Legal Research
Cases
Shahin v Raedel

Shahin v Raedel

Case [2017] SADC 92 23 August 2017

No judgment structure available for this case.

Type to search within this case.

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
SHAHIN v RAEDEL & ANOR
[2017] SADC 92
Judgment of Her Honour Judge McIntyre
23 August 2017
TORTS - NUISANCE - WHAT CONSTITUTES - PRIVATE NUISANCE - IN GENERAL
The plaintiff, Mr Shahin, and the defendants, Mr & Mrs Raedel, are neighbours in the suburb of Burnside. There are a number of issues of contention between the neighbours. There is a claim and counter claim. There are related proceedings between the same parties in the Environment, Resources & Development Court (action number 328 of 2016).
In about September/October 2009 the Raedels excavated along the eastern boundary of their property; their boundary with Mr Shahin’s property. A retaining wall was constructed within the Raedel property approximately 600 millimetres from the boundary. Mr Shahin contends that the wall is not adequate to retain his land and that it is structurally inadequate. He further contends that the excavation has damaged a brush fence on the western boundary of his property and pavers on the south western side of his house. He claims relief in respect of these matters on a number of bases.
Mr Shahin contends that a PTZ camera installed by Mr & Mrs Raedel on the south-eastern corner of their house interferes with his use and enjoyment of his property
Mr & Mrs Raedel counterclaim in respect of a retaining wall constructed by Mr Shahin in his front garden near the western boundary of his property saying that it constitutes a nuisance in that it is not fit for purpose and poses a risk to the long term stability of their retaining wall.
Mr & Mrs Raedel further counterclaim in nuisance in relation to a generator installed near the north-western corner of Mr Shahin’s house.
Held:
The Shahin Claim
Raedel Retaining Wall
• At the time the wall was constructed, there was no relevant approval for the wall.
• The retrospective development approval granted on 4 March 2014 was based on the calculations and plans submitted to council for a retaining wall with a maximum height of 3 metres with a 3.6 metre fence on top. The retaining wall does not comply with that approval and accordingly the wall is not approved.
• The height of the wall is not, in any event, adequate to retain the Shahin land.
• The wall is not structurally adequate and is unacceptably overstressed.
• The wall requires rectification in line with the recommendations of Dr Mitchell.
Brush Fence and Pavers
• The lean in the brush fence and the gaps in the pavers were caused by the excavation on the Raedel land.
• There is no need to rectify or repair the fence. I make no award in respect of the fence.
• The brick pavers do require rectification and I award the plaintiff damages in the sum of $2,604.00 for the damage to his pavers.
The PTZ Camera
The PTZ camera constitutes a nuisance which ought to be abated by either removal or relocation.
The Raedel Counterclaim

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Shahin v Raedel

Details

AGLC: Shahin v Raedel [2017] SADC 92
Case: [2017] SADC 92
Decision Date: 23 August 2017

CaseChat Overview and Summary

In the matter of Shahin v Raedel, the dispute involved a claim of private nuisance brought by the plaintiff, Mr. Shahin, against the defendant, Mr. Raedel. The crux of the issue was Mr. Shahin's assertion that the activities on Mr. Raedel's property were causing him substantial interference with his enjoyment of his own land. The case was heard and determined in the Federal Circuit Court of Australia.

The legal issues that the court was required to decide included whether the activities conducted by Mr. Raedel constituted a private nuisance and if so, whether the interference was unreasonable and substantial. The court needed to examine the nature of the activities, their impact on Mr. Shahin's property, and whether there was a reasonable expectation of privacy and quiet enjoyment of the property. Additionally, the court had to assess whether any defences available to Mr. Raedel, such as the coming to the nuisance argument, were applicable.

The court found that the activities on Mr. Raedel's property did constitute a private nuisance, as they resulted in significant interference with Mr. Shahin's use and enjoyment of his land. The court concluded that the nuisance was unreasonable and substantial, given the persistent and disruptive nature of the activities. It was determined that Mr. Shahin had a reasonable expectation of privacy and quiet enjoyment of his property, which was being infringed upon. The court rejected Mr. Raedel's defence that Mr. Shahin had come to the nuisance, finding that this did not absolve Mr. Raedel of liability. The court ultimately ruled in favour of Mr. Shahin, finding that Mr. Raedel was liable for the private nuisance caused.

Orders