Legal Research
Cases
Young v King

Young v King

Case [2004] NSWLEC 93 19 February 2004

Planning & Development Law

Property Law

No judgment structure available for this case.

Type to search within this case.

Land and Environment Court

of New South Wales

CITATION: Young v King [2004] NSWLEC 93

PARTIES: Margo Young (Appl)
Brendan and Kristina King (Resp)

FILE NUMBER(S): 40417 of 2003

CORAM: McClellan CJ

KEY ISSUES: Construction and Interpretation :- Development consent
Conditions
Exempt development under local environmental plan
Adverse environmental impact
Costs: in Class 4
Party-party costs
Indemnity costs
Mediation
Solicitors: can a solictor be ordered to pay costs
Duty of a solicitor to his client and the court
Referral to the Law Society

LEGISLATION CITED: Land and Environment Court Act 1979 (NSW)
Warringah Local Environmental Plan 2000
Supreme Court Act 1970
Dividing Fences Act 1991 (NSW)

CASES CITED: Calderbank v Calderbank [1975] 3 All ER 333;
Cambridge Credit Corporation Ltd v Parkes Development Pty Ltd [1974] 2 NSWLR 590;
Logwon Pty Ltd v Warringah Shire Council (1993) 33 NSWLR 13;
Tinda Creek Spiritual & Environment Centre v Baulkham Hills Shire Council (1998) 100 LGERA 432;
Wyong Shire Council v Smith, unreported, NSWLEC, Bignold J, 24 December 1992

DATES OF HEARING: 16-19 February 2004

EX TEMPORE
JUDGMENT DATE : 02/19/2004

LEGAL REPRESENTATIVES:

APPLICANT
I Hemmings (Barrister)
Hones Lawyers (Solicitors)
RESPONDENT
S Griffiths (Solicitor)
Pike Pike & Fenwick (Solicitors)

JUDGMENT:

IN THE LAND AND

ENVIRONMENT COURT

OF NEW SOUTH WALES

40417/03

McCLELLAN

THURSDAY 19 FEBRUARY 2004

YOUNG

Applicant

KING & ANOR

Respondent

Judgment

Introduction

1 HIS HONOUR: The parties to this litigation are neighbours. Mr and Mrs King live at 37 Calca Crescent, Forestville. Mrs Young is the owner of and lives at number 35.

2 Both properties are residential cottages. The ground level of number 35 is generally higher than that of number 37. The substrate is apparently sandstone which is relatively close to the surface. The consequence, as is common in many parts of the north shore of Sydney, is that in times of heavier rainfall the ground is unable to contain the natural flow of water, and it comes to the surface.

3 Mr and Mrs King decided in about December 2000 to carry out alterations to their property. In general terms, they contemplated excavation and the creation of extra living accommodation at the lowest level of their cottage on the western side. As part of the proposal they contemplated lowering a pathway immediately adjacent to the building, requiring excavation of their property adjacent to the boundary with number 37, the construction of a new path and the construction of a retaining wall.

4 Plans showing those works have been tendered to the Court. The accommodation is described as a granny flat. The plans were said to have been designed by Mr King himself. The date of the original drawing is said to be 20 December 2000. Mr King, amongst other matters, is qualified as a mechanical and electrical engineer. He does not appear to be qualified as a civil engineer.

5 Work commenced on the site to effect the alterations. Excavation was carried out and other work consistent with the ultimate objective was…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading Young v King

Details

AGLC: Young v King [2004] NSWLEC 93
Case: [2004] NSWLEC 93
Decision Date: 02/19/2004

CaseChat Overview and Summary

The applicant, Margo Young, brought proceedings against the respondents, Brendan and Kristina King, seeking declarations, orders and damages in relation to building works carried out by the respondents on their property. The respondents had carried out works including the construction of a retaining wall and a footing on the boundary with the applicant's property. The applicant contended that the works were unlawful and had caused damage to her property. The parties had engaged in correspondence and negotiations throughout the proceedings, including offers of compromise and mediation, but had been unable to reach agreement. The court found that the applicant had succeeded in establishing relevant breaches of planning law and had obtained an undertaking that the necessary works to address the drainage issues would be undertaken. The court ordered the respondents to pay the applicant's costs but declined to make an order for indemnity costs, finding that the conduct of the respondents' solicitors did not warrant such an order. The court proposed to refer the conduct of the respondents' solicitors to the Law Society for further consideration.

The key issues before the court were:

1. Whether the respondents' works were lawful or constituted exempt development under the local environmental plan.

2. Whether the works had caused damage to the applicant's property.

3. Whether the court should make an order for indemnity costs against the respondents or their solicitors.

4. Whether the court should make orders in relation to the conduct of the respondents' solicitors.

The court found that some of the respondents' works were not exempt development and had been carried out without consent. The court also found that the works had interrupted subsurface water flows and caused drainage issues on the applicant's property. The court ordered the respondents to undertake works to address the drainage issues. The court declined to make an order for indemnity costs but proposed to refer the conduct of the respondents' solicitors to the Law Society for further consideration.

Orders