Hopkins v Quinn

Land and Environment Court

New South Wales

Medium Neutral Citation:	Hopkins v Quinn [2017] NSWLEC 31
Hearing dates:	10 February 2017
Decision date:	21 March 2017
Jurisdiction:	Class 4
Before:	Moore J
Decision:	At [34] and directions at [39]
Catchwords:	APPLICATION TO REOPEN – application seeking to revisit aspects of each four elements determined in principal decision – application to reopen concerning one element refused but granted concerning three elements – principal decision confirmed with respect to one reopened matter – principal decision varied in minor aspects with respect to two reopened matters – directions for parties to settle orders to reflect principal decision – if costs not agreed, costs reserved DEVELOPMENT – carried out on adjoining property without owners consent – carried out in breach of development consent – declaration and injunction to restrain further breaches EASEMENTS – application for easement to regularise encroachment – easement ordered – compensation ordered
Legislation Cited:	Civil Procedure Act 2005, s 98 Environmental Assessment & Planning Act 1979, ss 5, 123 and 124, Sch 1 s 10 Encroachment of Buildings Act 1922, s 4 Environmental Planning and Assessment Regulation 2000 Uniform Civil Procedure Rules, Pt 42, r 42.1
Cases Cited:	Hopkins v Quinn [2016] NSWLEC 163Hunter’s Hill Council v Minister for Local Government; Lane Cove Council v Minister for Local Government; Mosman Municipal Council v Minister for Local Government; North Sydney Council v Minister for Local Government; Strathfield Municipal Council v Minister for Local Government [2016] NSWLEC 124 Ireland v Cessnock Council 110 LGERA 311; [1999] NSWLEC 250 Jones v Dunkel 101 CLR 298; [1959] HCA 8 Kouflidis v Salisbury City Corporation 49 LGERA 17; (1982) 29 SASR 321 Latoudis v Casey 170 CLR 534, [1990] HCA 59 Warringah Shire Council v Sedovic [1987] 10 NSWLR 335
Category:	Consequential orders (other than Costs)
Parties:	John James Hopkins (Applicant) David Quinn (Respondent)
Representation:	Counsel: Mr N Eastman, barrister (Applicant) Mr G Stapleton, barrister (Respondent)   Solicitors: Hones Lawyers (Applicant) Sattler & Associates (Respondent)
File Number(s):	153093 of 2016
Publication restriction:	No

TABLE OF CONTENTS

Introduction

The drainage corridor – refusal of leave to reopen

The width of the shotcrete wall easement element

The December 2016 survey

The cabana intrusion at the western end

The garden bed intrusion

Conclusion

Costs

Directions

Judgment

Introduction

1. On 24 November 2016, I gave a lengthy extemporaneous decision concerning boundary issues between two properties located in the Sydney suburb of Curl Curl (Hopkins v Quinn [2016] NSWLEC 163) (my November 2016 decision). The property to the south of the common boundary is owned by Mrs Hopkins whilst that to the north is owned by Mr and Mrs Quinn. Other details can be found in my November 2016 decision.

2. In order to formalise what was required to be ordered as a consequence of my findings in that decision, I directed the parties to prepare and settle orders to give effect to it, with the ability to have recourse to me if they were unable to agree…