Land and Environment Court of New South Wales CITATION : Mandy Stevens v. Gregory Ian Cleary [1998] NSWLEC 125 APPLICANT Mandy Steverns PARTIES : RSPONDENT Gregory Ian Cleary FILE NUMBER(S) : 40229 of 1997 CORAM: Sheahan J KEY ISSUES: :- LEGISLATION CITED: Local Government Act 1993 Local Government (Approvals) Regulation 1993 National Parks & Wildlife Service v Stables Perisher Pty Limited (1990) 20 NSWLR 573; CASES CITED: King & Anor v Lewis & Anor (1991) 74 LGRA 362 per Cripps J at 364-5; Giusti & Ors v Grant (Unreported, 40314 of 197, 24 April 1998, Sheahan J); Conomos v Chryssochoides ("Conomos") (Unreported, 40269 of 1996, Sheahan J, 29 October 1997 DATES OF HEARING: 3/03/98, 04/03/98 DATE OF JUDGMENT: 07/24/1998 APPLICANT Mr Ian Hemmings, Barrister Steven Klinger LEGAL REPRESENTATIVES: RESPONDENT Ms E Olsson, Barrister Whatmore Gee & Co JUDGMENT: These are Class 4 proceedings involving two neighbours. Stevens is the owner of the property known as No.4 Jenkins Street Chatswood ("No.4"), and Cleary is the owner of No. 2 Jenkins Street Chatswood ("No.2"). No.2 is uphill and to the south of No.4. Stevens has owned No.4 since 3 March 1970, and Cleary purchased No.2 towards the end of 1996. Both properties are within the area of Willoughby City Council ("Council") of which Stevens is an elected councillor. Council's Building Approval 961047 on 14 April 1997 (Exhibit S2) allowed Cleary to demolish the old single-storey brick and sandstone dwelling on No.2, to erect a new two-storey dwelling and garage on slabs on the property, and to establish associated landscaping and drainage works. The dispute between the parties concerns two "retaining" walls: * A double-brick retaining wall ("the brick wall") is situated on, or directly adjacent to, the boundary between the two properties, and has been in place since before Stevens purchased No.4. Indeed, one expert witness testified that it was probably built before World War II and is therefore between 28 and 60 years old. At its highest point the brick wall is 13 courses of bricks, or 1100 mm, above the ground level of No.4; it is a constant 230mm wide/thick; and it is approximately 38.5m long. It seems likely that it has no foundations. * A treated pine log retaining wall 15.45m long and, at its highest point, 800 mm above the ground level of No.2 ("the log wall") was built within Cleary's land, parallel to and 600mm from the brick wall, as part of the works done following Council's April 1997 approval. It is common ground that, under Council's Local Approvals Policy (No.1), the log wall required Council's consent pursuant to s 68 of the Local Government Act 1993 ("LGA"). Survey evidence indicates that ground level at No.4 (i.e. the floor level of Stevens' garage) is at RL 17.27, that ground level at No.2 (i.e. at the top of the brick wall) is at RL 18.4, and that the floor level of the new residence at No.2 is at RL 19.55. 2. RELIEF SOUGHT In her amended Class 4 application, filed when the hearing began on 3 March 1998, Stevens seeks declarations in three alternative formulations: 1. In the first formulation, Stevens seeks declarations that: * the log wall (wrongly alleged to have been built by Cleary on the common boundary) requires approval under the LGA, * the log wall has been erected without such approval, and * the work carried out on Cleary's land, in particular the log wall, caused damage to the brick wall. 2. Alternatively, Stevens seeks declarations that: * Condition 7 of Council's approval required the submission, for Council's consideration, of "structural engineers [sic] details" for the log wall prior to the commencement of the building work, * no such "structural engineer's details" were submitted, * no such details were approved by Council, and * the work on the log wall caused damage to the brick wall. 3. In further alternative, Stevens seeks declarations that: * cl 31 of the Local Government (Approvals) Regulation 1993 ("the Approvals Regulation") required the submission to, and the approval by, Council of "structural engineer's drawings or other engineering details" for the log wall prior to the commencement of building work, * no such drawing or details were submitted, * no such drawing or details were approved, and * the work carried out on Cleary's land, in particular the log wall, caused damage to the brick wall. Condition 7 of the Cleary approval says: "Structural engineer's details prepared and certified by a practising structural engineer of all reinforced concrete and structural members being submitted to Council for consideration PRIOR TO COMMENCEMENT OF BUILDING WORK. N.B. Placement of concrete will not be permitted unless approved detail has been uplifted from Council." The dictionary to the Local Government Act does not define "structural member", but Counsel for Cleary submitted that a structural member would be part of a structure, rather than a structure itself. Clause 31 of the Approvals Regulation provides as follows: "Structural Drawings 31. It is a condition of an approval to erect a building which is given before approved structural engineer's drawings or other engineering details prepared by a structural engineer are submitted to the council that: (a) work on the footings must not be commenced until full engineering details relating to them have been submitted to and approved by the council; and (b) no stage of the building work other than footings is to be commenced until full engineering details relating to that stage of the building work and such other stages as may be specified by the council have been submitted to and approved by the council." The essence of the claim by Stevens is an allegation that the site works on No.2, and the building of the log wall in particular, increased the lateral pressure on the brick wall, thereby damaging it beyond normal wear and tear, and rendering it unstable. This Court has limited jurisdiction which does not embrace claims in tort. National Parks & Wildlife Service v Stables Perisher Pty Limited (1990) 20 NSWLR 573. [See also discussions in King & Anor v Lewis & Anor (1991) 74 LGRA 362 per Cripps J at 364-5, and in Giusti & Ors v Grant (Unreported, 40314 of 197, 24 April 1998, Sheahan J) at pp 5-9]. Accordingly, in order to obtain relief from this Court, Stevens must satisfy the Court of three things - that the works on No.2, especially the log wall, are tainted by relevant illegality, that there has been damage to, or deterioration of, the brick wall since those works began, and that such damage or deterioration has a causal connection with the works tainted by the illegality. In the event of her success in the application, Stevens seeks an order that Cleary repair or replace the brick wall. It is estimated that such works will cost a minimum of $16,700. She also seeks her costs, and "such further or other order as the Court thinks appropriate". In the final stages of his submissions on her behalf, Mr Hemmings of Counsel suggested that an "appropriate" further order, possibly as a preliminary to a direction to repair or replace the brick wall, would be for the soldier piers of the log wall to be bored in order to verify the depth of their imbedment in the soil. 3. WITNESSES 3.1 Counsel for Stevens relied on the evidence of: * Gregory Peter Woodhams, Council's Director of Environmental Services, who oversees the assessment and reporting to Council on all applications, including building and development applications. * Stevens herself. * Ian Carter, Stevens' lawn mowing contractor for approximately 23 years. * Anna Karachitos, Stevens' niece who has regularly visited No.4 approximately every second or third day for the past 28 years. * John Thomas Davies, a Consulting Engineer. 3.2 Counsel for Cleary relied on the evidence of: * Jack Dudley Hodgson, a Consulting Engineer. * Cleary himself. * Ian Cleary, father of the respondent, who took photographs of the site and was present during relevant conversations and works. * Christopher Robinson Bennett, who for 25 years has been engaged in underpinning, building, rectification, and earthmoving works, and demolished the house at No.2. * Peter Terleckyj, landscaper, who built the log wall. and on engineering certificates presented by John Rafeletos. 4. CHRONOLOGY OF RELEVANT EVENTS November 1996 Cleary's application lodged with Council. When neighbours notified, Stevens lodges objection. Late December 1996 I and G Cleary call on Stevens at Council's suggestion to discuss project and her objections. 16 January 1997 Parties meet with Council officers. Relevant results are greater setback from street of new house at No.2, a lowering of the proposed building height by 1m on the southern side, and a mirror-reversal of the house, with the consequent need for "cut and fill" works, and the construction of retaining wall(s). 14 April 1997 Council, with Stevens absent, approves Cleary's application, as amended following various consultations, with retaining walls marked on final version of plans stamped "approved" (version numbered "2821B"). 12 May 1997- 2 June 1997 Demolition works at No.2. 24 June1997 On-site meeting, involving Council officers and Cleary's landscaper, Terleckyj, after which the log wall is constructed as discussed, to a height not exceeding that of the fence on the brick wall. 26-27 July 1997 Engineering certificates issued regarding house by Rafeletos. 31 July 1997 Council advises that the brick wall issue is a private matter between parties. August 1997 Slab poured at No.2 and frame erected. 2 September 1997 Council serves on Cleary a notice of intention to issue an Order under s 124(30) of the LGA, in respect of: 1. Submission of a structural engineer's plan of the log retaining wall, including the method of drainage. 2. A structural engineer's certificate confirming that the log retaining wall as constructed is structurally adequate. In particular, it should indicate the depth of the vertical support columns relevant to the brick wall, and that it "has not and will not exert any additional pressures or loads" on the brick wall. 3. An engineer's certificate stating the concrete piers to the concrete slab are structurally adequate and will not impose additional loads on the brick wall. Early September 1997 Cleary engages Hodgson. 9 September 1997 Hodgson recommends "tying back" of log wall to house slab, so it will not depend on the brick wall. 15 September 1997 Hodgson letter to Council in response to its draft order. 16 September1997 Stevens files Class 4 application. 17 September1997 (approx) Log wall is "tied back" to slab, as recommended by Hodgson. 17 September 1997 Hodgson certifies to Council that if the brick wall were to collapse, the log wall, if tied back as he had recommended, "would be adequate to support the soil under the house" at No.2. 1 October 1997 Council formally approves the works recommended by Hodgson. 2 October 1997 Council inspection confirms that ties are now in place. 28 January 1998 Council while complaining about Cleary's occupation of No.2 without consent, and 9 specific matters, raises no concerns about the log wall or any related matters. 5. COUNCIL'S ROLE IN MORE DETAIL Woodhams testified that he took a careful interest in the Cleary application because Stevens, being one of the Willoughby City Councillors, was an objector. The officers' report on which the building approval is based (Exhibit S1) is dated 14 April 1997 and was prepared after the plans had been amended following a series of discussions, to "minimise the impact of the proposal on No.4". The plans as finally approved show the relevant log wall as "retaining wall by client", and Woodhams says it is Council's practice to regard such a notation as part of its approval.However, he contended that condition 7 included the log wall as a "structural member". He also testified that it was Council's practice to require an engineer's report, but to be satisfied if that were provided after the event and not necessarily in advance of construction. Hodgson's report of 9 September 1997 would, therefore, seem to satisfy normal Council practice in such matters. Woodhams also testified that the meeting on 24 June 1997 could not be construed as "granting approval" for the Cleary log wall, as that had already been approved. The purpose of those discussions was to satisfy the neighbours' concerns, and to give some guidance to the log wall builder regarding the height of that wall in relation to the fence (see Exhibit C1). When Council notified on 2 September 1997 its intention to issue an Order, including some regard to the log wall, it did so, not on the basis that there was no valid approval in place, but that the work did not comply with the approval (LGA s 124(30)). 6. THE EVIDENCE ABOUT THE WALLS 6.1 The brick wall The brick wall is 28 to 60 years old and supports a wire mesh fence, facing the Cleary side, to which is bolted a paling fence which faces the Stevens side. It would appear that at some stage since World War II (Hodgson suggests perhaps since 1970) the timber uprights of a paling fence were removed from their positions of imbedment in the brick wall, approximately 2.8m apart, and the metal uprights of the wire mesh fence were affixed to the top of the brick wall. The original imbedment of those timber uprights, and the non-reconstruction of the brick wall in the gaps left by their removal, weakened the brick wall by making it "discontinuous", and predisposed it to tilting, cracking and movement at those locations. Stevens says there was a paling fence there pre-1970 and that she and her late husband did some fencing work in conjunction with a neighbour. However, elsewhere in her evidence she was adamant that no work of any sort, including maintenance, has been done to the brick wall itself, since 1970. 6.2 The brick wall's condition prior to the work at No.2 Stevens claims that prior to the end of 1996 the brick wall was in "very good" or "excellent" condition; and that she had never noticed any deterioration in it, apart from some minor cracking in two places. The Court had the benefit of extensive photographic evidence, from which it is clear that the wall was in far better condition up until 1994 than it is now. Both Hodgson and Davies expressed the opinion that the brick wall is "under-designed", due to its being, at least in places, more than 8 courses high - the appropriate maximum height for a 230 mm brick wall. They would expect movement in it over time. As Hodgson said: "It's due to fall over at some stage in its life and it's probably been doing it since it was built". Cleary and his father inspected the wall in December 1996 and have sworn that it was "leaning ... in several places", and in a "poor state of repair and condition", with "large cracks, bulges and many loose bricks". They have photographs which indicate that it failed during 1997, even towards the western end where it was of appropriate height, in relation to its width. Bennett has worked in demolition, underpinning, rectification, etc. for 25 years, and he designed his work practices for the demolition job on No.2, beginning 12 May 1997, at least partly on his assessment that the brick wall was structurally unsound. He testified that on inspection prior to starting work he noted it was "cracked, bowing out, and generally in a state of disrepair". Terleckyj builds landscape retaining walls for a living. He testified that, as at June 1997, he regarded the brick wall as not "retaining" anything, and that the plant operator attending to the "cut and fill" work warned him to stay well away from it. Terleckyj asked Woodhams if he could depart from the close parallel design for the log wall to take it further away from the brick wall, but he was urged to stick with the approved location. He testified that it was not a matter of "if", but rather "when", it would fall. Terleckyj chose to upgrade the strength of concrete he used to imbed the piers for the log wall, and he used 175mm poles rather than the usual 150mm. He declined to interfere in any way with the soil between the walls. 6.3 Deterioration of the brick wall during and after the work? The evidence on behalf of Stevens suggests an alarming deterioration in the brick wall in "recent times". Hodgson defines that term as "five years", but the lay witnesses on this point (Stevens, Carter and Karachitos), together with Davies, testify to an acceleration in the deterioration of the wall since about August 1997. The alleged deterioration involves bending or bowing, cracking, chipping, and the wall generally "falling down". Davies testified that there had been more deterioration than he would expect between his inspections in August 1997 and on 30 January 1998. On the other hand Hodgson testified that he observed at most only a slight movement between September 1997 and January 1998. 6.4 The pressures on the brick wall The expert evidence dealt at length with the lateral or "surcharge" pressures pushing the brick wall "over" from the south. The term "surcharge" used in the expert evidence (or "surcharge load") is defined in Exhibit S6 as: "Any load other than that portion of the retained earth below a horizontal plane through the line of junction of the wall and the surface of the retained earth, which may, by virtue of its nature or position increase the active earth pressure on the wall". Possible causes considered in this regard included: * the use of the old driveway and garage on No.2, close to the fence line over the years; * the recent stacking of the sandstone, from the foundations of the demolished house, on the concrete slab of the demolished fibro garage; * the wind/"sail" effect of the fence; * the effect of moisture in the soil after rain etc.; * possible impact of demolition and building works at No.2. The evidence suggests that although there was a "cut and fill" operation on No.2, no extra fill was placed on No.2, and the work was done well away from the brick wall. Rafeletos certified on 15 September 1997 that the piers under the house at No.2 imposed no additional loading on the brick wall. Hodgson insisted in his evidence that the sandstone on the garage slab would have minimal effect, because the brick wall was better designed towards the rear, having a height there of 8 courses or less. The Court needs to come to some conclusion only as to the likely impact of the works done at No.2, especially the construction of the log wall, and the likely impact of any rainfall in the relevant period, that being from the construction of the log wall on 24 June 1997 and its "tying back" sometime between 17 September and 2 October 1997. During that period, works on No.2 included the pouring of the house slab and erection of the frame. 6.5 The log wall's effect Hodgson would prefer the log wall to be 1.5m from the brick wall, rather than the 0.5m he assumed, or the 600mm established in other evidence, because the closeness causes pressure from the soldier piers of the log wall to be exerted on the brick wall in very wet conditions. The tying back of the log wall was carried out as Hodgson recommended, and this converted the log wall from a cantilever type wall to a vertical beam wall, which he certified to render it "structurally and geotechnically adequate". Hodgson's evidence is that the lateral surcharge effect of the log wall on the brick wall will be negligible, especially in dry conditions, now that the log wall is properly "tied back" to the slab under the new house at No.2, provided that it is also adequately imbedded in the ground. Davies' evidence is that the lateral surcharge effect would be about 65% without the "tying back", but is of special concern in wet conditions. His surcharge calculations (Exhibit S5) were basically accepted by Hodgson. The pressure is at its most acute if the soil is saturated. Davies says saturation can occur if there is 10mm of rain in any one day period. However, Hodgson says that continuous and steady rain, over a 24 hour period at the very least, and more likely over up to a week, is required. A high gross rainfall figure which is extended over a relatively long period is of little relevance because of Sydney's high transpiration rate. The evidence indicates good drainage behind the log wall, but the drainage and soil type behind the brick wall are virtually unknown.Hodgson and Davies agreed that imbedment of the piers of the log wall needed to be to a level of 200mm below the top of any material providing lateral support to the brick wall from the north. If we assume Davies is correct in asserting that Stevens' garden bed provided little if any lateral support for the brick wall, the appropriate level of imbedment is, therefore, agreed to be 200mm below the "toe of the brick wall", i.e. below RL 17.27 (ground level at No.4). Terleckyj gave Hodgson a statutory declaration, to which he adhered in his oral evidence, calculating the imbedment of all the piers he placed. He testified that all "2.4m" pine logs were between 50 and 100mm longer than 2.4m, but that he calculated imbedment on the basis that all the piers were only and exactly 2.4m long. Hodgson had determined that imbedment needed to be at least 1.3m. As most of Terleckyj's calculated imbedments were greater than 1.3m, and those less than 1.3m were all at least 1.2m (on the assumption no log pier was longer than 2.4m), Hodgson was prepared to certify to Council, and testify in this Court, that the log wall was adequately imbedded. Hodgson and Davies agreed with the effect of Rafeletos's certificates, that the house at No.2 is now not vulnerable, and that the tying and imbedment of the log wall reduces the surcharge on the brick wall, effectively, to nil. 6.6 Rainfall in the relevant period The only issue remaining for the Court to consider is whether the surcharge effect in the period between construction of the log wall on 24 June 1997 and its "tying back", which occurred most likely on or about 17 September 1997, and at the latest on 2 October 1997, may have damaged the brick wall. Hodgson and Davies are agreed that moisture was crucial during that period and its impact depends also on the material behind the brick wall, about which the evidence is basically silent other than for Hodgson's suspicion that it may contain some clays which have a lower propensity to "crack" and store/channel water. Hodgson says Sydney has 11 year cycles of very wet weather so allowance must be made for the fact that this brick wall has survived possibly 5 of them, each one of which would cause movement, with each movement meeting less resistance than the last. The evidence about rainfall in the relevant period (see Exhibit S7) shows significant falls (i.e. more than 10mm per day) in the 24-hour periods to 9am on June 26, 27, 30, July 2, 5, 6, 14, and September 2, 24 and 25. It was Hodgson's view, as at 9 September 1997, that the rainfall since the log wall was constructed was insufficient to cause any appreciable increase in pressure on the brick wall. 6.7 Findings I accept Hodgson's evidence and am, therefore, satisfied that little, if any, deterioration occurred in the brick wall during the relevant period, as a consequence of the works on No.2, and/or of rainfall during that period. I accept Terleckyj's evidence that he tied the wall back about a week before he paid the relevant supplier's account on 23 September 1997, and that the work was therefore done on or about 17 September 1997, as suggested by Ian Cleary's testimony and other evidence. In consequence, I have concluded that the "relevant period" is shorter than alleged. As I also accept the bona fides of evidence that the wall deteriorated, "noticeably", shortly after the relevant works at No.2, I have concluded on the balance of probabilities, on the basis of the expert evidence, that some but not all of the recent problems with the brick wall can be causally linked to the works at No.2. The brick wall was, as Counsel for Cleary submitted, "an old wall that had not been maintained and had significant problems", that was "fated to fall", and "had failed right along its length", prior to the Cleary purchase and works. (T 4.3.98, pp112-115). However, I am satisfied that those works have had some impact on Stevens' brick wall, but the evidence does not allow me to quantify such damage. 7. THE LEGAL ISSUES Having come to some conclusion on the key factual issues of damage and causation, the Court must deal with the questions involved in whether the work at No.2 are tainted by any relevant illegality. 7.1 Did the log wall require approval? It was conceded by Cleary that the answer to this question is "yes" - an approval under LGA s 68 is required for the log wall.Had it been disputed, I would have found that the log wall is a "structure" which requires such building approval. It is not part of the house or its substructure, as such. However, it is the type of structure performing the type of function that the public interest dictates should be closely regulated in a dense suburban area to ensure proper construction work. See Conomos v Chryssochoides ("Conomos") (Unreported, 40269 of 1996, Sheahan J, 29 October 1997) and the cases discussed therein. 7.2 Was the log wall approved? Mr Hemmings submits that, in circumstances such as these, such a structure is too important for its depiction by way of a "simple line on a plan" to be sufficient, without further detail, to incorporate its approval in that of a wider project such as Cleary submitted. Woodhams was insistent, in his evidence, that Council's decision on Cleary's overall concept/application embraced the approval of the log wall, and that no further approval was needed or given on 24 June 1997, when the work was inspected and then done. As the applicant for the approval, Cleary understood from his dealings with the Council, that the log wall was embraced in the approval of 14 April 1997, and Council did not see any need to provide any particular explanations to Cleary, pursuant to its obligations under s 77 of the LGA. The negotiations which preceded the actual approval dealt with issues that had clear ramifications for such components of the overall work as retaining walls. As there is nothing in the documentary evidence to suggest any alternative conclusion, and I know of no legal provision, or principle of interpretation, which would dictate one, I have come to the conclusion that the log wall was approved by Council on 14 April 1997, and was, therefore, constructed with consent. 7.3 The effect of condition 7? Condition 7 is set out in section 2 at page 4 above. A finding that condition 7 applied to the log wall, as such, would require a conclusion, on the law and the facts, that it was, as Woodhams suggests, a "structural member" in the context of the whole Cleary project. That term is not defined, and requires some construction by the Court. I accept the submission made by Ms Olsson, Counsel for Cleary, that both legal and lay interpretations of the term, in its ordinary sense, mean that a "structural member" must be a component of, or "part of a structure or building". Woodhams testified that as a "structural member", the log wall attracted the application of condition 7, but Cleary asserted that no suggestion was ever made to him that condition 7 applied to the log wall. I am of the view that the log wall is a structure in itself, and does not play a role in the house structure as such, as the house has its own piers. Indeed, the "tying back" of the log wall means that the house slab and its own piering play a role in the log wall structure rather than the reverse. Accordingly, I have concluded that condition 7 does not apply to the log wall. In any event, I construe condition 7 to mean that, if it did apply to the log wall, it required only that the relevant engineering details or certificate were forthcoming in respect of the wall prior to the commencement of the main building work covered by the approval, namely the building of the new house. Woodhams testified that it was Council's practice to accept such engineering documents after a "structural member" (such as, on his view, this log wall) had been put in place. That is exactly what occurred in this case. Engineering documents were not required by Council before or at the commencement of the work on 24 June 1997, and would appear to have been formally sought on 2 September 1997, mainly for reasons of "abundant caution" in the light of Stevens' persistent complaints about Cleary's project. In the event, Council was satisfied with Hodgson's recommendations and reports, and when it raised a series of outstanding issues on 28 January 1998 the log wall was not mentioned. 7.4 Clause 31 of the Approvals Regulation? The full text of clause 31 is also set out in section 2 at page 4 above. My finding (and the respondent's concession) that the log wall is itself a "structure", and not part of another one, e.g. the house itself, such as to require approval as a "building or part of a building", is not necessarily enough to attract to it the terms of cl 31. It is also arguable on the evidence that "engineering details" (in at least partial satisfaction of those terms of cl 31) were in fact provided to Council at the application stage, and/or during the negotiations, and/or on the site on 24 June 1997. Again, Woodhams' evidence would indicate no Council advice pursuant to s 77 of the LGA, and a Council practice to accept such details after the event in such cases. I have concluded that Cleary is not in breach of this Regulation. 7.5 Findings Accordingly, I am satisfied that the building works on No.2, relevantly including the log wall, were carried out with Council's approval, and that condition 7 and clause 31 were not relevantly breached. 8. CONCLUSION AND ORDERS The amended Class 4 application must, therefore, fail in all three of its alternative formulations, and should be dismissed. The Orders of the Court will be: (a) Application dismissed. (b) The Applicant should pay the Respondent's costs. (c) All exhibits may be returned. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.