Wallace v Powell

[2000] NSWSC 406

CITATION:	WALLACE V. POWELL & ORS. [2000] NSWSC 406
CURRENT JURISDICTION:	Equity Division
FILE NUMBER(S):	SC 1119/99
HEARING DATE(S):	28/04/00
JUDGMENT DATE:	18 May 2000
PARTIES :	Michael John Wallace - plaintiff Laurence Edward Powell - 1st defendant Douglas James Powell - 2nd defendant Gaye Lorraine James (nee Powell) - 3rd defendant Ruth Shoobridge - 4th defendant Lance William Powell - 5th defendant
JUDGMENT OF:	Hodgson CJinEq at 1

COUNSEL :	Mr. M. Podleska for plaintiff Mr. R. Dubler for defendants
SOLICITORS:	John McDonald & Partners, Murwillumbah for plaintiff Bolster & Co., Tweed Heads and Murwillumbah Lawyers, Murwillumbah for defendants
CATCHWORDS:	NUISANCE - Public nuisance - Obstruction of public road - Liability of person who created nuisance - Liability of persons who fail to end it - Particular damage to plaintiff - No nuisance justifying damages to plaintiff or injunction - Quia timet injunction granted - INJUNCTIONS - Quia timet injunctions
DECISION:	See par.46 of judgment

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

CORAM: HODGSON, CJ in Eq.

Thursday 18th May 2000

NO. 1119 OF 1999
WALLACE V. POWELL & ORS.

JUDGMENT

1   The plaintiff has since August 1994 been the registered proprietor of the property contained in Folio Identifier 1/596376, situated at Upper Burringbar in Northern New South Wales. Access to this property is provided by a Crown reserved road over the property in Folio Identifier 8/618883, which was, at the commencement of these proceedings, owned as to part by Laurence Powell and his former wife Gaye, and as to part (in one-quarter shares as tenants in common) by Laurence Powell and Douglas Powell (as executors of their father's will), Laurence Powell, Anne Powell, and Lance Powell. Anne Powell, the mother of Laurence, Douglas, and Lance, died after the commencement of these proceedings; and her share is now held by her executors, Laurence Powell and his sister Ruth Shoobridge. For convenience, I will refer to these various persons by their forenames. 2   There have been built on the reserved road within the land in Folio Identifier 8/618883 a number of buildings. In these proceedings, brought against the owners of that land, the plaintiff seeks orders for the removal of the buildings and damages, on the basis of public nuisance.

HISTORY

3   At the time when the plaintiff acquired his property, physical access was provided via a vehicle track within the reserved road, which passed between the buildings that were built or encroached on the reserved road. 4   The most substantial of these buildings is a sawmill; and there are in addition two timber sheds, a metal shed, and a timber garage. The evidence shows that all of these buildings, apart from the tin shed, were erected by the father of Laurence, Douglas and Lance. The sworn Defences in these proceedings indicate that the erection of these buildings took place prior to 1975, and there is no evidence to the contrary. As regards the tin shed, there is some evidence that this too was erected by the father; but there is also in evidence an admission by Lance that he erected the shed, and that admission was not contradicted. 5   It appears that, in or shortly prior to 1995, Lance and Laurence constructed a deviation track around the buildings and off the reserved road; and it is that track which has generally been used since that time by persons wanting access to the plaintiff's land and other areas served by the reserved road. 6   Shortly after he purchased the property, the plaintiff applied to Tweed Shire Council to subdivide it into three lots. On 6th October 1995, the Council gave its consent to this application, subject to conditions, including conditions requiring that the plaintiff construct a Class C Standard road along the reserved road. 7   According to the plaintiff, during 1995 he forwarded a number of letters to the defendants requesting that they either arrange for the re-routing of the reserved road or else remove the buildings from it, to enable the plaintiff to have the required road constructed. 8   It appears that in about October 1995, another property was purchased in the name of the plaintiff's wife, at Uki. It appears that subsequently, the plaintiff and his wife separated, and they have since been divorced. 9   During 1996 and 1997, there were a number of approaches by the plaintiff to the defendants with a view to having the buildings removed, or alternatively having the defendants provide an alternative route for the road. 10   In about February 1996, the plaintiff spoke to Lance and Laurence. Lance said that they were interested in subdividing their own land, and that they would be interested in meeting one half of the cost of an access road. 11   At Easter 1996, the plaintiff requested Douglas, his mother, and his sisters to remove the buildings or create a bypass. 12   In August 1996, a surveyor Mr. White, employed by the plaintiff, wrote to Laurence, Lance and Anne, requesting that they go ahead with the re-alignment of the road; and in response, solicitors acting for at least some of the defendants advised that a plan of subdivision was being prepared. However, in late 1996, Lance told the plaintiff that Douglas would not agree to the road being re-aligned. 13   In October 1996, the Department of Land & Water Conservation wrote to the defendants, pointing out that the structures were not permitted on the reserved road, and advising of the procedures that they should adopt if they wished to have the road re-routed. 14   During 1997, the plaintiff continued to speak from time to time to Laurence and Lance in an endeavour to reach agreement on the matter. 15   On 30th April 1998, there was a meeting at the Council Chambers between the plaintiff, Laurence and Lance, and certain other persons. The plaintiff advised that, if the matter could not be resolved within three weeks, he would have to commence Court proceedings. 16   There were some final attempts to reach agreement during December 1998; but these were unsuccessful, and on 18th January 1999, the summons in these proceedings was filed. 17   On 16th March 1999, Laurence, Lance, Ruth and Gaye signed a document to the effect that they were willing to remove the buildings. On 23rd March 1999, solicitors acting for Douglas wrote to the plaintiff's solicitors a letter which included the following:

As no agreement is possible regarding a costs sharing of deviation around the existing structures on the road reserve, we are instructed our clients are agreeable to the removal of the existing structures on the road reserve.

We note your clients demand that the demolition of the obstructions commence within 7 days of the date of your letter and that demolition be completed within 14 days of the date of your letter. Our clients do not agree to such a time frame. Our client will take steps to remove the obstructions upon notice from you that your client has obtained the necessary approvals from both the Department of Land Conservation and the Tweed Shire Council ("the Council").

Council officers advise us that your client has not obtained the necessary approvals to commence any work on the road reserve. We are advised by Council officers that it is necessary for your client to obtain approval from the Department of Land & Conservation for the road reserve to be transferred to the Council and that the Council must then approve of any proposed road construction.

18   On 27th April 1999, the Department of Land & Water Conservation wrote to the defendants, ordering that they remove all structures and obstructions along and across the Crown Public Road within sixty days. However, this order was suspended on 5th August 1999. 19   On 19th July 1999, an offer was made by all defendants to meet the costs of construction of a deviation around the buildings and off the existing reserved road. 20   The plaintiff has signed a contract for the sale of his land for a price of $245,000.00, conditional on removal of the buildings by 31st May 2000. This contract has not been exchanged, and the plaintiff did not assert in evidence a firm intention to exchange this contract. 21   The plaintiff has led evidence of lost opportunities for sale of his property and/or of lots within the proposed subdivision, due to access problems; and also of interest costs which he has incurred since purchasing the property. 22   It seems clear that the most substantial of the relevant buildings is the sawmill. Douglas has put on evidence that to re-locate this building would be a very difficult task. It would involve having to pull down the shed on a piece by piece basis. The more difficult task would be to re-locate the mill equipment, including breakdown saw, saw bench, four head planer and diesel engine. These are all attached to bolts secured into concrete slabs. It would also necessitate re-locating three phase power, including re-locating power poles. Douglas estimated the cost of re-locating the mill and equipment would be in excess of $40,000.00. 23   There is some evidence that, in addition to problems caused by the existence of the buildings, there has been additional obstruction to access by such things as vehicles and trees across access tracks. However, this evidence was disputed, and the Statement of Claim does not allege any nuisance by reason of such obstructions. 24   There is evidence from the plaintiff that he has now instructed his engineer, Mr. Harry, to prepare plans for a road to be constructed, as required by the Council, along the reserved road.

ISSUES

25   The following main issues have been argued. First, whether the buildings constitute a public nuisance for which the defendants are responsible. Second, whether the plaintiff has suffered particular damage entitling the plaintiff to sue for an injunction and/or damages; and if so, whether an injunction and/or enquiry as to damages should be granted. Third, whether or not the plaintiff has shown such a prospect of nuisance occasioning particular damage that the plaintiff is entitled to a quia timet injunction.

SUBMISSIONS

26   Mr. Podleska, for the plaintiff, submitted that the buildings plainly constituted a public nuisance. The defendants were liable for it: Douglas had adopted the nuisance by using the sawmill, Lance put up the tin shed, and all of the defendants failed to take reasonable steps to bring it to an end although having ample time to do so: see Cartwright v. McLaine-Long Pty. Limited (1979) 143 CLR 549; Sedleigh-Denfield v. O'Callaghan (1940) AC 880; Torette House Pty. Ltd. v. Berkman (1940) 62 CLR 637. 27 The plaintiff, Mr. Podleska submitted, had suffered particular damage. He intended to commence his subdivision as soon as possible, but because of problems with access he did not sell any of the three subdivided blocks, and was ultimately forced to sell the whole property for a lesser price. But for the nuisance, the plaintiff would have successfully completed the subdivision and sold the three blocks. 28 Mr. Dubler for the defendants submitted that there had not been a public nuisance. There was no evidence that access to the plaintiff's land had actually been obstructed or restricted by the buildings: see Paprzik v. Tauranga District Council (1992) 3 NZLR 176 at 184; R. v. Bartholomew (1908) 1 KB 554. 29 Mr. Dubler submitted that in order to satisfy the conditions of the development consent relating to an upgrading of the access road, the plaintiff would first have to lodge engineering plans, have them approved by the Council, and have the title to the road transferred to the Council: only then could construction commence. Obstruction or interference with access would only arise if and when there was any hindrance to that process; and there would be no nuisance unless or until this happened. The engineering plans could be drawn up with the buildings still there; and the plaintiff could have done that, rather than simply take these proceedings. Apart from the bringing of the proceedings, there was no demand for removal of the buildings; there were merely negotiations. The defendants have indicated that they will remove the buildings once the Council has accepted the engineering plans so that construction can commence. 30 Mr. Dubler also referred to evidence concerning the plaintiff's financial capacity. He submitted that the evidence showed that the plaintiff never had the financial capacity to construct the road. In response to a suggestion from the plaintiff that he did not get finance to construct the road because he was unable to get anyone to agree to purchase any of the subdivided lots, Mr. Dubler submitted that it had not been established that the lack of sales was due to the buildings, or that the plaintiff would have been able to obtain finance if sales had been achieved. As a matter of discretion, it would be futile to order immediate removal of the buildings, where the plaintiff is not in a financial position to construct the access road. The offers of the defendants to remove the buildings, once engineering plans had been approved, or to pay the costs of an alternative route, should be given weight; and no injunction should be granted. 31 In reply, Mr. Podleska submitted that evidence from a real estate agent, Mr. Cahill, was compelling evidence that purchasers had been discouraged by the access problem. By leave, Mr. Podleska also gave reference to a number of cases concerning the question of what actual obstruction was required to constitute a public nuisance, and what constitutes special damage: Walsh v. Ervin (1952) VLR 361; Ball v. Consolidated Rutile Ltd. (1991) 1 Qd.R. 524; Harper v. G.N. Haden & Sons Pty. Ltd. (1933) Ch. 298, 302; Dymond v. Pearce (1972) 1 QB 496; White v. Humphries (1984) MVR 426; Fabbri v. Morris (1947) 1 AllER 315; Rose v. Miles (1815) 105 ER 773; Blundy, Clark & Co. v. L. & N.E. Ry. Co. (1931) 2 KB 334; Smith v. Warringah Shire Council (1961) 79 WN(NSW) 436; Amalgamated Theatres v. Luney (1962) NZLR 226; Grafton Shire Council v. Mudie (1999) QCA 263; Taylor v. City of Perth (1988) Aust.Tort.Reps. 80-191.

DECISION

32   A public nuisance is an act or omission which materially affects the reasonable comfort and convenience of the life of a class of the public. Obstruction of a public highway may amount to such a nuisance, depending upon the degree and length of time and reasonableness of the obstruction. Those liable for such a nuisance would be the persons who created it, and also persons who unreasonably failed to end it. In this case, although the damage caused to persons other than the plaintiff appears to be small, in my opinion the substantial nature of the obstructions is such as to make them a public nuisance. 33   However, there is a real question whether the plaintiff has suffered particular damage, and thus has standing to bring an action in respect of a public nuisance. The most significant damage that the plaintiff alleges, and which has some support from the evidence, is that involved in discouragement of purchasers because of access problems, and delay caused to the carrying out of the approved subdivision. Otherwise, the evidence suggests no damage flowing from actual obstruction of passage: it seems clear that the plaintiff has been able to get to and from his property along the deviation track without inconvenience. Certainly, in my opinion, any damage caused to date to the plaintiff, by actual obstruction of passage occasioned by the buildings, would be insufficient to justify an award of damages or enquiry as to damages, or an injunction. 34   Turning to the question of whether the plaintiff has been damaged by delay caused to the carrying out of his subdivision, it is clear that the plaintiff has never been in a position to commence constructing a road, as required by the conditions of the development approval. The construction of the road could not commence until there had been engineering plans drawn up, Council approval of those plans, and at least initiation of the process of acceptance by the Council of a transfer of the road from the Department of Land & Water Conservation. 35   It could be suggested that the lack of the engineering plans and the failure to take the further steps were themselves caused by the obstructing buildings. Plainly, this was not caused directly by the buildings. It could be suggested that it was caused by the plaintiff's belief that the buildings would not be removed when the time came for construction of the road, and/or by the continuance of negotiations for an alternative route. 36   There is some authority to the effect that actual physical obstruction of the plaintiff in the use of the public highway may not be a necessary element of particular damage. In Rose v. Miles, a bargeman succeeded against a defendant who had wrongfully moored his boat across a navigable river and forced him to unload his cargo and transport it overland. In Blundy, Clark & Co. v. L. & N.E. Ry. Co. at 362, it was suggested that it would have made no difference if, instead of taking his barges to the obstruction, the bargeman had never commenced upon the voyage because he knew that the obstruction was there and would not be removed. However, in the present case, there was no assertion by any of the defendants that the buildings would not be removed to enable construction of the road to take place, but rather an expression of preference that a deviation be arranged, leading to negotiations towards that result. 37   As to whether the plaintiff suffered damage because of loss of sales, the evidence suggests that this was not because the existence of the buildings obstructed physical access, but rather because purchasers were discouraged because of the delay in resolution of how the access was to be provided. 38   It may be that the person or persons who erected the buildings upon the reserved road would be liable for causing these kinds of damage to the plaintiff: cf. Campbell v. Paddington Corporation (1911) 1 KB 869; Owen v. O'Conner (1963) 63 SR(NSW) 1051. But for the erection of the buildings upon the reserved road, there would have been no occasion for negotiations for a deviation, and no occasion for a problem which could discourage purchasers. However, on the evidence, it was the father of Laurence, Lance and Douglas who erected the most substantial of the buildings, the sawmill, which appears to be the main obstacle to use of the reserved road. There is no suggestion in the evidence that the removal of the other buildings would involve substantial problems. The evidence does, I believe, justify a finding that Lance erected the metal shed; but in my opinion, the metal shed did not significantly add to the pre-existing problems caused by the other buildings, and particularly by the sawmill. For that reason, I would not find Lance liable for particular damage to the plaintiff as a creator of a public nuisance. 39 As for the father, the problem here is that no claim is made on the basis that the father created the nuisance, that damage has been suffered by reason of the father's action, and that accordingly damages can be claimed against his estate, pursuant to the Law Reform (Miscellaneous Provisions) Act 1944, s.2(4). Had such a cause of action been pleaded, it may be that some remedy could have been given against the father's estate: I note that a one-quarter interest in part of the property is still held by Laurence and Douglas as executors of the father's will; so it may be that there are still assets in the father's estate against which such damages could be claimed. Any such damages would be limited, I believe, to undistributed assets in the father's estate. But as I have said, no claim has been made on that basis, and no application has been made to amend in order to make such a claim. 40 I now need to consider whether the defendants may be liable to the plaintiff for failing to take reasonable steps to put an end to the obstruction to the reserved road. Although some of the buildings are entirely on the reserved road, and not at all on the defendants' property, in my opinion the defendants have sufficiently adopted or taken responsibility for the buildings so as to make them potentially liable for failing to take reasonable steps to remove them. The contrary was not submitted. Certainly, Douglas has used the sawmill, and there is no suggestion that the defendants are to be treated differently. 41 In my opinion, having regard to the negotiations which took place, and to the expense that would be involved in removing the buildings, particularly the sawmill, and also to the fact that there was no significant obstruction of ongoing physical access, it could not be said that the defendants have failed to take reasonable steps to bring the obstruction to an end. Unless and until it became clear that the deviation would not be agreed upon or else that the plaintiff was ready, willing and able to go ahead with the construction of the road, I do not think it was unreasonable that the defendants did not take steps to remove the buildings. 42 For those reasons, in my opinion, the plaintiff has not established an entitlement to relief for nuisance occurring prior to the commencement of the proceedings, or indeed up to the date of the hearing. However, there is still the question whether there is such a threat of the commission of a nuisance, giving rise to particular damage to the plaintiff, that the plaintiff should be granted quia timet relief. 43 In my opinion, it would be a public nuisance committed by the defendants, causing particular damage to the plaintiff, if the buildings were not removed at a time when the plaintiff was ready, willing and able to commence actual construction of a road along the reserved road. The defendants presently indicate a willingness to remove the buildings at such a time. However, they also continue to indicate a preference for an alternative solution, and they do not indicate a willingness to remove the buildings within any particular time frame. For those reasons, in my opinion, there is a real danger that a time will arrive when the plaintiff is ready, willing and able to construct the road, but the buildings obstruct such an endeavour. For that reason, in my opinion it would be appropriate to grant an injunction requiring the buildings to be removed within a specified time after Council approval has been given to engineering plans for the construction of the road, and the plaintiff notifies the defendants that he is ready, willing and able, and proposes, to proceed with the construction of the road. 44 It may be that the construction could not commence until further steps had been taken to a enable transfer of the road from the Department of Land & Water Conservation to the Council, but, in my opinion, the removal of the buildings should be undertaken as soon as engineering plans have been approved by the Council and the plaintiff indicates readiness, willingness and ability to commence construction. There is no direct evidence as to the time required from commencement of removal to completion of it: at present, I would be minded to impose a limit of 28 days. 45 I do not think the evidence concerning the means of the plaintiff justifies any different result: in my opinion, there is sufficient prospect that the plaintiff will be able to obtain finance necessary for the construction of the road, when engineering plans have been approved, to justify a quia timet injuction. The question of the earlier inability of the plaintiff to proceed with the subdivision, through lack of means, does not arise, because of the conclusion I have reached about the defendants' non-liability for nuisance at any time up to the hearing. 46 For those reasons, I would propose to grant a mandatory quia timet injunction along the lines I have indicated, as against all defendants. However, I find that the plaintiff has no entitlement to damages. I will need to hear submissions on the question of costs. At present, I am tentatively of the view that each side should pay its own costs. Although the plaintiff has not established actual nuisance against the defendants, the problem which gave rise to the proceedings is at least in part due to the defendants seeking not to have to remove the buildings, and yet not arranging the relocation of the public road which they would need to arrange if the buildings are to be left where they are.

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Last Modified: 09/25/2000