Steer v McLellan
[2016] QDC 260
•14 October 2016
DISTRICT COURT OF QUEENSLAND
CITATION:
Steer v McLellan [2016] QDC 260
PARTIES:
HERBERT ALFRED ERNEST STEER
and
LYNETTE ELIZABETH STEER
(plaintiffs)
v
JENNIFER LILLIAN MCLELLAN
(first defendant)
and
IAIN MCLELLAN
(second defendant)
FILE NO/S:
1996/14
DIVISION:
Civil
PROCEEDING:
Trial
ORIGINATING COURT:
District Court at Brisbane
DELIVERED ON:
14 October 2016
DELIVERED AT:
Brisbane
HEARING DATE:
31 August 2015, 1 and 2 September 2015, and 9 and 10 November 2015
JUDGE:
Sheridan DCJ
ORDER:
1. The plaintiffs’ claim is dismissed.
2. The defendants are to provide written submissions on costs within 7 days from the date hereof.
3. The plaintiffs are to provide written submissions on costs within 14 days from the date hereof.
CATCHWORDS:
TORTS – NUISANCE – WHAT CONSTITUTES – PRIVATE NUISANCE – IN GENERAL – where the plaintiffs and defendants reside in adjoining residential properties – where the plaintiffs complain of noise from parties, music, television and computer games, bottles being thrown into rubbish bins and barking dogs – where the plaintiffs complain of the smell from dog faeces and a barbecue – whether the defendants have caused a substantial interference with the use or enjoyment of the plaintiffs’ land – whether that interference with the plaintiffs’ land was unreasonable
TORTS – NUISANCE – REMEDIES – INJUNCTIONS – whether an injunction restraining the defendants from undertaking certain activities at their property should be granted
REAL PROPERTY – EASEMENTS – EASEMENTS GENERALLY – CREATION – BY EXPRESS AGREEMENT OR UNDER STATUTE – STATUTORY EASEMENTS – where there is an alleged breach of a statutory right of user
Kidman v Page [1959] Qd R 53, applied
Patrick Stevedores Operations No 2 Pty Ltd & Ors v Maritime Union of Australia & Ors (1998) 195 CLR 1, applied
Ruthning v Ferguson [1930] St Qd R 325, appliedCOUNSEL:
M J Smith for the plaintiffs
S S Monks for the defendants
SOLICITORS:
Morton & Morton for the plaintiffs
Campbell Standish Partners for the defendants
The claim
The plaintiffs, Mr and Mrs Steer, own a property at 40 Pacific Drive, Banksia Beach, Bribie Island.
The defendants, Mrs McLellan and her adult son, Iain McLellan, live in the neighbouring property at 42 Pacific Drive, Banksia Beach. Mrs McLellan is the owner of the property, and her son Iain resides with her.
The McLellans are the owners of two Labrador dogs that reside with them at the property.
The Steers claim various injunctions to restrain the McLellans from undertaking certain activities at their property.
The Steers complain about the noise from parties, music, television and computer games, bottles being thrown into rubbish bins and barking dogs, the smell from dog faeces and the barbecue and damage caused by trees roots.
The claim is brought in nuisance on the basis that the acts of the McLellans have caused a substantial interference with the use or enjoyment of land by the Steers, and that interference by the McLellans is unreasonable in the circumstances. A sum of $2,200 is claimed for the costs of rectifying the damage caused by the tree roots or of abating that nuisance.
There is also a claim for breach of a statutory right of user.
Law of nuisance
Questions of degree are involved in deciding whether the acts complained of amount to a nuisance. As Lord Wright said in Sedleigh-Denfield v O’Callaghan:[1]
“A balance has to be maintained between the right of the occupier to do what he likes with his own, and the right of his neighbour not to be interfered with. It is impossible to give any precise or universal formula, 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…”[2]
[1][1940] AC 880.
[2]Sedleigh-Denfield v O’Callaghan [1940] AC 880 at 903.
Lawnton LJ in Kennaway v Thompson[3] described the question as being:
“…whether the neighbour is using his property reasonably, having regard to the fact that he has a neighbour. The neighbour who is complaining must remember, too, that the other man can use his property in a reasonable way and there must be a measure of give and take, live and let live.”[4]
[3][1981] QB 88 (CA).
[4]Kennaway v Thompson [1981] QB 88 (CA) at 94.
Harrison J in Hill v Higgins[5] referred to the principle of “give and take, live and let live” and stated that:
“Life in an organised society and especially in populous communities involves an unavoidable clash of individual interests… It is an obvious truth that each individual in a community must put up with a certain amount of annoyance, inconvenience and interference, and must take a certain amount of risk in order that all may get on together. The very existence of organised society depends on the principle of ‘give and take, live and let live’… Liability is imposed only in those cases where the harm or risk to one is greater than he ought to be required to bear under the circumstances.”[6]
[5][2012] NSWSC 270.
[6]Hill v Higgins [2012] NSWSC 270 at [48].
Harrison J confirmed that:
“To constitute a legal nuisance, the annoyance or discomfort must be substantial and unreasonable.”[7]
[7]Ibid, at [49].
In finding that the failure by one neighbour to maintain an area of land was not a nuisance, his Honour described the land as merely unkempt, referring to the fact that it did not present a threat to life or limb, was not toxic, nor was there any evidence of vermin. The land did not therefore present a material interference with the ordinary physical comfort of human existence.[8]
[8]Ibid, at [50].
The question of the existence of a nuisance will be one of degree and depends on the circumstances of each case. If a nuisance is established, in the exercise of its discretion, the court must determine whether it should grant injunctive relief to restrain the nuisance. Relevant to the exercise of that discretion is whether or not there is sufficient risk of injury to justify the injunction, and the difficulty of enforcing it.
Overview
Many of the events the subject of the Steers’ claim are not in issue. The real question is whether any of the activities of the McLellans substantially and unreasonably interfered with the Steers’ rights.
The McLellans submitted that the events of which complaint was made were “reasonable, common and ordinary” conduct for people living in households in an Australian suburb. They were able to support that submission by reference to the diaries of Mr Steer which were used by the Steers to support their claim. An analysis of those diaries by counsel for the McLellans for the six month period prior to the commencement of the proceedings on 28 May 2014 showed that Mr Steer had recorded:
“ • 10 occasions on which the McLellans used their rubbish bins;
• 3 occasions on which the McLellans used their barbecue;
• 11 occasions of video gaming, TV or other noise;
• 1 unspecified smell (on 5 April 2014);
• 1 dog faeces smell;
• 1 occasion on which the McLellans used their air conditioner;
• 1 occasion when Mr Steer was disturbed by lights being turned on and someone walking outside;
• 5 occasions in the month of November 2013 when there was some activity in the McLellans’ property in proximity to the Steer’s bedroom;
• from 24 February 2014, regular notes of the times when dogs barked.”[9]
[9]Defendant’s submissions at [25].
Obviously that is a snapshot of the entries in the diaries which extends for a number of years from late 2011. It is however representative of the types of recordings that were made by Mr Steer. In his evidence, Mr Steer referred to more incidents than those recorded in his diaries.
In giving his evidence, it is clear that Mr Steer was prone to exaggerating the extent of the activities about which he complained. He became completely fixated about any movements on the neighbouring property and everything appeared to have become an irritant to him. Entries in his diaries included matters such as “a truck next door”;[10] “mother out”;[11] “out in boat”;[12] “Iain starts mower at 6.10pm”;[13] “Iain shovelling dirt in barrow”;[14] “next door putting more security cameras up”;[15] “three cars next door”;[16] “next door, morning, washing boat in yard all day, cut trees”;[17] “205 whipper snippering next door”;[18] and “Next door fishing. 6.30am to 4pm. Finished boat 5.45am.”[19]
[10]T1-23 L 20.
[11]T1-39 L 22.
[12]T1-75 L 29.
[13]T1-81 L 7.
[14]T1-86 L 13.
[15]T1-89 L 7.
[16]T1-91 L 14.
[17]T1-93 L 22.
[18]T2-33 L 20.
[19]T2-36 L 34.
Under cross-examination, when being asked to explain the entry “Iain shovelling dirt in barrow”, Mr Steer said:
“Well, it’s – sir, it’s right beside our house, right beside the bedroom, goes right through the house. Right. I’ve just put it in as I told you before. If it’s annoying, put it in the book. Ok.”[20]
[20]T1-86 L 25.
Unfortunately, it also became clear that Mr Steer’s fixation was such that the entries in the diaries cannot be relied upon as an accurate record of each event. At times the diary entries conflicted with the evidence from other witnesses and the police records.
Mr Steer also appears to have lacked any understanding as to his relationships with both his current and past neighbours, making the evidence given by him in relation to his dealings with his neighbours unreliable.
Whilst under cross-examination, Mr Steer said he had never had any problem with the previous owners of the McLellans’ house until 2011. In referring to 2011, he was referring to the current problem with the McLellans. Mr Steer said he had never had a problem with the previous neighbours in the seven years since they bought the house in 2004. He used the expression that they had “never had an argument”,[21] though ultimately admitted to there being an issue over a water tank. It was only as a result of further questioning by counsel for the McLellans that Mr Steer admitted to having sued that previous neighbour in the Supreme Court.
[21]T2-49 L 41.
During cross-examination, counsel also referred Mr Steer to some of his interactions with other neighbours. Whilst Mr Steer ultimately admitted to the Supreme Court proceedings, throughout his evidence he maintained his position that he had not found the former owners of the property to have been noisy. He accepted that he complained to the neighbour on his other side within a week of that neighbour moving into the house as a tenant about the noise from music. He accepted that he also made a telephone call to the owner of the property to complain about the tenant’s barking dog in that same week. That tenant, Ms Olsen, was called by the McLellans to give evidence of her encounter with Mr Steer.
Ms Olsen said Mr Steer arrived at her front door to make the complaint at 7:20pm one evening. Ms Olsen said her son had opened the door and the first she heard were the sounds of a male yelling and abusing her son about the noise. She described Mr Steer as being angry and abusive towards her and “waving his hands around”.[22] Mr Steer returned to the house the next night at 11:40pm to complain again.
[22]T3-95 L7.
Ms Olsen’s accounts of her interactions with Mr Steer differed markedly from that given by Mr Steer. I found Ms Olsen to be a reliable and honest witness, while the evidence of Mr Steer of that encounter and his description given of Ms Olsen highlighted his unreliability as a witness.
Mr Steer also accepted that he had raised questions about the noise from cars with another neighbour in the same street.
Mr McDonald, Mr Steer’s neighbour at a former address, gave evidence of threats and numerous complaints made by Mr Steer to him and tradespeople working on the construction of Mr McDonald’s house. Whilst it was clear Mr McDonald still had a very strong dislike of Mr Steer, Mr Steer’s complete denial of the threats and complaints described by Mr McDonald was not believable.
In terms of the evidence of Mrs Steer, it was clear that she was dominated by Mr Steer. She did not appear to be fully aware of the nature of the proceedings. Indeed, the bringing of the proceedings seemed to be a matter driven by her husband. She was a quietly spoken witness but, like Mr Steer, prone to exaggeration. In referring to the loud noise and video gaming, she said it occurred “All day, well into the night. Any time of day or night.”[23] She referred to the noise from all the parties but then accepted there would have been no more than four or five parties a year.
[23]T3-25 L 29.
Mrs Steer also described the video surveillance set up on the McLellans’ property, “which videos apparently any move that we make outside the premises of our home.”[24] Despite that evidence, under cross-examination she accepted the existence of the screens and high walls of their house.
[24]T3-25 LL 45-46.
Evidence was given by Mrs McLellan and her adult son, Iain McLellan. Whilst it was clear there was sadly now a complete breakdown in their neighbourly relationship with the Steers, their evidence was generally measured and their answers considered. Occasionally they found it difficult to make concessions, though that seemed to stem from their belief about the unreasonableness of the Steers’ complaints.
The McLellans also called as witnesses Tracey Keating and Sharon Gruber, both of whom lived for four years on the other side of the McLellans to the Steers. Ms Keating and Ms Gruber gave evidence about the McLellans as neighbours. They were supported in their view by evidence given by Mrs Doreen Bennison and Mrs Janice Hampton, both of whom were neighbours of the McLellans at their previous residence. All witnesses spoke highly of the McLellans as neighbours.
The attitude of both Mr and Mrs Steer was such that when there was a conflict between their evidence and that given by either of the McLellans, or indeed any other witness, I would not rely upon their evidence. The attitude particularly of Mr Steer about his neighbours generally was such that his evidence was extremely unreliable.
Even if the evidence of the Steers were accepted, the submission made by counsel for the McLellans that the events of which complaint was made were “reasonable, common and ordinary” conduct of people living in households in the suburbs has merit.
It is appropriate that each of the complaints be examined in more detail.
Noise
In the statement of claim, it was said that since 30 December 2012 the McLellans had caused or permitted excessive noise to come from their land onto the Steers’ land. The particulars referred to music and video games played until late into the night or the early hours of the morning, parties and the throwing of bottles into the bins at the conclusion of the parties; all of which were alleged to have occurred whilst the Steers were attempting to sleep.
Mr Steer’s evidence initially focused on the noise from the music and video games. Mr Steer had made a number of diary entries which stated “boom boom”. It became apparent through his evidence that “boom boom” was used to refer to the noise either from the music or video games played by Mr McLellan.
Mr Steer gave evidence that he commenced making diary entries in late 2011. He said he commenced keeping the diary after he had taken Mr McLellan out on his boat with his son and grandson and asked him to cut the noise out. Mr Steer said he had said he was sick of the “boom boom” music. Mr Steer gave evidence that Mr McLellan said nothing and so he thought he would start “putting it in a diary from that day”.[25]
[25]T1-17 L 24.
During the first six months of keeping the diary, Mr Steer made entries in the diary in which he referred to the “boom boom” on 14 occasions.[26]
[26]22 & 23 December 2011, 13 & 27 January 2012, 17 March 2012, 19 & 26 April 2012, 3, 6, 7, 9, 10, 20 & 30 May 2012.
It is difficult to determine from the evidence of the Steers how loud the noise from the music or video games actually was. There is nothing from the evidence of Mr McLellan which suggests that he had the volume at excessive levels, and after all his mother lived at the same residence and had no issue with the volume.
Ms Gruber and Ms Keating were asked about the noise from the computer games and the music being played by Iain McLellan at the house. Both gave evidence that they could not hear the computer games or music from their house. Ms Gruber said that when she was visiting the McLellans and Mr McLellan excused himself to video game, she could not hear the noise from the video gaming. Ms Gruber gave evidence of having once or twice heard the McLellans’ television from her house. She said that what she had heard was not excessive and that the only time she had heard it was in the middle of the day.
The position of Ms Keating and Ms Gruber’s house is different to that of the Steers, making it likely that the noises heard by them would be different to those heard by the Steers. However, their evidence assists in giving context to the complaints of the Steers, and helps to give a picture as to the type of lives led by the McLellans. I accept their evidence. Ms Gruber was a particularly helpful witness who gave very considered answers. Ms Gruber, who said she had lived in over a dozen houses and apartments in her adult life, when asked to describe the McLellans as neighbours said, “They’re…one of the best neighbours that we’ve had. They really are. We don’t hear them. They’re quiet. They’re friendly. As I said, we had absolutely no complaints.”[27] Her description was in fact similar to the descriptions given by the McLellans’ former neighbours, one of whom described them as “absolutely wonderful neighbours”.[28] All former neighbours gave evidence that there was no excessive noise or parties.
[27]T3-114 LL 42-44.
[28]T2-23 LL 34-35.
In the course of the evidence of Mr and Mrs Steer, it became clear that parties at the McLellans’ occurred at most about four or five times a year: the Flotilla party in mid-December, Christmas, a New Year’s party and birthdays.
Ms Keating was asked about the Flotilla party. She gave evidence of being able to talk over the music at the party and of the party finishing around 10:30pm. Ms Keating had helped clean up after the party and gave evidence of placing the bottles in the bins. She said they were being as quiet as possible, but said given it was glass bottles, “They’re still going to make some sort of a noise”.[29] In cross-examination, Ms Keating denied that any bottles were smashed. Mr McLellan in giving evidence could not recall Ms Keating helping to clean up. Both Mrs McLellan and Mr McLellan thought, in reliance on the recording on the security camera, that the person cleaning up was Mrs Curd. Mr McLellan was somewhat guarded in accepting the quantity of bottles that would have been placed in the bins in the clean-up that night.
[29]T3-81 LL 13-14.
Apart from the party nights, Ms Keating gave evidence of she and Ms Gruber going over to the McLellans’ to share a glass of wine. On these occasions, the evidence was that just the four of them would be present. Ms Keating also referred, as did Ms Gruber, to a high tea held by Mrs McLellan during the day at which there were probably 10 to 12 ladies present.
It also became clear from the evidence that the largest parties which had been held by the McLellans were the two Flotilla parties, one in mid-December 2012 and one in mid-December 2013. The Steers had been at the 2012 party but not the 2013 party. The Flotilla was a major community event involving the majority of residents living on the canals of Bribie Island. Mr McLellan estimated there may have been about 30 people present at the 2013 Flotilla party. Mrs McLellan did not even think it was as many as 30.
When Ms Gruber was asked generally about parties at the McLellans, she said, “Generally, if Jenny has people around it’s normally just a couple of people”.[30] She said that on those occasions, “There wasn’t any excess noise coming from there.”[31] Ms Gruber said “you probably wouldn’t know they were there, unless you saw their car out the front.”[32] Ms Gruber said that the McLellans would probably have those types of small functions monthly. That was consistent with the evidence of the McLellans. Both Mrs McLellan and Mr McLellan referred to having people over monthly, or perhaps even bi-monthly.
[30]T3-107 LL 24-25.
[31]T3-107 L 41.
[32]T3-107 LL 39-40.
Both Ms Gruber and Ms Keating confirmed the evidence of the McLellans that in the last 18 months to two years, as a result of the problems with the Steers, they had not had anyone around. Mrs McLellan described herself as having become “a prisoner in her own home”.[33]
[33]T5-8 L 6.
The attitude of Mr Steer towards the McLellans appears to have escalated in late December 2012. Based on the evidence of the McLellans and the Steers, it would seem that the McLellans had entertained four guests on the night of 27 December 2012, and Mrs McLellan’s other son and his wife and two children on the night of 29 December 2012. The function on 29 December had commenced at 5:45pm, as was noted by Mr Steer in a diary entry. Those two functions resulted in Mr Steer coming to the front door of the McLellans on the morning of 30 December 2012 and complaining about the noise. The complaint seemed to extend to a complaint regarding noise, smoke and the patio extension. The evidence of the McLellans was that Mr Steer had insisted they could not entertain under the patio extension because of its proximity to the Steers’ bedroom and the consequent disruption to them. In describing the visit from Mr Steer that morning, both Mrs McLellan and Mr McLellan referred to the level of aggression of Mr Steer.
It appears a further incident occurred in March 2013 when Mr Steer again came to the front gate demanding to speak to the McLellans. On this occasion, Mr Steer appeared at the front gate with a tape recorder and his diary. Reference was made to the entry in the diary made by Mr Steer of the events of that day. Mr Steer had described in his diary that Mr McLellan was very aggressive. Neither of the McLellans accepted that Iain had been aggressive but rather said that Mr Steer was the aggressor. Mr Steer had recorded in the diary that Mr McLellan had said he did not “care about his neighbours”. Mr McLellan denied making any such statement. The diary entry had also recorded that the McLellans had apparently previously had “trouble up the Sunshine Coast”. The McLellans both denied having any previous trouble with neighbours at the Sunshine Coast. The statement is also at odds with the evidence given by two former neighbours at their Sunshine Coast property. I accept the evidence of the McLellans regarding the events which occurred on that day.
It appears that after that day Mr Steer began making complaints to the police; both telephone complaints and complaints in person. His diary entries refer to Mr Steer attending the Bribie Island Police Station on 11 occasions to make various complaints regarding the conduct of the McLellans.
The police records were tendered as evidence. The McLellans also gave evidence in relation to the attendance of police. Mrs McLellan’s evidence was that the police had never said they were making excessive noise. By reference to the police records, it is clear that the police attended at the property on six occasions in 2013, four of them in response to telephone complaints received from Mr Steer. Mr Steer had called the police on the night of the Flotilla party in December 2013. The other complaints were made when Mr McLellan and Mrs McLellan were home alone; on one occasion they were watching a movie together. On each occasion, it is clear that the police considered that the noise was not excessive. On one occasion the record even stated “no noise detected”.
In examination in chief, in referring to the involvement of the police and justifying his complaints, Mr Steer stated the noise goes right through the house. Mr Steer said that you could stand outside and it would be “nowhere near as loud as what it is when it reflects from their house when it’s coming through the wall”.[34] Mr Steer said:
“It’s twice the noise, you know. So it’s twice as loud. I’ve stood out there and sometimes you can hardly – you know, you can hear the noise outside when the sound of the surround sound goes down and then it comes up and then the boom-boom, boom-boom. And you go back inside and it’s just double the sound or triple the sound, you know.”[35]
[34]T1-18 L 35.
[35]T1-18 LL 33-38.
He referred to encouraging the police to come and stand in his bedroom. Whilst a noise expert did not give evidence, it is difficult to conceive that the noise inside the Steers’ house would be louder than the noise outside.
Mrs Steer, in giving evidence, referred to the house being made of aerated concrete blocks which she described as having “very poor insulative qualities.”[36] She also referred to the fact that the speaker system as set up in the McLellans’ house faces towards the Steers’ house.
[36]T3-25 L 42.
It is possible that the material used in the external walls of the Steers’ house allows noise to travel in a way that would not happen if the house were made out of brick or stone or some other material, and if the wall of the house was not the dividing fence between the two properties. It is equally possible that the noise is easier to hear in the room which the Steers have chosen to use as their bedroom than it would be in a room at the other end of the house. It is also true that the design of the McLellans’ house does not help in the transfer of noise between the two houses. These matters, however, are not matters that are unusual in suburban living and are not matters which affect the ultimate issue as to the reasonableness of the conduct of the McLellans.
Comments made by Lord Selborne LC in Gaunt v Fynney[37] referred to in the decision of Kidman v Page[38] are very relevant:
“A nuisance by noise (supposing malice to be out of the question) is emphatically a question of degree. If a neighbour builds a house against a party-wall, next to my own, and I hear through the wall more than is agreeable to me of the sounds from his nursery or his music-room, it does not follow (even if I am nervously sensitive or in infirm health) that I can bring an action to obtain an injunction. Such things, to offend against the law, must be done in a manner which, beyond fair controversy, ought to be regarded as exceptive and unreasonable.”[39]
[37][1872] LR 8 Ch App 8 at 12.
[38][1959] Qd R 53.
[39]Kidman v Page [1959] Qd R 53 at 56.
The comments made by Macrossan SPJ in delivering the judgment of the Full Court in Ruthning v Ferguson[40] are pertinent in considering the evidence of the Steers compared with that given by the other witnesses called on this issue:
“In our opinion, on the face of it, the evidence of the plaintiffs is tainted with gross exaggeration, no doubt caused unconsciously by the concentration of their attention on the sensation of which they were complaining. One of the laws of attention is that attention directed to sensation causes an increase of intensity of such sensation, and the plaintiffs’ case, I think, affords a striking illustration of this law. The plaintiffs, so far as we can see, find no corroboration from any other deponent as to the alleged crowing …”[41]
[40][1930] St Qd R 325.
[41]Ruthning v Ferguson [1930] St Qd R 325 at 327.
I conclude that the noise about which complaint was made was not very significant. Neither the level of noise from the music or video games, the bottles in bins or the parties appears excessive. Mr and Mrs Steer are prone to exaggeration and were unreasonable in their attitude to the ordinary activities of the McLellans. The noise was certainly not of a level or a frequency which was unreasonable in suburban living. The Steers have failed to demonstrate that the noise level was such that it amounted to a nuisance.
Dogs
In the statement of claim, it was said that since about December 2012, the McLellans had caused or permitted the two dogs that reside with them at the property to:
(a) run up and down the area of land immediately adjacent to the Steers’ bedroom, barking from as early as 5:40am; and
(b) relieve themselves in that area of land such that a foul smell emanates onto their land.
Injunctions were sought to restrain the McLellans from allowing their dogs to bark adjacent to the Steers’ bedroom or to relieve themselves in that area or for the McLellans to immediately clean up the dog mess.
The initial evidence given by the Steers focused generally on the barking noise from the two dogs. Mr Steer’s evidence was that it started when the McLellans got the new dog. Mr Steer’s diary entries for early 2012 confirm his evidence of a general complaint of noise from barking dogs. Few of those entries, however, suggest continuous barking over long periods. In fact, Mr Steer admitted that the dogs were usually kept inside, but then said:
“If they are outside, I’d say, without exaggerating, three out of four times, if Lyn walked out in the garden, or if I walked down onto the pontoon, the dog would either growl – and start running over and barking at us.”[42]
[42]T2-55 LL 9-11.
At various times in giving evidence, both Mr and Mrs Steer referred to the dogs barking all the time.
After the initial entries in early 2012, there appears a gap in the diary entries on this topic until early 2014, where the entries start to record dogs barking in the early morning and at night near the bedroom and waking the Steers up. The entries in 2014 focus not only on the barking of the dogs near the bedroom but any movement in the grass area beside the bedroom. Mr Steer appears to have become obsessed by the noise from the dogs, on occasions making three or four entries per day in his diary. In giving evidence, Mr Steer referred to being woken up by the dogs running “time and time again”.[43]
[43]T2-40 LL 44-45.
Under cross-examination, Mr Steer was asked as to why the entries in his diaries concerning barking dogs had increased in 2014. Mr Steer did not offer any explanation. There was no evidence suggesting that the behaviour of the dogs had changed in this period.
The Steers’ evidence regarding the dogs and their annoyance at the dogs highlighted their tendency to exaggerate. Mr Steer referred to his wife’s description of the dogs galloping bedside the house and said “that’s what it sounds like. It does sound like a horse going along that side of the house”.[44] Mr Steer continued, “he doesn’t realise that the noise that comes through here well – it’s horrendous. It’s just like as if somebody was…in your bedroom with you”.[45] Mrs Steer described the dogs “thumping up and down the side of the house. It sounds like an elephant”.[46]
[44]T3-12 LL 30-31.
[45]T3-12 LL 32-33.
[46]T3-25 LL 35-36.
The evidence of the McLellans confirmed the dogs were inside dogs. Mr McLellan said that he did not allow the dogs to bark for even minutes when he was around. Mr McLellan accepted that there could be up to four instances a day when the dogs would bark once or twice. Mrs McLellan said, “They would be lucky to make three barks during the day”.[47] Like Mr McLellan, Mrs McLellan’s evidence was that if the dogs were barking she would go outside to find out what the problem was.
[47]T5-15 L 30.
Both Mrs McLellan and Mr McLellan accepted that the dogs may bark when there was no one home, however, they confirmed the dogs remain inside when they both went out. Mrs McLellan said that when she went out, usually Mr McLellan was home. She confirmed that it was not often that they were both out.
Ms Keating was hesitant to accept that she had ever heard the dogs bark but when pressed agreed that if there was an occasion, it was not unreasonable or incessant barking. She was asked about any occasion when she had responsibility for the dogs. She referred to a day when the McLellans had to travel to Brisbane and she had been given a key to the house. Ms Keating said she had heard the younger dog bark probably five times that day and decided to attend the property to separate the two dogs. She brought the younger dog back to her property. Again she reiterated that the barking on that occasion was not excessive. She said that when they visited the McLellans the dogs did not bark except when they first came to the front door.
Ms Gruber said that she would sometimes hear about four barks and that she believed it was usually in response to a visitor at the house. She explained that sometimes when she heard the bark she would get up and she could see that there was a car in the McLellans’ driveway. She said it was very difficult to say how often the dogs barked, because really she considered they did not bark. She certainly said that they never barked excessively.
The complaints concerning the smell from dog faeces appear to have only commenced being recorded in the diary of Mr Steer in 2014.
Under cross-examination, Mr Steer said, “When the mower picks it up, that’s when you can smell it.”[48] However, when Mr Steer was subsequently asked, “So ordinarily, you can’t?”, he responded, “Yes, you can. It depends on how bad it is.”[49] Mr Steer then said, “I mean, you know, you can’t say 14 dog poos don’t smell”. Mr Steer said that he had counted 14 dog poos on occasions.
[48]T2-60 LL 9-10.
[49]T2-60 L 14.
Mrs Steer referred to being overwhelmed by the smell of the dog faeces, particularly in the area outside their laundry. She described it as smelling like sewerage. The complaint of the Steers seems to extend to a complaint of a smell of urine also.
The McLellans did not accept that they did not clean up the dog mess on a regular basis, nor that there was any unpleasant odour from the grassed area. Mr McLellan said his office, where his computer used for gaming was set up, was immediately adjacent to the area and, given that during the day the windows were often open, he would have been aware of the smell, if there was one.
The evidence of Mrs McLellan indicated she considered it was more her responsibility to clean up the dog mess. She said she would do it daily or at least every second day. Mrs McLellan said there were occasions when she was unwell and it may not get done. In his evidence, Mr McLellan referred to cleaning up the dog mess at least a couple of times a week. In contrast to the evidence of Mr Steer, Mr McLellan said he always cleaned up the dog mess before mowing.
Whilst the McLellans expressed surprise that there would have ever been 14 dog faeces in the grassed area which had not been cleaned up, they did accept that they had two large dogs who could go to the toilet up to three or four times a day on some days. They were both shown photographs of the grassed area and accepted that one of the photographs showed four distinct piles of dog faeces.[50]
[50]Exhibit 14.
The evidence of Ms Keating and Ms Gruber was that they had never seen large quantities of uncollected dog mess when visiting the McLellans. Ms Keating described the house and garden of the McLellan’s as “immaculate”.[51] Both the McLellans described themselves as house proud.
[51]T3-75 L 7.
On this issue, I conclude that the evidence of Mr and Mrs Steer is exaggerated and unreliable. I conclude, in any event, that the noise from the barking and both the movement of the dogs and any smell from dog mess was not unreasonable in suburban living. The Steers have failed to demonstrate that either the barking or movement of the dogs or mess from the dogs was such that it amounted to a nuisance.
Barbecue
In the statement of claim it was said that smoke from a barbecue is regularly and wrongfully emitted from the McLellans’ land onto the Steers’ land. An injunction is sought restraining the McLellans from positioning the barbecue so as to cause the emission of smoke onto the Steers’ land.
In giving evidence, Mr Steer referred to both smoke and smell from the barbecue. When Mr Steer was asked how the smoke and any smell got into the house, he responded “Well, it’s right beside the bedroom, virtually beside the bedroom wall.”[52] He said if there is wind blowing, “it just stinks the house out.”[53] When challenged, he narrowed it to the lounge and the bedroom.
[52]T2-32 LL 13-14.
[53]T2-32 LL 30-31.
The evidence of the McLellans was that whilst the barbecue was stored against the fence, when the barbecue was being used for cooking, it was moved to under the awning area. Both Mrs McLellan and Mr McLellan said it was moved so that it was under the awning near the junction of the white and orange roof, so it was near the kitchen. They both denied ever cooking on the barbecue without moving it away from the fence.
Mr McLellan did not accept that his barbecue smoked, though he said there would be odours generated. Mr McLellan referred to smelling odours from barbecues being used by other people. He said he imagined the odours from his barbecue would blow further than just the Steers’ house.
Mr McLellan said that when Mr Steer first complained to them on the morning of 30 December 2012, the complaint was directed to smoke. He considered the complaint at that time was directed to people smoking, which he said would have been correct as on both the nights, the subject of complaint by Mr Steer, smokers were present at their house. However, he said the complaint subsequently seemed to become a complaint of smoke from his cooking on the barbecue.
There was no clear evidence as to how often the McLellans used their barbecue. Mr McLellan said he did not cook on the barbecue when it was just his mother and himself. Given the evidence as to the frequency with which the McLellans entertained, it could be inferred at most that the barbecue was used monthly, or even bi-monthly. Interestingly, the diary entries of Mr Steer only refer to smell and smoke from the barbecue on four occasions in the period between December 2011 and July 2015.
Ms Keating and Ms Gruber confirmed the McLellans’ evidence as to the location the barbecue was moved to for cooking when they were visiting.
It is certainly to be expected that from time to time in Queensland, and probably elsewhere in Australia, neighbours would be able to smell food being cooked on a barbecue. There is nothing in this case which suggests that the smells or smoke from the use of the barbecue by the McLellans were excessive or unusual, or that the position itself of the barbecue in fact was contributing unreasonably to the smell or smoke going on the land owned by Mr and Mrs Steer.
On this issue, I am not satisfied that there was smoke or fumes from the barbecue to a level which was unreasonable in suburban living. The Steers have failed to demonstrate that there was any nuisance arising from the barbecue.
Trees
At the time the proceedings were issued the complaint was that the roots of a tree growing on the McLellans’ land had penetrated the Steers’ land, and that the Steers will incur expenses of $2,200 (inclusive of GST) attending to the rectification of and the abatement of the nuisance.
The Steers called a forensic engineer, Mr Jeffrey Hills, who gave an estimate of the costs of rectification. This was said to include a temporary move of the nearby water tank, the rectification to the pavers near the fence, checking to ensure the water supply line and the electrical conduits in the area had not been damaged and replacing the fence and repainting.
Since the proceedings were issued and the report given, the tree has been removed.
In his report, Mr Hills says that the tree caused damage to the fence. In his evidence, he elaborated that the tree was leaning over the Steers’ side of the fence. Neither he nor anyone else gave any evidence as to the extent of the lean. Neither his evidence or any of the photographs suggest that the lean was very significant. In evidence, he agreed with the suggestion that if the top of the fence was leaning over that could be consistent with the branches of the tree pushing on the fence.
Mr Hills confirmed in evidence that he had not been back onsite since the removal of the tree, and there is no evidence as to the state of the fence since the tree’s removal. There is no evidence that the fence still requires straightening; as Mr Hills suggested in his report. Mr Hills referred to the rot of the fence palings but did not suggest that this would require the fence to be replaced. The only suggestion from Mr Hills was that the fence may need to be fixed consequent upon it being straightened.
There is certainly no evidence that the water supply line and conduits have in fact been damaged.
The complaint about the pavers would seem to be that the pavers had been deflected by the tree roots. Mr Hills was unable to say by how much they were deflected, though he suggested the pavers had risen as much as 30mm. He admitted that no straight edge was put across the pavers and that the unevenness was just from observation. The extent of any deflection is not readily apparent from his report, including the photograph forming part of his report, nor the photographs tendered separately as exhibit 16.
There is a 5,000 litre water tank on the pavers. The pavers were laid on sand. Mr Hills accepted the water tank would exert some pressure on the pavers but did not accept the tank had caused the movement in the pavers.
Any evidence given by Mr Steer on this issue was entirely unreliable as on a number of occasions, despite the evidence of Mr Hills, he insisted the pavers were laid in concrete and that the concrete had cracked.
Mr Hills gave evidence that he thought that it was probable that the deflection of the pavers was caused by the tree roots. Although he conceded that none of the substantial roots of the tree went under the fence, he considered that as the tree grew the whole of the ground around it was lifted, and said that this would have happened on the other side of the fence where the pavers were located.
Mr Hills’ evidence was by no means convincing and the overall impression gained, apart from the evidence referred to in the paragraph below, was that he was doing his best to reflect the views of the Steers, rather than giving independent evidence to assist the court. Indeed, his report did not contain any recognition of his obligation to the court; it was only after objection was taken to the report on that ground that Mr Hills gave any indication that he recognised his obligation was to the court and not his client.
Whether or not any rectification work was necessary was reinforced by Mr Hill’s refusal in cross-examination to say whether or not the time and cost of the work was disproportionate to the problems he alleged existed in relation to the pavers.
In the circumstances, I am not satisfied that the tree root has caused any damage other than the most trivial damage to the level of the pavers. Nor am I satisfied that it is reasonable to undertake the rectification work which is the subject of the claim. An award of any damages is not justified by the evidence.
Statutory right of user
The Steers have a statutory right of user over the McLellans’ land. The statement of claim alleges that the McLellans have restricted the Steers’ access to the area of land the subject of the statutory right of user by placing bins, a barbecue and a large pot plant in that area. The claim asserts that the McLellans have removed a boundary peg and have failed to grant free and unfettered access. The Steers contend their access has been restricted by Mr McLellan’s harassing and intimidating behaviour towards Mr Steer by videotaping and yelling at Mr Steer when he entered the McLellans’ property to exercise his rights pursuant to the statutory right of user. The claim seeks an injunction restraining the McLellans from breaching the statutory right of user.
The terms of the statutory right of user are contained in an attachment to the order made by the Honourable Justice Peter Lyons dated 4 February 2011.
The free and uninterrupted access granted to the Steers was for “all purposes connected with the repair, maintenance, improvement and upkeep of their property or any part thereof.” Except in urgent circumstances, at least seven days’ notice was to be given by the Steers of their intention to exercise their rights. In the notice, the Steers were to describe the type of work to be carried out and the date or dates on which access is required.
The access to be granted is for a distance of 75cm onto the McLellans’ land from the boundary of the Steers’ property for a distance running the length of the Steers’ dwelling, including eaves and gutters, and for any additional distance necessary to carry out work in that part of the Steers’ property.
No submissions were made on behalf of either the Steers or the McLellans as to the juridical basis for this claim or the jurisdiction of the court to deal with it. In view of the conclusions I have reached as to the factual matters it is unnecessary to comment on these issues further.
Since the McLellans moved onto the property, Mr Steer has given to them five access notices.[54] None of the notices complied with the terms of the statutory right of user. Each notice failed to describe the maintenance work to be carried out and failed to specify the date or dates on which access was required. In giving the notices, Mr Steer had simply stated a commencement date from which he would require access to the property.
[54]Access notices dated 7 May 2012, 3 February 2013, 20 October 2013, 26 October 2013 and 13 April 2014.
The evidence was that Mr Steer had not necessarily attended the property on the commencement date stated in the notices, and on two occasions had not attended at all. The evidence was that Mr Steer had requested access for periods of at least 15 days. There was no clear evidence of Mr Steer actually carrying out maintenance on any of those days. It was clear from the evidence that Mr Steer had used his access visits in November 2013 and April 2014 for purposes unconnected with maintenance, and that no maintenance works were performed on those occasions.
Mr Steer’s evidence was that the McLellans currently had bins, a barbecue and a pot plant restricting his ability to access the area the subject of the statutory right of user. His evidence was that previously Mr McLellan had erected a garden shed in the access area. Mr Steer also referred to pavers being placed on the ground in the access area.
It is clear from the terms of the statutory right of user that the free and uninterrupted access granted is solely for the purposes of enabling repair, maintenance, improvement and upkeep work to be carried out on the Steers’ property.
Given the intention of the statutory right of user and its wording, the existence of objects on the land the subject of the right of access, which are capable of being moved following an access request, are not by themselves a breach of the terms of the grant.
The items which have been identified in the claim, namely bins, a barbecue and a pot plant, are clearly items capable of being easily moved. To the extent that any of those items could obstruct the free and uninterrupted access, those items should be moved prior to or on the nominated date or dates of a lawful request for access. In any event, the bins and the barbecue had been moved by the McLellans following receipt of the notices, and the pot plant, if it did impede access, could easily have also been moved.
The second claim was that the McLellans removed a boundary peg. From the evidence, the peg was put in the ground by Mr Steer and his friend, Mr Craitem, neither of whom are surveyors. It was removed by a friend of the McLellans. It is not a surveyor’s peg. No formal relief is sought in relation to the peg. Counsel for the Steers in his closing submissions made no mention of the peg.
The third claim was that on the occasion of exercising his access rights on 4 November and 8 November 2013, Mr Steer was harassed and intimidated by Mr McLellan.
The evidence of Mr McLellan is that on 4 November 2013, he became concerned as to the manner in which Mr Steer was bringing his ladder onto the property. Mr McLellan’s evidence was that Mr Steer had with him a camera, measuring tape and a metre long steel ruler. Given the relationship which had developed between the neighbours, Mr McLellan decided he should record the activities of Mr Steer on his property on that day. The video recording taken by Mr McLellan on the day was played in evidence.
Mr Steer said in evidence that he became very stressed and was unable to start any work because Mr McLellan was yelling at him and “had a camera in my face.”[55] Mr Steer said that had he not turned his head, “he would have hit me.”[56]
[55]T2-77 LL 33-34.
[56]T1-46 LL 42-45.
It is clear from the recording that Mr Steer was very agitated and spoke in an aggressive, nasty tone towards Mr McLellan. Mr Steer called Mr McLellan an idiot, told Mr McLellan he would see him in the Supreme Court, repeatedly said he had had a gutful and referred to Mr McLellan harassing him. Mr Steer pointed the metre long metal rule towards Mr McLellan in an aggressive manner, and walked in his direction. It was the sight of that, as stated in the evidence of Mrs McLellan, that made her call the police. The evidence Mr Steer gave is entirely at odds with the video recording and is simply not true. It is clear from the video recording that Mr McLellan at no time acted in an aggressive manner towards Mr Steer and did not yell.
On the occasion of this visit, Mr Steer did not perform any maintenance works though in evidence he said he intended to paint. He did not appear, however, to be dressed for painting. Rather, it would seem his intentions were to take a couple of measurements and a number of photographs of the McLellans’ property.
Without further communication with the McLellans, Mr Steer returned to the property with another gentleman on Friday, 8 November 2013. No notice was given regarding their attendance on that date, except the earlier reference in the note given for “inspection and maintenance” from “4 November 2013 until 8 November 2013”.
On the occasion of 8 November 2013, Mr Steer brought with him a tape measure, steel ruler and hammer. It would seem Mr Steer had no intention of carrying out maintenance work on that occasion but rather Mr Steer’s intention was to hammer a peg into the ground. The peg had the appearance of a surveyor’s peg.[57]
[57]It was this peg which was the subject of the second claim, which I have dealt with earlier.
Again on this occasion, Mr McLellan recorded some of the activities of Mr Steer on the property. Mr Craitem’s evidence suggested, like that of Mr Steer’s, that Mr McLellan was aggressive towards them. Mr McLellan denied he was aggressive. Again, it is clear from watching the video recording that the description of events as provided by Mr Steer or his friend, Mr Craitem, were not true.
Provided proper notice has been given, in the exercise of his statutory right of user, Mr Steer was only entitled to peacefully enter the property for a purpose connected with carrying out maintenance. The statutory right of user did not entitle Mr Steer to enter the property to take photographs or measurements for the purposes of litigation or to implant stakes into the ground, which seems to have been the purposes of his entries in November 2013 and April 2014.
Mr Steer’s behaviour on these occasions as recorded in the video[58] was consistent with the evidence which had been given by a number of other neighbourhood witnesses who spoke of the aggressive demeanour of Mr Steer, including his tendency to become very agitated and red faced, to aggressively wave his hands or point his fingers and to rant and rave.
[58]Exhibit 22.
There were some matters extraneous to the pleaded case raised in the evidence and in closing submissions by counsel for the Steers. These matters related to the alleged presence for a time in the access area of a garden shed, and the placement of pavers in the access area. In closing submissions, counsel for the Steers referred to both the garden shed and pavers as though they were part of the claim and were evidence of a breach of the statutory right of user. No evidence was led as to the precise location of the garden shed and whether its location may have resulted in any breach.
Mr Steer referred in evidence to the pavers. After a number of questions in cross-examination, he finally conceded the pavers would not stop him putting a ladder there to enable him to paint. Mr Steer referred to a power cable running in that area but once told the pavers were not cemented in, he did not continue with that complaint.
In the circumstances, I do not accept that there has been any breach of the statutory right of user by the McLellans.
Grant of injunctive relief
The claim made in the present case is for injunctions restraining various forms of future conduct, namely:
(a) an injunction restraining the McLellans from playing music, holding parties or playing video games of such a volume that it is audible within the Steers’ home;
(b) an injunction restraining the McLellans from positioning their barbecue so that smoke is emitted from their land onto the Steers’ land;
(c) an injunction restraining the McLellans from allowing the dogs present on their land to bark adjacent to the Steers’ bedroom;
(d) an injunction restraining the McLellans from allowing the dogs present on their land to relieve themselves along the side boundary with the Steers’ land or alternatively an injunction requiring the McLellans to immediately clean up such mess; and
(e) an injunction restraining the McLellans from breaching the statutory right of user order.
It is clear that the McLellans, on the whole, have taken a number of steps to reduce any noise from their property and have reduced their activities to avoid confrontation with the Steers. Mrs McLellan described them as having become “prisoners in their own home”.[59] Mr McLellan described them as not having “had a lifestyle”.[60] On the evidence, it was clear that the McLellans had not used their barbecue for over 12 months[61] and have rarely had people over since that time. Mr McLellan had reduced his television watching and had played computer games using headphones without external sound. The McLellans enjoyment of their land has clearly been diminished by their change of lifestyle.
[59]T5-8 L 6.
[60]T4-39 L 23.
[61]Mr McLellan and Mrs McLellan gave evidence that the barbecue had not been used since late 2013. Mr Steer’s diary entries referred to smell and smoke from the barbecue in April 2014.
Mr Steer’s evidence was that on the current level of noise, with the exception of potential noise from rubbish bins, he would have no complaints.
These facts themselves would make it difficult to issue an injunction. However, whilst no question was asked of the McLellans on the subject, no undertakings or promises were made by the McLellans about their future conduct, and the inference properly left open is that they will return to the lifestyle about which certain complaints have been made if injunctive relief is not granted with respect to that conduct.
In these proceedings, the majority of the evidence given related to the activities on the McLellans’ land prior to the McLellans changing their lifestyle to avoid confrontation with the Steers. This decision relates to that evidence, rather than to the changed lifestyle. On that evidence, I have found the conduct of the McLellans was not unreasonable.
Even if the Steers had demonstrated that the conduct of the McLellans was unreasonable, there would be however considerable difficulties in crafting appropriate forms of injunctive relief.
It would not be reasonable to prevent all music, parties or video games and, on one view, that is not sought. What is sought is that these events not take place in a way that the volume is “audible within the plaintiffs’ home.” A similar injunction is sought with respect to the barbecue, that it not be placed in such a position that “smoke is emitted onto the plaintiffs’ land”. In relation to the dogs, what is sought is that the McLellans not allow the dogs to bark or relieve themselves along the side boundary with the Steers’ land, or that the McLellans immediately clean up any mess.
The other view is that the injunctions sought would really involve an absolute curtailment of music, parties, video games and barbecues, and the use by the dogs of the grassed area of land adjacent to the Steers’ bedroom. That is clearly untenable and would amount to an unreasonable and unwarranted restriction of the use of an area of the McLellans’ land.
A further alternative would be an order limiting the noise or smells and the use of the area by the dogs in some way. That would be difficult to frame.
The real complication is the attitude of Mr Steer himself. It is probable that, absent total bans of any form of activity that might involve noise or barbecue smells or the presence of the dogs, Mr Steer would object that the activity had taken place and involved a breach of the court order.
In making an order, a court must be conscious of the fact that a breach of it would involve a contempt of court and potential liability of a criminal nature.
The plurality of the High Court in Patrick Stevedores Operations No 2 Pty Ltd & Ors v Maritime Union of Australia & Ors[62] held that the objection to the grant of an injunction on the ground that it would involve the constant supervision of the court of the conduct, as expressed in such previous decisions as JC Williamson Ltd v Lukey & Mulholland,[63] was no longer an exclusive or useful criterion for refusing a decree of specific performance. The High Court did, however, applying dicta from Co-operative Insurance Society Ltd v Argyll Stores,[64] observe that a person who was the subject of a mandatory order ought to know precisely what was required and that the possibility of repeated applications for rulings on compliance with orders should be discouraged.
[62](1998) 195 CLR 1.
[63](1931) 45 CLR 282.
[64][1997] All ER 297.
In the present case, it is clear that whatever form of reasonable relief were devised, Mr Steer would use it as a basis to complain about the conduct of his neighbours, and the complaints would be more likely to escalate rather than diminish.
The result is, absent a total ban on the activities the subject of complaint extending to a ban in the use of an area of the McLellans’ land, it would be difficult to frame an order that ensured the McLellens knew exactly what they were allowed to do. Even if some of the activities about which complaint was made were actionable, a proper exercise of the judicial discretion in this case would not involve a grant of an injunction against its repetition.
Costs
Counsel for the McLellans has requested to be entitled to make submissions on the form of the costs order following the delivery of judgment. Subject to any submissions the parties may wish to make, I direct that the McLellans file and serve any submissions on costs within 7 days of the date of this judgment, and that the Steers file and serve any submissions on costs within 14 days of the date of this judgment.
Orders
The orders are that:
1. The plaintiffs’ claim is dismissed.
2. The defendants are to provide written submissions on costs within 7 days from the date hereof.
3. The plaintiffs are to provide written submissions on costs within 14 days from the date hereof.
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