Shahin v Raedel
[2017] SADC 92
•23 August 2017
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
The Raedels have failed to establish that the Shahin retaining wall or the Shahin Generator constitute a nuisance and accordingly I dismiss the counter claim.
Development Act (1993) ss 32, 44, 45, 60 and 85; Summary Offences Act 1953 Part 5A, referred to.
Jones v Dunkel (1959) 101 CLR 298; O'Donnell v Reichard (1975) VR 916; Tozer Lemsley & Millbourn (A'asia) Ltd v Colliers Interstate Transport Service Ltd (1956) 94 CLR 384; Australian Blue Metal Ltd v Hughes (1962) NSWR 904; Earle v Castlemaine District Community Hospital (1974) VR 722; Dalton v Henry Angus & Co (1881) 6 App Cas 740; Corporation of the City of Adelaide & Ors (2004) 88 SASR 225; Public Trustee v Hermann (1968) 88 WN (Pt 1) (NSW) 442; Victoria Park Racing & Recreation Grounds Co Ltd v Taylor (1937) 58 CLR 479; Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 119; Sands v State of South Australia [2013] SASC 44; Maynes v Casey [2011] NSWCA 156; Oldham v Lawson (No. 1) (1976) VR 654; Sedleigh-Denfield v O'Callaghan [1940] 3 All ER 349; Raciti v Hughes (1995) 7 BPR 97; Alma v Nakir [1966] 1 NSWLR 386, considered.
SHAHIN v RAEDEL & ANOR
[2017] SADC 92
This matter should serve as a cautionary tale for all neighbours about the perils of insensitivity, lack of communication and failure to compromise.
The plaintiff, Mr Shahin, and the defendants, Mr & Mrs Raedel, are neighbours in the suburb of Burnside. To put it mildly they do not get on. The friction commenced when the Raedels built their house. 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. A major issue in these proceedings is the adequacy of that wall. Other matters that have arisen since that time are also the subject of these proceedings. There are associated proceedings in the Environment Resources & Development Court.
Without wishing to minimise the importance of these issues to the parties these proceedings, and the costs associated with them, are disproportionate to the issues in dispute. Nineteen days of court time, numerous interlocutory attendances, thousands of pages of documents, dozens of photographs, extensive expert reports and no doubt very substantial legal costs could have been avoided if these parties had been able to resolve these matters cooperatively. The level of ill-will evident in these proceedings does not augur well for the future particularly given that the parties remain living next door to each other.
Issues
There are a number of issues to be resolved in these proceedings.
1.Is the Raedel retaining wall adequate?
1.1Has all of the natural soil been retained?
1.2Does the wall require reinforcement?
1.3What is the effect on the Raedel wall of the plaintiff’s retaining wall constructed on the western side of his property?
2.Did the excavation on the Raedel’s land affect
2.1The brush fence on the western boundary of the plaintiff’s property?
2.2The pavers on the south-western side of the plaintiff’s house?
3.Does the generator installed on the north-western corner of the plaintiff’s house constitute a nuisance?
4.Does the installation of a PTZ camera on the south-eastern corner of the defendants’ house constitute a nuisance?
Summary of findings
For the reasons that I now publish I find as follows:
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.
The Shahin Retaining Wall
The Raedels have failed to establish that the Shahin retaining wall constitutes a nuisance and accordingly I dismiss that aspect of the counter claim.
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 Generator
The Raedels have failed to establish that the Shahin generator constitutes a nuisance and accordingly I dismiss that aspect of the counter claim.
The PTZ Camera
The PTZ camera constitutes a nuisance which ought to be abated by either removal or relocation.
Conduct of trial
The trial was listed for 7 days. The evidence taken related to the within proceedings and also, in part, to ERD Court proceedings in action number 328 of 2016. I will publish a separate judgment dealing with the ERD Court proceedings which relate to planning issues concerning the Raedel retaining wall.
I expressed surprise at the 7 day estimate when confronted by the pleadings, 7 volumes of tender books, 2 volumes of expert reports and a volume of photographs. I was assured that the estimate was appropriate. In the event, notwithstanding a large proportion of the documents in the tender books were not in fact tendered and the abandonment by the defendants of some aspects of their counterclaim, the trial took 19 days. Partly this was occasioned by the need to recall a witness, Dr Mitchell, partly it was occasioned by the failure to agree matters that ought to have been agreed but, mostly, it is clear that the parties’ estimate was never appropriate. Unfortunately this is an all too common occurrence in the civil jurisdiction of this court. It is an occurrence that is to be deplored because it causes significant difficulties with court listings, inefficient use of limited court resources and inconvenience for other litigants.
Witnesses
The plaintiff gave evidence. The plaintiff also called Dr Peter Mitchell, an engineer; Mr Gerald Green, a builder and Mr Carmine Esposito who installed and maintains Mr Shahin’s security system.
The defendants called Mr Malcolm Raedel; Mr James Raedel, the defendants’ son; Mr Trevor John, an engineer; and Mr Christopher Sale, a quantity surveyor.
In addition there was a view of the subject properties.
I found the plaintiff, Mr Shahin, to be a measured and careful witness. His level of frustration with his neighbours was apparent but I found his evidence to be frank, compelling and coherent.
Mr Malcolm Raedel’s evidence was coloured by his obvious hostility towards, and mistrust, of Mr Shahin. This was evident on a number of occasions. Much of Mr Raedel’s evidence appeared to be a reconstruction from documents rather than recollection. This may be a result of the fact that his wife took the lead role in the building works. Also evident was the fixed nature of his views about certain matters. He was reluctant to make concessions even when faced with documents that demonstrated a contrary position to his evidence. I will refer to some specific issues in context.
Mr James Raedel was called to deal with the question of his parents’ surveillance cameras however he also made some observations about other aspects of the matter. He designed the security system and arranged for the installation of the cameras. He was responsible for monitoring the cameras remotely in Sydney. He was an unimpressive witness. His evidence was plainly partisan and again I detected significant hostility towards Mr Shahin.
The evidence of Mr Esposito concerning the installation and operation of the Shahin security system was straightforward and cogent. I accept what he told the court.
Mr Green and Mr Sale gave helpful evidence about the cost of rectifying the Raedel retaining wall in line with Dr Mitchell’s recommendations should the court find that to be necessary. There is a difference of approach between the two which I will address in the context of that evidence.
The engineers, Dr Mitchell and Mr John, were the critical witnesses on the main issue concerning the adequacy of the retaining wall. Dr Mitchell prepared four reports dated 28 October 2016[1], 24 November 2016[2], 21 November 2016[3] and 13 January 2017.[4] Mr John also produced four reports dated 9 May 2016,[5] 9 November 2016,[6] 16 December 2016[7] and 17 January 2017.[8] Both Dr Mitchell and Mr John participated in an expert conclave that produced a report dated 16 November 2016.[9]
[1] Exhibit P37
[2] Exhibit P38
[3] Exhibit P39
[4] Exhibit P40.
[5] Exhibit D48
[6] Exhibit D49
[7] Exhibit D50
[8] Exhibit D51
[9] Exhibit P60
Both parties, in their closing submissions, made personal criticisms of these two experts that I consider to be entirely unwarranted.
The defendants asserted that Dr Mitchell engaged in what was described as “understated barracking”.[10] I detected no barracking, understated or otherwise, on the part of Dr Mitchell. He was also criticised for basing his opinion on “too much speculation” and for changing his mind in “a dramatic way”.[11] Whilst it is true that Dr Mitchell was obliged to make a number of assumptions about the construction of the wall these assumptions were clearly identified and justified by him. Dr Mitchell did revise his opinion but he carefully explained why he did so in both his reports and his evidence. There is nothing untoward or improper in this. I will deal with the substance of those issues in context.
[10] Defendants’ Written Closing Submissions page 14, para 12; page 55 para 26
[11] Defendants’ Written Closing Submissions page 54 paras 24 & 25
In a similar vein, the plaintiff made a number of assertions calling Mr John’s objectivity and impartiality into question including an assertion that Mr John did not put his duty to the court above the interests of the Raedels.[12] I reject those assertions. In my assessment both Dr Mitchell and Mr John gave their evidence carefully, objectively and appropriately. Both did their utmost to assist the court to understand the engineering issues and their approach to those issues. Having said that, I prefer the evidence of Dr Mitchell to that of Mr John where it conflicts. I will outline the reasons for that in the context of the evidence.
[12] Plaintiff’s closing submissions para 199
Failure to Call Witnesses
The plaintiff was critical of the defendants’ failure to call Mrs Raedel and the contractors who installed the retaining wall. The plaintiff invites the court to draw certain adverse inferences because of that failure. It is of course open to a court to draw such inferences against a party who does not give evidence or does not call a witness who it is expected may give material evidence for that party on an issue in dispute.[13] The authorities on the Jones v Dunkel principle establish that the failure can be used to infer that the uncalled person’s evidence would not have helped that party’s case,[14] or to resolve a doubt or an ambiguity especially on an issue where the facts are peculiarly within the knowledge of the silent witness.[15] The principle extends to any inferences arising from a party’s failure to call any witness who might be expected to be called by that party to give direct evidence on facts sought to be established by inference.[16]
[13] Jones v Dunkel (1959) 101 CLR 298
[14] O’Donnell v Reichard (1975) VR 916
[15] Tozer Lemsley & Millbourn (A’asia) Ltdv Colliers Interstate Transport Service Ltd (1956) 94 CLR 384
[16] Australian Blue Metal Ltd v Hughes (1962) NSWR 904 & Earle v Castlemaine District Community Hospital (1974) VR 722
It is unfortunate that the contractors who installed the retaining wall were not called to give evidence about its construction for the reasons that I will expand upon later in this judgment. I was told by counsel for the defendants that efforts had been made to locate those contractors and that it had not been possible to do so.[17] The plaintiff does not accept that proper enquiries were made to locate the subcontractors.[18] I have no evidence about those efforts other than what I was told by counsel. It is, in many respects, as regrettable for the defendants as the plaintiff that the subcontractors are not available. In all of the circumstances I will not draw any adverse inference against the defendants by reason of their failure to call the subcontractors.
[17] TX 863-865
[18] TX 1710-1714
The situation is different in relation to Mrs Raedel. Mrs Raedel is the second defendant in these proceedings and the prime mover in the development of the Raedel property. It was, to use Mr Malcolm Raedel’s expression, “significantly my wife’s project”.[19] Mrs Raedel carried out the majority of the communication with the Council, the builder, engineers and other contractors. Mrs Raedel had meetings in the absence of her husband with, amongst others, the builder, engineers, Council officers and Mr Shahin. She could also have given relevant evidence about the generator and the PTZ camera.
[19] TX 904
Mrs Raedel was present in court throughout proceedings. No explanation has been provided for Mrs Raedel’s failure to give evidence beyond an assertion that her evidence would add nothing to the matters in dispute and would add to the length of the trial. Certainly the trial would have been lengthened had she given evidence. It is not however true to say that she would shed no light on the issues in dispute. I have referred to topics upon which she could have given evidence. I will refer to the specific issues where I am prepared to draw a Jones v Dunkel inference against the defendants by reason of their failure to call Mrs Raedel.
De bene esse rulings
I received three pieces of evidence de bene esse; exhibits P29 and D162 and evidence by Mr Raedel about exhibit D169.
P29 relates to affidavit material filed in the Environment Resource and Development Court matter. I have considered the submissions of both parties in relation to this evidence. I consider that it is relevant to both these proceedings and the ERD court proceedings. I therefore admit that evidence for both matters.
Mr Raedel’s evidence about D129 was led de bene esse.[20] Exhibit D129 is a letter from the defendants solicitors to the Burnside Council dated 9 January 2017 relating to the question of retrospective approval for the front garden retaining wall as built and there was no objection to its tender. This evidence is only relevant to the ERD Court proceedings; I will deal with it in the ERD Court judgment.
[20] TX 1238 and following
Exhibit D162 is a number of spread sheets and graphs prepared by Mr John after his cross-examination. It was first raised in re-examination. Having carefully considered this material I do not consider it of assistance to the court. Some of the material was material already tendered which the court need not receive twice. Other aspects are entirely new and not raised in response to matters cross-examined upon. To that extent they are irrelevant and unhelpful. I therefore decline to receive Exhibit D162.
What is the Raedel Retaining Wall?
The Raedel retaining wall is a concrete sleeper wall with 10 cantilever steel uprights cast into pre-bored concrete piers supporting 200 mm wide concrete sleepers placed horizontally between the vertical steel uprights. Its maximum height is 4 metres at the southern end dropping in height to just under 2 metres at the northern end. The wall steps down 1 concrete sleeper, or 200mm, approximately every two metres. The wall is constructed along the eastern boundary of the Raedel property adjacent to the Shahin property; it is entirely within the Raedel property. It forms the eastern wall of what has been referred to in the trial as the Raedel sunken garden or courtyard. It abuts another retaining wall on the southern or street boundary of the Raedel property. It is covered in a decorative creeper. There are three raised garden beds at the base of three of the vertical steel uprights. There is planting in the top of the wall forming a visual barrier between the Raedel property and the Shahin property. There is however no fence between the two properties from the southern end of the retaining wall to about the south western corner of the plaintiff’s house. There is an unfenced drop from the Shahin front garden into the Raedel courtyard.
The Raedel Retaining Wall – Planning Issues
My judgment in the ERD Court proceedings deals with the contentious issues surrounding the planning approval process for the Raedel retaining wall. However it is necessary to deal with the evidence in this judgment as it has relevance for several aspects of the civil claim. I have extracted the following chronology from the evidence and the Council documents that were tendered:
·Development Application 180\0495\09 was lodged with the City of Burnside (the council) on or about 9 June 2009.[21] That application related to the whole of the building project on the Raedel land but did not include a retaining wall at the southern end of the boundary between the Shahin property and the Raedel property.
[21] Exhibit P28 (ANB1) & P86
·Development plan consent was granted on 3 July 2009.
·Building rules consent was granted on 17 August 2009.[22] That consent was certified for compliance based on a report from FMG Engineering Pty Ltd (FMG) dated 27 July 2009 (FMG’s July 2009 calculations) which includes calculations for a concrete sleeper retaining wall to a maximum height of 2.7 metres.[23] The calculations also contemplated a fence of 3.6 metres on top of the retaining wall. It is not clear why a fence of that height was thought necessary. It is however plainly incorporated in the design and the calculations.
[22] Exhibit P28 (ANB2)
[23] Exhibit P62
·Development Approval was granted on 20 August 2009.[24]
·In around September 2009 the defendants’ builder applied for and obtained a variation to the development plan consent relating to a rainwater tank. (The first variation)[25]
·The defendants’ builder obtained a second set of calculations from FMG dated 4 September 2009 for concrete sleeper retaining wall to a maximum height of 3 metres.[26] (FMG’s September 2009 calculations) Again, for reasons that are not clear, the calculations contemplated a 3.6 metre fence on top of the retaining wall.
·The Raedel retaining wall was constructed in or around October 2009. It is uncontentious that the wall was built to a maximum height of four metres and that there is no fence on top of the retaining wall.
·In early November 2009 the defendants’ builder lodged a development application with the council for further variations to the development approval including a lower ground floor room, front staircase, courtyard and a retaining wall at the southern end of the boundary between the Raedel and Shahin properties. The plans did not nominate a height for that retaining wall. (The second variation)[27]
·Development plan consent was granted for the second variation on 10 November 2009.[28]
·The council wrote to the defendants on 14 November 2013 advising that, although development plan consent was granted, no building rules documentation was lodged with council and thus development approval had not been granted for the second variation.[29]
·On 26 November 2013 the defendants applied for a retrospective extension of the development plan consent for the second variation. A four year retrospective extension was granted by the council on 12 December 2013.[30]
·On 19 December 2013 building rules consent was granted for the second variation based on the FMG September 2009 calculations which included the calculations for a 3 metre wall with a 3.6 metre fence.[31]
·On 4 March 2014 the council granted retrospective development approval for the second variation.[32]
[24] Exhibit P28 (ANB4) & P88
[25] Exhibit P28 (ANB5)
[26] Exhibit P64
[27] Exhibit P28 (ANB8)
[28] Exhibit P8 (ANB9) & Exhibit P92
[29] Exhibit P103
[30] Exhibit P28 (ANB11 & ANB12)
[31] Exhibit P28 (ANB13)
[32] Exhibit P28 (ANB19)
Mr Malcolm Raedel gave evidence that the original design for his house did not include the sunken garden or the room adjacent to that garden. Mr Raedel said that he and his wife decided to incorporate those features in about August 2009 on a recommendation from their builder that it would be a more effective use of the Raedel’s sloping block. In order to achieve those features it was necessary to excavate the Raedel’s front garden. That excavation necessitated the building of a retaining wall between the Shahin and Raedel properties. Mr Raedel understood that additional engineering drawings were required. He did not recall a discussion about the height of the retaining wall but conceded that there might have been.[33]
[33] TX 917-918
Mr Raedel appears to concede, and in any event I find, that no notice of the excavation and construction of the retaining wall was served on Salwa Shahin who was at the time the owner of the property now owned by Mr Shahin.[34]
[34] TX 944-5
Mrs Raedel was not called so I do not know what she would have said on that topic. It seems improbable that the depth of the excavation or the height of the retaining wall was not discussed in August 2009 in the context of the Raedels’ decision to include the sunken garden and a lower level room particularly in view of the need to ensure adequate ceiling height in that room. I am left in the position that I do not know what was discussed in that context nor do I know what, if any, instructions were given to the builder about engineering, design and planning approval for the retaining wall.
Mr Raedel says that the builder was responsible for obtaining all necessary approvals but agreed that the ultimate responsibility for this rested with him and his wife. He further agreed that they received all of the approval documents direct from the council.[35] Mr Raedel said that he understood that they had all appropriate approvals at the time of construction of the retaining wall. He maintains that it is not clear that they did not have approval.
[35] TX 1155
Mr Raedel was cross-examined about whether he and his wife instructed Mr Romaldi, an architect, to file a retrospective development application for the retaining wall in about April 2013. Mr Raedel did not recall that to be the case until he was shown an internal email from the council records dated 8 April 2013.[36] He was cross-examined as follows:
[36] Exhibit P99
QOn the assumption that the council is correct in what they've written in this email, it would appear that there's a need for a development application of a retrospective nature in relation to the retaining wall as about 8 April 2013. Do you see that.
AYes, I see the internal email.
QSo that's because they were contacted by Mr Romaldi, misspelt Grimaldi, on your behalf about the retaining wall and the issue of safety of the wall and other issues.
AYes, I accept that.
QSo your wife and you instructed him to deal with a retrospective application in April 2013, is that correct.
AIt appears so.
QAnd the retrospective application was for the purpose of getting full approvals for the construction of the retaining wall as it existed at that time. Do you agree.
NOT ANSWERED
QDo you agree Mr Raedel.
AWell, yes.
QIt was about this time that you and your wife realised that there had been no approval for a 4 m retaining wall or a retaining wall up to 4 m, wasn't it.
ANo, that's not my recollection at all.
QWell it's talking about a retrospective development application for the retaining wall.
AYes, and then the reason for that was that the proposal that had been advanced by David Romaldi was that the best way of addressing the issue of the safety fence would in fact be to weld it, if possible, on to the existing structure and for that reason we needed council approval or whatever.
QSo is it your evidence that in about April to May 2013, there was no issue about approval of the retaining wall as constructed of 4 m.
AYes, that is absolutely my position.
Mr Raedel was then taken to an email which he agreed was from his wife to their architect, Mr David Romaldi, dated 6 April 2013.[37]
QAnd if you look at the issues that are set out by your wife for David's consideration, the second one of those is a bullet point where she says 'The issue is that the Burnside Council has no record of approval for the front side retaining wall'. Do you see that.
AYes.
QNow that's your wife writing that there's no record. Do you agree.
AYes, I agree that's what she's writing.
QAnd it is the position, isn't it, now you look at this email, that as early as 6 April and perhaps before that, you had discovered - that's you and your wife, that there was no record of approval for the retaining wall that's constructed. That's correct, isn't it.
ANo, I don't think that's what it's saying at all.
[37] Exhibit P100
The balance of Mr Raedel’s evidence on that topic is most unclear. He was particularly vague about his state of knowledge at that time. By way of explanation, Mr Raedel pointed out that he was not copied into the email. Mr Raedel appeared to be attempting to interpret what his wife said in that email in a manner consistent with his evidence. Mrs Raedel was not called to give evidence. In my view Mr Raedel’s interpretation is not tenable. Plainly as at 6 April 2013 his wife at least was concerned that there may be no approval for the retaining wall.
Mrs Raedel’s concern appears to have persisted because she sent an email dated 24 May 2013 to FMG[38] which said, inter alia, that she had been advised by Mr Walmsley of the Burnside Council that the Council could not find records for approval of the front garden retaining wall and excavation. Mr Raedel was cross-examined as follows:[39]
[38] Exhibit P101
[39] TX 998 line 14 – TX 999 line 19
QSo, by that date do you concede that you then knew that there was significant doubt that there was an approval for your retaining wall in the council’s opinion.
AWell, the fact that Mr Walmsley couldn’t identify it doesn’t suggest that because when we looked back at this correspondence we could see unambiguously that on 30 September 2009 there was an invoice that we paid which talked about extra engineering which would involve the redesign of that wall and involved reassessment of the soil composition, and so we still believed that the fact that the council couldn‘t find it for their own internal reasons didn’t mean that we’d been in any way negligent or that there was actually a problem with the wall.
QLet’s look at the email, so the next paragraph deals with Cheney and his lawyer that retrospective applications will need to be lodged.
A Yes
QSo, if you thought you had council approval why would you be instructing that retrospective applications should be lodged for approval.
ABecause we were taking the conservative approach, that we didn’t believe that this process would be possible, that it could get through council with council approval, and all the evidence that we had that there wouldn’t be a problem. But if there was, well then we needed to address it.
QWell, there’s no evidence of an approval for a 4 m retaining wall.
AThere is no evidence that I’ve seen, no.
QAnd the next paragraph talks about Mr Shahin agitating and threatening legal action for not consulting with him, for having built the wall without council approval, do you see that.
AYes.
QSo, by this stage in late May you and your wife knew there was probably no approval, you had to get some engineering help to try and track down what had happened, and that a retrospective application may have to be put in. That was the position in late May 2013 wasn’t it.
AThere was a possibility that the basis on which the decision had been made by council was not as we’d expected, yes.
Mr Raedel was then asked whether he agreed that there is no approval for a retaining wall constructed to a height of up to four metres and he responded as follows:
"AI agree that there has been no evidence provided to date that there is such evidence, that this is the case.
QThere is evidence.
AI said that there is no evidence to suggest that there might not still have been additional evidence (sic) undertaken by FMG to provide support for the 4 m.[40]
[40] TX 1007
Mr Raedel’s position appears to be that the fact that no calculations for a four metre wall can be located by either him, his solicitors, FMG or the Council does not mean that there are no such plans.[41] Mr Raedel does not claim to have seen calculations for a 4 metre wall. His position is based on an FMG invoice dated 30 September 2009[42] that Mr Raedel asserts may be for calculations for a 4 metre wall. It is my view that this invoice falls far short of establishing that there were designs or calculations for a four metre wall. Indeed it seems more likely than not that this invoice relates, inter alia, to the September 2009 FMG calculations for a retaining wall with a maximum height of three metres.[43] Apart from this invoice there is no evidence whatsoever that there were any calculations or plans for a four metre wall. Nor is there any evidence that an application was made to the council for approval of a four metre wall. I infer that Mrs Raedel’s evidence on this topic would not have assisted the defendants.
[41] TX 1000-1002; 1007-1012; 1159
[42] Exhibit D126
[43] See Exhibit P104 (email from Mr Ames of FMG to Mrs Raedel 15/6/16)
I consider that it is plain from the council documents that, at the time the retaining wall was constructed, there was no relevant approval. I further find that the retrospective approval for the retaining wall 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 of the wall. The wall was constructed at a maximum height of 4 metres with no fence. Accordingly I find that the wall remains unapproved. The consequence of this is the subject of my separate judgment in the ERD Court proceedings.
The Raedel Retaining Wall – Emergence of the issues
The key issue in dispute is the adequacy of the retaining wall. There are subsidiary issues relating to the wall. These are the drop created by the excavation and the extent to which the excavation for the wall affected the brush fence on the boundary between the Shahin and Raedel properties and the pavers on the south western corner of the Shahin house.
These issues emerged over time. I will deal with the evidence in chronological order before dealing with the individual issues.
2009 - 2011
Mr Shahin said that his property at 17 Ifould Drive was originally owned by his aunt, Salwa Shahin. He rented it from his aunt from early 2010 until he purchased the property from her in July 2013. The retaining wall was built by the time Mr Shahin moved in but other construction was still underway on the Raedel property.
When Mr Shahin moved in he noted a number of issues. Specifically, damage to his irrigation system, shrubs and pavers in the front garden. He was also concerned that the excavation had left a very steep drop from his property to the Raedel property with no barrier. He says that he raised these issues with the Raedel’s builder, David Cheney, on a number of occasions. None of these issues had been resolved by the time Mr Cheney finished on site in about 2011. Accordingly Mr Shahin approached Mrs Raedel. He said that he took her to his property to look at the problems. He described showing her damage to his irrigation system, the cut, the drop and his paving. Mr Shahin described his concern in relation to the cut as follows:[44]
QWhat did you show her about the cut.
QHow they cut into our land and the way they left it.
QHow was it that they had left it.
QThey didn’t retain it. It was just a single cut and there was nothing there to hold our land and if we just left it like that, it would have basically over time, eroded.
[44] TX87
Mr Shahin said he also showed Mrs Raedel the drop and raised the fact that there was no barrier or fence. He was concerned that people could fall over.[45] He showed her the damage to the irrigation system in his front garden. Mrs Raedel told him that any gardener could fix that for one hundred or two hundred dollars.[46] He also showed her his pavers at the south-western corner of his house showing her how they were starting to split.[47]
[45] TX88
[46] TX88-89
[47] TX88
Mrs Raedel told him that she would raise these issues with the builder. Mr Shahin was shown an email sent by Mrs Raedel to the builder dated 16 May 2011.[48] This email accorded with his memory of the timing of his discussion with Mrs Raedel. In terms of the content of the email Mr Shahin agreed that he told Mrs Raedel that there was a serious safety issue with children playing in his front garden without a fence between the properties. He agreed that he had requested the Raedels to repair the irrigation lines and that he also wanted them to attend to an exposed soil profile. Mr Shahin denied making any complaint about a man undertaking brush fencing and further denied that there had been any discussion about payment for brush fencing. Mr Shahin says that he did not ask Mrs Raedel to do anything with the brush fencing between their properties and disputed that aspect of the email.
[48] Exhibit P5
Mr Malcolm Raedel said that he doesn’t recall meeting Mr Shahin until after he and his wife moved into their newly completed house in April 2011 and had no dealings with Mr Shahin while his house was being built. Mr Raedel said that the first time he had a discussion with Mr Shahin was in 2011 when they were looking at retaining walls in the back garden. Mr Raedel is aware of at least three occasions when Mr Shahin spoke to his wife complaining about a number of matters to be addressed. He was not involved in those discussions.
In cross-examination it was put to Mr Raedel that he and his wife wanted a front and side fence on or in the area of the retaining wall. Mr Raedel responded:[49]
[49] TX955 – line 15; TX 957 – line 2
ANo, we didn’t want – we never wanted a fence on the eastern side; we had a fence that was repacked and whatever, but it was going to be repack and renewed, but we never talked about a fence on the eastern side of the courtyard. We only ever talked about the fence which is there now, and that was at the discretion of the builder as to what the aesthetics were and it was then a couple of masonry pillars – you had to have a pillar to hold the wrought iron – but that was the extent of the conversation.
AThese two documents that I have just shown you, the approval document of January 2010 and this second document which is the internal document of the council which is late January 2010, if we look at the chronology of events, by that stage, the retaining wall had been built, hadn’t it, the one that this court case concerns.
AYes, yes, the retaining wall was completed.
ABy that stage, it would have been obvious as to how significant the drop was from the Shahin land into your sunken garden.
AYes.
AYou and your wife recognised the necessity to have a fence for two reasons, aesthetics, to fence in your property, and also to deal with what you perceive was an unsafe drop that had been created by the excavation adjacent to the boundary.
AWe were sympathetic. We were assured there was no liability, there was no need to have it, but, yes, we were sympathetic, not to have a masonry wall, but to have a wrought iron wall that would be an extension of what we have at the front and, indeed, we had plans drawn up and were prepared to pay some $8,000 to have it installed.
QSo when I was referring to a fence do you – using the council language, which is ‘fence masonry’, do you draw a distinction between a fence and a wrought iron and pillar fence.
AYes. Well, I draw a distinction between a fence and a barrier, and when you talk about a masonry fence, yes, I do think of that as being substantially made of stone or concrete or besser blocks or something, as opposed to having a pillar either end that actually retains a wrought iron fencing between it.
QOkay, so we may have been at cross-purposes, so I will see if I can do his in an economical way. Do you agree that you and your wife in late 2009, through Mr Cheney, made an application for a pillar and wrought iron fence that went above the retaining wall on the eastern side and –
ANo.
Q– was proposed to go above the retaining wall.
ANo, I don’t agree.
QYou don’t agree.
AI don’t agree. To my knowledge, Mr Cheney never put that application in. He was not supportive of it. He told us it was totally unnecessary to have any fence, however defined or described. It was only subsequently, as reflected in some of the later correspondence in 2011 and then particularly in 2012, that we then sought to have a design created which would create that barrier. But not – this was – to my knowledge, this was never put up as part of anything that was run past us by the builder.
Mr Raedel was then taken to a number of documents[50] which relate to an application by council apparently lodged by Mr Cheney in late 2009 on behalf of the Raedels seeking approvals, inter alia, for a front and side fence. Mr Raedel nevertheless maintained his evidence that he or his wife never wanted a side fence above the retaining wall.[51]
[50] Exhibit P93 and P94
[51] TX957; Exhibit 95
2012
Mr Shahin said that he did not hear anything further from the Raedels after his initial complaint and so he again spoke to Mrs Raedel. He could not recall when this was. After this conversation, Mrs Raedel gave him a copy of her email dated 22 February 2012 to the builder, Mr Cheney, entitled ‘Damage and complaints report from neighbour – Ifould Drive – fences – irrigation – path – lawn’.[52]
[52] Exhibit P6
Mr Raedel was reluctant to concede that he and his wife thought that there was a safety risk with the drop created by their excavation; rather he referred to it as “a potential problem”.[53] Mr Raedel was shown the February 2012 email from his wife to Mr Cheney which stated, inter alia:
It was and is your responsibility, according to our contract, to solve the fencing problem at the front of the property, where the excavation of our block has resulted in a dangerous drop off of about 5 metres between the properties. The neighbour is angry about this. There is a serious safety issue created by our excavation that must be addressed urgently.[54]
[53] TX964
[54] Exhibit P6
Mr Raedel agreed that this email indicated that he and his wife did have a concern about the drop and thought it the necessary to put a fence on the retaining wall. He then gave evidence as follows:[55]
QSo that paragraph is asserting to Mr Cheney that you intended a fence to go up on top of the retaining wall.
AWe had developed the view that a fence was now more appropriate given the concern that had been raised by our neighbour.
QWell it's a fence in the same area as where there had been planning approval, if her Honour accepts that's what the documents say, so this issue was still percolating along some 18 months later wasn't it.
AYes.
QYou were asserting to Cheney that he should have put the fence up weren't you.
ANo, I was saying that we should do something now which is 2012.
[55] TX969 – line 24-36
Mr Raedel was aware that Mr Shahin complained to his wife about problems with his irrigation system but Mr Raedel did not accept that it was because the contractors had cut into Mr Shahin’s land. He did accept however that Mr Shahin’s irrigation system was not on the Raedel land. He was cross examined as follows:[56]
[56] TX966 line 19; TX967 line 3
QSo, accept that there was no irrigation system of Mr Shahin on the land that you and your wife bought prior to construction.
AYes, I accept that.
QAnd therefore if her Honour accepts the irrigation system was damaged, it was done by the construction of the retaining wall.
AYes I – well, not necessarily the construction of the retaining wall, but possibly the constructions of the property generally, I don’t know. I presume –
QThe only construction work that took place in that location was the retaining wall, wasn’t it.
AYes I presume – yeah, no, that would be a reasonable assumption, yes.
QAnd it’s a reasonable assumption, isn’t it that if his irrigation system, which is on his land, is damaged, that the contractors –
AYes it is.
Q– had done so by cutting into his land.
ANo, not at all, it doesn’t follow, that, at all. But – no.
Mr Raedel has not according to his evidence inspected the irrigation system himself. Mrs Raedel was not called to give evidence and accordingly I do not know what her current view is about the topic of the irrigation system. At the time of her emails to Mr Cheney in May 2011 and February 2012[57], she appeared to accept some responsibility for the damage. Mr Shahin makes no claim in respect of this damage; rather Mr Shahin contends that it is evidence of intrusion into his property. I find that the irrigation system was damaged during the course of the excavation and construction of the retaining wall.
[57] Exhibits P5 and P6
Mr Raedel also conceded that his wife’s February 2012 email to Mr Cheney indicated there was an issue with Mr Shahin’s pavers. He has not inspected the pavers himself. The relevant portion of Mrs Raedel’s email reads as follows:
One last issue that the neighbour raised, is that the brick paving on his side adjacent to our eastern retaining wall, has lifted significantly. While the red brick path extends around the perimeter (sic) of his house, the only area showing movement is along the entire path between our retaining wall and his house. The lifting of the bricks is very significant. Please advise.[58]
[58] Exhibit P6
When asked whether that email represented the correct position Mr Raedel responded as follows:[59]
QSo that was the position wasn’t it, set out in that last paragraph as at the date of that email concerning the pavers.
AIt’s the way it’s been expressed. I believe I can comment that my wife had taken the word of Mr Shahin on the extent to which the damage had been done or created, but we were of the view that if the builder had been complicit in any aspect of interfering with or damaging the property of our neighbour that he was responsible for ameliorating it.
QBut what your wife wrote whether she was adopting Mr Shahin’s view or not it’s something that she believed was a correct communication to go to the builder wasn’t it.
AShe felt it was of sufficient concern to our new neighbour to take it to the builder, yes.
[59] TX969
The implication of Mr Raedel’s evidence was that his wife was merely reporting what Mr Shahin had said to her when she described the lifting of the bricks as “very significant”. Mrs Raedel was not called to give evidence.
Mr Shahin said that after Mrs Raedel’s February email to the builder she came around to his property with an engineer, David Combe, to look at the paving.
Mr Combe[60] prepared a report dated 29 March 2012. That report described the movement of the pavers as “minor” and suggested a number of possible causes unrelated to the excavation on the Raedel property including inadequate drainage of the pavers. I note that Mr Combe was under the impression that the Raedel retaining wall was 3.6 metres high.
[60] Exhibit P7
Mrs Raedel sent Mr Combe’s report to Mr Shahin on 7 July 2012[61] suggesting that Mr Shahin might wish to take his own engineering advice. She also said that he needed to obtain design plans to remediate the issue with the path.
[61] Exhibit P8
Mr Raedel sent an email to Mr Shahin on 9 July 2012. This resulted in a chain of emails dated 9 and 10 July 2012.[62] Mr Shahin said that he was surprised at the content of Mr Raedel’s email because he had not discussed these issues with Mr Raedel and yet the email read as if they had. The email also asserted that Mr Shahin had suggested raising the fence between the two properties which Mr Shahin says he had not.[63] Mr Shahin replied to that email the same day and summarised his position as follows:
Neither I or my wife have ever raised the issue of raising the fence, the five issues I have raised with your wife are:
(1) The dangerous drop of 3.6 metres you have created on the front boundaries.
(2) The damage that was done to my front garden which has never been fixed.
(3) The damage done to the irrigation system at the front garden which has also never been fixed.
(4) The rubbish that was left in my back yard from the workers that worked on your house; and
(5) The damage to my paving along our fence boundary.
[62] Exhibit P8
[63] TX107-109
Mr Raedel responded to that summary as follows:
These are all legitimate issues that you should properly have/take up with our builder…. of which the first and the last – over which we have some direct control – are now being acted on independently in advance of the outcome of legal proceedings with the builder.
Mr Shahin said that nothing occurred following this email.
Mr Shahin instructed an engineer, Robert Samson to inspect his pavers following the provision of Mr Combes report. Mr Samson prepared a report dated October 2012.[64] This raised for the first time a problem with the brush fence; specifically the exposure of the concrete footings on the Raedel side and a lean towards the Raedel side. Mr Shahin said that he had previously noted that the footings of the brush fence were exposed on the Raedel side but had not noted a lean in the fence. On inspecting the fence following Mr Sampson’s report he could see there was a problem. Mr Shahin said that he gave a copy of Mr Samson’s report to the Raedels but nothing occurred as a result of that.[65] Mr Shahin said that over time the gaps between the pavers have become bigger and the lean in the fence is more obvious.
[64] Exhibit P26
[65] TX160-161
Mr Shahin said that towards the end of 2012 he made contact with the council about the Raedel retaining wall. He had a meeting with council officers at his premises on 26 November 2012. The Raedels were not present. The purpose of the meeting was to find out if the retaining wall had approval and why there was not a fence on top. The council officers told him that they did not believe the wall was approved to the height it was built. They also expressed concern about the safety of it. This site visit and subsequent events are documented in emails passing between Mr Shahin and Ms Vingerhoets a development officer at the council.[66]
[66] Exhibit P22
Mr Shahin was advised by Ms Vingerhoets that she would be issuing an emergency order addressed to him to erect a safety barrier between the two properties because of the drop. Subsequently however Mr Shahin received an email from Ms Vingerhoets dated 19 December 2012 saying that an emergency order would not be issued at that point in time.
On 24 December 2012 the council wrote a letter addressed to Mrs Salwa Shahin, who was at that time the registered proprietor, which said inter alia:
From council’s inspection of the retaining walls located on or near the boundary of your land and the adjoining at 16 Ifould Drive Burnside, council is concerned about the potential risks to safety of persons who may occupy the front yard of your land.
Council’s concern is due to the height of the concrete sleeper retaining wall located on or near the boundary when measured from the ground level on your land (being its highest point) to your neighbours’ ground level (being its lowest point). There is no fence located on top of the retaining wall. Council notes you have also constructed a smaller retaining wall which is set inside the boundary of your land.
We understand you also have raised concerns about the potential risk to safety. Council is not, at this time, aware of any issues about the structural integrity of the concrete sleeper retaining wall located on or near the boundary.
Ms Vingerhoets further suggested ‘it may be in your best interest to place a temporary fence along the wall in question.’[67] The reason for this advice is not apparent. There is no suggestion that any action was to be taken by council in respect of the Raedels.
[67] Exhibit P23
2013
In early 2013 Mr Shahin said he received an email from Mr Raedel which indicated that he and his wife had “prioritised” dealing with the builder and his solicitors about the retaining wall and related fencing.[68] Mr Raedel said, inter alia:
Possible drainage and compaction issues need to be addressed so that any adverse impact on the foundation of the existing brush fence or on pavers in your path can be ameliorated and a new fence constructed on the southern end of the boundary (along with any appropriate landscaping left outstanding by the builder).
[68] Exhibit P24
I am not entirely sure what Mr Raedel intended to convey in this email but he does appear to accept that there was a problem with the foundation of the brush fence and with the pavers. Mr Raedel was not asked to explain his email. In any event, Mr Shahin said he did not know why he got the email at that stage and nothing happened as a result of it.
Mr Shahin said that subsequently he was contacted by Mr Raedel’s architect, David Romaldi with a proposal to undertake some work on the brush fence and also to install a metal fence to a height of approximately one metre above the Raedel’s retaining wall. Mr Shahin said that there had been no discussion or correspondence prior to receiving that letter; it effectively arrived out of the blue. He responded by email dated 5 April 2013 saying he did not authorise the work to go ahead because “as your client is aware there is an issue bigger than the fence that has to be fixed and unless all issues are addressed this is a waste of time”.[69]Mr Shahin said that the bigger issues he was referring to were “retaining my land and the pavers and the integrity of their retaining wall”.[70] It is apparent from this answer that by at least April 2013 Mr Shahin had reservations not only about the drop, the fence, the pavers, and the failure of the wall to retain the soil on his land but also as to the structural adequacy of the retaining wall.
[69] Exhibit P27
[70] TX250
Retaining Wall Fence
Mr Raedel was taken to correspondence from the builder’s solicitor dated 30 May 2013.[71] It is clear from this letter that the topic of a fence on top of the retaining wall had been raised by the Raedels as a subject of complaint against the builder. The assertion in the letter from the builder’s solicitors is that the builder would have been happy to have erected that fence but that the Raedels did not want that. When this was put to Mr Raedel he denied that this was the case; indeed he said that it was “absolutely false”.
[71] Exhibit P66
I do not make any finding in respect of Mr Raedel’s denial of the assertion that he and his wife instructed the builder not to put a fence on the wall. It is however clear that the lack of a fence on top of the retaining wall was an issue of concern to the Raedels and that the Raedels were asserting, at least in 2012 and 2013, that it was the builder’s responsibility to construct such a fence.
I reject Mr Raedel’s evidence that he and his wife never wanted a fence erected above the retaining wall and that it was only considered in the context of Mr Shahin raising a concern. Mrs Raedel was significantly involved in this issue; indeed it is clear from the evidence that she handled matters rather than her husband. It is extraordinary that she did not give evidence. I infer that her evidence would not have assisted the defendants. I further reject Mr Raedel’s evidence that his wife’s February 2012 email to Mr Cheney did not assert that the builder should have put up the fence. On a plain reading it did. Mrs Raedel was not called to give any evidence explaining what she intended to convey at this time.
The Raedels created a hazard by the excavation of their land; the cut left a drop of over 4 metres from the Shahin property to the Raedel property. The danger is obvious. I find it improbable that the Raedels did not turn their mind to that issue at an early stage. Although a fence on top of the retaining wall is but one way of dealing with the issue, I find that the Raedels were not only aware of the issue before it was raised by Mr Shahin but also that they contemplated a fence on the retaining wall as an appropriate method of resolving that issue. That this is the case, notwithstanding Mr Raedel’s evidence, is clear from the FMG calculations, the council applications and the correspondence. The fence was not constructed for reasons that are not apparent.
The Brick Paving
Mr Raedel was not able to give any evidence about the brick paving issue as he has never inspected the pavers. He was reliant upon his wife’s correspondence and the expert reports.
In addition to her email to the builder dated 22 February 2012 in which she referred to “significant” lifting of the pavers, Mrs Raedel sent an email to the engineer David Combe dated 23 February 2012[72] prior to the site visit referred to above. This refers to a number of issues that are not relevant for present purposes but contains the following comment about brick paving:
The neighbour also showed me extensive brick paving lifting all along the length of his home on our eastern boundary. He alleges that the damage has been done since the retaining walls were built on that eastern boundary. The path had shown no movement previously. Given the potential for movement created by the poor fit of sleeper to H-beam, and the lack of concrete fill behind, I am concerned that not only is his path at risk but also possibly the house! This is perhaps something that needs to be added to the report and taken into consideration?
[72] Exhibit P98
The balance of Mrs Raedel’s email to Mr Combe[73] raises concerns with various retaining walls constructed around the property commenting upon movement of sleepers within the steel-uprights. Mrs Raedel was not called to give evidence to explain this email; on the face of it the email not only appears to consider that Mr Shahin’s complaint about his pavers is valid but also appears to indicate that Mrs Raedel was concerned about the integrity of the retaining wall.
[73] Exhibit P98
Mr Raedel, as discussed above, indicated his view that his wife was simply reporting what Mr Shahin had told her rather than her own observations. Mrs Raedel was not called to give evidence on this topic. In my view this email and the February 2012 email to Mr Cheney are consistent with Mr Shahin’s evidence that Mrs Raedel inspected the paving with him. In these circumstances I find that what was described by Mrs Raedel in the emails to the builder and the engineer[74] was her observation of the path and not mere reporting of Mr Shahin’s complaint.
[74] Exhibit P8
Mr Raedel further said that the reason he and his wife took measurements of the sleepers in the retaining wall as outlined in Mrs Raedel’s email to Mr Combe was to address “potential concerns” raised by Mr Shahin.[75] However when cross-examined further about the content of the email he conceded that he and his wife were concerned about the building work and retaining walls generally including around their tennis court and the pavilion at the northern end of their pool. Mr Raedel also agreed that he had undertaken an inspection of the retaining wall.[76] In the circumstances I consider that it is a reasonable inference that by at least February 2012 the Raedels were concerned, amongst other things, about the integrity of the subject retaining wall and the work undertaken by their contractors.
[75] TX976
[76] TX979-980
In response to the matters outlined in Mr Combe’s report, Mr Shahin conceded that he did not know who laid his pavers, nor when they were laid and that he had never had any maintenance undertaken in respect of the pavers. Mr Shahin says however that there has never been a problem with drainage on that path to his knowledge and that he has underground stormwater drainage.[77]
[77] TX 111
Mr Shahin maintains that the pavers have moved in the time that he has been living at the house. Mr Shahin referred to a photograph presumably taken by Mr Coombe at the time of his inspection in 2012, and a photograph he took himself during the trial.[78] Mr Shahin said that these show a worsening of the gap between the bricks. I consider these to be inconclusive because the photographs are taken at different angles but I accept Mr Shahin’s evidence about his observations. Mr Shahin says that he has the same pavers all around his house and that the portion of pavers adjacent to the Raedel retaining wall are the only ones that have behaved in this manner. This is congruent with the observations of Mrs Raedel as outlined in her February 2012 email to Mr Cheney, my observations on the view and the expert evidence.
[78] Exhibit D36
As indicated above Mr Combe described the paving issue as “minor” at the time that he inspected it. He indicated a number of alternative causes for that movement. Mr Combe was not called to give evidence however an expert conclave was held in relation to this matter on 10 November 2016.[79] Both Mr John and Dr Mitchell attended that conclave. It was agreed at the conclave that there are gaps between the pavers and that they are wider near the south-western corner of the Shahin house compared to the north-western corner. It was further agreed that the gap widths in a table included in Dr Mitchell’s first report[80] were reliable albeit the table did not take account of the gaps that could reasonably have been expected to exist between each paver when initially laid. Dr Mitchell measured the gaps on 9 August 2016 and had concluded that the sum of the gaps was up to 96 mm. The initial gap between the pavers was agreed at the conclave to contribute up to 24mm of that 96mm gap. Dr Mitchell confirmed his agreement in evidence. There was disagreement at the conclave as to the mechanism that initiated the gaps in the pavers. Mr John and Dr Mitchell gave evidence on this topic which I will deal with in the context of their evidence concerning the excavation and the construction of the wall.
[79] Exhibit P60
[80] Exhibit P37, table 1, page 11
The Brush Fence
Particulars of the claim that there was damage to the brush fence are set out in the statement of claim as follows:
29.1.1 The Excavation exposed and undermined the footings of the Fence, causing the Fence to:
29.1.1.1 Lean from the vertical; and
29.1.1.2 Move laterally up to 9.6 cm westwards and away from the dividing boundary between the Raedel and the Shahin property, such that the centreline of the Fence and its plinth foundation are now located on the Raedel Property; and
29.1.2 Causing the Fence’s plinth foundation to move in various places. The Fence and its plinth foundation needs replacement.
In cross-examination Mr Shahin agreed that he had not observed movement of the plinth of the brush fence and that he was relying on the engineer’s reports for that assertion. He also said that he was not claiming for the whole of the fence to be replaced, rather, he was seeking the fence to be replaced from the southern end to about where the Raedels’ air-conditioning unit was.[81]
[81] TX274-277
Mr Shahin said that he did not know whether the whole of the brush fence was on the Raedel property but he accepted that the survey reports establish that the fence is entirely on the Raedel land.
Mr Shahin was cross-examined on an email from Mrs Raedel to Mr Cheney dated 22 February 2012[82] and in particular Mrs Raedel’s assertion that “Tim the neighbour also pointed out to me there was nothing wrong or in need of attention to the brush fence between our properties”. Mr Shahin said that this was a reference to the rear or northern end of the brush fence where it was worked on by the builder. Mr Shahin further says that as at that date he was not aware of any problem with the front or southern end of the brush fence. He did not become aware of that problem until Mr Samson pointed it out to him. In context Mr Shahin’s explanation appears to be correct and in any event it was not contradicted given Mrs Raedel did not give evidence. I accept Mr Shahin’s evidence.
[82] Exhibit P6
Mr Malcolm Raedel said that neither the brush fence nor the plinth has deteriorated during the time he and his wife have lived there.[83] He did not comment on the lean. Mr James Raedel gave evidence about taking a photograph of the brush fence footing during the course of the trial on Tuesday 21 January 2017. He said that he used a hand trowel to dig down 60 cm to expose the base of the pole and the concrete in the ground. These photographs were tendered.[84] This evidence was objected to on the basis that the photographs were not put to either Dr Mitchell or Mr Shahin. I allowed this evidence on the basis that it was said to be important evidence on the defendant’s case and indicated that I would look favourably on any application by the plaintiff to recall witnesses necessary to give evidence on this topic. In the event, despite Dr Mitchell being recalled for other purposes, neither these photographs nor this evidence were put to him. I do not know what, if any, difference it would have made to his views and accordingly James Raedel’s evidence on this topic is of extremely limited assistance.
[83] TX891
[84] Exhibits D109 and D110
Dr Mitchell assessed the fence in his first report[85] and came to the conclusion that the fence was leaning and that:[86]
The movement was related to undermining occurring during excavation on 16 Ifould Drive and the footing base remained unsupported for several years later, prior to the covering of the footing base with soil. The footing is no longer being undermined so that the writer does not consider significant movement will continue.
[85] Exhibit P37
[86] Page 13
Dr Mitchell further said that once soil was placed back against the fence footings the worsening of the lean on the fence was likely to cease.
The photographs of the excavation appear to show that the concrete plinth of the brush fence was exposed during the course of the excavation.[87]
[87] Exhibit P61
At the expert conclave on 10 November 2016 it was agreed that the brush fence has a lean and that the concrete plinth at the base of the fence was exposed on the Raedel side. There was disagreement at the conclave as to the mechanism that initiated the lean in the fence and as to whether the plinth and fence have moved laterally as a result of excavation work. Mr John and Dr Mitchell gave evidence on this topic which I will deal with in context.
Is the Raedel Retaining Wall of Sufficient Height to Retain Mr Shahin’s land?
Mr Shahin asserts inter alia that the retaining wall is inadequate in that it is not of sufficient height or construction to support the natural ground on the Shahin property. There are two aspects to this assertion; the height issue and the construction issue.
I will deal first with the height issue. This is set out in the Third Statement of Claim as follows:
27.2.6 In addition to the deficiency the height of the Retaining Wall, as constructed, resulted in the Retaining Wall failing to retain the natural ground on the Shahin Property (the inadequacy); and
27.2.7 As a result of the inadequacy, approximately 8 metres of natural ground at a depth of between approximately .4 metres and up to approximately .6 metres on the Shahin Property has not been retained by the retaining wall.
Mr Shahin gave evidence that the excavation for the retaining wall cut into his land and further that once the wall was constructed the soil on his land was not fully retained.[88]
[88] TX73 and 87
The Raedels say that the height of their retaining wall is adequate to support the natural ground of the Shahin property and say further, in the Fourth Defence, that
27.2.3 The soil behind the top of the wall had a natural batter slope away from the wall;
…
27.2.5Since construction of the Retaining Wall, Shahin has constructed a dry stacked retaining wall of keystone type construction along the front section of the boundary section of the boundary above the Retaining Wall and added an additional surcharge of fill on the wall of approximately 1 metre.
Both Malcolm Raedel and James Raedel gave evidence asserting that Mr Shahin raised the height of the soil in his front garden after the construction of the Raedel retaining wall.
Mr Shahin’s landscaping
On the view it was apparent that Mr Shahin’s block slopes front to back with the highest point being the street and the lowest point being the rear garden. His front garden, as currently configured, is essentially on two levels. The lower level, adjacent to the house, is an area of lawn surrounded by a large raised garden bed retained by a dry stone wall.
Mr Shahin said that in the period between July and October 2012 he undertook some landscaping in his garden. He removed shrubs from the raised garden bed and put mulch where the shrubs were. He made a path in the raised garden area and planted some trees. Mr Shahin said that the lawn was originally on two levels and he altered it so that it was all on one level. He said he did not place any soil in his front yard and has not done anything else to alter the levels in his front garden. He denied the Raedels’ allegation that he dumped tonnes of soil into his front yard. Mr Shahin’s evidence was given with reference to a bundle of aerial photographs showing the state of his garden at various stages.[89] The photographs are congruent with Mr Shahin’s evidence.
[89] Exhibit P11
Mr James Raedel lives interstate and so his observations are necessarily limited to the occasions upon which he visited his parents. He did not see work occurring in Mr Shahin’s garden but does recall coming home and noting that many of the front bushes in Mr Shahin’s garden had been removed. He was unable to specify when he made these observations.
Mr James Raedel said that he thought the dry wall in Mr Shahin’s garden varied in height from time to time. He was cross-examined in some detail about this point. He couldn’t tell the court when he made those observations or what the variation in height was.[90] He conceded that he had never counted the bricks in the wall but maintained that the dirt in Mr Shahin’s front garden had increased in height.[91]
[90] TX1117-1118
[91] TX1119-1121
Mr Malcolm Raedel said that his understanding was that:[92]
…a huge tonnage, a huge amount of backfill was provided and created behind the dry brick wall to create a level, effectively a level terrace across the front of Mr Shahin’s property.
[92] TX1021
It is not clear precisely what Mr Raedel says the original situation was. It seems that he agrees that the dry stone wall was in place prior to Mr Shahin’s landscaping; indeed I note that it is visible in the photographs of the Raedel excavation. It is not clear if Mr Malcolm Raedel says that Mr Shahin changed the height of the wall or whether his evidence is that Mr Shahin added fill to the garden.
Mr Raedel agreed that he did not see what was put on the ground. Mr Shahin’s evidence that there was only mulch and bark chips was put to him. Mr Raedel maintained that it wasn’t just mulch and bark chips because:
to me there was something more solid than that because in fact plants were easily growing in it, all over that western side. [93]
[93] TX1021
Mr Raedel was taken to emails passing between his wife and the Burnside Council. On 13 May 2013[94] Mrs Raedel asserted to the Council that Mr Shahin had dumped tonnes of soil in his front garden as follows:[95]
I can provide photos that demonstrate that our builder retained the garden mound adjacent to the boundary and photos that show the build-up of the soil since completion of our build, creating a nuisance for us. Our retaining walls had to be increased from 2.7m to 3m as approved by Council, to 4m in the front garden for the last metre at the southern end, in order to comply with his demand directly to our builder to retain his landscaping mound.
[94] Exhibits P105 & P106
[95] Exhibit P105
Mr Malcolm Raedel was cross-examined about this email. In particular, it was suggested to him that his wife was blaming Mr Shahin for the last metre of the wall. Initially Mr Raedel did not respond and then gave the following evidence:[96]
[96] TX1019 line 24-38
QCan you answer the question.
AI'm a little unclear, I have to admit, what exactly what's being said there.
QYou're unclear.
AMm-hmm.
QThere's nothing unclear about that.
AWell, it -
QIt's suggesting there was a demand by Mr Shahin directly to your builder. You understand that, don't you.
AWell, I'm not - I'm not aware of any demand that would have been made.
QThere's no such demand, is there.
AWell, I'm not aware of any demand.
Mr Raedel was taken to another email from his wife to the council dated 16 April 2014.[97] The email contains the suggestion that the Raedels were advised during the approval process that a mound on the council verge had to be levelled. Mr Raedel agreed that there was no document that the Raedels or Mr Cheney put to council that set out any development of the verge. He was then asked:[98]
QAnd secondly, it then says 'The neighbours at the time agreed that their side of the mound would be level and developed when our block was developed', do you see that.
AYes.
QSo, this is at the time of the concrete retaining wall going up, the concrete sleeper retaining wall, do you see that.
AYes.
QThat's just not true, is it.
AWell no, it's not true.
[97] Exhibit P107
[98] TX1023 – line33 - TX 1024 – line 5
Mrs Raedel was not called to give evidence on this topic. I assume her evidence would not have assisted the defendants’ case.
It is clear from the emails and the evidence that, notwithstanding the fact that none of the Raedels apparently saw soil being dumped in Mr Shahin’s front garden at any stage, they are firmly of the view that this occurred. The basis for this belief is unclear other than an assertion in Mr James Raedel’s evidence and the emails from Mrs Raedel to the council that there are photographs which establish this to be the case. Mr James Raedel was cross-examined on the topic of photographs and it was put to him that the photographs produced showed no evidence that the height of the dirt in Mr Shahin’s front garden had increased.[99] Mr James Raedel would not accept that this was the case.[100] I have carefully considered those photographs. It is my view that they fall short of providing evidence that the height of soil in Mr Shahin’s front garden has altered; at best for the Raedels’ case they are equivocal.
[99] Exhibits P115 & 115
[100] TX1127-1131
The Shahin Retaining Wall
This evidence of the Raedels concerning what they maintain to be the additional soil in Mr Shahin’s garden is linked to their complaint about a retaining wall built by Mr Shahin in his front garden. Mr Shahin gave evidence that he constructed a retaining wall inside his land close to the boundary with the Raedel retaining wall as follows:[101]
[101] TX152-153
QNow, I want to talk to you about the retaining wall that you’ve put in, why did you put in a retaining wall.
ATo stop my front yard ending up in the front yard of the Raedels.
QHad you made any observations after the Raedels had installed their retaining wall and before you put your retaining wall in as to what was happening with our front yard.
AYeah, it was getting eroded.
QIt was getting what.
AEroded.
QHow was it being eroded.
AJust every time it rained, the sloping basically gets bigger. You’ll end up finding a lot of that dirt, you know, near the retaining wall.
Mr Shahin said that a friend installed the retaining wall. He described the process as follows:[102]
QWas there any alteration to your front yard that was necessary to put in the Shahin retaining wall.
ANah, we just made the cut where they sit a little bit bigger to be able to basically get them to sit properly, and on the boundary or on my property.
QWhen you say ‘bigger’, what do you mean by ‘bigger’.
AAs in cut a little bit more in certain areas for the stones to sit properly.
QHow do the stones sit, is there a particular system involved for that retaining wall.
AYeah, they interlock on top of each other.
[102] TX154-155
Mr Shahin said that his wall started from three or four interlocking bricks high and increases to about five or six blocks in height. His evidence was that it was a temporary solution to the difficulties posed by the Raedel retaining wall. He said that he would prefer to have his retaining wall removed and have something more permanent with a proper barrier between the two properties.
The Raedel counterclaim contends that the Shahin retaining wall constitutes a nuisance. In particular it is said that the Shahin retaining wall is not fit for purpose, imposes additional loads upon the Raedel retaining wall, poses a risk to the stability of the Raedel retaining wall and could lead to long-term failure of the Raedel retaining wall.[103]
[103] Statement of Counterclaim dated 19 December 2016 Para 29
The defendants’ closing submissions rely upon the report of Mr John dated 9 May 2016[104] in support of the contention that the retaining wall imposes a surcharge on the Raedel retaining wall and must be removed. In that report Mr John expressed his opinion as to the effect of the Shahin retaining wall on the Raedel retaining wall saying that the Shahin wall:
Will increase the overturning moment on the existing retaining wall and reduce its factor of safety (based on a 3,000mm high wall, 900mm of additional fill would increase the overturning moment on the existing retaining wall by a factor of 2.2 – this could lead to long-term failure of the existing wall).[105]
[104] Exhibit D48, p6
[105] Exhibit D48, p6
It is not clear precisely what instructions were provided to Mr John in relation to the Shahin retaining wall. It appears that, consistent with the defendants’ evidence, that Mr John was instructed that there was 900mm of additional fill placed behind Mr Shahin’s retaining wall. In other words, Mr John’s opinion was at least in part based on the Raedels’ assertion that Mr Shahin increased the height of his front garden by building his retaining wall and by placing a substantial quantity of additional fill behind it. I further note that Mr John appears to have based his conclusion on a 3m high wall when it is uncontroversial that the Raedels’ wall is 4m high.
Mr Roger Grounds of Wallbridge & Gilbert consulting engineers drilled a number of bore holes at the Raedel and Shahin properties in December 2013; he prepared a bore log survey report.[106] Mr Grounds’ bore log report indicates that Mr Shahin’s front garden has a “thin veneer” of mulch and that the only fill, as opposed to re-worked topsoil, on Mr Shahin’s land is bore hole 3 which is adjacent to the dry stone wall. This borehole is 1.25 m deep; the fill is about .5 m deep. There is no fill in the adjacent boreholes 1 and 2 which are also in Mr Shahin’s front garden. There is some fill at bore hole 4 but this is on the council verge not Mr Shahin’s land.
[106] Exhibit P68
Dr Mitchell was provided with Mr Ground’s report as part of the material upon which he prepared his first report.[107] Dr Mitchell determined the slope of the land in the vicinity of the boundary between the Shahin and Raedel properties prior to excavation by reference to contour plans; he concluded that the slope at the boundary of the two properties was about 6 degrees above the horizontal. This, Dr Mitchell said, is consistent with the photographs taken at the time of construction[108] and also:
…consistent with the measurements of the extent of fill made by Mr Grounds, who found little or negligible fill near the boundary (where the natural ground topography is highest) and 0.5 to 0.65 m of fill/reworked soil near the start of the brush fence (where the ground surface is lower than the highest point by about 0.7m), so that any landscaping to form a near level surface will give the fill depths measured by Mr Grounds.[109]
[107] Report dated 28 October 2016; Exhibit P 37
[108] Exhibit P61
[109] Exhibit P37 page 4
Dr Mitchell opined that, because the slope above the wall on the Shahin side is about 6 degrees, a properly designed wall ought to have taken this into account to “cater for potential erosion of soil and garden debris and rainfall runoff at the top of the wall running over the top of the wall” into the Raedel property. He suggested an extra sleeper or “catch” ought to have been added to the wall giving it a maximum height of 4.2m.
Photographs were tendered showing the incident in which Mr Shahin employed the pole to move the camera in January 2016. One photograph is from the fixed camera that Mr Shahin moved prior to the incident in which it was moved. It shows a view in a roughly south-easterly direction from the rear of the Raedel property towards the Shahin property.[231] The path down the western side of Mr Shahin’s house and his front garden can be clearly seen. Several windows on the western side of his house, one of which Mr Shahin said was his child’s bedroom, are also plainly visible. Remarkably, what is not visible in that photograph is a view of the path down the side of the Raedel’s property. The camera is installed under the eaves; the path is in shadow and obscured by plants. The other photograph is also taken from the camera in question and shows Mr Shahin with a pole.[232]
[231] Exhibit D56
[232] Exhibit D55
Other photographs[233] show Mr Shahin with a ladder approaching the camera that he moved. These photographs were taken from a fixed camera under the eaves of the Raedel house pointing towards the north of the properties. This camera shows a clear view not only of the Raedel’s swimming pool and pavilion area but also of Mr Shahin’s back garden including the generator, what was then a car park area, an outdoor eating pavilion and a lawn area. Again the path at the side of the Raedel house is obscured by foliage.
James Raedel gave evidence about providing advice and assistance to his parents in relation to the installation of security cameras at their home. He believes that the first installation occurred in September 2014. He said his mother did not really want cameras at the front of the house saying that she did not like the look of them but he was given approval to find a suitable solution. He said the initial installation was four cameras, three out the front and one at the back. They were installed by an electrician and he configured them himself. He said that he was the only person who knows the administration passwords on the network or the cameras. He can monitor and manage the whole network from his home in Sydney. He said his parents did not have any role in managing the system. After the initial installation in September 2014 they installed an additional two in approximately November 2015 and then a further two in September 2016. The installation of the PTZ camera occurred in September 2016.
[233] Exhibit P123
He gave evidence about the installation of the PTZ camera as follows:[234]
QWere you involved in the decision to install and the installation of the PTZ camera.
AYes.
QTell her Honour in what way.
ASo we have eight cameras. Well, we had seven cameras at that point in time. Obviously a screen can only split it up into so many. The front corner of the house is quite high therefore we want to monitor there's a front gate where people can walk in, there's a little courtyard, there's obviously the side path which there's a laundry door down there and then there's obviously the fence in question and another front boundary. In order to cover that vertical height and those several directions one camera simply wouldn't do the job. Each of the normal cameras are about a grand each. I found this PTZ for about two, so therefore for a little over the cost of two cameras I was able to provide a solution which would address which would ultimately cover what four other cameras would do and in addition obviously it worked very conveniently with the number of spaces on a screen. I thought it would be ultimately less intrusive than having two or three cameras in that spot.
[234] TX1034 lines 1-23
He said that once it was installed he adjusted the camera. His parents were not involved in that except where he showed them what he had done to ensure that they were happy with it. James Raedel said that after Mr Shahin complained about the incident on 13 October 2016 involving his children he made an adjustment to the camera and gave evidence about that as follows:[235]
QWhat was the effect of the change.
AUltimately just tightened it up. So we ensured that the path that it traversed was more focused specifically within the boundary and mitigated any traversing of its path over the fence. So ultimately setting up a path you make the camera look at a certain point and it can be recorded as a point. The camera will traverse between said points. If we made the camera look over here and then look over here for example, if they were at different heights the camera would find its own way from here to here. So it seems that it would go up first and then across and therefore if there was something in the middle that we didn't want it to see I've added in extra points so it would do a little jiggle across if that make sense to mitigate its free movement and that's what I did
[235] TX1036 line 29 – TX1037 line 6
He demonstrated the changes that he made by use of some video footage showing the path of the PTZ camera.[236]
[236] Exhibit D108
Mr James Raedel’s evidence was therefore that the PTZ camera was placed in its position in order to monitor the front gate, the sunken garden, the side path and the laundry door which he described as being areas of most risk which were not covered by other cameras.
I note however the fact the camera was placed under the eaves rather than half way down the wall means that the Raedel’s side path and laundry door are obscured by shadow and foliage. The footage that I viewed from 13 October 2016 shows no view of those areas; it may be different at other hours of the day. It is further clear from other photographs tendered that the front court yard area and front boundary is already covered by a fixed camera mounted on the front of the Raedel property. That camera also views the Shahin front garden, the street in front of the Shahin property and front of the house of the neighbours on the opposite side of the street.[237]
[237] Exhibit P114 – T1110-1112
The plaintiff has provided a detailed analysis of what can be seen in footage taken from the PTZ camera on 13 October 2016[238] and on 2 November 2016[239] in annexure 1 to the plaintiff’s written closing submissions. I have considered the footage and that annexure; it is my view that the annexure is an accurate description of what is depicted.
[238] Exhibit P78
[239] Exhibit D108
The October footage shows, amongst other things:
·A clear view into the Shahin front garden including a welcome mat on the path;
·Drawn blinds in the Shahin master bedroom window;
·A bedroom window on the western side of the Shahin house; and
·Mr Shahin’s young daughter playing in the front garden.
There is no footage of Mr Shahin’s young son as feared by Mr Shahin. When the PTZ camera is focussed on the Shahin property no part of the Raedel property is visible other than a hedge.
In total the cycle of the PTZ camera lasts for approximately 3 minutes and 40 seconds. The courtyard garden area and front gate of the Raedel property is shown for approximately 50 seconds of that cycle whereas the Shahin property is shown for approximately 2 minutes and 45 seconds of that cycle.
Mr James Raedel gave evidence of changing the path of the PTZ camera after Mr Shahin complained about the events of 13 October 2016. This is demonstrated in the November footage. Whilst it appears that efforts have been made to restrict the filming of the Shahin property this is only marginally successful. The PTZ camera still shows areas of the Shahin property including the front garden, the western wall and bedroom windows. The complete cycle lasts for approximately 3 minutes and 50 seconds. The courtyard garden and front gate of the Raedel property are shown for about 40 seconds of that time whereas the Shahin property is shown for approximately 2 minutes and 5 seconds. To put it another way the Shahin property footage is over half the total footage. This is, as I understand the evidence, the current situation.
In addition to the complaints about the programming of the PTZ camera the plaintiff contends that the camera can also be manually steered and focussed. Mr James Raedel’s evidence on this topic was most unhelpful and in some respects hard to reconcile with admissions in the defence. He was asked as follows:[240]
[240] TX1096 line 32 – TDX1097 line 37
QThank you. Now I want to speak to you about something different if I may. It's still about the PTZ camera. Now the camera or its interface at your parents' house has the ability to be steered and focused. Is that correct.
ANo.
QNo, it has the ability to be steered.
ANo.
QMoved.
ANo.
QWell you say it cannot be moved by somebody.
AWhat do you mean by moved?
QI beg your pardon.
AWhat do you mean by moved?
QWell, do you really have a problem with that question.
ADo you mean steered, the direction.
QYou understand the camera is called PTZ because it pans, tilts and zooms.
AAnd you asked me if it could be steered and I said no, I would say that's steering, when you said moved, I'm assuming you mean something different to steering it.
QWhat do you call it. What do you call it if somebody moves the camera and gives it an instruction to make it orientate perhaps 180 degrees.
AFrom my parents' house, when I am not there, nobody can change the setting of that camera, they cannot manually control it, no.
QWhat, you're saying they can't do that at all.
ACorrect.
QWhy, because they don't know how to or because you haven't shown them to or because you say it's not possible.
ASo there's two reasons. Number 1 is they don't know the password to log into the camera, number 2 is they don't have any - without accessing the user interface there is no equipment set up to otherwise do so.
QWell I suggest to you it is capable of being steered manually but you would respond to that to the contrary, wouldn't you. You disagree with that.
AAre you referring to, for example, if I am unpresent or present?
QI'm talking about anybody who goes up to the panel could steer the camera manually if they knew how to do so.
AAbsolutely false.
This answer however does not sit very comfortably with his other evidence about the console at his parent’s home:[241]
[241] TX1113 line 15 – TX1114 line 11
QOkay, do your parents have something similar in their house.
AThey have a screen.
QDoes it have a facility to be able to steer the PTZ camera.
ANo.
QIs there a mechanism on the front of the or within the capability of that machine to be able to steer the PTZ camera.
AThat's there, no.
QNo, you've done it yourself from that location, so there must be a facility to do it. So your parents' machine would have a facility to be able to steer the PTZ camera on demand from somebody such as yourself. Do you agree with that.
ANo.
QYou've steered the camera when you were setting it up.
ACorrect.
QAnd you did that through the software and the screen that is in your parents' house.
ANo.
QAt a computer.
AI controlled it via my laptop, which goes directly to a device interface, it bypasses the software that they use to view it. The software that they use either on the computer or on the screen does not have the feature that you refer to to manually control the PTZ.
QRight, but it could be installed or activated.
AIn order for them to do so they would need to log into the camera directly, which they cannot do.
QBut you could show them how to do it.
AThat would be a great challenge.
QAnd you could set it up so that they could steer it, if you so desired, it's possible isn't it.
AIt is possible.
I find that it is possible to operate the camera manually from the console albeit James Raedel says that his parents were not adept enough to do this.
James Raedel also gave evidence that the change logs which show occasions when the administrator changes the PTZ camera[242] would not demonstrate times when the camera was used on manual. In passing I note that Mr James Raedel appears to have taken a somewhat cavalier attitude to disclosure obligations in respect of the PTZ camera logs and requests from the plaintiff’s solicitors not to delete footage recorded by the PTZ camera.[243] Mr James Raedel took the view that the request for that video was “ridiculous”. I am not confident that all material related to the PTZ camera has been properly disclosed but ultimately this has no bearing upon my decision.
[242] Exhibit P113
[243] TX1141-1143
Mr James Raedel was also somewhat reticent to disclose precisely how far the PTZ camera could be made to focus. He agreed that he and his father did have a look around the area at a neighbouring property, not Mr Shahin’s. He denied that he and his father used the camera to look at a property at the end of the cul-de-sac.[244] An email to the plaintiff’s solicitors sent by Mr Malcolm Raedel dated 25 October 2016 however suggests otherwise.[245]
[244] TX1101-1102
[245] Exhibit P21
Mr Malcolm Raedel was similarly reticent to discuss the capability of the PTZ camera.[246] Mrs Raedel was not called to give evidence. I infer that her evidence would not have assisted the defendants’ case.
[246] TX1172-1175
The PTZ camera and indeed the other side cameras mounted on the Raedel property have a clear view of the Shahin property. The western side of the Shahin property has several windows which Mr Shahin said were his children’s bedrooms and bathrooms. Mr James Raedel asserted that all of these windows had frosting on them. Mr Malcolm Raedel says that the bathroom windows formerly were mirrored windows or had some form of reflective finish but that Mr Shahin had recently changed them to normal windows. He was critical of that alteration.[247] This was not something that was put to Mr Shahin.
[247] TX1205
Mr James Raedel, on being cross-examined about the various photographs of the plaintiff’s eastern wall, ultimately conceded that, apart from the bathroom and toilet windows, the windows had not been frosted but he maintained that they were perhaps tinted.[248] The photographs are equivocal; there is clearly no frosting on the bedroom windows but it is not possible to say if they have any tinting.
[248] TX1132-1134
Whatever the situation the Raedels have taken at best a very cavalier attitude towards issues of privacy as they relate to Mr Shahin’s property and at worst have actively sought to maintain surveillance over that property. Mr Malcolm Raedel for example was outraged at the suggestion contained in the letter from Mr Shahin’s solicitor[249] that the PTZ camera may have captured and recorded images of Mr Shahin’s son playing water games with his nanny in the front garden on 13 October 2016. The solicitor’s letter was expressed in moderate terms and accepted that any recording may have been incidental to the Raedel’s security arrangements. The letter requested that all footage prior to that date be deleted. Mr Raedel was asked what was unreasonable about that request and responded as follows:[250]
[249] Exhibit P21
[250] TX1191 line 10 – TX1193 line 8
AWell, there's a lot of things that are unreasonable. First of all, the system overrides itself roughly, as I understand, every two weeks. We have a need for keeping records in the event that we have another incident, but there was no need because it was irrelevant, totally irrelevant. We knew that we had never seen - we'd not sighted this naked son running around or any children, in fact, in the last six years we've been there at any time. So why would we respond to this?
QWell, if you were confident about your position, you hadn't seen children and there's no other security reason you had to keep the last 14 days before 19 October - was there.
AWell, obviously we've been accused of something that occurred on the Thursday evening, so it would have been ill advised, I would have thought, given that this was, as you say, a legal document of which we now needed to prove the point, we needed to prove our innocence in the absence of any proof being proffered to suggest that this incident had ever occurred, we needed to respond to it and that was going to take time and what would have I possibly said at that stage that would have been helpful to anybody?
QDon't you understand the tenor of this letter is.
AYes, I understand the tenor of it.
QWell, the tenor is: if you do those things, we'll be satisfied.
AMr McCarthy and your Honour, we were accused of something which I took grave exception to given my background and everything, a false accusation, totally false, and you expect me to follow some courtesy of saying that we're going to wipe out the records, you know, we're going to take the camera down, we're going to redact everything. Why on earth - I was dealing with our solicitors, so we then took - we took advice from our solicitors and this is where we are now.
QSo you didn't read that letter as an opportunity to say, through para.1, 'if the path needs correcting, we'll correct it', and para.3, 'we've got no other reason to keep this video, we'll delete it'. And if you had done those two things, essentially it is at an end.
ANo, that was not the way I read it. Given that I had been accused of something which constitutes defamation of character, no, I did not, correct.
Despite Mr Raedel’s outrage over the suggestion that he may have filmed Mr Shahin’s son I find that the fact that this did not occur was more good luck than good management. The son was playing in the Shahin front garden with his sister. His young sister is plainly in view on the footage. This is precisely the problem that attaches to a surveillance camera which not only views but also records activities on a neighbour’s property.
Mr Malcolm Raedel’s evidence also carried more than a suggestion that he thought it appropriate to retain video footage as evidence that he had not done anything untoward. Mr James Raedel’s evidence suggested that he too considered it important to gather evidence of Mr Shahin’s activities from the surveillance camera.[251] I refer to his evidence about the screen shots of Mr Shahin moving the Raedel camera with the pool pole and an incident where he described his mother telephoning him in Sydney to complain about a group of people in Mr Shahin’s front yard. He said that his mother either asked him to take a photograph from the security system or he did it of his own accord.[252]
[251] TX1075
[252] TX1076-1077
Mr James Raedel suggested that he had redacted the fixed cameras in order to preserve the Shahin’s privacy. The plaintiff submits that the redaction was applied to the photographs after they were printed or applied and removed as the Raedels saw fit given what they contend were changes in the redaction.[253] I am unable to assess that one way or another. In any event, it is my view that the redaction is limited and does not, in any meaningful way, address the concerns of Mr Shahin as to privacy. The fixed cameras are not the subject of these proceedings. The PTZ camera has not been redacted. Rather the effort was made to limit the path of the camera so that only a portion of Mr Shahin’s property is now visible. As I have indicated above however it is my view that this was largely unsuccessful.
[253] Plaintiff’s closing submissions para 675
I asked Mr James Raedel how the location of the PTZ camera was selected.[254]
[254] TX1149 line 30 – TX1150 line 21
HER HONOUR
QMr Raedel, before I release you, can I just ask why the PTZ camera was put in the location it was.
ABecause it's the most suitable location for a camera.
QWhat were you seeking to cover, what area were you looking to cover.
APeople coming in through the front gate, people coming in through that bottom gate. That front is the most important area and with those other three cameras that we've got out the front, none of them actually capture that accurately.
QYou're talking about the walkway underneath the steps to the main door, is that right.
AThat's right, and that courtyard.
QWhy did you have the camera installed under the eaves, why wasn't it installed lower down on the building.
ADad would not let me drill into the bricks. Obviously it's got the fancy outside which bricks - that stick on the bricks. Trying to mount a wall bracket on that area would cause damage, so the only place that it could actually be mounted without causing overall damage is up under the wood rafters under those eaves. Also, it's then protected by rain as much as possible.
QSo it was an aesthetic consideration.
AAesthetic and practical, because Dad said there's no way - originally, in fact, I wanted to mount it on the corner, partly because I thought it might be stronger, but he said 'There's absolutely no way there's a camera going in. You're not drilling into the side of the house under any circumstances'.
Had the camera been installed in the lower location then, given the height difference between the properties, there would have been no prospect of Mr Shahin’s front garden being viewed and arguably the camera would obtain a better view of people coming in through the front gate, the sunken garden and the path leading from the garden down the eastern side of the Raedel property.
Submissions and Conclusions
In their written closing submissions Mr and Mrs Raedel state, inter alia, that:
Mr Shahin has 16 security cameras for his house. He is Mr Surveillance Burnside, or Adelaide. He can hardly complain about surveillance cameras next door.
43. It is reasonable for the Raedels to have a surveillance system for their house.
….
47. The installation of the PTZ camera was occasioned by Mr Shahin’s trespass and interference with one of the Raedel fixed cameras and his deliberate pre-meditated disabling of Raedel surveillance cameras by Shahin’s installation of powerful halogen spotlights and infra-red illuminators. The Raedels need the protection of the PTZ because of what Mr Shahin has done.
48. Mr Shahin was neither contrite, embarrassed nor apologetic about his unlawful and deliberate interference with the Raedel surveillance system. He thinks what he did was justified, and acceptable. An order to remove the PTZ camera would leave the Raedels unprotected against future similar conduct.
49. Mr Shahin’s interference with the Raedel cameras disentitles him within the courts discretion (the relief is one sought in equity) from the assistance of the court. He comes to the court with dirty hands. For that reason alone, the court should not countenance the orders sought.[255]
[255] Defendants’ Written Closing Submissions pages 10-11
There is no question that it is reasonable for the Raedels to have a security system for their house. It is equally reasonable for Mr Shahin to have a security system. The distinction between the two systems is that Mr Shahin’s is restricted to observing and recording activities on his property whereas the Raedels’ system is not.
I do not accept the plaintiff’s submission that PTZ cameras are inappropriate in a suburban setting for private security. No evidence was called to establish that this was the case. Further, whilst it is clear to me that the PTZ camera has a significant surveillance capability it seems to me barely more intrusive than the existing fixed cameras which are not complained of in these proceedings. The issue with the PTZ camera is the manner in which the Raedels have chosen to install and use it.
The PTZ camera path traverses, stops and views the Shahin property. All of this is recorded. The viewing of the Shahin property from the PTZ camera could be easily avoided by redaction or changing the position of the camera. The Raedels have been unwilling to take proper steps to achieve that. The efforts of James Raedel following Mr Shahin’s complaint were token and ineffective if the object was to allay Mr Shahin’s concerns and to avoid surveillance of his property. The effect of the PTZ, in its current position and with its current settings, is to effectively preclude Mr Shahin and his family from using a portion of their front garden. It further requires them to cover their bedroom windows or, as suggested by the Raedels, to employ some sort of frosting or masking of those windows.
The areas of the Raedel property adjacent to the Shahin property viewed by the PTZ camera are obscured by foliage and difficult to see. There is therefore limited security benefit to those areas being monitored by the PTZ camera. It is also not clear that the PTZ camera covers areas of the Raedel property not otherwise covered by fixed cameras.
The submission that the installation of the PTZ camera was occasioned by Mr Shahin’s trespass and interference with one of the fixed cameras and that an order to remove the camera would leave the Raedels unprotected against future similar conduct suggests very strongly that one of the main purposes of the PTZ camera is to watch and record Mr Shahin’s activities. Mr Shahin’s behaviour in moving the camera was regrettable. I note however that it came after considerable correspondence passing between Mr Shahin, his solicitors and the Raedels seeking to establish a regime for mutual redaction of cameras. Protection of the Raedel property, even from actions such as this by Mr Shahin, does not require surveillance of the Shahin property.
I find that the motive of the Raedels in installing the PTZ camera was in part the security of their own premises and in part to watch and record Mr Shahin and the activities on his property. These activities can be viewed by the Raedels as they occur on the console in their home; they can be viewed as they occur by James Raedel in Sydney; they are recorded and hence can be viewed at any time and in any location. The footage can be kept and disseminated should they choose to do so.
Mr Shahin has pleaded his claim in nuisance. He claims that the Raedel’s use of the PTZ camera to view the comings and goings on his land have unduly interfered with his enjoyment of land such that the presence of the camera is an actionable nuisance. The defendants contend that the plaintiff’s claim in respect of the PTZ camera is best characterised as a claim for privacy and that there is no tort of invasion of privacy in South Australia.[256]
[256] Victoria Park Racing & Recreation Grounds Co. Ltd v Taylor (1937) 58 CLR 479; ABC v Lenah Game Meats Pty. Ltd. (2001) 208 CLR 119; Sands v State of South Australia [2013] SASC 44; Maynes v Casey [2011] NSW CA 156
This is a vexed area of law. In a number of overseas jurisdictions the protection of privacy has developed significantly in advance of Australian law. In Australia the situation is covered piecemeal by common law and Commonwealth and State and Territory legislation.
In South Australia the only legislation that is potentially applicable in a situation such as this is the Summary Offences Act 1953 (SA). This Act was amended in May 2013 to introduce a new Part 5A which creates a number of offences relating to indecent filming and distribution of invasive images. Indecent filming is broadly defined and persons in the position of the Raedels need to exercise great care in the type of material that they film on their neighbours’ property and in the use of that material to avoid committing offences under that part.
Accordingly there is no legislative protection for householders such as Mr Shahin in South Australia beyond that afforded by the Summary Offences Act. The development of the common law in this area, in Australia, is embryonic. There are surprisingly few cases on point.
In general terms, to establish a nuisance it must be shown that there has been a substantial degree of interference with Mr Shahin or his family’s enjoyment of or use of their property.[257]
[257] Oldham -v- Lawson (No. 1) (1976) VR 654
What constitutes a substantial degree of interference must be decided according to the reasonable standards for the enjoyment of those premises. As to what constitutes reasonable standards Lord Wright stated in Sedleigh-Denfield v O’Callaghan[258] that:
It is impossible to give any precise or universal formulae, but it may broadly be said that a useful test is perhaps what is reasonable according to the ordinary usages of mankind living in society, or, more correctly, in a particular society. The forms which nuisance may take are protean.
[258] [1940] 3 All ER 349 at page 365
In Victoria Park Racing & Recreation Grounds Co. Ltd. v Taylor the High Court of Australia stated that, as a general rule, it is possible to photograph what one can see of a neighbouring property without it being an actionable nuisance.[259] In 2001 the High Court in Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd[260] held that the Victoria Park decision did not stand in the way of the development of an enforceable right of privacy. The High Court did not however express a concluded view as to the existence of a cause of action for invasion of privacy nor has one been developed in subsequent cases.[261] I proceed on the basis that there is no tort of invasion of privacy.
[259] (1937) 58 CLR 479
[260] (2001) 208 CLR 199
[261] Sands v State of South Australia [2013] SASC 44
Justices Gummow and Hayne (with whom Gaudron, J agreed) however said in Lenah[262] that invasion of privacy is, in many instances, actionable at general law under recognised causes of action. Of relevance to the present matter they stated that an action in nuisance can be constituted by “watching or besetting” a plaintiff’s premises.[263]
[262] Op. cit.
[263] at 226
Prior to the decision in Lenah, Justice Young in the Supreme Court of New South Wales Equity division granted an interlocutory injunction in circumstances analogous to these. His Honour said:
The floodlights and surveillance equipment are so positioned that they respectively illuminate the plaintiff’s back yard and may record on video tape what occurs in the plaintiff’s back yard. On the evidence to date, the equipment does not just provide light or security for the defendant’s yard, indeed, it may be inferred from the evidence that its purpose is to record what happens in the plaintiff’s back yard.[264]
[264] Raciti v Hughes (1995) 7 BPR 97, 601
His Honour accepted a submission that the categories of nuisance are not closed and that the tort of nuisance was capable of responding to a situation of this type. This is congruent with the subsequent decision in Lenah. Dealing with the question of the surveillance equipment his Honour concluded as follows:
….. I do think, however, that the facts of this case show that the surveillance and accompanying recording by video camera of what occurs in the plaintiff’s backyard gets sufficiently close to watching and besetting, and which, on analogy with cases such as Alma’s[265] case are an actionable nuisance.
[265] Alma v Nakir [1966] 1 NSWLR 386
This is however an interlocutory decision and the matter appears not to have proceeded to trial.
It is said by the defendants that everyone can see into the Shahin front yard from along his front driveway, standing on the footpath, over and through his front hedge and from the Raedel upper portico. It is further said that an order removing the PTZ camera will achieve nothing in that the camera does not record anything that the Raedels cannot observe with their naked eye. Having attended the view I am not certain that the proposition that the lower levels of Mr Shahin’s garden can be seen from the roadway or through his hedges is correct; even if it was it would not be a clear view. I accept that it is possible to see these areas from the Raedel property including from their front entrance and portico. To this I would add that the other fixed cameras, about which there is no complaint, also film a substantial portion of the Shahin back garden including an outdoor kitchen and entertaining area, areas of the front garden and the whole of the western wall of the Shahin residence.
His Honour Chief Justice Gleeson in Lenah stated a test for what may constitute a private matter inter alia as follows:
An activity is not private simply because it is not done in public. It does not suffice to make an act private that, because it occurs on private property, it has such measure of protection from the public gaze as the characteristics of the property, the nature of the activity, the locality, and the disposition of the property owner combine to afford …… The requirement that disclosure or observation of information or conduct would be highly offensive to a reasonable person of ordinary sensibilities is in many circumstances a useful practical test of what is private.[266]
[266] Lenah at 226
Accordingly if activities in the Shahin garden are visible from other buildings or other locations that might mean that the activities are not private. On the other hand there is, to my mind, a difference between someone standing on the Raedel portico or even the footpath and looking into the Shahin garden compared to someone viewing that same area on a console in the Raedel house, in Sydney or on a DVD player. The recording of those areas adds a further level of intrusion.
I have no doubt that the Raedel’s PTZ camera, as currently deployed, constitutes a gross invasion of the privacy of the Shahin family that would be “highly offensive to a reasonable person of ordinary sensibilities” and that it amounts to “watching and besetting”. It represents a substantial interference with the Shahin family’s use and enjoyment of their property.
There is a difficulty in that the same area of the Shahin property can be viewed and filmed from other fixed cameras at the Raedel property. Likewise other areas of the Shahin property such as the rear garden can be viewed and filmed by fixed cameras on the Raedel property. Had I been asked to do so I would have been prepared to make orders in respect of those fixed cameras to abate the nuisance by applying a redaction similar to that employed by Mr Shahin. However, were I to accept this argument it would effectively mean that because the Raedels are watching and besetting Mr Shahin by other means that he has not complained of, they are able to continue doing so by means of the PTZ camera. Accordingly and despite the fact that removal of the PTZ camera will not greatly ameliorate the situation at the Shahin house I find that the PTZ camera constitutes a nuisance that ought to be abated by either removal or relocation. I will hear the parties as to the appropriate order.
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