Hill v Higgins
[2012] NSWSC 270
•27 March 2012
Supreme Court
New South Wales
Medium Neutral Citation: Hill v Higgins [2012] NSWSC 270 Hearing dates: 4-5 May, 4 November and 9 December 2012 Decision date: 27 March 2012 Jurisdiction: Common Law Before: Harrison J Decision: Verdict for the plaintiffs for $220
Catchwords: TORTS - trespass - trespass to land -deposit of bricks - subsequent unauthorised entry to remove bricks - damages awarded
TORTS - trespass - trespass to land - encroaching dwarf retaining wall - no damages awarded
TORTS - nuisance - land unkempt, overgrown and weed infested - no nuisance establishedLegislation Cited: Encroachment of Buildings Act 1922
Environmental Planning and Assessment Act 1979Cases Cited: Break Fast Investments Pty Ltd v PCH Melbourne Ltd [2007] VSCA 311; (2007) 20 VR 311
Don Brass Foundry Pty Ltd v Stead (1948) 48 SR (NSW) 482
Haddon v Lynch [1911] VLR 230
Plenty v Dillon [1991] HCA 5; (1991) 171 CLR 635
Ruthning v Ferguson [1930] St R Qd 325
Walter v Selfe (1851) 4 De G & Sm 315 at 322; 64 ER 849
Watson v Cowen [1959] Tas SR 194
Wherry v Trustees of the Sisters of Charity of Australia [2000] NSWLEC 252; (2007) 111 LGERA 216Texts Cited: Restatement (Second) of Torts § 822 Category: Principal judgment Parties: Andrew Steven Hill (First Plaintiff)
Julie Hill (Second Plaintiff)
Anita Michelle Higgins (First Defendant)
Alan Higgins (Second Defendant)Representation: M R Hall (Plaintiffs)
J J Young (Defendants)
Trisley Lawyers (Plaintiffs)
Sparke Helmore (Defendants)
File Number(s): 2009/296191
Judgment
HIS HONOUR: Mr and Mrs Hill and Mr and Mrs Higgins are neighbours. Their properties are respectively known as 42 and 40 Kurrawong Avenue, Hawks Nest, which is a small hamlet located on the picturesque northern shores of Port Stephens. A modest house is erected on each property. Kurrawong Avenue slopes gently from north to south in the vicinity of the properties. Number 40 is on the higher northern side and number 42 is on the lower southern side. Mr and Mrs Hill purchased number 42 in about November 2005. Mrs Higgins purchased number 40 sometime in the following year.
A mostly brick dwarf retaining wall approximately one metre high and a mesh dividing fence originally ran from east to west along most of the northern side of the common boundary between the two properties. At some stage during 2006, Mr Hill became alerted to the fact that the double brick section of the retaining wall had deteriorated and had developed a slight lean, so that it was to some extent encroaching onto and over his property. In late 2006 Mr and Mrs Higgins carried out some earthworks and landscaping upon their property adjacent to that boundary. They did nothing then to repair or to relocate the retaining wall. Mr Hill has given evidence that Mr Higgins told him at that time that he did not intend to do anything about the state or location of the retaining wall "until it falls over". This comment was not destined to establish the fondest of bonds between these neighbours. Indeed, Mr Hill alleges that before long Mr Higgins' attitude had so deteriorated that he provocatively told Mr Hill that his intention was by then only to replace the wall "in two to seven years or when it falls over or when we feel like it".
It was not long after this that relations between the two couples became very strained indeed. The local council was informed of the problems and it soon became quite actively involved. Correspondence between the parties themselves and with the local council started to be generated in high volume and must have occupied many of the waking hours of everyone concerned. A high timber paling fence erected parallel to the boundary by Mr and Mrs Higgins on their property inflamed passions even further. The Hills contend that it has contributed to the decline of the retaining wall's already compromised stability and integrity. Surveyors and engineers were soon marshalled on both sides to provide advice and reports on all manner of potential issues arising from these unfortunate circumstances.
It goes without saying that it was not long before legal proceedings were commenced. By their summons filed on 26 August 2009, Mr and Mrs Hill sought declarations that their neighbours had encroached upon their property and had trespassed and created a nuisance. They asked for the encroachment to be removed and sought an order that Mr and Mrs Higgins pay them compensation pursuant to s 4 of the Encroachment of Buildings Act 1922. The Hills also asked for damages, including aggravated and exemplary damages. Similar relief was sought in a statement of claim that was filed on 9 December 2010.
Mr and Mrs Higgins filed their defence on 16 January 2011. They denied in substance what was alleged against them. They contended that they had made numerous reasonable offers to replace the retaining wall but that Mr and Mrs Hill had unreasonably refused to agree to any proposal for the replacement of the wall. They also contended that Mr and Mrs Hill had unreasonably refused to allow them access to their property for the purposes of facilitating its replacement.
Both sides have filed a wealth of affidavit evidence. This material was referred to in some great detail when the matter came before me for hearing over two days on 4 and 5 May 2011. Several witnesses, including Mr and Mrs Hill and Mr Higgins, were called and cross-examined. The considerable disharmony, by then approaching enmity, which had developed between the parties over the years, manifested itself throughout both days of the hearing in various ways.
At the end of the second day, and with this very unfortunate state of affairs in mind, it became apparent to me that some different approach to the resolution of the proceedings was called for that was unconstrained by the traditional litigious model. As far as I could determine, both parties were in furious agreement that the retaining wall had to be removed but they could not agree, whether from an engineering, aesthetic or financial standpoint, about what if anything should replace it. Quotes for the work varied immensely from as low as $9000 to in excess of $38,000. Nor was the replacement issue merely some passing theoretical problem. Neither party had sought relief that would have resolved the replacement issue and I did not consider that I had any formal power to resolve it in any event. This meant that the parties' mutual desire to deal with the removal of the encroachment and to get on with their lives with the benefit of an order of the Court one way or the other, was at the same time being wholly frustrated or impeded by their respective concerns about something that was not any part of the litigation and which I had no ability to decide. There was a deadlock. With this in mind I suggested a certain course, which the parties enthusiastically embraced. I then delivered some short remarks outlining what was proposed. Those remarks included the following:
"The plaintiffs and the defendants are each represented by skilful barristers and solicitors with the benefit of whose expertise I have been provided over the last two days of these proceedings. Close to the end of the second day it struck me as profitable to inquire of the parties whether or not it might be helpful to all concerned if I were to adjourn these proceedings to a date some time in the future and to give the parties an opportunity to cooperate in the carrying out of the works which they each, in different ways, anticipate or desire to be performed.
For his part Mr Hall, on behalf of the plaintiffs, submitted that I should only do so in the context of an order that the encroachment be removed. Mr Young, who appears for the defendants, with the benefit of what I consider to be proper and reasonable instructions, is prepared, without admission of liability or otherwise exposing himself to any inference adverse to the defendants, to consent to an order that the encroachment be removed.
As I have said, the plaintiffs also make a claim for damages for trespass and nuisance and the issue of costs in these proceedings looms large. The Encroachment of Buildings Act itself adverts to an exercise of the discretion currently reposed in me concerning the making of orders for costs having regard in general terms to the conduct of the parties. In my view the conduct of the parties in the future is likely reliably to inform much of the discretionary considerations with which I am concerned."
I then proceeded to make the following orders:
"On the application of the plaintiffs and with the consent of the defendants without admission of liability:
1. Order that the encroachment by the defendants' land onto the plaintiffs' land more fully described and identified in the report of C R Hutchison & Co dated 14 February 2007 being annexure G to the affidavit of Alan Higgins sworn 10 June 2010 be removed by the defendants.
2. Stand over these proceedings for further hearing before me on Friday 4 November 2011.
3. Grant liberty to the parties to apply to me on two days' notice by arrangement with the other side and in consultation with my Associate.
4. Reserve consideration of all other outstanding matters including the plaintiffs' claims for relief and the question of costs."
When the matter returned to me on 4 November 2011, I was informed by the parties that the encroachment had not been removed. I had originally and intentionally not nominated a date by which this should be done. I was however asked at that time to specify a date for the removal of the encroachment before the matter returned to me for further consideration. Accordingly, on that day I directed that the retaining wall should be removed by no later than 1 December 2011.
On 9 December 2011, I was informed that the encroaching retaining wall had been removed. This was very good news. Mr Hall of counsel for Mr and Mrs Hill indicated in those circumstances that the proceedings were "substantially complete". Mr Young of counsel for Mr and Mrs Higgins did not suggest otherwise. However, before I was able to become too excited about that announcement, Mr Hall reminded me that the parties still required a decision upon issues arising under the Encroachment of Buildings Act, and on the outstanding questions of trespass and nuisance. Oral submissions on the Act had already been presented and the parties proposed a timetable for the provision of written submissions on remaining issues. These reasons are limited to a consideration of those remaining matters.
Discussion
The Hills have identified three separate sets of circumstances that they say constituted a trespass by Mr and Mrs Higgins to or upon their land. The first consisted of the deposit of bricks. The bricks and other debris would appear to have come from part of the western end of the retaining wall, which had been partly and informally demolished. The allegation is that the bricks and debris remained in situ on the Hills' land for several days. The second alleged trespass consists in an entry by Mr Higgins onto the Hills' property a few days later. The third alleged trespass arises from the original presence of the retaining wall itself over or upon the Hills' land.
Mr and Mrs Hill claim damages for each of these trespasses. They concede now and have always maintained that damages would not be large but should be substantial in the sense of being more than purely nominal. They have suggested sums that would be appropriate to reflect the deliberate invasion of their land by or on behalf of Mr and Mrs Higgins but in the absence of any long-term damage. These sums are referred to later in these reasons.
The first alleged trespass is described in an affidavit of Godfrey Thurlow sworn 9 February 2010. Mr Thurlow is Mrs Hill's father. Paragraph 5 of his affidavit is in these terms:
"5. On Tuesday 3 June 2008 I noticed that bricks had been removed from the retaining wall located adjacent to their northern boundary and been [sic] left in a scattered heap in their front yard. I also noticed that the top rail of the old, original fence was missing and their 'tallish' red flowering poinsettia shrub had been broken off at ground level. Exhibited before me ... are photographs of the pile of bricks left on the property."
Although the precise number of bricks involved is not particularly significant, the photographs appear to depict a stack of about 25 to 30 bricks in a loose pile. Mr Thurlow's affidavit deposes to their removal at about 2.00pm on 7 June 2008. The photographs show quite clearly that the bricks are located on the Hills' land. I do not understand that fact to be controversial. It seems equally likely that the bricks have come from the partly demolished retaining wall. It is submitted on behalf of Mr and Mrs Hill that the clear inference is available that the bricks were stacked where they are shown in the photographs by Mr and Mrs Higgins or someone acting on their behalf. For example, Mr Higgins was at the time subjected to an order issued by the Great Lakes Council requiring him to remove or repair the wall. He also gave evidence that he later removed the bricks.
The second alleged trespass occurred on 7 June 2008 when Mr Higgins removed the bricks. Mr Thurlow's evidence about this is at paragraph 9 of his affidavit as follows:
"9. On Saturday 7 June 2008 at approximately 2.00pm I checked the property. On my arrival I found Mr Higgins standing in the Hills' front yard leaning over the wire mesh fence that we had erected and throwing bricks that had been scattered on the front lawn into the back of his ute. His ute was parked on the footpath outside the front of the two properties."
Mr Thurlow took photographs of what he saw. Mr Higgins did not dispute the fact that it was he who removed the bricks but denied that he entered upon the Hills' land in order to do so. He contended that the bricks were removed by him operating at all times from a position on his own property.
There does not appear to be any dispute that the physical incidents said to constitute the third alleged act of trespass occurred, in as much as the retaining wall encroached over or onto the Hills' land. Rather, Mr and Mrs Higgins dispute only that what occurred in this respect was caused by them, asserting instead that the encroachment was the result of "natural forces". Mr and Mrs Hill contend that to the extent that the wall was permitted to encroach upon their land over time, even if occurring "naturally", the Higgins' liability has been sufficiently established.
Mr and Mrs Hill submitted that if Mr and Mrs Higgins permitted or caused naturally occurring material to fall onto their land they are liable in trespass and probably also in nuisance: Watson v Cowen [1959] Tas SR 194. Similarly, if they failed to remove an object from the Hills' land after its wrongful presence was brought to their attention and after any licence was thereby withdrawn, they are liable in nuisance as a result of that failure to act: Break Fast Investments Pty Ltd v PCH Melbourne Ltd [2007] VSCA 311; (2007) 20 VR 311.
In the present case the evidence demonstrates that the retaining wall and retained fill were not naturally occurring but had been constructed by previous owners of the Higgins' land. Mr Higgins was aware of the movement of the wall and of his obligation to address it before the incursion occurred or at least at an early stage of its movement. Indeed, his letter dated 16 May 2006 to Mr and Mrs Hill would appear to be the very first contact of any sort between the two couples about the problem and possibly for this reason as well it was almost the only reasonable and polite piece of correspondence between them in this long and unhappy saga. Its terms are instructive and are relevantly as follows:
"Dear neighbours,
In the absence of having your contact details I thought it best to try to contact you via mail. My name is Alan Higgins and my wife is Anita and I now own the property next door at 40 Kurrawong Ave Hawks Nest.
We need to discuss our plans to replace the existing retaining wall between our two properties, which we plan to work on during the first week in June. This wall came up on our building inspection report as a concern and something that needs to be fixed as soon as possible and no doubt you are concerned about the fact that it leans in towards your house.
We are prepared to replace the wall at our own expense and we also need to discuss the installation of a new fence with you. Please give me a call on [my mobile phone] at you earliest convenience. We hope to see you in Hawks Nest soon to discuss plans."
Unfortunately, Mr and Mrs Higgins took it upon themselves to commence the foreshadowed works upon their land before any meaningful discussions with the Hills had occurred and necessarily without the benefit of any contribution to it that they might have been able to provide. That may well have set the tone for what followed because the progress of negotiations thereafter does considerable disservice to that concept. Boundary confrontations and pedantic written exchanges produced conspicuous inaction and heightened tensions. Throughout and beyond all of this Mr and Mrs Hill maintain that Mr and Mrs Higgins became and remain liable for the incursion upon their land in the form of the leaning dwarf retaining wall.
Moreover, Mr and Mrs Hill contend that the presence of the wall also amounted to a nuisance. They accept that if they are compensated in their action for trespass to land because of the position of the wall, they are not also entitled to damages for nuisance arising out of the same facts.
Mr and Mrs Hill, however, formulate their claim in nuisance in a slightly different fashion. They contend that because of the style and location of a timber paling fence that Mr and Mrs Higgins constructed on their property, to which Mr and Mrs Hill have always taken exception, there was created between the boundary and that fence an area of what has been described as "orphaned" land. That is to say, Mr and Mrs Hill submit that between the leaning retaining wall to the south and the high timber fence to the north, an area of land has been created within the boundary of the property owned by Mr and Mrs Higgins over which Mr and Mrs Hill have no rights of legal use or enjoyment on the one hand but to which Mr and Mrs Higgins have no means of practical access because of the position of the fence on the other hand. This area has in these circumstances fallen into a state of disrepair and neglect with overgrown vegetation creating what Mr and Mrs Hill describe as a place that attracted "vermin". This is because Mr and Mrs Higgins cannot get access to it without difficulty or by approaching it from Mr and Mrs Hill's land and have therefore effectively abandoned it and Mr and Mrs Hill, who have complete and easy access to it, have chosen to ignore it.
It is in this way that Mr and Mrs Hill contend that their neighbours were required, consistently with authority, to conform to a duty to prevent their land falling into such a state as to cause unreasonable interference with Mr and Mrs Hill's use or enjoyment of their land. This was said to extend to an obligation to eradicate naturally occurring problems such as weeds, which in this case Mr and Mrs Hill contend Mr and Mrs Higgins have wrongfully failed to abate. This submission is made notwithstanding that the area of land concerned is relatively small, easily accessible by Mr and Mrs Hill and probably capable of being utilised and maintained by them for their own benefit and enjoyment without any real threat of interference from its owners.
Several photographs are in evidence depicting the area concerned. It is adjacent to a contiguous side passage running alongside the house on Mr and Mrs Hill's land, bounded on the northern side by the common boundary and the retaining wall. It seems to be an unexceptionable side passage in a suburban or domestic residential location with a concrete path. Early pictures show that it was at one time quite neatly kept but later photographs reveal that it has received little or no recent attention from anyone. It does not, however, strike me as particularly troublesome in any respect other than aesthetically, and it certainly does not appear to be dangerous or hazardous.
It was Mr and Mrs Hill's final submission that in all of these circumstances they should be awarded damages in respect of their claims in trespass and nuisance in a sum of between $500 and $1,000 for the June 2008 incidents and something in the region of $10,000 to $15,000 for the continuing presence of the wall and the associated nuisances.
Mr and Mrs Higgins' response was to say that the trespasses and the nuisance have not been established, but even if they had been, the torts are de minimus and should attract no awards of damages or only nominal damages.
Consideration
Section 3 of the Encroachment of Buildings Act is in these relevant terms:
"3 Encroachments
(1) Either an adjacent owner or an encroaching owner may apply to the Court for relief under this Act in respect of any encroachment.
(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."
As I indicated earlier, the retaining wall has now been removed. I have not been informed that it has been replaced and for present purposes that is not a matter of concern for me. Despite the fact that both parties have expended what must have been considerable amounts of money on experts and artisans searching for an acceptable proposal, I have never understood, and neither party has suggested, that I had at any time a power to order that some particular structure should be built to replace the retaining wall when it is finally removed. Indeed, I said as much in my judgment on 5 May 2011 as appears:
"As I understand the Act, I am empowered to order that the encroachment be removed, although the extent to which I can, if at all, order that a retaining wall be constructed in its stead or that any works of any sort at all thereafter be performed to retain the defendants' land from subsiding into the plaintiffs' lands is less clear."
However, my power to order that the encroachment be removed was never in question. In the events that occurred, the order that I made for the removal of the encroachment was complied with. It does not in those circumstances become necessary for me to give any consideration to the discretionary factors enumerated in s 3(3) of the Act. In my opinion, the powers given to me to order the removal of the encroachment are now spent. As was observed by Bignold J in Wherry v Trustees of the Sisters of Charity of Australia [2000] NSWLEC 252; (2007) 111 LGERA 216 at [43] - [45]:
"[43] Although the matter was not the subject of detailed argument, I am of the opinion that when the Act refers to "compensation" payable to the adjacent owner, it is referring exclusively to compensation payable in respect of any grant to the encroaching owner of some title to allow the encroachment to continue to exist, on the land of the adjacent owner.
[44] This conclusion, I think, inevitably flows from the proper interpretation of s 3 and s 4 of the Act, in the light of the express objects of the Act. Properly interpreted, the reference in s 3(1) to the payment of compensation to the "adjacent owner" is limited to "compensation" of the type specified in s 4 of the Act, subsection (1) of which specifies "minimum compensation" and subsection (2) of which specifies the matters that the Court shall have regard to "in determining whether the compensation shall exceed the minimum and if so, by what amount".
[45] Accordingly, the relief provided for under the Act does not include compensation in the nature of damages for trespass or nuisance or other tortious act. The perceived deficiencies in the law which gave rise to the enactment of the Act in 1922 (such as are discussed in Boed's case) do not involve, as I would understand it, deficiencies in the law of trespass or nuisance etc." [Emphasis added]
Moreover, no question of compensation under the Act arises or remains. This is because a fair reading of s 4 of the Act leads to the conclusion that compensation is only payable "in respect of any conveyance, transfer, lease, or grant to the encroaching owner". As the encroachment has now been removed, the prospect of any of those things applying has disappeared.
Both sides have in these circumstances quite properly confined their attention to the separate question of whether or not Mr and Mrs Hill have made out a case for trespass to their land or nuisance and to the related issue of whether or not they are entitled in either case to an award of damages.
I should commence my consideration of these matters by observing that it cannot have been easy or pleasant for either Mr and Mrs Hill or Mr and Mrs Higgins to have had to live and cope with what has transpired between them since shortly following 16 May 2006, effectively unremitting and unabated up to the present time. I assume that both sides would at all times have preferred to have an harmonious and pleasant relationship in which a spirit of cooperation flourished and in the context of which something as apparently innocuous as a boundary dispute could have been resolved without resort to litigation. It is unfortunate that things proceeded very differently.
It also occurs to me that it may be inimical to the early restoration of civilities between the parties for me to refer, in any more detail than I have already, and particularly in a way that identifies a particular author, to the sad state of the correspondence that has passed between them. Much of what that correspondence contains is provocative, ill-considered and often disingenuous. It was in large part counter productive of any real progress towards resolving the dispute, often in my view intentionally so, and I have no doubt that it had that effect. Much of that correspondence has been characterised by a rigid and uncompromising insistence on strict legal rights, to the detriment of any likely solution to the conflict actually emerging, and where an approach characterised by common sense, basic intelligence and reasonable give and take should have prevailed.
It is difficult in the third millennium to be impressed greatly by the seriousness of a complaint about the legal or circumstantial consequences to a landowner of the temporary deposit of a handful of bricks upon his or her land, or the associated consequences that are claimed to flow from the fact of a person entering upon the same land to remove them. (I put aside for present purposes the apparent inconsistency that arises from concurrent complaints about the bricks being on the land in the first place and the allegedly unauthorised entry onto the land by someone for the purpose of removing them in the second place). In the context of the present proceedings, the trespasses of which Mr and Mrs Hill complain are in truth no more than a collateral irritation spawned by the principal matter of concern. It hardly needs to be observed that the removal of the retaining wall, a not insubstantial structure consisting mainly of bricks, from quiet residential or domestic premises, would inevitably be difficult to achieve without some level of entry or intrusion upon the land and some associated level of interference with its amenity and appearance. That reality seems to some extent to have been overlooked or downplayed.
I consider that the evidence clearly establishes that Mr Higgins was responsible for the partial demolition of the western end of the retaining wall and for the deposit of the bricks from that wall onto the land of Mr and Mrs Hill. I am also prepared to find that Mr Higgins arranged, quite understandably, for the removal of the bricks and that he did remove them using his utility, as seen by Mr Thurlow. As Mr Higgins said in his letter of 11 July 2008 written to Mr Hill with a proposal for a new wall, "I am happy to replace the bricks I removed and return the wall to its previous state until it needs repair at some point in time in the future". It is not without significance that Mr Hill never replied to that part of Mr Higgins' letter.
Trespass is actionable without proof of material loss. A deliberate trespass is not a trifling matter. In Plenty v Dillon [1991] HCA 5; (1991) 171 CLR 635 at 654-5, Gaudron and McHugh JJ said this:
"In his judgment, the learned trial judge said that, even if a trespass had occurred, it was "of such a trifling nature as not to found (sic) in damages". However, once a plaintiff obtains a verdict in an action of trespass, he or she is entitled to an award of damages. In addition, we would unhesitatingly reject the suggestion that this trespass was of a trifling nature. The first and second respondents deliberately entered the appellant's land against his express wish. True it is that the entry itself caused no damage to the appellant's land. But the purpose of an action for trespass to land is not merely to compensate the plaintiff for damage to the land. That action also serves the purpose of vindicating the plaintiff's right to the exclusive use and occupation of his or her land. Although the first and second respondents were acting honestly in the supposed execution of their duty, their entry was attended by circumstances of aggravation. They entered as police officers with all the power of the State behind them, knowing that their entry was against the wish of the appellant and in circumstances likely to cause him distress. It is not to the point that the appellant was unco-operative or even unreasonable. The first and second respondents had no right to enter his land. The appellant was entitled to resist their entry. If the occupier of property has a right not to be unlawfully invaded, then, as Mr Geoffrey Samuel has pointed out in another context, the "right must be supported by an effective sanction otherwise the term will be just meaningless rhetoric": "The Right Approach?" (1980) 96 Law Quarterly Review 12, at p 14, cited by Lord Edmund-Davies in Morris v. Beardmore, at p 461. If the courts of common law do not uphold the rights of individuals by granting effective remedies, they invite anarchy, for nothing breeds social disorder as quickly as the sense of injustice which is apt to be generated by the unlawful invasion of a person's rights, particularly when the invader is a government official. The appellant is entitled to have his right of property vindicated by a substantial award of damages."
The facts of that case are well known and significantly different from this case. That said, Mr and Mrs Hill maintain that the sanctity of their right to exclusive use and occupation of their land was assailed and that they are doing no more than claiming what is their well recognised legal right to redress.
It is in my view important, however, not to permit the requirement to reaffirm and properly to apply well-settled law in a principled and consistent way, to mask the equally important requirement to decide cases upon their own particular facts. The facts in Plenty v Dillon could hardly have been more removed from the facts of the present case, and yet the plaintiff in that case was relying upon precisely the same principles as Mr and Mrs Hill in this case. The importance of the principles that the High Court reaffirmed in Plenty v Dillon is not diminished in my view by an assessment of damages in this case that recognises and applies the very significant differences between the two cases.
A letter followed, not long after the events of early June 2008 of which Mr and Mrs Hill complain, from Mr Hill to Mr Higgins. It is dated 12 June 2008 and is in the following relevant terms:
"In consideration of the unauthorised access to and interference with my property on several occasions during the preceding weeks I am advising you in writing that I prohibit you, your rear neighbour/brother-in-law and your contractors from entering my property unless I give prior written permission. I therefore request that any application for access to my property be in writing and addressed to 42 Kurrawong Avenue, Hawks Nest for my consideration within a reasonable period of time.
Furthermore, on 7 June 2008 when my father-in-law arrived and you were on my property it is my understanding that you stated that Council had given you the right to be on my property and that the work is urgent. This is the complete opposite of your past attitude and previous statements regarding the retaining wall and therefore I can only conclude you are suddenly claiming it is urgent as a means of gaining unauthorised access to my property."
The events of early June 2008 and the contents of Mr Hill's letter need to be considered in light of at least two factors. First, Mr Hill had been in detailed and regular correspondence with Great Lakes Council. In his letter dated 7 October 2007 he described himself as "the victim of this unfortunate mess". It was clear from that letter at least that Mr Hill was pressing the Council to resolve issues arising from the erection of the timber fence and the need to correct the problem with what he somewhat hyperbolically described in his letter to Council as the "hazardous retaining wall". He was clearly frustrated by the fact that no resolution appeared imminent. He concluded his letter to Council by saying, "Perhaps, if Council is unable to resolve this matter, the Ombudsman will be able to better handle the situation".
Secondly, as already discussed, on 16 January 2007, Mrs Higgins had been given a notice by the Council of intention to give an order pursuant to s 121H of the Environmental Planning and Assessment Act 1979 and had been ordered pursuant to s 121B of the Act within a period of 60 days to do the following:
"Demolish the retaining wall Lot 72...40 Kurrawong Avenue, Hawks Nest and replace the retaining wall with a structurally adequate retaining wall designed by a suitably qualified Engineer...
OR
Submit to Council a report from a suitably qualified Engineer demonstrating the structural adequacy of the retaining wall and upgrade the retaining wall in accordance with any requirements of the report."
The Council expressed the view in the documents addressed to Mrs Higgins that its reasons for making the order included the fact that "the retaining wall [was] considered to be a danger to the occupants of [Mr and Mrs Hills'] premises".
It is in this context that the seriousness of Mr and Mrs Higgins' actions has to be assessed. Mr and Mrs Hill wanted something done about the wall. Access to their property was necessary for that purpose. (I note that there is evidence to suggest that the whole operation could be conducted from the Higgins' property but I reject that idea as failing to reflect the practical and financial realities). Mr and Mrs Higgins were entitled to be concerned with the need to comply with the Council's order. The bricks that were removed were at the front of the properties and had to be removed sooner or later. It was reasonable for Mr Higgins to dispose of them on the weekend following demolition of that part of the wall that was formed by them. It is highly unlikely that permission to enter upon the front of Mr and Mrs Hills' property in order to remove the bricks would not have been given to Mr Higgins if he had sought it in advance. The trespasses were of short duration and caused no damage. In the general scheme of unauthorised, intentional and tortious invasions of private property, the trespasses are almost as minor and as insignificant as it is possible to envisage in the particular circumstances of a case such as this. Damages for these trespasses should reflect that assessment.
So far as concerns the claim for trespass caused by the encroachment of the retaining wall, it is in my opinion even less significant. It is very important not to equate the subjective concerns expressed about the safety of the failing wall or the objective seriousness or otherwise of the dangers thought to be associated with its dilapidated condition, with the extent to which it actually trespasses upon the adjacent land. This case is about the latter, not the former. It must be remembered that the trespass allegedly committed by the encroaching wall is limited, and falls to be characterised only by reference, to the extent to which the wall was physically upon or extended over Mr and Mrs Hills' land.
There is at least one survey report in evidence, from C R Hutchison & Co Pty Ltd, dated 14 February 2007, relating to Mr and Mrs Higgins' property. It calculates the extent of any encroachments upon Mr and Mrs Hills' property by the brick retaining wall in measurements ranging from three centimetres to fifteen centimetres, with an average of any expressed measurements in the order of five and a half centimetres. Portions of corrugated iron extend as much as thirty-seven centimetres onto the Hills' land. The survey report says, "Other than as shown in the diagram, there are no obvious encroachments by or upon the subject land".
The retaining wall was present when Mr and Mrs Hills purchased their property. Mrs Higgins purchased her property after that. The extent of the encroachment, and hence the trespass, by the wall is truly insignificant. It caused no readily discernible structural incursion onto Mr and Mrs Hills' property and did not in my opinion have any detectable, let alone adverse, impact upon Mr and Mrs Hills' exercise or enjoyment of his or her proprietary rights. This emerges clearly when one steps back from a microscopic examination of jurisprudential theory in order to view the competing claims using common sense and a realistic understanding of the world. I cannot accept in all of these circumstances that an award of anything other than nominal damages for this trespass is appropriate.
This then leaves the claim pleaded in nuisance. As counsel for Mr and Mrs Hill has noted, the claim was never particularised. However, I have proceeded to deal with the claim broadly as one principally arising from the state of the "orphaned" strip of land owned by Mr and Mrs Higgins.
Comment j to the Restatement of the Law of Torts, § 822, says this:
"Life in an organised society and especially in populous communities involves an unavoidable clash of individual interests. Practically all human activities, unless carried on in a wilderness, interfere to some extent with others or involve some risk of interference, and these interferences range from trifling annoyances to serious harms. It is an obvious truth that each individual in a community must put up with a certain amount of annoyance, inconvenience and interference, and must take a certain amount of risk in order that all may get on together. The very existence of organised society depends on the principle of 'give and take, live and let live', so that the law of torts does not attempt to impose liability or shift the loss in every case where one person's conduct has some detrimental effect on another. Liability is imposed only in those cases where the harm or risk to one is greater than he ought to be required to bear under the circumstances."
To constitute a legal nuisance, the annoyance or discomfort must be substantial and unreasonable. As stated as long ago as Walter v Selfe (1851) 4 De G & Sm 315 at 322; 64 ER 849 at 852:
"And both on principle and authority the important point next for decision may properly, I conceive, be thus put: ought this inconvenience to be considered in fact as more than fanciful, more than one of mere delicacy or fastidiousness, as an inconvenience materially interfering with the ordinary comfort physically of human existence, not merely according to elegant or dainty modes and habits of living, but according to plain and sober and simple notions among the English people?"
Similar sentiments can be found echoed in cases such as Don Brass Foundry Pty Ltd v Stead (1948) 48 SR (NSW) 482 at 486-487, Haddon v Lynch [1911] VLR 230 at 231 and Ruthning v Ferguson [1930] St R Qd 325 at 326.
I would have to confess to a genuine concern about the direction of the law of nuisance if the facts in this case were thought to be adequate or sufficient to support such a cause of action. I have not visited the subject premises but the photographs that are in evidence are very clear and very helpful. They show what was once usually referred to as a side passage, with a house on one side and an unkempt strip of ground on the other. The state of the "orphaned" land depicted in these photographs does not seem to me to require more than a few minutes work with a mechanical edge trimmer or "whipper snipper" to return it to a neat and tidy state. It does not appear to present a threat to life or limb, and it does not appear to be toxic or malodorous. There is evidence of a discarded snake skin but no evidence of "vermin", and the land certainly does not constitute or appear to create anything approaching what I would consider to be a material interference with the ordinary physical comfort of human existence. I regret to have to say that Mr and Mrs Hill's claims of nuisance are a gross overreaction, are quite literally unacceptable and are really a fuss about nothing.
I do not accept that the claim for damages for nuisance has been made out.
Conclusions and orders
I consider that Mr and Mrs Hill are entitled to damages for the trespasses complained of on 3 June 2008 and 7 June 2008 in the total sum of $200. I consider that they are also entitled to the sum of $20 for the trespass arising from the encroachment of the retaining wall onto or over their property. There will accordingly be a verdict for the plaintiffs for $220.
I have so far refrained from dealing with the question of the costs of the proceedings in anticipation of the parties wishing to make submissions to me about that topic in the light of these reasons. I will hear any submissions on costs that the parties may wish to make at some time convenient to them and to the Court to be arranged in consultation with my Associate.
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Decision last updated: 27 March 2012
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