

21. The land at 31 Burne Ave has been significantly excavated for the construction of the dwelling sometime after 2013. The northern elevation of the dwelling is setback 900mm from the shared boundary, which required the excavation to extend into the side setback close to the shared boundary. The 2013 Crozier report (Exh A, ff 13-16) stated that the excavation proposed as part of the construction of the dwelling was up to 5.4m deep. The 2013 Crozier report noted that a significant portion of the excavation was expected to extend through medium and possibly high strength sandstone bedrock which would require the use of rock excavation equipment. According to the 2013 Crozier report, vibration levels from rock breakers can be excessive and cause damage to adjacent structures. The 2013 Crozier report does not refer to the retaining wall on the shared boundary.

22. The applicant submitted that an interim occupation certificate for the dwelling was obtained in 2019.

23. It is evident from the photographs included in the geotechnical report that the land at 31 Burne Ave, adjacent to the 5m length of retaining wall, has been excavated and the levels changed. Photograph 3 in Ex 1 shows a portion of the retaining wall viewed from 31 Burne Ave prior to the construction of the dwelling at 31 Burne Ave and there is soil and vegetation adjacent to the retaining wall on 31 Burne Ave. Photographs 4 and 5 in Ex 1 show the retaining wall viewed from 31 Burne Ave following the construction of the dwelling and the land adjacent to the wall has been excavated. Photographs 1 and 2 in Ex 1 are taken from 31 Burne Ave adjacent to the sandstone section and the brick section of the retaining wall following the construction of the dwelling and show the level of the land as having been lowered when compared to Photograph 1.

24. The site survey of 31 Burne Ave dated 2013 (Ex A, f 7), prior to the construction of the dwelling, does not indicate any of the retaining walls on either side of the shared boundary. It does however indicate an abrupt change in levels perpendicular to the shared boundary on 31 Burne Ave, near the existing dwelling on 33 Burne Ave.

25. The 2013 Crozier report (Ex 1, f 9) includes a site plan and shows two retaining walls on 31 Burne Ave perpendicular to the shared boundary in the vicinity of the retaining wall and the dwelling on 33 Burne Ave. The removal of these retaining walls at 31 Burne Ave and excavation of the site for the construction of the dwelling changed the ground levels at 31 Burne Ave adjacent to the retaining wall within the northern side setback. The perpendicular retaining walls would have presented an abrupt change in the level between the bottom and the top of the walls, as indicated on the site plan, whereas the northern side setback at 31 Burne Ave now rises steadily towards the rear of the site.

26. The only evidence adduced by the applicant to indicate that the failure of retaining wall on the shared boundary was apparent prior to the excavation of his site and the construction of his dwelling is the statement in the geotechnical report, quoting the original geotechnical investigation of the site (31 Burne Ave) prior to the development works, “A brick retaining wall which defines the northern property boundary at this location has deflected into the property”. As the deflection of the brick wall had been commented upon, it follows that the sandstone wall was likely intact and not deflecting. When comparing the before and after photographs of the retaining wall in the geotechnical report (photograph 3 with the later photographs 1 and 2), it is evident that there has been excavation adjacent to the retaining wall and that the sandstone section of the retaining wall exhibits the greatest deflection.

27. Based on the documentary evidence and the timing of the failure of the retaining wall post-construction of the dwelling at 31 Burne Ave, I am satisfied that the excavation on 31 Burne Ave including the changes to the ground level immediately adjacent to the retaining wall has likely contributed to its structural deterioration.

28. Both the applicant’s land and the respondent’s land benefit from the retaining wall. The retaining wall does retain an area of level grass in the front setback of 33 Burne Ave, but it also benefits the applicant as the northern side setback has been excavated and levelled to achieve a steady rise towards the rear of the site. I do not accept, based on the documentary evidence before me, that the applicant’s land adjacent to the retaining wall is the “natural ground level” as stated in his claim.

29. The applicant submitted that the main issue is not the encroachment of the retaining wall, but that the wall has failed.

30. As both parties benefit from the retaining wall and considering the circumstances which likely contributed to the failure of the retaining wall, both parties should equally contribute to the cost of the design and construction of a replacement retaining wall; and that wall should be located in the same or similar position as the existing wall along the shared boundary.

31. The construction of a replacement retaining wall positioned along the shared boundary will not impede the applicant from constructing a stairway within his northern side setback.

32. The applicant’s submission that the main issue is not the encroachment of the retaining wall, but the failure of the wall, is contrary to the issue raised by the applicant in the heel of the hunt regarding the very minor encroachment of the low concrete wall close to the street boundary, as that wall has not failed.

The low concrete wall close to the street boundary. The very minor encroachment is 110mm of the right corner at the bottom of the photograph (Ex 4).

33. The encroaching corner of the low concrete wall close to the street boundary does not hinder the construction of a dividing fence along the boundary. Nor has the wall failed. The wall is only approximately 50mm above the existing ground level on the applicant’s land. The nature and extent of the encroachment is negligible. For these reasons, the wall need not be demolished and should remain.

Orders

34. The orders of the Court are:

1. Within 6 months of the date of these orders, or such later date as may be agreed between the parties, the applicant and the respondent are to have the failed retaining wall on their shared boundary (as depicted in the survey by Adam Clerke Surveyors PL dated 10 October 2023 as “brick wall” and “stone wall”) demolished and reconstructed upon the following terms:

1. The replacement retaining wall is to be positioned along the shared boundary in approximately the same location as the existing retaining wall.

2. The replacement retaining wall is to be capable of supporting a dividing fence.

3. The parties are to obtain three quotes for each of the stages of demolition, engineering design and construction of a replacement retaining wall, and accept the most cost-efficient quote.

4. The parties are to equally contribute to the cost of the demolition of the existing retaining wall, the engineering design of a replacement retaining wall and the construction of that wall.

2. The exhibits, other than Exhibits 1 and 3, are returned.

Susan O’Neill

Commissioner of the Court

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Decision last updated: 22 November 2024