Marron v City of Nedlands - [2009] WASC 242

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: MARRON -v- CITY OF NEDLANDS [2009] WASC 242

CORAM: JOHNSON J

HEARD: 1 JULY 2008

DELIVERED : 28 AUGUST 2009

FILE NO/S: CIV 1646 of 2008

BETWEEN: ERROL FRANCIS MARRON
Plaintiff
AND
CITY OF NEDLANDS
Defendant

Catchwords:

Injunction - Non-disclosure - Failure to give notice of proposed works - Failure to consider submissions from all residents

Legislation:

Local Government Act 1995 (WA), s 3.51, s 3.21(1)

Result:

Interlocutory injunction granted

Category: C

Representation:

Counsel:

Plaintiff: Mr M Solomon
Defendant: Mr C Gough

Solicitors:

Plaintiff: Hardy Bowen
Defendant: Minter Ellison

Case(s) referred to in judgment(s):

Aim Maintenance Ltd v Brunt [2004] WASC 49; (2004) 28 WAR 357
Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd [2001] HCA 63; (2001) 208 CLR 199
Australian Broadcasting Corporation v O'Neill (2006) 227 CLR 57
Behbehani v Salem [1989] 2 All ER 143; 1 WLR 723
Bell Group NV (in liq) v Aspinall (1998) 19 WAR 561
Bentley v Nelson [1963] WAR 89
Brink's Mat Ltd v Elcombe [1988] 3 All ER 188
Brodie v Singleton Shire (2001) 206 CLR 512
Castlemaine Tooheys Limited v The State of South Australia (1986) 161 CLR 148
Cayne v Global Natural Resources Plc [1984] 1 All ER 225
Evans Marshall & Co Ltd v Bertola SA [1973] 1 All ER 992
Films Rover International Ltd v Cannon Film Sales Ltd [1986] 3 All ER 772
Independent Corporate Services Ltd v Stevens [2002] WASC 280
Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (No 3) (1998) 195 CLR 1
State Transport Authority v Apex Quarries Ltd [1988] VR 187
Thomas A Edison Ltd v Bullock (1913) 15 CLR 679
Westwind Air Charter Pty Ltd v Hawker De Havilland Ltd (1990) 3 WAR 71

JOHNSON J: By Writ of Summons, the plaintiff, Errol Francis Marron, commenced proceedings in this court against the defendant, the City of Nedlands, in relation to proposed works to be undertaken on the road verge adjacent to the plaintiff's property in Adams Road, Dalkeith (the proposed works). The Indorsement of Claim seeks a declaration that the defendant's proposed conduct is in breach of the Local Government Act 1995 (WA) (the Act) and an injunction restraining the defendant from undertaking the works unless and until there is compliance with the provisions of the Act and it is established that no nuisance will be created.
By Notice of Motion the plaintiff also sought an interlocutory injunction restraining the defendant from commencing or continuing the works until further order. It is the application for an interlocutory injunction which is the subject of these reasons.

1. Summary of Issues

The plaintiff maintained that, whilst the defendant has advised the plaintiff of the proposed works, the defendant has not provided adequate notice of the proposed works. The plaintiff submitted that a proper notice would contain full particulars of the works to enable the plaintiff to make a decision as to the full effect of the works on his property. The plaintiff further submitted that the defendant has failed to reasonably consider the issues raised by the plaintiff with respect to the works or, alternatively, has failed to provide a written response to the plaintiff's concerns. According to the plaintiff, the works, which include a 'hammerhead' shaped turnaround, will obstruct access to the plaintiff's property, inconvenience the plaintiff and his family and cause serious safety concerns for the plaintiff, his family and the public generally.
The defendant submitted that the proposed works are the most suitable for the location having regard to:
(1)The plaintiff's attempted resumption of the road reserve by the construction of a brick parking area;
(2)The plaintiff parking his vehicle on part of the current turnaround area;
(3)The need to ensure safe access to motorists including the City's garbage contractors;
(4)The defendant's view that there is a need to remove the high retaining wall constructed by the plaintiff as it creates a danger to motorists/pedestrians and obscures the view to other houses on Adams Road;
(5)The need for the City to act responsibly in terms of managing the costs of projects such as this.
The defendant further submitted that to move the turnaround several metres towards the river, a solution which would remove or reduce the impact on the plaintiff's property, would:
(1)require a much higher and thicker retaining wall;
(2)require an extensive safety railing and fencing;
(3)require considerable fill and road surface drainage;
(4)obstruct to a greater degree some of the view from some properties in Adams Road;
(5)be against the wishes of all the residents of Adams Road other than the plaintiff;
(6)result in a steeper incline from Adams Road to the foreshore with an increased risk to any persons who may elect to use that area;
(7)decrease the area for wild animals and birds.
(8)cost considerably more to construct than the current design.
With respect to the 7th explanation, I note that trees from the river reserve have been removed which was likely to have had a significant adverse impact on the birdlife. As to the 6th explanation, the portion of the river reserve which follows the mostly flat area near the roadway, is already particularly steep. Moving the turnaround closer to the river would not make that portion of the river reserve steeper. It would have no impact on the gradient of that portion at all. As to the 8th explanation, the cost of a turnaround in that location must have been within the defendant's contemplation as the design was consistent with the defendant's initial instructions.
With the consent of both parties, I went to Adams Road to gain an accurate perspective of the location. The site visit took place in the late afternoon. On driving down Adams Road and stopping to look at the area below the intersection with Marlin Court, I then turned my vehicle around with ease using the cross‑over of 5 Adams Road and parked further up Adams Road in front of 4 Adams Road. The vehicle I was driving was a Holden Calais. I then walked down to the river reserve and also walked the length of Marlin Court and back. There were no other pedestrians in either Adams Road or Marlin Court. There were no cars parked in front of 5 Adams Road but there was a car parked on the paved cross‑over outside the gates to 6 Adams Road. It appeared to me that the whole of the road reserve between the gates to 6 Adams Road and the roadway had been paved. I note that the road reserve in front of 6 Adams Road is described in the sketch plans provided by Mr Sarris, and in the surveyed plan, as a 'steeply sloping fancy paved driveway'. With a vehicle parked outside the gate on the road reserve it was not possible to walk on that side of the road to the river reserve without moving on to the road.

2. Factual Background

The plaintiff has lived at 5 Adams Road in Dalkeith (the property) for approximately 26 years. Adams Road runs from Victoria Avenue in the east to the Swan River foreshore in the west. At the western end of Adams Road is a small grassed reserve which continues down to the river (the river reserve). The river reserve is controlled by the defendant. On either side of the river reserve, and facing one another, are the properties known as 5 Adams Road to the south and 6 Adams Road to the north.
On 18 August 2004, the plaintiff obtained approval to demolish his previous residence and to build a new residence on the property. The new residence was completed in December 2005.
On approximately 24 April 2007, the plaintiff noticed a surveyor outside his property who marked a yellow line on the cross‑over. The yellow line was about one metre south from the white lines that, according to the plaintiff, were previously marked by the defendant where the cross‑over commences and were made at the time the cross‑over was installed.
In his letter to Mr Gary Martin, the defendant's then Acting Chief Executive Officer, of 1 May 2007, the plaintiff alleged that, when he contacted Mr Al Valvasori, the defendant's then Manager Technical Services, to enquire why a yellow line had been drawn, he was told that the yellow line was put in to ascertain where the plaintiff's driveway was in case the ranger had to infringe anyone for parking in the driveway. The plaintiff was also advised by Mr Valvasori that the defendant was proposing to construct a turning facility at the end of Adams Road. The plaintiff requested from Mr Martin an explanation for the proposed road works for Adams Road, including all plans and elevations of the proposal.
In a letter dated 4 May 2007 addressed to Councillor Cranston, the plaintiff alleged that there was only one person in the street who wanted to change the cross‑over and who had asked other neighbours to sign some form of partition. Although the 'one person' was not identified in the letter, it is apparent from what later transpired that it was the owner of 6 Adams Road, or his son acting on his behalf.
A letter from the defendant dated 3 July 2007 alleged that the new residence did not comply with the approved development plans. The areas of non‑compliance alleged by the defendant were the following:
1.The hardstand area as constructed has a roof over it and now forms part of the garage. The roof does not have planning approval.
2.The cabana as constructed has a roof over it. The roof does not having planning approval.
3.The retaining wall on the verge area is not constructed as per the alignment approved on the drawings submitted.
4.The paving in the verge area connecting the plaintiff's front entry to the 'roadway' is not in accordance with the planning approval as it extends further into the verge area.
It is relevant to note that it took the defendant 19 months after the completion of the new residence to raise with the plaintiff the areas of alleged non‑compliance. In my view, this is consistent with the representatives of the defendant, who were involved with the building works at the time, not considering there was a problem with the work carried out by the plaintiff. It is also significant to note that the construction of the bituminised cross‑over was not included in the list of non‑compliant works. Another relevant observation is that it was not until the plaintiff had raised with the defendant his concerns regarding the construction of a turnaround that he was first advised by the defendant of the allegations of non‑compliance relating to the construction of his new residence. From this point onwards the issue of the plaintiff's alleged non‑compliance with planning approval and the issue of the proposed works were dealt with by the defendant as related issues.
As the plaintiff had not received a response from the defendant to his letter of 1 May 2007, on 27 July 2007 he again wrote to the defendant requesting a response.
By letter dated 30 July 2007 the plaintiff wrote to the defendant regarding the alleged non‑compliance. He referred to a meeting with the then Chief Executive Officer, Shayne Silcox, and 'other city staff' in March 2004 to address the defendant's error in the October 2003 planning approval and all other outstanding issues in respect to the approval of his plans including changes to the garages, hard stand, cabana, cross‑over and retaining wall. The plaintiff referred in his letter to an appeal to enforce the defendant's approval of a balcony. Apparently the defendant later withdrew the approval on the basis that it had been approved in error by the defendant. The appeal was commenced but, after the application to the Town Planning Appeal Tribunal was dismissed as being six days out of time, a point taken by the defendant, the plaintiff decided to simply commence building and forego the balcony.
The plaintiff also referred in his letter to the fact that, in all the confusion, an incorrect version of page 3 of 16 of the plans was forwarded to counsel which did not show the cabana and hardstand areas covered. The plaintiff maintained that it was always intended to have these areas covered to address overlooking issues. As the roof of the house is almost level with Marlin Court, this was without doubt a legitimate concern. The plaintiff also maintained that the surveyor marked the height of the retaining wall and it has been constructed to 9.5 metres. According to the plaintiff, the defendant did not want the verge to have a steep slope, like the verge was before the wall was constructed and this direction was followed. The plaintiff also maintained that the curve in the wall was reduced to appease the concern expressed by Mr Anderson, the owner of 6 Adams Road, in a letter to the defendant dated 17 February 2004, that a car may hit it, as well as his concern for vehicles turning in the plaintiff's driveway. Mr Anderson also asked that the balustrade not be a mesh infill. The reduction in the curved part of the wall was said to have been discussed with the defendant's building department officers. In relation to the verge, the plaintiff made the following statement:
In respect to your comment that the paving extends into the verge area. I went to considerable detail in my letter dated 1 May 07 to explain that the cross over was constructed in accordance with Al Valvasori, Jim Morton and Ron Ferguson specific instructions. Despite my vehement objection to the way they wanted it done and a direct approach to councillors Rob Brown, Ian Argyle and John Cranston they would not change their minds. I spoke at the Council Meeting on 26 September 2006 to explain this matter in full to all the Councillors and the Council staff.
Once again I found myself in a position to consider if I should commence proceedings to enforce my planning approval or to construct the cross over as they had instructed. The cross over was the last part of the construction before we moved into the property and this action by Technical Service Department personnel caused over two weeks delay and considerable more expense. The cost to construct the crossover increased from $2,700 to $14,000 a sum that I should not have been forced to expend and will be seeking to recover.
By letter dated 24 August 2007, the defendant advised the plaintiff that:
works to reinstate a turning area at the end of Adams Road is proposed for the 2007/2008 budget and capital works program…. Once budget approval is received the design will be prepared and consultation will be undertaken with local residents.
I note that there is no reference in this letter to the giving of notice or what that might involve.
On 14 September 2007, not having responded to the matters raised in the plaintiff's letter concerning the proposed works, Ms Eldridge again wrote to the plaintiff concerning non‑compliance issues. In the letter Ms Eldridge alleged that the defendant had written to the plaintiff on 3 July 2007 and received a response from the plaintiff dated 30 July 2007. In her letter, Ms Eldridge identifies the areas of non-compliance as follows:
1.The hardstand areas as constructed has a roof over it and now forms part of the garage.
2.The cabana as constructed has a roof over it.
3.The retaining wall located in the verge area is not constructed as per the alignment approved on the drawings submitted.
4.The paving in the verge area connecting the plaintiff's front area to the 'roadway' is not in accordance with the planning approval as it extends further into the verge area.
I understand the last item to be a referral to the paved area rather than to the cross-over.
I note that there is no reference to the cross-over in the list of non-compliant works. On that basis, it must be accepted that there is no non-compliance issue with the cross-over area. It is also the case that any complaints by residents concerning the cross-over could not be justified and the resident should have been advised that the cross-over was approved by the defendant.
Ms Eldridge's letter required advice from the plaintiff as to whether he would be amending the development to meet the current planning approval or submitting a retrospective planning application by 28 September 2007. Despite the lengthy explanations provided to the defendant by the plaintiff, including the fact that certain aspects of the development had been done at the direction of the defendant's officers, no reference was made to this in Ms Eldridge's letter which merely restates the original allegations and makes no attempt to address the matters raised on behalf of the plaintiff. Nor did Ms Eldridge indicate that any enquiries had been made to ascertain whether the plaintiff's allegations were correct. Indeed, at no point did the defendant respond to that allegation, despite the fact that, at that time, Mr Valvasori, who was alleged by the plaintiff to have been one of the defendant's representatives at whose direction the cross‑over, the limestone wall and the paved area was constructed, was still employed by the defendant.
By letter dated 28 September 2007, the plaintiff wrote to Ms Eldridge and to Councillor Ian Argyle objecting to a turning area being constructed at the end of Adams Road. The plaintiff maintained that there was already ample turning access for the two residences that occupy the end of Adams Road and for the odd car that comes down the street. He expressed the view that any more vehicular turning was not necessary and was a waste of ratepayers funds. The plaintiff also made mention of the fact that there were several dead end streets in the area, naming seven of them, all of which had no vehicle turning. The plaintiff also referred to the fact that it was his understanding that only one property owner wanted a turnaround area.
The plaintiff's response to Ms Eldridge's letter of 14 September 2007 concerning the alleged non‑compliance was dated 2 October 2007. The plaintiff stated that, with the assistance of town planners, he had checked the retaining wall alignment and maintained that it was constructed in the location shown on the drawings. He further advised that the levels on this area of land were running in a number of directions and the end result may appear different to what is on the plan. This is another assertion of the plaintiff which was never addressed by the defendant's officers. The plaintiff again advised that both the paving and cross over were constructed under the Technical Services Department supervision and in accordance with their specific instructions. The plaintiff also referred to a telephone conversation on 10 July 2007 in which he explained to Ms Eldridge that he was of the understanding that all items constructed had been approved.
No reply was received to this letter. Further, the plaintiff did not receive any correspondence or notices regarding the alleged unlawful construction of the retaining wall or the paving after this letter. In his affidavit of 27 June 2008 the plaintiff expressed the view that the issues of the roof over the cabana and hardstand areas are irrelevant to this action because they relate to the internal works inside the property. There is no doubt that this is correct, however, it remained something which was referred to and taken into account at every stage of consideration of the proposed works. Further, the plaintiff repeated his understanding that the realignment of the retaining wall and the limestone paving had been approved. He stated that, in particular, the limestone paving and the hump on the verge were constructed at considerable cost and inconvenience under the express instruction of the defendant's officers. Again, the allegation that the limestone paving was approved was never dealt with by the defendant and appears to have been largely, or completely, ignored.

The plaintiff's evidence concerning the construction of the bitumen cross over and the paved area is supported by the affidavit evidence of Darren Gregory Lockhart, an earthworks bitumen paver who has worked in that industry for approximately 20 years.
Mr Lockhart deposed to the fact that, at some time in 2005, the plaintiff asked him to provide a quote to construct a bitumen cross-over and driveway at the plaintiff's property. Some time later Mr Lockhart attended the property to commence the works. It took him approximately a day to complete the earthworks. Mr Lockhart stated that, at the time of completing the earthworks, employees of the defendant were present. To the best of his recollection, both Mr Ron Ferguson, the person who previously held the position which Mr Ian Hamilton now holds, and Mr Jim Mortin inspected the works. According to Mr Lockhart, Mr Ferguson was the person responsible for the maintenance of cross‑overs and footpaths. According to Mr Lockhart, whilst inspecting the work, either Mr Ferguson or Mr Morton advised the plaintiff that he could not construct the cross‑over as he had instructed Mr Lockhart because of water flow off the street. According to Mr Lockhart, because of the substantially increased cost of making the instructed changes, the plaintiff was not happy about the change directed by the defendant, however, Mr Lockhart advised him that he was required to construct the cross‑over in accordance with the defendant's instructions.
As a result of the requested changes, Mr Lockhart cut a straight line into the verge line, as he understood had been surveyed by the defendant, removed all the bitumen and installed a road base over the entire cross‑over. He confirmed in his affidavit evidence that the cross‑over and driveway were constructed under the supervision of the defendant's officers.
On 3 October 2007 the plaintiff lodged an application with the defendant for retrospective planning approval for enclosure of the hardstand and the cabana only. This application was refused by the defendant on 14 April 2008. The plaintiff then lodged an application for review of the defendant's decision in the State Administrative Tribunal on 14 April 2008. It is of significance that no application was ever lodged by the plaintiff with respect to the retaining wall, the cross‑over or the paved area. This is consistent with the plaintiff's assertion that those matters were carried out either with the defendant's oral approval or on the defendant's express instructions.
The plaintiff had not received any correspondence or notices from the defendant regarding the retaining wall and the limestone paving since the letter dated 14 September 2007. Neither have these issues been raised by the defendant in any documentation received from the defendant in relation to the proposed road works. Nor are they referred to in the minutes of meetings of council of the defendant made available to the plaintiff.
According to Mr Wayne Mo, the defendant's Design Engineer since July 2007, on commencing employment with the defendant, he was instructed to become involved in the design process of the defendant's proposed works at Adams Road. The proposal was not only to resurface the road but to replace the kerbs, upgrade drainage and also formalise a turning area for garbage trucks which was considered to be the worst case scenario in terms of the largest vehicle most likely to use this road. It is significant to note that there no evidence to suggest that any enquiries were made at the time as to whether the garbage truck would ever use that part of Adams Road, even if a turnaround area were constructed.
Having inspected the area it is apparent that Marlin Court is a very narrow street where it would be impossible for a garbage truck to turn around. Indeed, if cars are parked partially on the verge and partly on the roadway, it would not be possible for the garbage truck to even drive along Marlin Court. It is also the case that, for the garbage truck to service Marlin Court, it would have to either drive in and reverse out or reverse in and drive out. Either way does not require a turnaround at the end of Adams Road and would not be assisted by it.
Mr Mo was advised that these works would be carried out as part of the City's capital works programme for 2007/2008. The works were also said to involve part removal of a non-conforming retaining wall near the crossover to 5 Adams Road. It was Mr Mo's understanding that, apart from safety and amenity issues, the rehabilitation works were largely scheduled because of high level of building activity at 5 and 6 Adams Road and because there had been a large degree of public disapproval and complaints regarding the building works completed by the plaintiff.
On 4 January 2008, the defendant sent a letter to the residents in the vicinity of 5 Adams Road in relation to the plaintiff’s application for retrospective approval. That letter alleged that the development does not comply with the average front set back, although in the context of a lesser level of set back being required to be off‑set by open space. In fact, this is a reference to the roof over the hardstand and cabana area but could be seen to invite complaints about the reduced set backs at 5 Adams Road.
Comments regarding the proposal were sought within 21 days. The letter was sent to the owners of 2 Marlin Court, 3 Marlin Court, 2 Adams Road, 3 Adams Road, 4 Adams Road and 4/12 Victoria Avenue. The letter was not sent to Mr Anderson, presumably because 'overlooking' issues would not apply to 6 Adams Road.
On 24 January 2008 the defendant appointed Land Focus, engineering consultants, to prepare a design for rehabilitation works to be carried out on Adams Road. According to Alex Sarris, the Managing Director of Land Focus, the verbal design brief from Mr Mo was to take the following matters into account within the design:
(a)to minimise the height of the design of a proposed turnaround (known as a 'hammerhead' turnaround so as to not construct any avoidable visual barrier to the river views of residents further up Adams Road;
(b)to enable a car and more particularly a garbage truck to turn around in this area;
(c)to direct any overland flow from storm water drainage away from adjacent residences and be directed into proposed gully pits. Mr Mo suggested that the design incorporate reconstructing the Adams Road pavement to form a slightly inverted road so that storm water runoff flows down the centre of the road and away from adjacent properties; and
(d)to interface smoothly with adjacent properties in order to minimise the impact, where possible on existing vegetation and adjacent properties though not at the cost of compromising design.
It is clear from the instructions that the defendant specifically asked for a hammerhead turnaround, rather than asking the engineer to design any type of turnaround which would minimise the impact on adjacent properties. It is also the case that drainage was considered to be a significant issue.
Mr Sarris stated that he was to receive an updated survey before completing the draft layout for the location of the hammerhead turnaround. The survey was received on 29 January and, based on his discussions with the defendant, some time after 24 January 2008 he prepared a basic design layout for the hammerhead turnaround which placed part of the turnaround on the river side of the paved area adjacent to the front entry of 5 Adams Road. The proposed retaining wall heights based on this design were approximately 2.1 metres in retained height.
The criteria considered by Mr Sarris for his first proposed design was extracted from a number of different standards including the Main Roads Western Australia turning templates for vehicle movements within hammerhead turnarounds and an example drawing from a Western Australian Planning Commission document of hammerhead turnaround layouts and dimensions. Mr Sarris conceded that most of the standards on which he relied dealt more with major roads and intersections and most did not address minor road works or turnarounds. It is also clear that this design was consistent with the instruction to minimise the impact on adjacent properties.
According to Mr Mo, on 11 February 2008 he held a meeting with Mr Valvasori, Mr Fawcett, the City's surveyor, and Mr Sarris to discuss design considerations for the proposed works. However, Mr Mo indicated that, after this meeting, he received a copy of the preliminary design layout from Mr Sarris. As Mr Sarris confirms forwarding the first PDF copy of his sketch of the proposed design to Mr Mo on 7 February 2008, it would seem that 11 February is not an accurate date for the meeting.
Nevertheless, according to Mr Mo, the discussions at this meeting included the construction of a turn around area for vehicles on the road reserve which was to be either a cul‑de‑sac single movement clockwise turnaround bulb or a hammerhead type arrangement using a 3 point turn using a minimum design for a SU truck. However, a number of the other matters to which Mr Mo deposes as having been discussed at the meeting are consistent only with the design of the turnaround as a hammerhead having already been determined. Certainly, that was the evidence of Mr Sarris. In fact, Mr Mo deposes to the fact that, at the meeting, Mr Sarris said that after receiving the survey he would provide the City with a draft design including a layout of the hammerhead turnaround.
It is interesting to note that, in relation to 6 Adams Road, Mr Sarris was instructed to retain the crossover by designing away from it, thereby leaving it where it was. According to Mr Mo, Mr Sarris was also instructed to retain the brick paving area constructed in front of the plaintiff's property. Of course, later that requirement was dropped from the instructions whereas the instruction in relation to Mr Anderson's cross‑over was never withdrawn.
In relation to the first design provided by Mr Sarris, Mr Mo stated that the turnaround was as far away a possible from the 'parking area/footpath' constructed by the plaintiff at 5 Adams Road and away from the crossover of 6 Adams Road. Mr Mo expressed the belief that the initial design was a good design given the many constraints that were imposed by the City.
On 29 February 2008, Mr Sarris received back comments from Mr Mo on the first proposed design. Only minor changes were made and the location of the turnaround remained. Again, it was made clear from Mr Mo's email that the turnaround was designed to allow use by a garbage truck. Sometime between 29 February and 18 March 2008 Mr Sarris incorporated Mr Mo's amendments into his design and forwarded completed drawings to Mr Mo for his review.
By letter dated 29 February 2008 the defendant advised residents that it intended to carry out construction works on all of Adams Road. The extent of the road works were stated as being
resurfacing, reconstruction, new pavement construction, drainage upgrades and a turnaround area which will be retained by a limestone wall.
However, the details of this work were not included in the letter. It was clear from the evidence of Mr Sarris and Mr Mo that the final drawings had not been completed at this stage and supporting information in relation to drainage and other issues had not been prepared.
The sketches enclosed with the letter indicated that the defendant intended to construct on the reserve and on the front verge of 5 Adams Road a turning circle for vehicles ('the hammerhead turnaround') and to remove part of the existing limestone wall to the front of the property. This is a reference to the curving limestone wall which retains the verge of the side street, Marlin Court, which is at a higher level than the front of 5 Adams Road.
After receiving this letter from the defendant, the plaintiff spoke with Mr John Anderson, the son of the owner of 6 Adams Road, about the proposed works. The plaintiff was advised by Mr Anderson that he was not aware of the proposed works and he had not received a letter from the defendant similar to the defendant's letter of 29 February 2008.
Mrs Susan Minshall from 3 Adams Road received the letter from the defendant and wrote to Mr Graham Foster, the defendant's CEO on 13 March 2008 requesting an accurate cross section with heights included of structures of the proposed turning circle so that she could accurately assess the situation. It is significant to note that Mrs Minshall considered the information initially provided as inadequate for the purpose of assessing the impact of the proposal. As her later correspondence contains no complaint about not having received the material, presumably it was supplied to her. However, the plaintiff's request for additional information was not met.
Having received the defendant's letter of 29 February 2008, in early March 2008, the plaintiff prepared a letter which was provided to approximately five of the residents of Adams Road and Marlin Court attaching a copy of the plan of the proposed hammerhead turnaround and requesting that those residents provide comments to the defendant regarding the proposed works. In the letter, the plaintiff made the following observation:
There is a problem with large vehicles driving in and out of Marlin Court, especially the rubbish truck, simply because the street is too narrow and the truck is now much larger than previous ones. But the addition of a vehicular turning at the end of Adams Road will not solve this problem.
When building is finished in the street tradesman cars will not park in Marlin allowing full access for the trucks and hopefully things will return to pre-construction days when there was no major problem with truck access.
I note that even the plaintiff objects to the height of the limestone wall and refers to the 'ugly vehicle crash rails at the end of the street and on top of the wall'.
However, the plaintiff does make the observation that there is no pedestrian access in the plans and no landscaping provided for in the plans. The suggestion made is that the best outcome would be if the whole block (the reserve) was landscaped and provision made for the many residents that use it for access to the river, not for turning cars.
As I have noted, the river reserve is an unkempt grassy area from which the trees have been removed, presumably to improve the view of surrounding residents. There is a relatively flat portion at the top after which the balance of the river reserve is steeply sloping down to the river. Contrary to the allegation of the defendant, the first design would not increase the steepness of the incline, it would simply remove the flat part, leaving the steep part to be traversed to the river as occurs now.
By letter dated 17 March 2008 the plaintiff wrote to the defendant's Chief Executive Officer expressing his concerns in relation to the proposed works, such concerns being the following:
(a)Inadequate provision of information by the Defendant as to:
i.the construction of the hammerhead turnaround;
ii.the construction of a retaining wall for the hammerhead turnaround;
iii.access by pedestrians to the Swan River foreshore;
iv.environmental impact of the works; and
v.the construction of drainage and drainage calculations.
(b)Removal of the verge in front of the property;
(c)Obstruction of access to the property;
(d)Safety concerns of vehicles coming within close proximity (approximately 1 metre) of the property;
(e)Safety concerns for pedestrians;
(f)Nuisance caused by lights, noise and exhaust omissions to residents of the property from vehicles using the hammerhead turnaround;
(g)Restriction of access by the public to the Swan river foreshore;
(h)Satisfactory nature of current vehicle turning;
(i)Environmental impact on flora and fauna;
(j)The fear of further flooding to the property if adequate drainage is not constructed; and
(k)The general lack of information provided by the Defendant to enable the plaintiff to make a decision as to the extent and nature of the works to be carried out and the impact that the works may have on residents of and visitors to the property.
Many of the matters raised by the plaintiff are, in my view, legitimate concerns of any landowner in the plaintiff's situation.
In the letter was a request for the plaintiff to be sent a full set of drawings and include all of the items referred to in his letter marked up on the plans and the defendant's engineers draining volume calculations so that the plaintiff's consultants can fully assess what impact the proposed works would have on his home and street. These requests were never met.
The letter also asserted that the defendant was considering a turning area because the rubbish truck cannot easily enter Marlin Court which is extremely narrow and services at least 5 homes. As I have noted, to gain access to Marlin Court large vehicles like the garbage truck have no alternative but to either reverse in or out of Marlin Court. As the plaintiff observed, this will not change even if vehicle turning is constructed at the end of Adams Road. Further, the plaintiff referred to being told by Perthwaste that they would not be happy about using the proposed Adams Road turning area because the hill at the end of Adams Road is too steep for the rubbish truck to negotiate. It is indeed the case that the end of Adams Road where 5 and 6 Adams Road are located is much steeper than any other area of Adams Road or Marlin Court. The plaintiff maintained that the rubbish truck never enters the lower end of Adams Road because the residents take their bins up to Marlin Court every week. This obviously does not present any difficulty for the plaintiff. As for the owners of 6 Adams Road, they would need to take their bin a very short distance to the verge in front of 4 Adams Road. However, the plaintiff added that, in any case, trucks easily turn in the cross‑over of 5 Adams Road.
Annexed to Ms Eldridge's affidavit is a statement from Perthwaste. That statement indicates that there are associated problems with collecting in Adams Road and Marlin Court. The main problem is said to be that they have to reverse out of the narrow street which I understand is a reference to Marlin Court. It is also said that there is insufficient area at the junction of Adams Road and Marlin Court for the truck to turn around. It is further stated that both Adams Road and Marlin Court cause them an issue with on street parking. This is said to only compound the difficulty with collecting waste in these streets. The combination of the lack of turning space, on street parking and the width of Marlin Court makes these streets a difficult operation. The final matter raised is that there are occasions when on street parking causes the collection vehicle to reverse up Adams Road which requires the truck to reverse on the busy road of Victoria Ave. Clearly this is a reference to on street parking in the top, flat part of Adams Road.
In my view, this statement does nothing to support the assertion that the garbage truck would use the turnaround if one were to be constructed or the allegations of the council officers that it is necessary to change the configuration of the end of Adams Road to accommodate, inter alia, a garbage truck.
In his letter of 18 March 2008, the plaintiff described the manner in which the defendant had handled the proposal as 'disgusting'. He stated that it would have been more appropriate for the defendant's staff to seek the residents' views on all issues relating to this proposal rather than sending out a half prepared sketch with a letter saying that work is going to start in April or May.
It is also the case that the plaintiff raised concerns about the proposal to change the configuration of the limestone wall erected on the Marlin Court side of the Adams Road verge next to the plaintiff's house on the ground of drainage concerns, in particular whether the shorter wall would provide the necessary protection from water flooding down Adams Place. At no stage has this issue been properly addressed.

The person who was primarily involved on behalf of the defendant in managing the proposed works was Mr Hamilton, who had been employed by the defendant as Executive Manager of Technical Services since March 2008. It is apparent from identifying his date of commencement with the defendant that Mr Hamilton had no involvement in, or knowledge of, the construction of the plaintiff's new residence and had no direct knowledge of the circumstances by which the area between the house and the street came to be the way it was when Mr Hamilton first became involved in the proposed works.
In his affidavit evidence, Mr Hamilton said that Mr Foster told him that he had contacted those residents of Adams Road who had contacted him to discuss their concerns, about a meeting on 18 March 2008 (the 18 March meeting). The purpose of the meeting was for the residents to discuss their concerns or any issue they may have had with the proposed works. Mr Hamilton observed that the plaintiff did not attend the 18 March meeting, something he could not have done because he had not been advised that the meeting was to take place. Mr Foster’s version of events was that the plaintiff was invited but did not attend. This statement is inconsistent with the statement given to Mr Hamilton about who Mr Foster had invited. The plaintiff also denies being invited to the meeting.
At the 18 March meeting held in the defendant's offices, it was agreed that a follow up meeting would be held on-site on 26 March 2008 (the 26 March meeting) and that Mr Anderson from 6 Adams Road would be responsible for contacting all other residents, including the plaintiff, to advise of the meeting at the defendant's chambers. As it turned out, Mr Anderson did not contact the plaintiff.
On 18 March 2008 Mr Sarris received an email from Mr Mo seeking additional changes to the proposed design. The changes related to the limestone retaining wall on the corner of Adams Road and Marlin Court and not to the hammerhead part of the turnaround.
The plaintiff did not receive a written response from the defendant to his letter of 18 March 2008 or to any of his earlier letters concerning the proposed works. On or about 25 March 2008, the plaintiff was advised by one of the Adams Road residents, Ms Deanne Singara, that a meeting had taken place with the residents at the defendant's offices to discuss the proposed works. This would appear to have been the meeting of 18 March 2008. The plaintiff had not been invited to this meeting. According to Mrs Minshall, Mr Foster and Mr Hamilton attended on behalf of the defendant and the residents who attended were the following; Nick Lennon of 3 Marlin Court, Steve Anaston of 2 Adams Road, Warren Harding of 86 Victoria Ave (corner of Adams Road), Rosemary and Neil Tomlinson of 2 Marlin Court, Chris Courtney, the Anderson's architect on their behalf, and the Minshalls. In other words, eight people representing six households were present. Only one household was directly affected by the construction of the hammerhead part of the turnaround, although theoretically all would potentially be affected by the limestone retaining wall included in the proposed works.
Ms Singara advised the plaintiff that a meeting on site was organised for the next day, 26 March 2008, and that he should attend. The plaintiff contacted Mr Hamilton by telephone and asked if he could attend the meeting. Mr Hamilton agreed to the request. The plaintiff made it clear to Mr Hamilton that he would not participate during the meeting but would meet with him afterwards. The plaintiff explained that he felt uncomfortable attending the meeting because he had not been invited.
Mr Hamilton's account of being contacted by the plaintiff was that the plaintiff advised him that he would not be attending the meeting on site because he did not want to be part of any group meeting with other residents of Adams Road. That is not quite the same explanation as that given by the plaintiff. According to Mr Hamilton, the plaintiff requested a separate meeting with him after that meeting. As I have indicated, that is not unreasonable conduct in the circumstances of animosity which applied at the time between the plaintiff and certain of his neighbours.
The plaintiff stated that six residents attended the on‑site meeting with Mr Hamilton on 26 March 2008. At the meeting, Mr Hamilton explained that the end of the street was too narrow for a cul‑de‑sac turning circle and, therefore, the defendant was proposing to construct a hammerhead turning circle which would take up the grass verge area in front of 5 Adams Road. In fact, a cul‑de‑sac turnaround had not been contemplated by the defendant and the engineer had not been given the opportunity to design one or a turnaround of any other configuration. The plaintiff asked if the defendant could construct the hammerhead circle 2 or 3 metres down the hill towards the river so that he could keep the grass verge in front of the property. Mr Hamilton advised that he would consider the proposal. It is apparent to me from the balance of the affidavit evidence that at no time was this or any other suggestion made by the plaintiff ever really considered by Mr Hamilton or the defendant.
Mr Hamilton stated that, during his consultation with the residents at the 26 March meeting, he tried to persuade the plaintiff to participate in the discussions. However, the plaintiff refused to participate and remained a short distance from the participants and Mr Hamilton. According to Mr John Anderson, the son of the owner of 6 Adams Road, those attending the meeting were Mr Hamilton, Mr and Mrs Minshall, Diane Shields of 88 Victoria Ave and Rosemary Tomlinson of 2 Marlin Court; that is, five residents from four households. Mr John Anderson made the allegation that the plaintiff appeared to be recording the meeting with a tape recorder. This is denied by the plaintiff but is typical of the unsubstantiated allegations raised on behalf of the defendant.
With reference to the sketch shown to those residents who attended the meeting, Mr Hamilton stated that the construction of a turning area on the side of 6 Adams Road would come within 2 metres of the wall at the front of the property. Whilst that statement is correct, the area within 2 metres of the wall of 6 Adams Road is further west than the paved cross‑over of the verge and would have a limited and entirely unequal impact on 6 Adams Road and its residents as compared with the impact on 5 Adams Road and its residents. I would also note that a revised plan which the defendant later proposed to proceed with, although several metres further east, has absolutely no impact on the cross over verge area of 6 Adams Road and none on the verge of 4 Adams Road. All the impact was confined to the plaintiff's property.
According to Mr Hamilton, at the end of this meeting all the residents who participated said that they were generally happy with the proposal and said that they wanted to keep the retaining wall at the end of the hammerhead turnaround as far to the east as possible and as low as possible so as to preserve the view of the river and the open space as much as possible. Mrs Minshall confirmed that this was her view of the matter. Mr Hamilton also asserted that the residents indicated that they did not want to have a large steel safety rail. It is apparent that the primary objection to the initial proposal for the turnaround was the impact on the resident's view of the river.
In a conversation with the plaintiff after the 26 March meeting, Mr Hamilton alleged that the plaintiff told him that he considered the proposed works infringed on his use of the road reserve and that he wanted to leave the road reserve the way it was. According to Mr Hamilton he told the plaintiff that the road reserve was not for his exclusive use and that the reserve was a public reserve under the care of the city. He also maintains that he told the plaintiff that the proposed works would be going ahead in one form or another because it had 'become a real safety and amenity issue for the City' and further told him that 'he cannot build what appears to be a private footpath on a public road reserve'. In making this comment, it is apparent that Mr Hamilton either has not been advised of the plaintiff's assertion that the paved area was constructed under the direction of the defendant's employees or had rejected that assertion without making any enquiries.
On 26 March 2008, Mrs Minshall wrote to Mr Foster. Amongst the matters mentioned by her in her letter, Mrs Minshall makes the following statement:
Although a 'turning circle' was preferred to the 'hammerhead' design we understand and accept the explanation offered by Ian Hamilton that it is the most compact design and indeed the only design that will enable the Council to meet its legal/insurance responsibilities in the space available.
Two issues arise from Mrs Minshall's letter. The first is that a turning circle was the preferred option. The second is that, although there is evidence that the hammerhead design is a Main Roads Department approved design, it does not follow that it is the only design that will enable the defendant to meet its legal/insurance responsibilities, as alleged by Mr Hamilton. There is no suggestion that any legal opinion was obtained at any stage in relation to this issue or that another design would not have met any legal obligations. Mr Hamilton appears to have attempted to justify the defendant's position on the turnaround by making an uninformed reference to legal constraints.
On 31 March 2008, at 5 Adams Road, the plaintiff met with Mr Michael Klyne of Klyne Consultants Pty Ltd, an expert in road safety and traffic engineering. The purpose of the meeting was to discuss the proposed hammerhead turnaround. After showing Mr Klyne the defendant's original proposal he provided oral advice of how the design could be altered to address some of the plaintiff's concerns. He recommended an approximate 4 metre by 4 metre extension of Adams Road and indicated that vehicles could use the substantial amount of existing driveway to turn. The alternative design differed from the defendant's proposed works in the following ways:
(a)It limited the environmental impact of any works on Adams Road;
(b)It did not pose any safety issues to 5 Adams Road or to pedestrians or for vehicles using Adams Road;
(c)It did not obstruct access to 5 Adams Road;
(d)It would limit any exhaust fumes from vehicles entering the property at 5 Adams Road;
(e)It would limit the impact of lights from vehicles entering the premises at 5 Adams Road
(f)It would limit the disturbance to the residents of the property arising from the noise from vehicles;
(g)It would maintain the verge in front of the property; and
(h)It would provide a turnaround for vehicles that would satisfy the plaintiff's concerns.
The plaintiff asked Mr Klyne to prepare a sketch of the alternative design that he had suggested. However, Mr Klyne required an A3 scaled drawing of the original proposal to prepare his alternative design. The plaintiff requested an A3 copy of the proposal from Mr Hamilton but it was not provided.
Mr Klyne's oral alternative design did not address the issue of drainage because the plaintiff had not received any drainage calculations from the defendant as requested by him and, as a result, could not seek Mr Klyne's advice on this issue.
On 4 April 2008, the plaintiff met with Mr Hamilton and Mr Foster at the defendant's offices to discuss a redesign of the proposed hammerhead turnaround. Although the plaintiff had hoped to receive a prepared design that did not have an adverse affect on his property, Mr Hamilton provided the plaintiff with a rough sketch of a redesign. Mr Foster alleged that Mr Hamilton produced 'the various drawings and surveys that were then available' in relation to the proposed works and took the plaintiff through them. The rough sketch indicated that the hammerhead turnaround would be constructed on the grass verge area and on most of the limestone entry to the property. Mr Hamilton told the plaintiff that the defendant decided to move the hammerhead turnaround 3 metres east of the original proposal. I note that the new design created an even greater impact on the plaintiff's property as the turnaround would be within a short distance of the front gate and directly in line with the front door.
During the meeting the plaintiff requested that the defendant construct the hammerhead turnaround at a minimum of 1 to 2 metres west of the location in the original proposal. The rough sketch also shows the removal of the existing limestone wall to the property and the location of a new curved wall. According to Mr Foster, the plaintiff objected to the design and said words to the effect that he objected to having the turnaround area on the paved parking area that he had constructed.
At this meeting Mr Hamilton proposed to the plaintiff that the defendant would allow a small footpath outside the property (which partially encroached on the road reserve), but not on the limestone paved area. The offer was made to the plaintiff for the defendant's employees to construct the footpath, although in another location, at the defendant's cost, using the limestone bricks already there. It was also suggested that, instead of having the elongated parking area facing forward onto Adams Road, a footpath be constructed sideways, thereby reducing the amount of space currently taken up by the limestone paved area. According to Mr Hamilton, the plaintiff said that he wanted to keep the limestone paved area he had constructed and did not want to move the retaining wall he had also constructed. In terms of the limestone paved area, it is clearly an entrance across the verge to the front of the plaintiff's property. A pathway parallel to the gate would in no way replicate the effect of the paved area. In other words, no real concession was being made. The other matters referred to cannot be described as concessions as they in no way ameliorate the effect of the location of the hammerhead turnaround.
Mr Hamilton stated that, following the meeting, Mr Foster told him that it was important that the engineering staff designed the best and fairest solution to the problem and that the solution be implemented as soon as reasonably possible. In fact, as far as the court is aware, no design work to construct the best and fairest solution was undertaken. The proposal which Mr Hamilton determined upon after the meeting with the other residents was in fact the only option that was considered thereafter. The engineering staff may well have identified the specification of that turnaround but they certainly did not attempt to design the best and fairest solution to the problem.
On approximately 4 April 2008 the plaintiff met with Councillor Max Hipkins, regarding the proposed works at the property. At the same time Councillor Hipkins and the plaintiff discussed the position of the proposed hammerhead turnaround. On 8 April 2008, the plaintiff received an email from Councillor Hipkins who advised that, in his view, the proposed hammerhead turnaround would damage the property unnecessarily.
On 9 April 2008 the plaintiff wrote to Mr Foster referring to his letter of 17 March 2008 requesting dimensions on the plan and drainage flow calculations and noting that he had not received a reply to his letter.
On or around 9 April 2008, the plaintiff met with Mr Foster and Mr Hamilton and provided them with a copy of his 9 April 2008 letter. At this meeting Mr Hamilton showed the plaintiff a revised design which incorporated the new footpath that was previously offered. The plaintiff advised them that the proposed hammerhead turnaround would detrimentally affect the property and that he was opposed to the revised design. Mr Foster agreed to review the original proposal.
Mr Hamilton alleged that at that meeting he showed the plaintiff the revised design which incorporated the new footpath that he had previously offered to the plaintiff. The drawing of the revised design is in fact the same design with the footpath included. Not surprisingly, the plaintiff did not accept the offer and again stated that he wanted to keep the limestone paved area.
Sometime between 18 March and 10 April 2008 Mr Sarris incorporated Mr Mo's amendments in to the design and forwarded a copy to him. On 10 April 2008 Mr Sarris received from Mr Mo an email which included some JPG images of the Adams Road site, a copy of Land Focus' Autocad base file of the hammerhead turnaround layout which had been amended by Mr Mo to relocate the proposed hammerhead and an amended layout adjacent to the existing retaining wall further up the road. Mr Sarris was advised that this design was the layout preferred by the defendant. This design moved the hammerhead turnaround further up the hill and into the bricked parking area in front of 5 Adams Road. When he reviewed the design, Mr Sarris realised that the change would be far more cost effective as it reduced the height of the proposed retaining wall significantly (from 2.1 metres to 0.9 metres) and minimised safety issues associated with the retaining wall height. However, what the changed design did not do was to minimise the impact on adjacent properties, as requested in the original design brief. Mr Sarris was unable to say the precise saving involved in this design but considered it to be in the order of $150,000, possibly more. I understand that this is an estimate only, but in view of the nature of the change I have some difficulty with this figure.
Mr Sarris incorporated the changes in to his design. A copy of the amended design was forwarded to Mr Mo in late April 2008. Mr Mo considered this design to be satisfactory as the turnaround shape had not changed greatly from the original design. Of course, that is stating the obvious as both designs were for a hammerhead turnaround According to Mr Mo, the reason this design was selected was based on minimising impact to the river foreshore and took into account the resident's comments during the consultation process. However, it certainly did not take into account any of the plaintiff's concerns so clearly Mr Mo was referring to all residents other than the plaintiff.
On 11 April 2008, Mr Hamilton held another meeting at the defendant's premises with the residents of Adams Road to discuss the proposed works. In addition to Mr John Anderson, those who attended were Ms Tomlinson of 2 Marlin Court and Mrs Minshall of 3 Adams Road. According to Mrs Minshall, Nic Lennon and Chris Courtney also attended; five people from four residences. The plaintiff contacted Mr Hamilton to say he would not attend this meeting and that he had considered the defendant's sketch of the proposed works and 'did not want it'. The plaintiff is also alleged to have observed that he would be losing his lawn area.
It is apparent from Mr Hamilton's evidence that at no stage did he record who was present at these meetings or what was discussed. If he had, one would have expected such a document to be annexed to his affidavit, which was not the case. In those circumstances, Mr Hamilton's account of what transpired at these meetings must be carefully considered. Mr Hamilton stated that, although some residents objected, most of the residents agreed that the turnaround had to be built as soon as possible for the safety of residents of Adams Road and surrounding areas. Mr Hamilton did not indicate which residents objected, although clearly he was referring to someone other than the plaintiff. Again, no attempt is made to identify the safety issue.
According to Mr John Anderson, the purpose of the 11 April meeting was to discuss the proposed works at Adams Road and the results of a discussion held the previous day between Mr Hamilton and the plaintiff in relation to the proposed works.

Mrs Minshall states in her affidavit that at the meeting they discussed the fact that the plaintiff had complained about the proposed works and wanted it moved further west, notwithstanding that as a result of the community consultations the defendant had by that time, to the best of her recollection, already agreed to move it east of the original design. Mrs Minshall also purported to identify the views expressed by the various residents which were that 'the whole community that was consulted agreed with the proposal and only one person disapproved'. Of course, 'the whole community' constituted four or five homeowners and the one person who disapproved was the only person adversely affected by the proposed works.
According to Mrs Minshall, people did not want a very high retaining wall and it was thought that a larger tarmac area would further destroy the already compromised amenity of the street. Further, it was considered that the initial proposal would make it very difficult for the community to easily access the foreshore and enjoy it because it would be steeper and more hazardous. I have already referred to the fact that there is no substance to the proposition that it would be more hazardous to access the river because the river reserve would be steeper. Mrs Minshall also referred to the risk of people falling over the high wall and the fact that the residents did not want the hammerhead substantially projecting into the foreshore area. Finally, Mrs Minshall made reference to the fact that the residents did not want a further reduction of the open vista which meant that they did not want any reduction in their view of the river.
It can immediately be seen that Mrs Minshall's account of the issues discussed is substantially different from Mr Hamilton's account, which essentially only involved a reference to the impact on the view. In relation to the allegation that the foreshore access would be too steep, the proposal would only affect the top, flatter part of the reserve and the balance of the river reserve is already steep.
On or about 22 April 2008, the plaintiff met with Mr Hamilton, again at the defendant's office. Mr Hamilton advised the plaintiff during the meeting that he would not change the rough sketch but he could move the end of the road turning away from the main entry by approximately one metre. This would still bring the vehicle over hang to within a metre or so of the front gate to the property and in the plaintiff's view would pose a clear safety threat to pedestrians in Adams Road generally and, in particular, those pedestrians accessing his property. This was, in fact, the only real concession made to the plaintiff during the entire consultation process but it did not overcome the basic problem which was that the hammerhead turnaround remained in very close proximity to the front gate to the property which in turn is directly in line with and close to the front door.
By letter dated 28 April 2008, the plaintiff's solicitors wrote to Mr Foster expressing the plaintiff's concerns with the proposed works, in particular the construction of the hammerhead turnaround, as well as the lack of information provided in relation to the works. The letter raises the issue of the existing drainage which is said to be deficient and that the plaintiff's property had in the past been flooded by storm water from the road reserve. A concern was expressed that not only would existing drainage problems continue but that they may be exacerbated by the proposed works. This was the third occasion upon which the drainage issue had been raised in writing by or on behalf of the plaintiff. The proximity of the proposed works to the plaintiff's front gate was also raised in the letter and the allegation made that the design was in conflict with the residential amenity of the street generally and of the plaintiff's property in particular.
In the letter, the plaintiff's solicitors made the very salient observation that the existing hardstand area constructed on the verge could be used for vehicles to turn, if indeed it was necessary for vehicles to be permitted to turn into Adams Road, a need not adequately demonstrated in the plaintiff's view and supported by no evidence in the court's view.
On 29 April 2008, the plaintiff sent an email to the councillors of the defendant attaching a letter and photographs regarding the proposed works.
On 29 April 2008 Mr Sarris received an email from Mr Mo in which he proposed further amendments to the proposed design which increased the paved area to a width of 3.3 metres and made the paved area flush with the proposed road. This latter aspect was considered by Mr Sarris to constitute a safety concern because reversing vehicles would not have anything to stop them and if pedestrians used the area there was no differentiation between the road area and the paved path area apart from a different pavement type. Further, Mr Sarris considered that there would be problems with drainage because the existing cross‑over grades down towards 5 Adams Road and it was difficult to get the storm water runoff away from 5 Adams Road. Mr Sarris stated that he had designed the proposed works in such a way that the paved area graded towards the river to minimise overland water flow going into the entry of 5 Adams Road. Mr Sarris advised Mr Mo of these views.
By letter dated 1 May 2008, the defendant responded to Hardy Bowen's letter and advised that the hammerhead turnaround was in accordance with Main Roads standards and that the drainage exceeded minimum standards. Minimum standards were identified and a statement was made as to the number of soakwells to be installed and the approximate area they would service. The matters raised by the plaintiff in his letter of 17 March 2008 or other issues raised by the plaintiff's solicitors were given no response. I might add that, although the hammerhead turnaround might well be in accordance with Main Roads standards, it does not follow that it is the only available option in the circumstances which applied in this case, in particular where one resident's property was so adversely affected and subject to the entire impact of the proposed works. It would appear that no attempt was made to find out whether any other configuration could still be in accordance with Main Roads standards or whether any alteration to the hammerhead configuration would serve the same purpose and still fall within those standards. The letter concluded with the statement that programmed works on the two retaining walls was to commence in approximately 3 ‑ 4 weeks.
On 2 May 2008 Mr Sarris completed Mr Mo's proposed changes and forwarded the drawings to Mr Mo.
In an email dated 8 May 2008, Mr Hamilton wrote to the defendant's councillors. After referring to extracts or summaries of two High Court of Australia judgments, Mr Hamilton drew from those decisions the proposition that the City must review its assets and how they are maintained. He goes on to state:
The condition of Adam's [sic] Road and community safety concern accessing the river, were previously brought to the City's attention, the action taken was to include it on the city's capital works projects reflecting the precedence set by the high court's key factors, and demands of local residents.
Mr Hamilton's uninformed reference to the 'key factors' in the High Court authorities no doubt had the effect of convincing the councillors to proceed with the works as quickly as possible.
It must be noted that the portion of the Adams Road surface which is clearly in a very poor condition is the flat part of the Adams Road, the condition of the lower sloping part is in a far better condition. As to community safety accessing the river, it is difficult to see how the proposed works even address that issue. As I have already noted, the lower and larger part of the reserve is high sloping and it is this lower part which must be accessed irrespective of whether the hammerhead turnaround is built. Steps down to the river on one or other side of the reserve would be a far better way of facilitating safe access to the river.
Mr Hamilton acknowledged that the initial hammerhead turnaround design extended well into the road reserve and 'after considerable community consultation' the design was re-evaluated and moved approximately 2.5 metres west towards Victoria Avenue. Of course, this also brought the more intrusive part of the hammerhead turnaround directly in front of the entrance to the plaintiff's property with no impact whatsoever on any other resident. This was not specifically referred to by Mr Hamilton in his email.
The explanation for the change was given in the following terms:
The new location would not only reduce the visual impact of the hammerhead turnaround by reducing the height of the retainer wall from 2.1 metres to 1 metre and remove the need for vehicle barriers and subsequent fencing. This would also relate to a reduced cost in the constructions of the turnaround.
In the email there is also included drainage information. Mr Hamilton states that he has personally and extensively advised the plaintiff, as well as concerned residents in Adams Road and surrounding areas, of all works involved. However, he does not state whether the basis of the drainage figures he quotes were ever provided to the plaintiff as he had requested. Nor does he mention that all the plaintiff's requests for specified information had gone unanswered.
There is also a reference in the email to the proposal put forward on behalf of the plaintiff by Mr Klyne.
On or about 9 May 2008, Councillor Argyle provided the plaintiff with a copy of the email from Mr Hamilton to the councillors dated 8 May 2008. According to the plaintiff, that email contained a number of inaccurate comments. On or about 9 May 2008 the plaintiff rang Mr Hamilton to discuss with him the contents of the email, in particular the inaccurate statements contained in the email regarding the plaintiff's discussion with Mr Klyne.
On or about 12 May 2008, the plaintiff sent an email to the councillors in response to the email from Mr Hamilton dated 8 May 2008. In that email the plaintiff indicated that the turnaround area only affects two of the residents, the plaintiff and the owner of 6 Adams Road. He also mentioned that he was not invited by Mr Hamilton to either of the first two meetings of residents. The plaintiff explained that, being advised of the second meeting by a neighbour, he attended and, after the meting, raised with Mr Hamilton his concerns about the proposal, in particular the turning area being so near the front gate because it would be dangerous to have turning vehicles so close to the main entry. That is also a safety issue which appears to have been completely ignored.
The plaintiff further advised that, at their next meeting, despite agreeing to review the plan, Mr Hamilton told the plaintiff that not only was he going to remove the grass verge but also the limestone path to the front gate. Mr Hamilton further maintained that he would not change from the hammerhead design. Mr Klyne's alternative proposal was rejected by Mr Hamilton because cars may be parked in the driveways. The plaintiff's response was that the number of times that cars were parked in his driveway were minimal, and that Adams Road was not a major road and Mr Klyne's proposal would conform to Australian design standards for the volume of traffic that would use it.
With respect to the proposition put to council by Mr Hamilton in his email that the plaintiff had discussed the issue with Mr Klyne over a golf game, the plaintiff denied that allegation and made it clear that Mr Klyne had attended Adams Road and carefully considered all options for his suggested design. This is another example of the willingness of the defendant's officers to act on or repeat uninformed allegations concerning the plaintiff.
The plaintiff also discussed with Mr Hamilton his information from Perthwaste that the truck would not use the turnaround in any event. This is something which the defendant should at least have investigated before inflicting on residents a turnaround which was designed to meet a situation which was unlikely to arise. Indeed it was not until the hearing of this application that such information was obtained and that evidence did not, in my view, support the proposition that a garbage truck would, in fact, use the turnaround.
The plaintiff also referred to Mr Hamilton's reference to the case of Brodie v Singleton Shire (2001) 206 CLR 512 and rightly points out that it related to the failure of a shire to repair a pot hole and cannot be compared to the road extensions in Adams Road. The plaintiff also accurately pointed out that the issue for counsel was the possibility of an action being brought as a result of the construction of the turnaround which brings vehicles within very close proximity to the entrance to 5 Adams Road.
On or about the middle of May 2008, Councillor Negus provided the plaintiff with a copy of an email from Councillor Hipkins dated 9 May 2008, which contained information about the plaintiff.
Councillor Hipkins makes the observation that there has been extensive consultation with all parties and the proposed plan is the best compromise. However, it must be noted that there is no real compromise in the proposed plan. It is entirely adverse to the plaintiff's interests with no adverse impact whatsoever on the interests of the other residents of the street. Neither can four meetings with a few residents be considered extensive consultation. The email also makes the following statement:
The problem has arisen because Errol Marron has a large house on a small lot, which has resulted in his front door and windows being close to the street. He was given approval to undertake certain works in the street, which he departed from. In an attempt to gain more space around his house he has personalised the street and now doesn't want this disturbed by the road works.
Councillor Hipkins makes no reference to the fact that the large house on a small lot was approved by the council. The approved works which are said to have been departed from are not stated but presumably relate to the cross‑over and the limestone paved area which the plaintiff asserts was approved and which the defendant has never disputed and has impliedly accepted by referring only to the cover over the hardstand and cabana areas in its correspondence complaining of non-compliance. Neither is the way in which the plaintiff has 'personalised' the street identified. It appears to me that the plaintiff has done exactly what the owner of 6 Adams Road has done and that is pave over the verge to give the appearance that no verge actually exists and uses it for parking vehicles.
Councillor Hipkins' email is further evidence that the defendant, in dealing with the proposed works, took into account the proximity of the house at 5 Adams Road to the boundary but failed to take into account that this had been approved by the defendant.
On 8 May Mr Foster met with Councillor Argyle and Mr Hamilton on site. He stated that he 'again satisfied himself that the City’s proposed roadworks were necessary having regard to everything he knew and the proposed works were the best outcome in the circumstances'.
On 13 May 2008, the plaintiff had another meeting with Mr Hamilton at the property where Mr Hamilton provided the plaintiff with a revised drawing entitled 'Adams Road - Rehabilitation Works'. The plaintiff noted that the revised proposal was dated 13 February 2008, however, the drawing was not provided to the plaintiff with the defendant's letter dated 29 February 2008. The revised proposal reflected changes to the information provided to the plaintiff on 29 February 2008. The defendant had revised the original proposal so that the location of the hammerhead turnaround was now 3 metres further east than initially designed. The revised proposal was different to the original proposal, although it appeared to be consistent with Mr Hamilton's rough sketch. The effect of the revised proposal was that the hammerhead turnaround would occupy a large portion of the paved entrance to the front gate of the property which would affect access to the property. The plaintiff's view was that the revised proposal prepared by the defendant exacerbated the issues raised in the plaintiff's letter dated 17 March 2008.
Mr Hamilton stated that the revised plan provided at this meeting included an amendment to the paved area/footpath and bollards at the end of the road reserve. I note that this description is not consistent with the drawing annexed to his affidavit. One of the plaintiff's objections, according to Mr Hamilton, was that people would drive up to the front gate entry to his house. This is in fact a valid statement as cars would be turning directly in line with the plaintiff's front door and up to the gate which is a short distance from the front door.
According to Mr Hamilton, he told the plaintiff that he had taken everyone's comments into consideration and had tried to produce an outcome which best met both the needs of the defendant and the requests of the residents. However, Mr Hamilton does not indicate the way in which he attempted to meet the needs of the plaintiff or take the plaintiff's comments into account.
According to Mr Hamilton he 'addressed Mr Marron's concern pertaining to the drainage issue by explaining to him what the City proposed to do in that regard'. Mr Hamilton said he explained to the plaintiff the proposed camber of the road and the location of the various drains that were proposed. However, on any reading of the plaintiff's correspondence, he was not requesting Mr Hamilton's description of or assurances concerning these matters, he was requesting the actual information upon which Mr Hamilton's explanations were based.
On 13 May 2008, the plaintiff attended a Council meeting. The plaintiff addressed Council in relation to the concerns which he then had, noting that the plaintiff had only just received the revised proposal and did not know if this was the final form of the proposal, nor had he had an opportunity to take advice on it. The plaintiff at this meeting advised the Council that he did not object to the works, just the proximity of the hammerhead turnaround to the front entry of his property and the adverse effect the location of the hammerhead turnaround would have on the property. These were clearly legitimate concerns for any landowner in the circumstances.
According to Mr Hamilton, at this meeting the plaintiff said, in effect, the he did not agree with the plan. He produced a freehand sketch (not a formal design plan) and repeated that the revised proposed works meant that he would lose all the lawn area. At that meeting the Council directed Mr Foster not to proceed with the revised proposed works for a period of 3 weeks. According to Mr Hamilton, the plaintiff was present when this direction was given. Presumably, the significance of this observation was to suggest that the plaintiff should have been aware that the proposed works would be carried out in the not too distant future. The issue of the proposed works were not dealt with substantially at this meeting but deferred to the next Council meeting to be held on 27 May 2008.
In relation to another occasion on which Mr Hamilton attended Adams Road, he maintained that he had reversed his vehicle up Adams Road to demonstrate to two councillors present that it was dangerous. However, there is no need to reverse up that portion of the road as it is far easier to turn around using the bituminised area of 5 Adams Road. Mr Hamilton expressed the view that the current road layout was dangerous and that Adams Road had become a real safety and amenity issue for the defendant. Again, other than by unnecessarily reversing up the short steep portion of the road rather than turning around in the available area, Mr Hamilton does not identify the safety issue or the reason why it was becoming such an issue for the defendant. In this regard, it should be kept in mind that the new residence at 5 Adams Road, which is continually blamed for all that is said to be wrong with the street, was completed in 2005, some three years before. Further, clearly the officers who directed the building of the cross‑over and the limestone path did not share the view that any safety issue arose.

In his affidavit Mr Sarris expressed the view that the hammerhead design would work more effectively than a T shape design. He also disagreed with the proposition put on behalf of the plaintiff that there is an abundance of space available to construct a turning facility for vehicles in Adams Road. However, whilst there may not be an abundance of space, and while the hammerhead design may be more effective than the T shape design, it does not follow that another design would not allow vehicles to turn in a similar manner. A varied design could well limit the impact on the plaintiff's property and yet at the same time overcome the other resident's concerns. However, it is absolutely clear from the defendant's affidavit evidence that there was to be no consideration of any other configuration. The way in which the proposal of Mr Klyne was dealt with, in particular the way it was summarily dismissed in Mr Hamilton's email to Council certainly supports that conclusion
In my view, the defendant's proposal certainly does not reasonably and practicably ensure that as little harm, inconvenience or damage is done to the defendant's property as was the original instruction to Mr Sarris. Indeed, it causes the greatest impact on the plaintiff's property and no impact on any other resident's property.
The plaintiff has also drawn to my attention the fact that the crash barrier now installed at the end of the road intrudes on to the road reserves for no apparent reason. I do not share the view of the plaintiff or other residents that the crash barrier is unsightly. In my view, the crash barrier is no more than the sort of construction which is utilised all over the metropolitan area as protection for those who may not realise the road ends. It is low and not unsightly. However, the crash barrier does extend into the road reserves and that is not something that crash barriers in similar roads nearby do. There are also a plethora of 'safety' signs erected in the relevant part of Adams Road. The necessity for having that number of signs is questionable and probably reflects a poor understanding of the defendant's legal liability. This may also explain, although not justify, the extension of the crash barrier into the road reserve.
It is also the fact that the defendant's own evidence supports the conclusion that the works were designed to overcome what were perceived to be the consequences of these allegedly un-approved works. Further, the defendant's conduct appears to have been heavily influenced by complaints made by neighbours, in particular, the neighbours at 6 Adams Road, in relation to that period of time when their house was being built and when there would no doubt have been a large number of tradesmen's vehicles in that area of the street, an area totally unsuited for that activity and harmonious living with neighbours. Further, it clearly appears to me that the defendant has 'taken sides' to the point where the entire impact of the proposed works is on the plaintiff and none on any other residents. This has occurred in circumstances where the size and reduced set backs of the plaintiff's residence were approved and the alleged non-compliant construction which is said to require the proposed works is alleged by the plaintiff to have been carried out at the direction of the defendant's employees, the truth of which has never been determined by the defendant. The failure to make that determination prevents the plaintiff from relying on the defendant's approval in relation to the cross‑over and paved pathway and allows the defendant to rely on allegations of non‑compliance in reaching its decision. In my opinion, any decisions relating to the construction of the roadway should in no way have been influenced by allegations which were irrelevant or have not been adequately investigated and should not been contemplated until the issue of compliance had been concluded.
I am also of the view that no consideration was given, or information sought, concerning whether the hammerhead turnaround would in fact be used by the garbage truck. The evidence put forward by the plaintiff in relation to the use of the end portion of Adams Road by the garbage truck, even with the hammerhead turnaround in place, was not, in my opinion, undermined or overcome by the evidence adduced by the defendant. As I have indicated, if it is in fact possible for vehicles to turn around using the cross-over of 5 Adams Road, despite the allegations of the neighbours, and the garbage truck is unlikely to use the hammerhead turnaround, then the defendant is to build a hammerhead turnaround at great expense for no real purpose. I might add that enquiries in relation to the potential for the garbage truck to use this turnaround should have been made well prior to the notice given on 6 August 2008.
I consider there is a wealth of evidence from the defendant's own witnesses which indicates that, for whatever reason, the defendant's officers lost their objectivity and the plaintiff's objections were not given any or any proper consideration. It is, therefore, open to conclude that the purpose of the exercise was at all times to ensure that the plaintiff's property bore the entire impact of the proposed works and the neighbours concerns, of any type, arising from any cause, even council approved causes, were to be overcome. That this has occurred is evidenced by the content of the material put before the court, the tone of Mr Hamilton's responses to any suggestion of compromise or change to a proposal which places the entire impact of the hammerhead turnaround on the plaintiff. It is at the very least arguable that the defendant has not given proper consideration to the matters raised by the plaintiff, has not provided him with the information necessary in such a case, and has not provided the appropriate notice and further consultation period required by the Act when a proposal for which notice has been given has changed significantly.

10. Legal Principles

The principles upon which interlocutory injunctions are granted or withheld are well established. An applicant for an interlocutory injunction must demonstrate that:
(a)There is a serious question to be tried;
(b)The plaintiff will suffer irreparable injury for which damages will not be an adequate compensation; and
(c)The balance of convenience favours the granting of the injunction.
See Castlemaine Tooheys Limited v The State of South Australia (1986) 161 CLR 148, 154; Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd [2001] HCA 63 [13]; (2001) 208 CLR 199 [13].
Those principles were amplified in Independent Corporate Services Ltd v Stevens [2002] WASC 280 [60] and Aim Maintenance Ltd v Brunt [2004] WASC 49 [63]; (2004) 28 WAR 357 [63] as follows:
(a)the applicant is to satisfy the court that there is a serious question to be tried;
(b)if so, no order will issue if damages are an adequate remedy;
(c)if so, and if damages are not an adequate remedy, then does the balance of convenience favours the grant of the relief sought;
(d)the relative strength and weaknesses of the applicant's case may be taken into account in considering the balance of convenience; and
(e)the court is not to decide factual conflicts on affidavits nor determine difficult questions of law.
Even if the court is satisfied that the plaintiff's claim is not frivolous or vexatious, it does not follow that there will be a serious question to be tried and the governing consideration is the requisite strength of the probability of ultimate success which depends upon the nature of the rights asserted and the practical consequences likely to flow from the interlocutory order sought: Australian Broadcasting Corporation v O'Neill (2006) 227 CLR 57.
In considering whether damages are adequate, the test is not simply whether damages will provide the plaintiff with an adequate remedy, but rather whether it would be just, in all the circumstances, to confine the plaintiff to that remedy: Evans Marshall & Co Ltd v Bertola SA [1973] 1 All ER 992; State Transport Authority v Apex Quarries Ltd [1988] VR 187.
The factor commonly referred to as the balance of convenience is probably better described as the balance of risk of doing an injustice: Cayne v Global Natural Resources Plc [1984] 1 All ER 225, 227. It is also a fundamental principle in exercising the discretion to grant injunctive relief that the court should take whichever course appears to carry the lower risk of injustice: see Films Rover International Ltd v Cannon Film Sales Ltd [1986] 3 All ER 772, 781.
The impact of the injunction upon the interests of the public and third persons is relevant, having more or less weight according to the circumstances: Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (No 3) (1998) 195 CLR 1, 42.

11. Whether there is a serious question to be tried

Counsel for the plaintiff submitted that, notwithstanding the volume of evidence filed in relation to the application, it involves a relatively succinct and contained issue. In fact, counsel submitted that the considerable evidence filed on behalf of the defendant is largely irrelevant.
I accept that there is a considerable amount of irrelevant evidence which has been adduced on the part of the defendant. However, as I have noted, the real relevance of that evidence is that the matters identified were in fact taken into account in the consultation and decision making process. In order to determine whether there is a serious question to be tried, it is necessary to determine whether there are prospects of success of the plaintiff's action. I considered it necessary to determine whether the evidentiary basis was sufficient to support the argument raised concerning s 3.21 of the Act. It is on that basis that I have conducted a detailed assessment of the evidence, primarily admissions made by the defendant officers in their affidavit evidence, to determine whether there is evidentiary support for an argument which requires it. This issue involved is not purely legal. In particular, as the defendant argues that the original notice and the process which followed provided sufficient notice and appropriate consultation, it is necessary to consider whether there is evidence to support that proposition which could diminish the strength of the plaintiff's case.
The plaintiff submitted that there is a triable issue as to whether the defendant gave sufficient notice of the proposed road works on Adams Road, as required by section 3.51 of the Act and thus whether the defendant is proposing to act beyond its powers.Section 3.51 is entitled 'Affected owners to be notified of certain proposals. Subsection (2) states that the section applies to -
(a)fixing or altering the level, or the alignment of, a public thoroughfare; or
(b)draining water from a public thoroughfare or other public place onto adjoining land.
Subsection (3) provides that, before doing anything to which this section applies, a local government is to –
(a)give notice of what is proposed to be done giving details of the proposal and inviting submissions from any person who wishes to make a submission; and
(b)allow a reasonable time for submission to be made and consider any submissions made.
Subsection (4) states that notice is to be given –
(a)in writing to each person having an interest; and
(b)if any land is likely to be adversely affected by the doing of the thing, by local public notice.
The expression 'person having an interest' is defined in subsection (1) to mean a person who –
(a)is the owner of the land in respect of which that thing is done, or any land that is likely to be adversely affected by doing that thing;
(b)is shown on the title to any of the land mentioned in paragraph (a) as holding an interest in any of that land; or
(c)is prescribed for the purposes of this section.
It can be seen, as counsel for the plaintiff submitted, that the defendant has certain statutory obligations before carrying out any proposed works of the type identified in subsection (2).
Counsel for the plaintiff also relies on s 3.21 of the Act which identifies the duties of local government when performing functions. Section 3.21(1)(a), which is the only part of s 3.21 relevant to these proceedings, is in the following terms:
In performing its executive functions, a local government, so far as is reasonable and practicable, is to –
(a)ensure that –
(i)the lawful use of any land, thoroughfare or premises is not obstructed, and any reasonable request that a person makes to avoid such obstruction is met;
(ii)as little harm or inconvenience is caused and as little damage is done as is possible;
(iii)danger to any person or property does not arise from anything done on land; and
(iv)anything belonging to it, or to a person who has exercised a power of entry on its behalf, that has been left on any land, premises or thing entered is removed as soon as practicable unless this Act expressly allows it to be left there;
Counsel for the plaintiff submitted that s 3.21 constrains the defendant's powers in performing its executive functions. The defendant is required to cause as little harm or inconvenience as possible and make sure as little damage is done. However, in considering those requirements in the context of the other requirements, I believe there is a stronger argument that s 3.21(1)(a) is actually directed at the carrying out of the proposed works rather than the nature of them.
On behalf of the plaintiff, it is submitted that when the express requirements of s 3.51 are considered together with s 3.21(1), the 'details of the proposal' to be contained in the notice required by s 3.51 must provide sufficient information to permit an interested person to determine whether council is exercising its executive powers in accordance with s 3.21. As I have indicated, I have reservations concerning the application of s 3.21(1) to the determination of the kind of works to be carried out, as opposed to the behaviour of the defendant's officers in the carrying out of the works. Nevertheless, I believe that s 3.51 has the effect that the plaintiff relies on, even without recourse to s 3.21.
The plaintiff asserts that the defendant is at some pains to depose through various sources to the level of 'consultation' that was engaged in by officers of the defendant. The court was taken to Mr Hamilton's affidavit evidence in which he asserts that the consultation was greater than is usual. Counsel for the plaintiff submitted that Mr Hamilton's subjective view of the comparative extent of consultation is irrelevant. I consider there are two problems with that part of Mr Hamilton's evidence. The first is that, saying something is better than usual says nothing about the quality of the standard currently being applied. Past practices can be so abysmal that an improved standard may still be less than appropriate and less than required by the relevant legislation. Secondly, whether the level of consultation was acceptable in all the circumstances is an issue for the court to decide on an objective basis. I would also make the observation that that it is not the number of consultations which is the relevant factor, it is the quality of the consultation process and whether it meets the requirements of the Act. For the same reasons, the evidence of neighbours that they found the consultation adequate is also irrelevant and, as I have indicated, may well be coloured by the outcome of the consultation process, which required no action or inconvenience on their part and also by the unsatisfactory nature of their relationship with the plaintiff.
It is further alleged that the defendant has failed to reasonably consider the issues raised by the plaintiff with respect to the Adams Road works or alternatively has failed to provide a written response to the plaintiff's concerns so that he had all the necessary information to make an informed decision as to the impact on his property.
I accept that there is a particularly strong argument that, whilst the defendant has advised the plaintiff of the proposed works, the defendant has not provided adequate notice of the proposed works. A proper notice would contain full particulars of the Adams Road works to enable the plaintiff to make a decision as to the full effect of the works. I have dealt with this proposition in detail under the heading 'Notice of proposed works'. I share the view of counsel for the plaintiff that much more is required than to simply provide a description of the works and a sketch of the proposal, if a sketch was in fact provided to the plaintiff. I am also of the view that, notwithstanding the provision of verbal information by the defendant's officers and further sketches, referring to the changes to the proposed works, as well as giving the interested parties the opportunity to comment on such changes, that it not the sort of notice envisaged by parliament in passing s 3.51. That would require proper plans and diagrams and all supporting information concerning the proposed works, including information of a particular nature if there is a special issue in relation to an owner's land. The drainage details are a clear example of such an issue and, in my view, compliance does not occur with verbal information on some aspects of the special issue, or a verbal assurance that the issue poses no difficulties. That is a matter for a resident such as the plaintiff to determine and he must be placed in a position to make that determination and/or to obtain expert advice on the issue.
Counsel for the plaintiff submitted that the letter of 6 June 2008 was plainly not notice because it did not contain sufficient detail and it did not contain an invitation to make submission, either on the face of the document or by reason of the truncated time frame. Counsel also submitted that, whilst accepting that the defendant's officers found themselves caught in a battle between warring neighbours, that difficulty does not exempt the defendant from the requirements of the Act. I accept both propositions.
It is submitted on behalf of the defendant that the plaintiff has produced no evidence that would tend to show that there is any serious issue to be tried in relation to any breach of the Act. Similarly, it is said that the plaintiff has produced no evidence that would tend to show that the defendant is guilty of creating a nuisance, if, it is submitted, the plaintiff can in fact establish that as a potential cause of action having regard to the fact that the proposed works are entirely on the defendant's road reserve. This latter proposition is largely irrelevant to the allegation of a nuisance being created. A person or other entity can create a nuisance to other properties as a result of something done on that person's or the other entity's own property. This is because nuisance is an effect from an action committed by one person on the enjoyment of life or property of another person. Further, the allegation in the Indorsement of Claim is that the injunction is sought to restrain the defendant from undertaking the works unless and until it is established that no nuisance will be created. Clearly, it is the concern that the proposed works may create a nuisance to the plaintiff and/or his property that is alleged, not that any nuisance will originate from the plaintiff's property.
The defendant further submitted that, to the extent notice was required to be given, it was given by providing notice of the original design. It is said that this is even acknowledged by the plaintiff in his affidavit where he admits receiving notice of the original design. I do not accept that proposition as acknowledgment of receipt says nothing of the content of the notice which is the salient issue in this matter. Neither is acknowledging receipt an acceptance that the notice was adequate for the purpose of determining the complete impact of the proposed works on the plaintiff and his property. Further, that proposition would be a complete answer to the application if it were not for the fact that the original design had changed over the period of consultation and also that the notice of the original design did not include all the matters which the plaintiff alleged should have been included before work commenced. The plaintiff's acknowledgment of acceptance of the notice is not an acceptance that the notice was adequate for the purpose of commencing the works.

The defendant maintains that, having regard to the nature of the works, the defendant can show thorough consultation. It is submitted that the defendant can also show that the plaintiff not only had an opportunity to make submissions but did so including addressing council at a council meeting.
In my view, and for the reasons to which I have referred in various parts of these reasons, both counsel for the defendant and the defendant's officers completely misunderstand the process envisaged by the Act. As I have repeatedly noted, consultation with interested parties, particularly ad‑hoc, unrecorded meetings with some of the interested parties and at other times with other interested parties, against a background of the notice of the proposed works not including all details of the works including proper drawings or plans, specifications and all other engineering information relevant to the proposed works, is not a substitute for providing in the notice 'details of the proposal' and inviting submissions from any person who wishes to make a submission, allowing a reasonable time frame for submissions and considering any submissions. Most importantly, the Act requires the notice, which must include details of the proposal, must be in writing. Therefore, providing details of the proposed works verbally at ad‑hoc meetings with only some of the interested parties, simply does not comply with the Act. In any event, because of the change to the proposal, the statutory process was required to recommence.
I do not accept the defendant's argument that this interpretation of s 3.51 will place a far too onerous obligation on it, which militates against the plaintiff's interpretation. I do not accept that proposition. The process undertaken probably took up more time that the proper process would have done. This argument is one which is commonly used on behalf of local government, advanced on the basis that, in some cases, there would be many people affected by some works proposed. However, I can see no reason why those affected by works which would require giving notice to a large number of residents and owners, should prevent those people from being notified and having their views heard and considered. To the vast majority of people, a potentially adverse impact on their home would be a very significant event to them. Ultimately, the argument that the statutory obligation is too onerous is one of resources and should be addressed with government rather than taking an approach which would limit the operation of the benefit to the community afforded by s 3.51.
The plaintiff's submission is that, to the extent that the evidence filed on behalf of the defendant is relevant to the triable issue, the defendant's affidavits serve to support the plaintiff's contention that requisite notice was not given.
According to counsel for the plaintiff, this is because the evidence filed on behalf of the defendant confirms the following propositions:
(a)The notice of February 2008 did not contain sufficient information to permit the plaintiff to assess the proposal against his legitimate concerns and to assess whether the defendant was acting within its executive powers;
(b)The proposal of February 2008 underwent changes and amendments which were both numerous and significant;
(c)When the defendant finally settled on a proposal in late May 2008, it did not then give written notice as required by the Act:
i.advising of what was finally proposed; and
ii.inviting submissions as required by the Act.
(d)On the contrary, on the afternoon of Friday 6 June 2008, the defendant gave written notice -
i.of what it proposed in general terms, without detail;
ii.without inviting submissions; and
iii.advised that it intended to commence the works on Monday morning 9 June 2008.
Not only did the notice not invite submissions, it did not allow reasonable time for the submissions to be made or for the submissions to be considered. In fact, it was apparent that the notice of 6 June 2008 was not intended to be a notice in terms of s 3.51 of the Act but was more in the line of a notification of the commencement of the proposed works.
According to counsel for the plaintiff, this conduct is to be assessed against the background that, at the relevant time (late May 2008), it would have been a straightforward matter for the defendant to have complied with its statutory obligations that are a prerequisite to the exercise of executive powers. Indeed, counsel submitted that it remains a straightforward course for the defendant to undertake as, presumably, if it was ready to commence works on 9 June 2008, it must have available to it all the information that a sufficient notice would require. If it did not, the defendant should not have been prepared to commence the works. Indeed, I must express my concern at the stance taken by the defendant. Rather than simply issuing an appropriate notice, inviting submissions and giving the submissions full and fair consideration before making a decision, the defendant has determined to assert, in my view with limited evidentiary or legal justification, that their processes are consistent with the Act. However, I do accept that the defendant is quite entitled to take that position and exercise its legal rights.
Counsel for the plaintiff also observed that, assuming the defendant's position to be correct that the proposed hammerhead turnaround is in almost the same location as the road existed prior to the plaintiff's construction of his house, it only serves to illustrate the veracity of the plaintiff's concerns about the proposal for drainage because when the road was previously in that location he was flooded out twice. Therefore this explanation provides no basis for not complying with the provisions of the Act. In any event, as I have mentioned, the evidence arguably does not support this basis for avoiding giving notice and, as the previous configuration involved using the plaintiff's cross‑over, the position obviously changed with the new residence.
The defendant's submissions is that s 3.51 defines a person having an interest as 'a person who is the owner of land in respect of which that thing is done, or any land that is likely to be adversely affected by doing that thing'. The defendant contends that it is the land itself that must be adversely affected, not the amenity enjoyed by the owner. Thus on the defendant's case if a person's amenity or utility in relation to land is adversely affected but not the land itself, notice is not required. The short answer to that proposition is that one of the plaintiff's primary concerns was the drainage issue which, in my view, is clearly a potential adverse affect on the land and not merely a matter of amenity or utility.
Further, by way of example, preventing or affecting access to a property would also adversely affect the land, because in order to access the property, one has to access the land. The example that I raised with counsel was if the defendant built a high wall that prevented a resident from accessing his property. This would not affect the land in the way that the defendant's counsel proposes but it would reasonably be expected that notice would be given and the plaintiff would be heard on the issue of the impact on him and his property of not being able to obtain access. As there is no other statutory obligation to give notice, it is difficult to accept the defendant's interpretation that the Act does not require the giving of notice and the consideration of responsive submissions in this circumstance of a serious, perhaps the ultimate, impairment of amenity but would require the giving of notice for even the most minor impact on the land itself.
The plaintiff makes two preliminary points in relation to the defendant's submission:
(a)The plaintiff's claim includes a concern that his land will be flooded because of drainage problems. That is plainly an adverse affected on the land itself.
(b)The question for the court is whether there is a triable issue. The issue is that whether the plaintiff's construction is arguable.
The plaintiff also submits that there is no need to have recourse to other statutes because the meaning of s 3.51 is clear on its own terms. I accept that to be the case.
I am persuaded by the defendant's narrow interpretation of the phrase 'any land that is likely to be adversely affected by doing that thing'. I consider that the plaintiff's legal argument is far stronger than that of the defendant. When that observation is considered in tandem with the comments that I have made concerning the evidence adduced on behalf of the parties, I believe it is evident that there is a serious issue to be tried. I draw that conclusion being well aware that it is necessary to be satisfied that the plaintiff's position is more than merely arguable.

12. The Balance of Convenience

Counsel for the plaintiff asserted that the defendant has not produced any probative evidence of why justice requires the status quo to be disturbed. It is said that the only evidence relied upon by the defendant is that the concerns of the defendant and the occupants of three other properties in the street will not be addressed as quickly as they had anticipated. As the plaintiff's counsel asserts and as the defendant's own evidence demonstrates, these issues have been ongoing for some time. It is said that in these circumstances the balance of convenience plainly favours the plaintiff.
On the other hand, counsel for the defendant maintains that the balance of convenience clearly favours the defendant, in that:
(a)The defendant seeks to do work on a public reserve largely with the support of the relevant residents bar one (the plaintiff);
(b)Having regard to the requirement for local governments to be able to act in the maintenance of infrastructure without over burdensome requirements or the imminent risk of injunctions it is submitted that the court ought exercise its discretion with caution so as to protect the operation of local governments in this State.
I have already expressed my views on the proposition that the requirement to give notice and consider submissions is overly burdensome. Most importantly, however, the allegedly overly burdensome requirements are statutory requirements and compliance with those requirements should be enforced by the court in every case where the evidence supports a conclusion that there has been non-compliance or, in the case of injunctions, where the court concludes that there is a serious question to be tried. The defendant is not obliged to act on the complaints or suggestions made by interested parties but it is obliged to give them detailed notice of what is to occur and give full consideration to all submissions. I believe there is considerable importance in ensuring that residents and landowners are provided with the only and very limited protection from the actions of local government.
Counsel for the defendant also made the submission that the plaintiff has not shown any conduct on the part of any of the defendant's officers that could be said to be improper in any way. However, that is not the issue to be determined. The issue is whether the defendant has acted in accordance with the Act and provided adequate notice and properly considered the submissions made by interested parties. Even a conclusion that there is a strong argument that the defendant has not complied with the Act is not a finding that they have behaved improperly. It is merely a finding that they have acted without an understanding of the legal requirements of their task.
Another proposition put on behalf of the defendant was that the situation in which the plaintiff now finds himself is largely of his own doing. Presumably this is a reference to the allegation that certain work, in particular the works involving the road reserve, at 5 Adams Road were not authorised. I have dealt with this issue at length in other parts of these reasons. The fact is that the defendant has never made a decision on the plaintiff's allegation that these works were given verbal approval and were, in fact, carried out at the instigation of the defendant's officers. Other issues are before the State Administrative Tribunal and a decision of that Tribunal would be necessary before any conclusion can be reached that the works which are the subject of that application are non‑compliant and the consequences are therefore of the plaintiff's own doing. In any event, I have already indicated that these aspects of the allegedly non‑compliant works are irrelevant to the consideration of the defendant of the various submissions made. Further, the situation is, in fact, largely the doing of the defendant in approving the plans for the new residence and in not dealing immediately with any non‑compliance. A delay of 19 months simply cannot be justified.
Counsel for the defendant also submitted that it was clear from the evidence that any further consultation or any further submission from the plaintiff was highly unlikely to lead to any change in the proposed design because his concerns had been accommodated in so far as the City can or is willing to. However, that is not a complete answer to the question of where the balance of convenience lies. In light of the observations I have made about the conduct of the defendant's officers, the more significant issue is whether the defendant's officers have given the plaintiff's submissions the objective, careful and thorough consideration they require, rather than being influenced by inappropriate views about the plaintiff and taking into account matters that should not have been taken into account. I have dealt with each of these issues in the earlier parts of these reasons. Further, one of the most compelling fact which leads to the conclusion that the balance of convenience favours the plaintiff is that, in my view, the defendant has failed to provide details of the final version of the proposed works and receive and properly consider submissions any submissions and this means that inadequate notice has been given and the statutory obligation has not been met. In those circumstances, it is difficult to see how the rigid assertion that the defendant will not change its plans, essentially no matter what submission is made to it, can properly be taken to shift the balance of convenience to the defendant. If that were the case all that would be required of any defendant would be to firmly take an untenable stance to succeed in opposing the application for injunctive relief.
For these reasons, I have no hesitation in concluding that the balance of convenience clearly favours the plaintiff.

13. Whether damages are an appropriate remedy

As counsel for the defendant accurately observes, the plaintiff makes no claim for damages whether in the alternative or otherwise. However, it is clear that damages would not be an appropriate remedy in this case as the issue involves an impact on the plaintiff's property, which can rarely be overcome by a payment of money.

14. Conclusion

I have addressed in detail the factual basis of the application and have reached the view that there is a serious question to be tried, that the balance of convenience firmly favours the plaintiff and that damages would not be an appropriate remedy. I should also add that the action involves a significant issue of non-compliance with a statutory obligation by a local government authority and, in my view, also involves either a misunderstanding of the defendant's obligations or an untenable, albeit firmly held, belief that the process actually undertaken by the defendant is superior to the process determined by Parliament to be required of the defendant. In my opinion, the defendant should seriously reconsider that position and not rigidly reject any suggestion that their processes are flawed and their approach to this particular case may have been unreasonable.
The interlocutory injunction is granted and I propose to hear the parties on the precise terms of the orders.