Hopkins v Quinn

[2016] NSWLEC 163

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Hopkins v Quinn [2016] NSWLEC 163
Hearing dates:	21 to 23 November 2016
Date of orders:	24 November 2016
Decision date:	24 November 2016
Jurisdiction:	Class 4
Before:	Moore J
Decision:	At [143] to [145]
Catchwords:	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, ss 2, 3 and 4 Environmental Planning and Assessment Regulation 2000 Uniform Civil Procedure Rules, Pt 42, r 42.1
Cases Cited:	Hunter’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:	Principal judgment
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 Quinn development consent

Mr Hopkins’ proceedings

The Quinn cross-claim

The boundary location issue

The Encroachment Act

The boundary locations in dispute

The pins into the Hopkins’ property

Addressing the cross-claimed relief

The side passage drainage issue

The shotcrete wall

The supporting pins

Discretion and the shotcrete wall

The condition of consent

Carrying out of the passage work

Dilapidation issues

Shoring of the Hopkins’ property

The outcome on conditions

Compensation

Costs

Outcomes

EX TEMPORE Judgment

Introduction

1. HIS HONOUR: These are proceedings concerning two adjacent properties at Curl Curl. Mr and Mrs Hopkins, Mr Hopkins being the Applicant in these proceedings, reside at 9 Farnell Street, Curl Curl and were living there at the time the Quinns purchased the adjacent property to the north at 11 Farnell Street. Both properties are properties with dual frontages, with the frontage at the west being to Gardere Street. It is convenient, for the purposes of this decision to the extent that it is necessary to refer to streets, to continue to refer to Farnell Street as being the address of the two properties.

2. The properties effectively run east-west and upon each is a single dwelling. The Quinns’ dwelling is undergoing significant additions and alterations at the present time; additions and alterations that are presently suspended as a consequence of an injunction granted by this Court in December 2015. Until the matters in dispute arose giving rise to these proceedings, there were cordial relations between the Hopkins and the Quinn families. The genesis of the disputes that arise before me are to be found in proposals by the Quinns to undertake the additions and alterations to their dwelling to which I have adverted.

The Quinn development consent

3. Mr and Mrs Quinn lodged a development application with what was then their local council, now part of the amalgamated Northern Beaches Council, on 15 December 2014. Mr and Mrs Hopkins lodged extensive objections to the proposed development. There were a range of attempts, at least in the first instance as I understand the evidence, on an amicable basis, to resolve the differences and the objections that the Hopkins had to the Quinns' proposed redevelopment. Those objections were unable to be resolved and the Quinns were given a development consent by the Council on 21 July 2015.

4. As is conventionally the case, there were a range of conditions of consent required to be obeyed that were attached to the development consent granted by the Council. There are a number of them to which I will need to return that require consideration in these proceedings. They are conditions 1, 2, 3a, 3e, 4, 7 and 17.

Mr Hopkins’ proceedings

5. There are two matters before me in these proceedings. The first is the use by Mr Hopkins of the open standing provisions provided by s 123 of the Environmental Planning and Assessment Act 1979 (the EP&A Act) to take action to seek to remedy or restrain a breach of the EP&A Act and seeking a variety of orders pursuant to s 124 of the EP&A Act. Section 124 is one that gives a wide discretion to the Court, in s 124(1), where it says:

Where the Court is satisfied that a breach of this Act has been committed or that a breach of this Act will, unless restrained by order of the Court, be committed, it may make such order as it thinks fit to remedy or restrain the breach.

6. It will be necessary to return later to consider the exercise, or non-exercise as might be appropriate, of that discretion, as I am satisfied that there are breaches of the EP&A Act enlivening the jurisdiction (potentially) under s 124. The Summons that founds Mr Hopkins' application claims three substantive orders. The first is the demolition and removal of a structure in all its elements, comprising a shotcrete wall located at, and affixed to, the northern element of the structures on the Hopkins' land, being a brick wall constructed on top (at varying distances above the base of the excavation on the Quinns' land) of the sandstone footing that supports the wall (although at varying heights above that basal level on the Quinns' side of the boundary).

7. The second order that is sought is an order that the Quinns carry out remedial drainage works along the boundary of the property between their house and the wall on the Hopkins' property and, finally, that there be a general restraint on the Quinns, requiring them only to carry out development on their property consistent with the conditions of consent granted by the Council on 21 July 2015. All of those matters will need to be explored further in some detail.

The Quinn cross-claim

8. Mr and Mrs Quinn have cross-claimed pursuant to the Encroachment of Buildings Act 1922 (the Encroachment Act) and have, in various fashions, pleaded that relief should be granted in a fashion that will, in shorthand, regularise the present structures and provide a lawful basis for them to continue - either pursuant to a conveyance of a small strip of land from the Hopkins' or the granting of an easement over that strip of land. It is unnecessary, for this introductory purpose, to set out at great length but the orders for relief that are claimed in the cross-claim deal with both the regularisation and retention of the structures, both those that are the subject of the seeking of the orders by Mr Hopkins and other aspects of encroachment that either now, or prospectively might, arise.

The boundary location issue

9. This dispute arises because there has been, for some time, uncertainty (at least it is said) in the mind of the Quinns as to where the boundary between the two properties is located. There are a number of observations to be made about this. First, that earlier this year Mr Hopkins applied to the relevant state authority, Land and Property Information, for a determination of the boundary between 9 and 11 Farnell Street, Curl Curl. The result of that was the provision to Mr Hopkins of a survey signed by a Mr John Tosin, Investigating Surveyor, dated 10 February 2016, that defines the boundary between 9 and 11  Farnell Street.

10. That is, from February 2016, there is no dispute as to where the boundary is between the two properties. That boundary is located 75 millimetres to the north of the northern face of the brick wall built on the Hopkins' property, part of which is now subsumed by the encroachment of the shotcrete wall that has been erected along a length of approximately 7.5 metres from the Farnell Street boundary, westward along the boundary between the two properties.

11. There are four other documents in the evidence that relate to, and provide, some information about the boundary between the two properties. I propose to deal with them in their chronological order, from the earliest to the most recent prior to the LPI survey.

12. The first is a document that forms part of the statement of the evidence of Mr Dyson, the valuer retained by the Quinns, and is an extract from title certificate information. It is dated 2 March 1978 and it shows no detail of structures on either of the relevant allotments but shows, with precision, the lengths of boundaries of each of them at all aspects of their perimeters.

13. The second document is dated 20 September 2001 (Exhibit D) and comprises a letter from a registered surveyor. The purpose for obtaining it is not known, but there are two observations to be made with respect to the document. First, the letter contains a passing reference to the northern boundary, that is, the boundary between the two properties here in dispute, and it states:

The northern boundary passes along the north face of a brick wall, that being the relevant element for these purposes.

14. However, the penultimate paragraph of the letter expressly says:

The distances shown from improvements to boundaries are for identification purposes only and are not to be used for boundary definition purposes. Where any improvements are proposed to be made to the property further survey and marking of boundaries may be required.

15. The survey sketch that is attached to that letter, however, it is to be observed, shows (for each of the relevant boundaries of 9 Farnell Street) dimensions that are precisely in accordance with that which is shown on the 1978 property title document to which I have adverted.

16. The third document is Exhibit B, dated 23 June 2011 but revised on 13 September 2012. It is a survey document produced by Benchmark Surveys Pty Ltd (Benchmark) for Mr Quinn. There are two things to be observed with respect to this diagram. First, as with the earlier two documents to which I have referred, but this time for 11 Farnell Street, the document that is produced shows each of the boundary dimensions at exactly the same numerical lengths as is shown in the subdivision diagram. It shows, as a blue line, the boundary between 9 and 11 Farnell Street running along the outer face of the brick wall, but it too includes a cautionary note in Note 1, a note that says, "No boundaries have been marked or surveyed".

17. The final document is a further Benchmark survey dated 15 May 2015 (Exhibit C). It is also a survey produced for Mr Quinn, a survey that he describes as the "set-out survey". Relevantly to these proceedings, it expressly shows, along the boundary between 9 and 11 Farnell Street, that the boundary is offset 120 millimetres to the north, that is, that the boundary is that distance clear of the wall erected on the Hopkins' property and that the boundary lies that distance within the Quinn property. As I have earlier observed, this survey, too, incorporates exactly the same cadastre from the title document attached to the Dyson Statement of Evidence.

18. Finally, relevant to the location of structures, Exhibit E is a document dated 19 December 1997 by a company, a firm of engineers known as North Rock Homes, and it is a diagram that shows that footings extend beyond the outer skin of the wall on the Hopkins' property at various locations along that wall. This diagram was produced for the former owners of the Hopkins' property and predates their occupation of it.

The Encroachment Act

19. In addition to the provisions of the EP&A Act, to which I have referred provisions of the Encroachment Act will require consideration in this determination. First, I observe that although there are a variety of powers given to this Court to deal with encroachments, those powers can be exercised on the application only of an adjacent owner or an encroaching owner. That is mandated by s 3(1) of the Act. In these circumstances, having regard to the definition of “owner” in s 2 of the Act, Mr Hopkins is not an adjoining owner and therefore has no ability to apply under s 3(1), although Mrs Hopkins, as an adjoining owner, would have had the power to do so.

20. To the extent that that is relevant in these proceedings, it may play a part later when it comes to the question of orders. Power is given in the EP&A Act, where there is an encroachment, of a very wide nature - those powers being contained in s 3(2), including compensation and the ability of doing what one might regard as tidying up of title rights in order to deal with encroachments or finally to order the removal of an encroachment. There are a range of discretionary matters arising as a consequence of s 3(2).

21. The Encroachment Act provides for compensation in s 4 and, particularly in s 4(1), the requirement is one that shifts a burden to the encroaching owner that the encroaching owner has to satisfy the Court that any encroachment was not intentional and does not arise from negligence and that goes to the calculation of compensation.

22. The minimum compensation if there is either an intentional or a negligent encroachment is a minimum triple of the land value, although there is a discretion to go higher. In these proceedings, Mr Eastman, for Mr and Mrs Hopkins, if that provision is engaged does not press for a multiple higher than three.

The boundary locations in dispute

23. Functionally, there are four areas of dispute. Starting at the western end, there is an area where the garage/cabana structure on the Quinn property has, on an historical basis, extended into the Hopkins' property - although to the extent that Mr Quinn has undertaken works to that structure, it does not seem to be contested (except possibly with respect to the extension of a vent pipe to a toilet) that Mr Quinn has further intruded into the Hopkins' property in a vertical sense.

24. The second is a garden bed that runs along the southern side of the swimming pool that has been installed on the Quinn property. The edging border to that also encroaches to the east of the garage/cabana structure and is, it would appear, an historical encroachment, not one constructed by, or added to by, the Quinns.

25. The third area of encroachment is the proposed drainage works to be undertaken between the Hopkins’ and the Quinn walls along approximately the more eastern element of the middle third of the boundary between the properties. It is to the west of the main excavated garage structure and the shotcrete wall.

26. The fourth area of encroachment is the shotcrete wall. It is the area of major dispute between the Hopkins’ and the Quinns. The wall has now been erected to the face of the excavated surface, now known to be 75 millimetres over the boundary. That excavated surface extends below the skin on the northern side of the Hopkins' wall but encompasses part of that wall. In addition to that shotcrete structure, there is a drainage cell behind it - the efficacy of which is the subject of an engineering dispute between Dr Martens, the engineering expert for the Hopkins’, and Mr Bennett, the engineering expert for the Quinns.

The pins into the Hopkins’ property

27. In addition there are 11 pins inserted into what is indisputably the Hopkins' property. Although there was some discussion of a diagram produced by Mr Bennett based on his understanding of what had been used (which was essentially galvanised R12 reinforcing bar, approximately 400 millimetres in overall length), and Mr Bennett understanding that the extent of the intrusion into the Hopkins' property, being a measurement on his diagram of about 75 millimetres, I consider that it is appropriate in fact to rely on the Quinns' pleadings as to the extent of the intrusion into the Hopkins' property.

28. Paragraph 30 of the pleadings acknowledges that the First Cross-Claimant did cause:

1. "three fixings, bolts, to be installed into holes up to 110 millimetres into the boundary wall drilled for the purpose of supporting steel cages erected on 11 Farnell Street for the purpose of casting concrete to build the new wall," and

2. "eight fixings, bolts, to be installed into holes of up to 200 millimetres into the boundary wall drilled for the purpose of supporting steel cages erected on 11 Farnell Street for the purpose of casting concrete to build the new wall."

29. It seems to me that on the basis of the cross-claim's pleadings, it is appropriate to address the pins on the basis that they extend 200 millimetres into the wall, rather than the 75 millimetres shown on the post facto sketch prepared by Mr Bennett.

30. This, in light of the evidence of the valuers as to how one should calculate the extent of what might be needed to regularise the encroachment of the pins into the wall if this were to be outcome of the proceedings, provides the basis for the calculation of the area necessary to be regularised in those circumstances by an easement; now being required to be calculated on the basis of 200 millimetres rather than 75 millimetres.

Addressing the cross-claimed relief

31. Mr Stapleton, counsel for the Quinns, seeks, as the primary relief in the cross‑claim, that there be a conveyance of the strip of land that is 75 millimetres wide along the boundary, if necessary, and then an easement over the area necessary to regularise the pins in what is undoubtedly the Hopkins' wall. I am satisfied, as I indicated during the course of the hearing, that this would be an entirely inappropriate response even if the shotcrete wall were to be approved and regularised.

32. The need for that arises out of the fact that I have uncontradicted evidence that the Hopkins’ have footings at least along part of their wall that intrude into the 75 millimetres that they already own.

33. The only ability that I have under s 3(2)(b) of the Encroachment Act is to either order the conveyance of land to, or the creation of easements in favour of, the Quinns.

34. If there were to be a conveyance of land to the Quinns, there is no power under the Encroachment Act for me to order that there be the creation of an easement by the Quinns in favour of the Hopkins’ in order to regularise such footings of their walls as might then exist in land that became part of 11 Farnell Street.

35. Absent a power to do that, it would seem to me that there would be no rational basis (leaving aside questions of discretion) why I should do that, as conveying the land to the Quinns would leave the Hopkins' in an exposed position.

36. It is my understanding that to resolve the issues of areas 4 and 3, that is the two western areas of the cabana and the garden bed, it is not controversial that they should be the subject of an easement in favour of the Quinns.

The side passage drainage issue

37. With respect to the passage between the two walls, and the issue of drainage that arises therein, there are several matters that need to be considered.

38. First, it was Mr Hopkins' evidence that there had been a substantial water flow into the rear of his garage area, behind the rear wall of the garage and into the footings of the structures above during stormwater events and that that water, on his understanding, had come from the Quinns’ property. During the course of the site inspection, Dr Martens and Mr Bennett undertook an experiment using a hose and it was their agreed position that, at the present time, part of the surface stormwater flow down the passageway between the two walls exists into the space at the rear of the Hopkins' garage.

39. During the course of the site inspection, those representing the parties and their advisers and I all undertook an inspection of that subfloor area and a black-and-white copy of a photograph taken at that time was tendered and annotated by the engineers, it becoming exhibit B. Exhibit B shows the path of entry of the water and shows some of the erosion channels down the face of the substrate that are being caused by the discharge of the water.

37. However, the position is that there is a requirement in the development consent, to which I will return later, requiring the Quinns to undertake proper stormwater drainage works along this passageway. The works have not yet been done.

38. There is limited disagreement between Mr Bennett and Dr Martens as to what is the appropriate way to carry out those works; the difference essentially being as to whether the paving should be located on a bed of sand or a bed of concrete.

39. However, whatever the drainage works are to be in construction form, including the possibility of the necessity for piping both agricultural drainage and conveyance piping underneath the paving, for it to be effective it will need to be constructed wall-to-wall. As a consequence of that there will be a necessity for me to order, pursuant to s 124 of the EP&A Act, that it be constructed wall-to-wall and then when constructed, that there be an easement over that paving in favour of the Quinns.

40. It is necessary in these circumstances for Mrs Hopkins to give owner's consent for the works to be carried out and she has, through Mr Eastman, given that owner's consent – providing, therefore, a proper basis for me to make an order in that regard.

41. It follows, it seems to me, therefore that such easements as arise out of these proceedings should be done globally as a single, compendious, registrable instrument at the time when the drainage works between the two properties have been completed.

42. The difference in approach between Dr Martens and Mr Bennett is one where it seems to me appropriate, on a proper precautionary basis, to adopt the approach advocated by Dr Martens. It is a matter, it seems to me, of comparatively minor consequence, but an appropriate preferable engineering outcome under all the circumstances. The paving should therefore be on a concrete base of approximately 50 millimetres as specified by Dr Martens, and the drainage pit at the western end of the garage excavation should be across the full width between the two properties.

43. It would seem to me, and I propose to require it as a matter of common sense, that during the intervening period if that drainage is not undertaken immediately there should be sandbagging put in that area to divert the water away from the aperture leading into the rear of the Hopkins' garage.

The shotcrete wall

47. I now turn to the shotcrete wall. It is the main area of dispute between the parties. Essentially, the position I need to address is whether it should be demolished or whether it should be retained.

48. Mr Quinn now accepts that he has encroached into the Hopkins' property by the construction of this wall – that, I am satisfied, is an appropriate understanding for him to have reached on the basis of the various boundary documents to which I have earlier adverted.

49. I mentioned earlier, briefly, that there have been injunctive proceedings in December 2015 in this Court before Craig J. It is unnecessary for me to canvass those proceedings in any detail. It is however sufficient that I note that restraint remains in place as a consequence of those injunctive proceedings and it seems to me, although I have not noted this in the list of outcomes, that for abundant caution the orders in these proceedings should discharge the orders that Craig J made.

50. Mr Quinn has had engagement with two persons who are relevant to my consideration of evidentiary differences between the parties. They are Mr Pang, the surveyor who prepared the surveys for Benchmark, and a Mr Whyte, who is the person who undertook the excavation. I do not understand that there is any significant difference between Mr Pang and Mr Quinn.

51. In Mr Quinn's affidavit he refers, at [34], to a conversation that he had with Mr Pang, where Mr Quinn recounts that Mr Pang said words to the following effect:

David, the measurements I've taken indicate that your boundary is 120 millimetres to the north of the north face of the boundary wall. I could only find one reference point on Farnell Street and three at the rear on Gardere Avenue so my survey is not as accurate or as certain as I would like.

52. At [38], Mr Quinn deposes that:

Prior to commencing excavation Patrick Pang visited 11 Farnell Street and put pegs in to set out the two side and the front boundaries according to his set-out survey. The effect was that excavation of rock on 11 Farnell Street should not go into the space that was within 120 millimetres from the north face of the existing boundary wall in case that could result in excavation of land that was part of 9A Farnell Street.

53. Mr Whyte, the construction contractor, confirms that the two pegs at the Farnell Street property were in place when he commenced his excavation work. He did give evidence, with respect to a photograph that was shown to him, that the southern peg, that is the one in the vicinity of the wall with the Hopkins' property, was present (although not able to be seen on the photograph because it was only protruding a matter of some small number of millimetres out of the ground and was obscured by vegetation).

54. There is a dispute between Mr Quinn and Mr Whyte as to what was said. Mr Whyte was required for cross-examination and Mr Quinn gave oral evidence in addition to his affidavit.

55. Mr Quinn made it clear that he did not accept Mr Pang's concern as to the boundary location as being a matter of certainty and he subsequently indicated, at least as I understood him, that he did not accept that the boundary was where Mr Pang thought the boundary might have been. It was unclear as to whether that later non-acceptance was based on the LPI post facto information rather than prior to any construction on the Hopkins' property.

56. The first disagreement between the two witnesses arises out of [39] of Mr Quinn's affidavit. It reads:

In about October 2015 I met with Shane Wright of Shane Wright Excavations Pty Ltd at 11 Farnell Street to have a meeting to explain the scope of the excavation job I needed done. During that meeting I had a conversation in words to the following effect. Me: 'The set out has been done. The pegs are in place for the boundaries. Please cut to 120 millimetres away from the wall because the set-out survey says that is where my boundary is.' Shane, 'Okay.'

57. I observe that excavation, subsequent evidence discloses, commenced on or about 31 August rather than October 2015. However, that is of minor detail in the present circumstances.

58. Mr Whyte's evidence disputes what is said by Mr Quinn in [39]. Mr Whyte's evidence, at [6] of his affidavit, was in the following terms:

Mr Quinn refers to meeting me at 11 Farnell Street, Curl Curl. I agree that I met with Mr Quinn some time in 2015. The site was rough and overgrown. I said words to Mr Quinn to the effect, 'Show me where you want me to excavate so I can get an idea of how many cubic metres of material have to be removed.' He said words to me to the effect, 'You will need to measure 10 metres from the boundary wall and 10 metres from my house and work on an average depth of 2.5 metres.'

59. Paragraph 7 of the affidavit then says:

Shortly after the meeting with Mr Quinn referred to in the preceding paragraph, we, that is my operator, Mr Conquest and I, commenced excavating to the boundary at number 11. No surface markings were visible. A rock saw had to be employed to remove rock. Mr Conquest asked Mr Quinn for directions on where to commence the cut. I recall Mr Quinn saying words to the following effect, “Go as close to the wall as possible”.

60. The next area of evidentiary dispute between them arises from [65] of Mr Quinn's affidavit when he refers to a conversation that took place this year. The paragraph reads:

In mid-April 2016 I received a call from Shane Wright who I had a conversation with in words to the following effect. Shane: 'I had a phone call from your neighbour saying you'd tried to make me responsible for excavating up to his wall. He tried to ask me some questions but I didn't want to answer so I hung up.' Me: 'I have included you and Mick in regard to the cutting of the rock to the boundary wall. I am not blaming you but my recollection was that Mick cut first and then I measured and found that it was accurate enough and told him to continue.' Shane: 'Mick recalls that I instructed him to cut to the wall first. We agreed to disagree.'

61. Mr Whyte's evidence, in [9] and [10] of his affidavit, are in the following terms:

I refer to [65] of Mr Quinn's affidavit. I deny the words 'attributed to me' in the penultimate paragraph thereof. Instead I say my words were: 'Mick recalls that you (meaning David Quinn) instructed him to cut as close to the wall as possible.' To the extent that Mr Quinn alleges that I excavated areas that I was not instructed to do then I categorically deny that allegation. For completeness, I say that I only ever excavated those areas that Mr Quinn instructed me or my operator to excavate.

62. I am satisfied that, under the circumstances, I should prefer Mr Whyte's evidence to that of Mr Quinn.

63. Mr Whyte had no reason to lie. He gave his evidence, on my assessment, in an honest and frank fashion. His evidence about other matters - to the extent relevant - was broadly consistent with what Mr Quinn said in his oral evidence. I am therefore persuaded that I should accept that Mr Whyte and his operator were instructed by Mr Quinn to excavate to the Hopkins' wall.

64. In this regard, I note that, in his opening, Mr Eastman indicated that he was proposing to seek, but did not subsequently return to the question of whether I should, to draw an inference consistent with what is known as the rule of Jones v Dunkel 101 CLR 298; [1959] HCA 8 concerning the absence of evidence from Mr Pang in these proceedings. It is unnecessary for me to consider doing so given the findings that I have made with respect to my preference of the evidence of Mr Whyte.

65. On Mr Quinn's own evidence, Mr Pang expressed uncertainty as to the location of the boundary, uncertainty that is confirmed by an e-mail that was attached to Mr Quinn's affidavit (and two pages of which were inadvertently omitted from the Court book but those pages do no more than confirm that Mr Pang was uncertain as to where the boundary was); a matter that is not contested by Mr Quinn himself.

66. Mr Hopkins also sought to rely on an e-mail that he had provided to Mr Quinn on 11 December 2015 which was a redacted version of an e-mail that Mr Hopkins had received from the former owners of the property in which he now resides.

67. Mr Quinn declined to accept the accuracy of that e-mail, being an e-mail from the former owners that says that the wall was entirely on the Hopkins' property. Mr Hopkins said, in his oral evidence, that he redacted the e-mail addresses in order to protect the privacy of the various recipients. I do not draw any adverse inference against Mr Quinn for his rejection of this e-mail. It is, however, a demonstration of the ongoing hostile nature of the relationship between them.

68. I need to draw some conclusions about the wall, both as to its main body and as to the pins. It seems to me from the consistency of the evidence, particularly my acceptance of Mr Whyte in preference to Mr Quinn, that Mr Quinn was at best indifferent as to the possibility of whether he would be encroaching for the drainage cells and the main shotcrete wall in constructing to a face that was a vertical face extending downstairs in a continuation of the face of the brick wall on the Hopkins' property.

69. It is also clear that he took what was a convenient construction solution path by doing so, particularly in circumstances where Dr Martens, in one of his expert reports, sets out the significant costs that would have been applicable had conventional shoring been required of the various types discussed at a distance of some 75 millimetres from the face of the Hopkins' wall.

The supporting pins

70. I turn now to the pins. It was Mr Quinn's evidence that they were temporary, that they were used to support the reinforcing structure that was erected against the wall with the drainage cell at its rear to support that structure during the course of the application and drying of the shotcrete.

71. However, the pins themselves now form part of the wall. They are tied in to the reinforcing and they are not able to be removed.

72. For the purposes of the Encroachment Act they are part of a building, as defined in s 2 of the EP&A Act. It was Mr Quinn's oral evidence that he knew that he did not have any right to insert those pins and that he needed consent.

73. He was given notice by Mr Hopkins, in a letter of 8 December 2015 conveyed by e-mail, that the wall was located entirely on the Hopkins' property leaving aside the question of where the boundary might be to the north of that wall, whether the face of the wall or beyond it.

74. All of the site identification documents available to Mr Quinn up to that time show the wall entirely on the Hopkins' property, whether or not the boundary was at the face of the wall or were to the north of it.

75. Mr Quinn acknowledged that he assumed that he would not be given consent if he asked for it, a proposition that Mr Hopkins denied in his oral evidence. It is unnecessary, it seems to me, to resolve that difference between them.

76. The pins were inserted at an angle, an angle that was necessary to hold up the structure prior to the shotcreting and during its drying. It was not a necessary construction technique. The evidence is that external formwork would have been able to be used to provide appropriate support for the forming of a concrete wall at that location. It is, however, reasonable to assume that it was easier and cheaper to insert the pins. I am satisfied, for the purposes s 4(1) of the Encroachment Act, that the encroachment was intentional.

77. I have earlier indicated the extent that I should regard the pins as intruding into the wall based on the pleadings at [39] of the cross-claim document. In summary, my findings about the pins are as follows:

1. Mr Quinn knew that it was not his wall or his rock into which he was inserting the pins;

2. Second, he ignored a warning from Mr Hopkins asking him to desist from doing so; and

3. Third, he did what was expedient and convenient to him and he did so in order to save money on construction.

78. “What should I do about the wall?”, I ask myself rhetorically.

79. Mr Hopkins requests that I order it be demolished and that it be rebuilt at the boundary. Mr Quinn seeks to retain the wall; have an easement (I having already explained why I reject the option of conveyance); and for him to pay compensation in the fashion that is envisaged by the Encroachment Act.

Discretion and the shotcrete wall

80. Section 124 of the EP&A Act gives a wide discretion to this Court when I am satisfied that a breach of the Act has been committed, as I am so satisfied with respect to the wall and the pins. There are examples, in s 124(2), as to the nature of the orders that I might make but it is clear that that list is non-exhaustive.

81. Dr Martens and Mr Bennett are in agreement that there is absolutely no engineering reason to remove the wall. Mr Bennett agreed that, if it was to be removed, the process for demolition appropriate to be followed was that which was set out as item 2 of the joint expert report of Dr Martens and Mr Bennett:

If the shotcrete retaining wall at No. 11 Farnell is to be removed, then the following procedure and construction methods are recommended:

1.   The wall should be saw-cut in 1.0-1.5-metre vertical strips, ensuring that steel reinforcement is severed.

2.   Further horizontal strips, with a height of say 1.0-1.5 metres can also be cut along the face of the wall, ensuring that steel reinforcement is severed.

3.   The wall should be removed in sections, in accordance with the saw-cut alignment. Considerable care should be given to this process so as to ensure that there is no further damage to the existing structures on either No 9 or 11 Farnell Street.

4.   If any soil is exposed during the removal process, this should be adequately secured and temporarily shored to ensure that there is no further damage to structures on No 9 Farnell Street.

5.   Following removal of the shotcrete wall, a new wall should be constructed along the true property boundary alignment. Construction should be as follows:

a.   The exposed retaining wall on the northern boundary of No. 9 Farnell Street should be repaired where damaged and water proofed.

b.   The wall should be constructed from steel reinforced core-filled concrete blockwork or alternative similarly structurally sound walling system.

c.   An agricultural drain should be placed behind and at the base of the newly constructed wall. This should drain either to Farnell Street or to the drainage system at No 11 Farnell Street.

d.   Clean durable aggregate should be placed between the new wall and the existing wall on the northern boundary of No. 9 Farnell Street.

e.   Once the new wall has reached its ultimate height, the surface between the new wall and the wall along the northern boundary of No 9 Farnell Street should be sealed to prevent moisture ingress.

f.   Install the garage top slab to provide bracing for the new blockwork wall.

82. Dr Martens was also asked as to what would be the requirements if the wall were to be retained. He set that out as his response to issue number 3 in the joint report:

If the shotcrete retaining wall at No. 11 is to be retained, then the following procedure and construction methods are recommended:

1.   The drainage cell behind the shotcrete wall should be tested to determine its operation and where suitable base drainage outlets can be created. If possible, the drainage cell should be hydraulically connected to the internal drainage system at No 11 Farnell Street.

2.   In order to prevent further potential movement of the northern wall and structures on No. 9 Farnell Street, high strength (at least 80 MPa) grout ‘panels’, with a width of approximately 150mm, should be injected at 1.0 m centres within the void created by the drainage cell behind the shotcrete wall. The grout should be such that it provides a firm contact between the shotcrete wall and the northern wall of No. 9 Farnell Street. An engineer should first assess the feasibility and requirements of undertaking these works.

3.   Install the garage top slab to provide bracing for the shotcrete wall.

4.   The connection between the garage top slab and the northern boundary wall of No. 9 Farnell street should be sealed to prevent any rainwater or stormwater ingress.

83. Mr Bennett did not agree in the entirety with that which Dr Martens proposed if the wall were to be retained.

84. Under these circumstances I prefer the evidence of Dr Martens for several reasons. The first is the clarity and precision of the evidence given by Dr Martens overall and particularly on this aspect. Second, Mr Bennett had earlier given evidence with respect to the proposed drainage structure between the two properties that one aspect of how that should be approached was to adopt the cheaper option rather than the dearer; a proposition that I am not able to be satisfied was not also reflective of the approach that he took on this issue.

85. And finally, as I indicated with respect to the drainage option, it is appropriate to take a precautionary approach to structures such as these, particularly when there is some disagreement between the experts as to what is necessary to protect the structure on the longer basis if it is to be retained.

86. I turn to the factors weighing on the exercise of discretion. First I observe that, in 1987, the Court of Appeal set down a number of principles in Warringah Shire Council v Sedovic [1987] 10 NSWLR 335. I need to turn to further consideration of the principles and guidelines set down in Sedovic later. However, it seems to me that, post-Sedovic in 1987, there has been a significant legislative intervention of relevance to the exercise of discretion in such circumstances.

83. The objects of the EP&A Act are set out in s 5 of the Act. The object contained in s 5(a)(vii) is to encourage ecologically sustainable development. That provision was inserted into the objects of the principal Act by the EP&A Act at Sch 1 s 10.

84. The Minister's second reading speech, that of the Honourable Craig Knowles MP, Minister for Urban Affairs and Planning and Minister for Housing, on 15 October 1997, makes it clear, at two points in his remarks, that there was a deliberate policy intention to incorporate that objective and that he regarded it as a significant amendment - that is, the inclusion of ecologically sustainable development as an object of the EP&A Act. Ecologically sustainable development comprehends a number of concepts: materials balance; materials consumption; the question, if demolition is to occur, as to what is the sacrifice of embedded energy; and things of that nature.

85. It seems to me that ecologically sustainable development must be viewed, for s 124 discretionary assessments, as being a legislative insertion of a nature that adds a tenth guideline principle to the principles set out by the President of the Court of Appeal in Sedovic.

86. Requiring demolition of the wall would, in my view, be contrary to this objective of the EP&A Act as it is clear, from the evidence of Dr Martens, that what would be involved would be the removal and discarding, even if recycled in some form, of significant materials; the wasting of significant embedded energy; and the consumption of further materials and re-embedding of energy to what would be, in the final analysis, a matter of little overall practical benefit to the Hopkins’.

87. I am satisfied that that in itself would be entirely sufficient to mandate the retention of the wall.

88. However, it is appropriate, given that I have been given significant guidance by the Court of Appeal in Sedovic, that I turn to the guidelines set out by the Kirby P, at page 339. Some of the matters that are set out in his Honour's guidelines are not engaged. Several of them, however, are in fact engaged on either side of the scales requiring assessment here.

89. Against the permitting of retention of the wall, guideline 4, as referred to by Mr Eastman, clearly talks about the necessity for the protection of public rights and of the public interest in the preservation of orderly development and use of the environment. That is particularly something in circumstances where there is an open standing provision (as is the case of s 123 of the EP&A Act) to give ordinary citizens the right to seek to uphold the planning law. As his Honour observed, failure to have regard to that may permit the accruing of private advantage being won by a particular individual which others cannot enjoy.

90. His Honour referred to the question of special circumstances needing to be established to secure a favourable exercise of the discretion. His Honour did so in circumstances where, in the following guideline, his Honour referred to the fact that there may well be a greater weight in favour of an interventionist approach where the relief is sought by the Attorney-General or by a Council, because those persons are seen as proper guardians of public rights. In circumstances where the rights that are asserted are merely those private rights of an individual, where private rights are advocated in support of the protection of the public instruments giving rise to them, it would seem to me that a lesser weight arises.

91. Finally, and relevantly it seems to me, guideline 7 which deals with the question of “static” development - that is, something that is built as is here the case – which “once having occurred may only be remedied at great cost or inconvenience. The discretion may in the normal case be more readily exercised than where what is involved is a continuing breach by conduct which could be quite easily modified to bring it into compliance with the law”.

92. The estimates that I have in these proceedings are that it would cost between $23,000 and $35,000 to remove and rebuild the wall. For the purposes of consideration of the principles in Sedovic, it seems to me that that is a matter that must weigh significantly in favour of retention of the wall.

93. I should also observe that his Honour made it quite clear that in his concluding discussion on guideline 8 that there were alternative remedies available to local government authorities, that is criminal prosecution. They, of course, are not remedies that are available to private individuals, such as Mr or Mrs Hopkins in these circumstances. The only remedies that do potentially arise are those available by commencing proceedings under s 123 and seeking relief under s 124.

94. I also note that although the President wrote the leading judgment in the proceedings, somewhat unusually there were three separate judgments delivered, all of which reached the same conclusion as to the outcome.

95. It is appropriate to note that the third of those judgments, that of Clarke JA, dealt with a number of matters, in those circumstances, as to why the exercise of discretion to permit the activity to continue - that being a fruit shop at Mona Vale. One of those aspects was “the absence of any proven planning detriment, or prejudice to the people living in the area”. It seems to me that his Honour's observation is also apt for my consideration in these proceedings.

96. I am satisfied, even setting aside the earlier comments I made concerning ecologically sustainable development, although of much finer balance on the basis of my consideration of the guidelines in Sedovic, that it would not be an appropriate exercise of my discretion under s 124 to order demolition of the wall.

97. There is a third reason for that conclusion and that is the question of proportionality.

98. I have earlier adverted to the fact that the costs of doing so would be in the range of $23,000 to $35,000, that being a rough estimate given by Dr Martens, in his oral evidence, in response to a question from me and not disagreed with by Mr Bennett. Such an expenditure, both ecologically and fiscally, would be entirely disproportionate to achieve virtually no practical outcome given the lack of utility of the 75-millimetre-wide strip to the north of the wall to the Hopkins’ in the quiet enjoyment of their residential property.

99. I am satisfied that by far the preferable outcome is to compensate Mrs Hopkins, whilst doing so in an appropriate easement form. I also observe that - as I mentioned to counsel during the course of the hearing - it is clear from the decision of Bignold J in Ireland v Cessnock Council 110 LGERA 311; [1999] NSWLEC 250, that it is not appropriate to use the planning law for punitive purposes.

100. As his Honour noted, that proposition on the question of the exercise of discretion not being used for punitive purposes but leaving criminal matters to the criminal law was first dealt with by the South Australian Supreme Court in Kouflidis v Salisbury City Corporation 49 LGERA 17; (1982) 29 SASR 321, a decision that has been followed consistently in this Court and in other courts over the years as being the appropriate basis of dealing with these matters. The discretion under s 124 of the EP&A Act is either therapeutic or prophylactic. It is not punitive and I should not approach it in that fashion.

The condition of consent

105. I now turn to other issues of conditions of consent, and perhaps fortunately for all of us, to be dealt with comparatively briefly. It goes to the question of whether or not some more general restraining order should be made against the Quinns. I earlier listed the conditions to which I need to have regard and I now turn to them in detail.

106. Condition 1 is a conventional condition that requires that development should be carried out in compliance with the approved plans listed in the condition. However, as is also not unusual in such conditions, it contains the express parenthetic comment "except as amended by any other condition of consent", and there are several that potentially arise.

107. The first, not just potentially but actually, that arises is condition 2 which requires a number of amendments to be made to the approved plans. The first of those, at the first bullet point in that condition, expressly notes that no approval is given to any works on 9A Gardere Avenue. I earlier indicated that I was proposing conventionally to refer to the residences of the parties as having a Farnell Avenue frontage. Number 9A Gardere is the Hopkins' property and the Council expressly and specifically required that no works were to be carried out on the Hopkins' property.

108. I have earlier set out my findings about the shotcrete wall and the pins with the wall in summary. Mr Quinn undertook the construction of the wall with indifference as to its location and taking a risk that the location was not accurate. With respect to the pins, he deliberately chose to breach the first bullet point of condition 2.

109. Condition 3(a) requires that all building works must be carried out in accordance with the Building Code of Australia (the BCA). That is a statutorily mandated requirement of the Environmental Planning and Assessment Regulation 2000 (EP&A Regulations) that such a condition be included.

110. Dr Martens' statement of evidence of 27 October 2016 sets out, on p 5, his comments concerning what he regards as three breaches of the BCA. The first relates to the protection of embankment grades and angles and the like. He observes that the excavation undertaken on 11 was unprotected and near vertical and therefore breached the requirements of Table 3.1.1.1 of the BCA, that refers to the excavation upon which the shotcrete wall is founded.

111. I accept that there is a breach.

112. It is, however, it seems to me, under the circumstances, a breach that has no practical outcome as a consequence of it occurring. His comments concerning drainage matters contained in [9(c)] and [9(d)] in s 2.1 of his statement of evidence relate to the drainage works between the southern wall of the Quinn building and the northern face of the Hopkins' wall. It is a requirement to which I will return shortly.

113. However, that which is required in that area has not yet been carried out. That is self-evident from the site inspection. It has not been carried out because this Court has restrained the Quinns from carrying it out. It is a requirement that is dealt with later in the conditions of consent to which I will return. But it is something where the breach, as described by Dr Martens, is, in effect, a prospective breach and will only come to arise if the Quinns do not carry out the work.

114. The orders that will be part of the outcome of these proceedings will compel the Quinns to carry out the work, wall-to-wall, based on the consent given by Mrs Hopkins through her counsel. I do not consider that any breach for the present purposes arises with respect to those elements of condition 3(a) called up by Dr Martens in that regard.

115. I observe that Mr Bennett did not deal with the first of the breaches in his report but that he orally agreed that it took place but was of no consequence given the successful erection of the wall, a conclusion with which I agree. He also observed on my recollection that, as I have set out, (2) and (3) are as a result of incomplete works and therefore are not breaches of the BCA that presently arise.

116. Condition 3(e) deals with development which involves excavation below the level of the base of footings of a building on adjoining land. There is no doubt that the excavation undertaken by Mr Quinn fits that description. The requirements of 3(e)(i) and (ii) require protection and supporting of the adjoining premises from possible damage and where necessary underpin the adjoining premises to prevent such damage. It was Mr Bennett's evidence that there was no necessity to do that as the bedrock and structures provided adequate protection and support and that there was no necessity for underpinning. Condition (3)(e)(iii) requires the giving of seven days' notice prior to the commencement of such excavation. Mr Whyte commenced his excavation on 31 August 2015. Mr Quinn advised Mr Hopkins on 20 August 2015 that this was to occur and that element is satisfied.

117. The second part of 3(e)(iii) is in curious terms about giving particulars of the excavation to the owner of the land upon which the building is being erected or demolished rather than the owner of any adjoining properties. Taken literally, there was nothing that involved Mr Hopkins with respect to that and there was no breach of it.

118. Condition 4 deals with the permitted hours of activity for construction and delivery of materials or demolition and excavation. Mr Hopkins' affidavit of 3 May 2016 attests to breaches of one or other of those requirements on 2 December 2015, 10 December 2015, 12 December 2015 and 13 January 2016. His evidence on that point was not contested. There is no specific pleading in the Applicant's Points of Claim dealing with that topic. There was no specified relief sought. At the very best it could only provide minor weight if it were needed in support of the third order sought by Mr Hopkins and, as I will subsequently explain, it is unnecessary to have regard to it.

119. Condition 7 is the stormwater disposal condition. In essence, it requires all stormwater shall be conveyed from the site to Farnell Street. It is the agreed position of the experts, as per their experiment on the site, that that is not the intended position for the stormwater overland flow down the gap between the southern face of the Quinns’ property and the northern face of the Hopkins' wall. However, condition 7 is an ongoing obligation. The work has been halted by the injunction. The options for compliance have been dealt with in my earlier discussion of the Martens and Bennett evidence on this point and that the basis agreed is an appropriate way to resolve the issue and if, as I have earlier indicated, it would be appropriate there is a temporary sandbagging diversion of the overland storm flow. Such risk as might be occasioned to the Hopkins' garage area will be avoided whilst the condition of consent is complied with.

120. I propose to require that there be an order for such sandbag protection down that corridor.

Carrying out of the passage work

121. Mr Hopkins, as part of his oral evidence on my recollection, indicated that he thought it appropriate that such work as being carried out down that corridor ought not be carried out permanently by Mr Quinn (although I could not find my note and it may have been a submission on behalf of Mr Hopkins by Mr Eastman). Nonetheless, not that there was any indication that Mr Quinn intended to do it himself, it would seem to be appropriate to require that it be done by an appropriately qualified tradesperson or tradespersons.

Dilapidation issues

122. Condition 17 deals with the dilapidation survey. A deal of Mr Hopkins' complaints were about what he sets out as further impacts on his property as a consequence of the activities being carried out on the Quinn property. Mr Bennett has conducted a dilapidation survey as required by condition 17.

123. Mr Hopkins seeks to have such rectification as might be occasioned undertaken, as it were, on a bilateral responsibility basis between him and Mr Quinn. Mr Quinn, on the other hand, has taken out construction insurance and considers that the appropriate basis is for Mr Hopkins to make a claim on that insurance policy. In my assessment, either position at the present time is fundamentally premature. The question of what might be the impacts on the Hopkins' residence by the Quinn construction cannot, in finality, be known until the Quinns’ construction activities are complete.

124. The question as to how that should be resolved at a later time when the construction activities are finalised is a matter that can only arise after a post-construction dilapidation report is prepared by Mr Bennett and there is available to the parties a clear understanding of what might be said to be, by agreement or contest, the impacts of the totality of the Quinn construction activities on the Hopkins' property.

125. It seems to me that, at the present time, the orders should provide liberty to restore before me if issues of how to resolve any matters of dilapidation, post finality of construction, are not able to be agreed between the parties. It may well be appropriate, as I flagged during the course of the interaction with counsel, that there may need to be a direct effecting of rectification by Mr Quinn with an undertaking by Mr Hopkins that he will make the claim to permit reimbursement of Mr Quinn but that really is a matter between the parties that arises in the future - it does not need to be determined by me now.

Shoring of the Hopkins’ property

126. The final condition concerns the shoring of adjoining property. It reads as follows:

Condition 18 - shoring of adjoining property

Should the proposal require shoring to support an adjoining property or Council's land owner's consent for the encroachment onto the affected property owner shall be provided with the engineering drawings.

127. It seems to me that this matter is best approached through the lens of Mr Bennett's statement of the evidence at [18] and [19]. He said:

During the excavation of the area of the wall I inspected the property on several occasions. As I inspected the area I formed the view that the sandstone rock surface left by the cutting was solid and stable and the masonry wall was well-supported by it and neither of them needed support from anchors or other methods that might be described as shoring. I informed Mr Quinn of my opinion that shoring was not required before any work was done to prepare the steel cages to secure the concrete used to build the wall before it hardened.

128. Mr Bennett is an experienced and appropriately qualified engineer. Whilst I accepted Dr Martens' evidence in preference to that of Mr Bennett on the method for the side passage drainage issue, this was for the specific purposes there enunciated and was not a general reflection on the acceptability of Mr Bennett's evidence. Dr Martens agreed that minds of qualified and experienced engineers might differ on such matters. I accept Mr Bennett's opinion (as was accepted by Mr Quinn) that shoring was not needed was an appropriate compliance with the requirements of condition 18.

The outcome on conditions

129. I now turn to discuss, briefly, the overall outcome on the conditions.

130. First, there are two serious breaches of condition 2. With respect to the wall Mr Quinn clearly disregarded the possibility of where he was excavating being on the Hopkins' property despite advice from Mr Pang and particularly Mr Pang's pegging out 120 millimetres to the north of the wall. Together with my acceptance of Mr Whyte's evidence, it means my acceptance that Mr Quinn was prepared to risk a breach of the condition, at the best for him, in an inappropriate fashion where the condition placed an express onus on him to comply.

131. With respect to the pins he made a conscious decision to breach the condition by inserting the pins. These two matters taken together provide a sufficient basis to make a general order of the nature sought in order 3 in the Summons.

132. The breaches of condition 4 to which I have earlier adverted fortify my view of the correctness of making such an order but were not used for me in reaching the conclusion that there was a proper basis founded on the breaches of condition 2 to make such an order.

133. It occurred to me overnight - I merely put this as a proposition for counsel to contemplate - that before turning to the Encroachment Act outcomes it might be appropriate if counsel considered it appropriate that I make a bare declaration with respect to the intrusion of the wall and the pins. Now, whilst in the local government amalgamation challenges, known as Hunter’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, I canvassed at [507] and [509] the occasions when a bare declaration might be appropriate.

129. It might well be but a matter for counsel whether it would be appropriate to make a bare declaration about the encroachment of the walls to ensure that there is a proper statutory foundation for making orders under the Encroachment Act; it having been contested as to whether there was or was not such an encroachment and if so to what extent.

Compensation

135. I now turn to the question of compensation. Compensation, it seems to me, and the calculation thereof, flows in a necessarily formulaic fashion from the terms of s 4 of the Encroachment Act. Given the findings that I have made about the width of the encroachment at the eastern end by the pins and the fact that Mr Eastman's instructions are not to seek any compensation above the minimum provided by the Encroachment Act, it seems to me that that now merely remains a matter of calculation and settlement between the parties based on $5,612 basal land value per square metre.

Costs

136. I now turn to the question of costs. My power as to costs in this matter are set by s 98 of the Civil Procedure Act 2005 (the CP Act) which leaves, subject to the rules of Court applying to me, costs at my discretion. It is clear, since the seminal decision of the High Court in Latoudis v Casey 170 CLR 534, [1990] HCA 59 (Latoudis), that costs will ordinarily follow the event but also that costs are not to be regarded as a form of punishment. The first of those propositions has now been given statutory effect applicable to me by Pt 42, r 42.1 of the Uniform Civil Procedure Rules which gives rise to a presumption that costs follow the event.

137. That, of course, engages the more complex point in these proceedings as to what is “the event” for the purposes of determining the costs.

138. I observe that there has been a balance of outcomes in the claim and in the cross-claim. It is also equally clear to me that the matters that are of concern to Mr Hopkins are issues that are not purely monetary ones - a circumstance, it seems to me, that I should give some consideration in context where the evidence of the various offers that have been made on behalf of the Quinns to the Hopkins’ have been purely monetary ones as I have read them.

139. Now, in making that point I am not to be taken in any way to be expressing any planning or any other form of merit observation with respect to the matters that are raised by Mr and Mrs Hopkins about the development on the Quinns’ land. But it is clear from the e-mail of Mr Hopkins to the Quinns of 16 December 2015 that, in addition to monetary costs and legal arrangement issues, a matter of concern to Mr and Mrs Hopkins was the question of whether there should be obscure glazing to a particular window.

140. That concern was reinforced by terms that were redacted in one version of a letter that I had from Mr and Mrs Hopkins to the Council post the various events. I do not propose to make any observation about what was contained in the redacted portion of the letter. It would seem to me to be inappropriate to both parties to do so at this time.

141. However, it was there and indicates that the issues between the parties still continue to have what I might describe as “planning, merit or design matters” involved. Again, I am not to be taken to be expressing any view on the merits or otherwise of anything said or associated with the saying of what was said in that redacted paragraph.

142. I am, however, satisfied that the combination of the reckless and deliberate conduct of Mr Quinn did justify Mr Hopkins in commencing and continuing the proceedings. In saying that, I am not suggesting that costs consequences should in any way contra to Latoudis be regarded as punitive, merely that it is appropriate to compensate Mr Hopkins for the necessity to bring the proceedings.

Outcomes

143. On Mr Hopkins' claim:

1. The proposal to require demolition of the wall is rejected;

2. Noting that Mr Eastman, on instructions from Mrs Hopkins, has advised the Court that she grants owner's consent to the construction of an overland stormwater flow path extending from the north face of the wall on the Hopkins' property to the southern face of the house on the Quinns’ property, the overland flow path is to be constructed by the Quinns in accordance with the design proposed by Dr Martens to a detention basis constructed to the full width of the gap between the two walls at the rear of the present garage space retaining wall at the western end of the garage space on the Quinns’ property;

3. Construction in (2) is to be by appropriately qualified tradespersons and not by Mr Quinn; and

4. An order that Mr and Mrs Quinn are required to abide by the terms and the conditions of the development consent.

144. On the cross-claim:

1. An easement is to be prepared and registered in favour of the Quinns for the length of the shotcrete wall to a distance of 275 millimetres to the south of the boundary between the two properties, for the length of that wall with the easement continuing at a width of 75 millimetres from the end of the shotcrete wall for the balance of the length of the boundary between the properties to the western boundary of the Hopkins' property; and

2. The easement is to be created and registered after the works in (2) in Mr Hopkins' proceedings are carried out. The full length of the easement is to be compensated by payment to Mrs Hopkins of an amount calculated at the rate of $16,816 per square metre, this rate being $5,612 tripled.

145. Although there have been varying degrees of success, I am satisfied that the appropriate costs outcome would be to order that the Quinns are to pay Mr Hopkins' costs of the proceedings as agreed or assessed unless, within 14 days of the date of these orders, either or both parties notify my Associate that they wish to be heard as to why some alternative costs order should be made.

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Amendments

28 April 2017 - [82] has been amended pursuant to rule 36.17 (the “Slip Rule”) of the Uniform Civil Procedure Rules 2005.

The section of the Joint Report attributed to Dr Martens in that paragraph has been amended to be the correct section of the Joint Report, addressing issue number 3.

16 December 2016 - Changes to cover sheet. Decision at [143] to [145].

Names of representation added.

Decision last updated: 28 April 2017