New South Wales Supreme Court CITATION : Simpson v Ballina Council [2003] NSWSC 188 HEARING DATE(S) : 2, 3, 4, 5, 9, 10, 11, 12, 13 December 2002; 4, 5, 6, 7, 10, 12, 13, 14, 17, 18, 19, 20, 21, 24, 25, 27, 28 February 2003 and 3 March 2003 JUDGMENT DATE : 21 March 2003 JURISDICTION: Equity Division JUDGMENT OF : Windeyer J at 1 DECISION : Plaintiffs' claim succeeds in part, fails in part, cross claim dismissed. See orders page 39. CATCHWORDS : CONTRACT - sale of land to Council - breach of term - Council required to upgrade carriageway - whether term in contract could be varied orally - whether defence alleging oral variation to contract can be maintained - s23C and s54A Conveyancing Act 1919 - NEGLIGENCE - duty of care - obligations of construction authority and design authority - NUISANCE - damage caused to neighbouring property by rock boulders falling from batter wall - no evidence of falls for 8 years - whether permanent injunction should be granted - - NUISANCE -interference with right of way - actionable without damage - interference continuing - injunction granted - DAMAGES - economic loss - whether plaintiff was denied opportunity to derive income from farming land - whether lack of access contributed to cessation of farming Conveyancing Act 1919 s23C, s54A LEGISLATION CITED : Law Reform (Miscellaneous Provisions) Act 1946 s5 Limitation Act 1969 s14(1)(a) Pollock Law of Torts 11th Ed. 379 Perpetual Executors and Trustees Association of Australia Limited v Russell (1931) 45 CLR 146 CASES CITED : Nichols v Ely Beet Sugar Factory Limited [1936] Ch 343 Tallerman & Co Pty Ltd v Nathans Merchandise (Victoria) Pty Ltd (1957) 98 CLR 93 Colin Ernest Simpson and Mavis Elsie Claire Simpson (Plaintiffs) PARTIES : Ballina Shire Council (Defendant/Cross Claimant) Roads and Traffic Authority (Cross Defendant) FILE NUMBER(S) : SC 1813 of 1994 Mr CJ Bevan with him Mr A C M Iuliano (Plaintiffs) COUNSEL : Mr J Wilson (Defendant/Cross Claimant) Mr T Barrett (Cross Defendant) John Carmody & Co (Plaintiffs) SOLICITORS : W J Grace & Co (Defendant/Cross Claimant) Henry Davis York (Cross Defendant) - 40 - IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION WINDEYER J FRIDAY 21 MARCH 2003 1813/94 COLIN ERNEST SIMPSON & ANOR V THE COUNCIL – ROADS AND TRAFFIC AUTHORITY – CROSS DEFENDANT JUDGMENT Outline 1 The plaintiffs are banana farmers on a property at Uralba between Alstonville and Ballina. They sold a small portion of their land to the Ballina Shire Council (the Council) in November 1991. This was acquired by the Council for the purpose of roadworks being constructed on the northern edge of the plaintiffs' property. Those roadworks adjacent to the plaintiffs' property included the construction of part of the new Bruxner Highway and the construction of a new service road to the south of that highway to provide road access to property owners in the area, with the intention of limiting the number of access points to the new highway. This access road is now called Duck Creek Mountain Road, but was generally referred to as the service road throughout the hearing and I will call it that. Insofar as it is adjacent to the plaintiffs' property it is mostly built on the land purchased from the plaintiffs by the Council, but at a considerably higher level than the natural surface of that land. The batter embankment from the northern boundary of the plaintiffs' remaining land to the road surface is quite steep and is faced with rock boulders. At the western end of the plaintiffs' land access was gained to the old highway and is now gained to Duck Creek Mountain Road along a right of carriageway across land which had originally been owned by the plaintiffs. Drainage works were carried out in connection with the road building in the vicinity of the right of way. The roadworks were all carried out by the Council, generally in accordance with design plans prepared by the cross-defendant the Roads and Traffic Authority (RTA). The contract under which the plaintiffs sold to the Council included the condition that after completion the Council would construct a new stock proof boundary fence; that it would relocate the internal farm tracks so far as these were affected by the sale; and that the Council would re-instate the existing access from the property to the service road. Apart from the fence it is accepted that this has not been done. The plaintiffs claim that they have been unable to continue to farm bananas on the land immediately to the south of the land sold to the Council, first because they have been unable to gain access to it along the right of way as a result of the drainage works to which I have referred, causing an increased volume of water to fall on that right of way and to make it impassable; and second because the rock-faced batter slope is unstable and negligently constructed so as to allow boulders to fall from it creating a danger to any person working on the plaintiffs' adjacent land. Thus the plaintiffs claim against the Council damages for breach of contract or specific performance of the contract, damages for loss of income as a result of the negligence or nuisance of the Council in the construction of the works and an injunction to restrain the continuance of the nuisance. The Council by way of cross-claim claims against the RTA contribution as a joint tortfeasor, on the basis that that Authority as cross defendant has contributed to the plaintiffs' loss by reason of defects in its road design acted upon by the Council. History of proceedings 2 These proceedings were commenced by statement of claim filed on 24 March 1994. According to notes on the file they are the oldest active (meaning requiring disposition) action in the Equity Division general list. Apart from an appearance having been filed little further seems to have been done until February 2000 when the defendant filed a defence and the plaintiff filed a reply to that defence on 15 March 2000. There is on the file an amended statement of claim filed on 8 April 1994, which appears to be in the precise terms of the original statement of claim. A further amended statement of claim was filed on some date in July 1999 which appears to be in precisely the same terms as another document filed on 15 November 1999, which is the plaintiffs' current pleading. The current defence to that is an amended defence filed in court during the hearing on 7 February 2003. There is a reply to that defence filed on 10 February 2003. The cross-claim is made by document filed on 23 February 2000, the defence to the cross-claim being filed on 9 August 2000. The seemingly desultory way in which the proceedings have been conducted on the part of the plaintiffs is or was stated to be a result of the plaintiffs' financial difficulties, which I accept to be the fact. That in no way explains the six year delay by the defendant in the filing of a defence. The sad fact is that the hearing took twenty eight days for a claim which in the long run was quite a modest one. Had the action been able to be brought on in a reasonable time it is likely and I think almost certain that the cost involved would have been substantially less. Facts 3 The plaintiffs are husband and wife. They have been growing bananas in the Uralba area for many years. During those years they have had considerable plantations on the south side of Duck Creek, where their home is located as are their packing sheds. Mr Rixon is a son-in-law of the plaintiffs. The plaintiffs own all the land in question together and they share the income from it, but insofar as arrangements were made between Mr Rixon and the plaintiffs they were made with Mr Simpson and not with Mrs Simpson. In 1986 Mr Simpson and Mr Rixon agreed that they would establish a banana plantation on an area of approximately 2.5 hectares on the northern side of Duck Creek, on a south facing area of land which sloped from Duck Creek up to the old Bruxner Highway. The arrangements between Mr Rixon and his father-in-law were somewhat vague, but I am satisfied that the general arrangement was that Mr Rixon would provide what could be described as the labour content required for the farming and that Mr Simpson would provide what was described as the physical inputs, such as the cost of fertilizers and the like and that he would deal with the packing, cooling and sale of the bananas, with the subsequent arrangement being that the crop would be equally shared. This meant that Mr Simpson would, for the most part, sell his share of the bananas locally to outlets, such as supermarkets, which he had established and that Mr Rixon's share of the crop, at least up till 1990 and probably thereafter, was sold through the wholesale markets in Sydney. The Rixon share was sold through those markets in his name and a cheque for the proceeds was sent direct to him. There were clearly some variations on this in that the crop was not always divided precisely equally and some physical costs were paid from time to time by Mr Rixon, or were probably paid by him as his evidence of outgoings can in no way be relied upon. The plaintiffs and Mr Rixon did not regard this as a share farming agreement, although to all intents and purposes that is what it was. It was certainly not a partnership arrangement in that each participant returned his share of income in a separate return and there was no joint return lodged. There are returns from Mr Rixon from 1986 up till 30 June 1991, showing his income from the shared plantation. During the whole of this time Rixon was in full time employment so that the attention which he gave to the banana plantation was after hours and during the weekends. 4 The title particulars relevant to this action are somewhat difficult to understand, the references in the further amended statement of claim not all being correct and there having been re-subdivisions since the registration of Deposited Plan 261363 which is incorrectly referred to in the pleading as 216363. In any event by the subdivision effected by that plan in 1981, Lot 5 was created. On that land is erected part of the service road. To the south of part of Lot 5 is Lot 4, previously in that Deposited Plan, but now it seems in Deposited Plan 771593. The Rixon-Simpson plantation was conducted on part of Lot 4 and most of Lot 5. To the west of that land is the land referred to as Lot 3 owned at the relevant times by Mr and Mrs Hanley, they having purchased it from Mr and Mrs Simpson. Lot 3 is subject to the right of carriage way in favour of Lot 4, which so far as is relevant here gives access from the western side of Lot 4 to what was the old Bruxner Highway and is now the service road. It also continues further to the west to give access to other land owned by the plaintiffs. It is clear that the subdivision which created Lot 5 was effected with the road widening of the Bruxner Highway in mind, albeit that it took many years to bring that road widening to fruition. Lot 3, 4 and 5 which were constantly referred to in evidence and will be referred to in this judgment are the areas of land which I have just identified. 5 By contract dated 1 November 1991, Mr and Mrs Simpson agreed to sell to the Council, Lot 5 in Deposited Plan 261363, the area being 2,931 square metres. The purchase price was $25,000. At the time of the sale the Rixon-Simpson banana plantation extended into part of Lot 5. 6 Clause 27 of the contract for sale was as follows: 27. Subsequent to completion the purchaser at its own expense in a good and workmanlike manner will:- (a) Construct with new materials a stock proof fence along the new boundary with the motorway; (b) Relocate the internal farm tracks where affected by the acquisition by the purchaser; (c) Reinstate the existing access from the property to the service road where marked on the plans annexed hereto with the letters "A" and "B" by shaled upgrade; 7 There were some negotiations about a controlled access road and a plan lodged by the cross-defendant for this purpose, being Deposited Plan 812649. There had been a clause inserted in the contract, which may have made Clause 27(c) more explicable, but this clause was deleted. The evidence on this was most confusing but if DP 812649 was annexed to the contract rather than DP 261363, which on the evidence seems to be the position, it did have letters A and B on it showing the area of prohibited access to the new highway. Luckily on the first day of the trial an agreement was reached between the plaintiffs and defendant as to what was meant by Clause 27(c), this being noted on page 10 of the transcript as follows: HIS HONOUR: Noted it is agreed that so far as clause 27 (c) of the contract for sale is concerned, the obligation of the Council was to reinstate the existing access from Lot 4 to the service road, that access being the access along the strip of land over which Lot 4 has the benefit of a right of carriageway and Lot 3 has the burden of that easement, and that this is to be reinstated by shaled upgrade, so that the reference in clause 27 (c) to the letters A and B is of no relevance. 8 Completion took place on some unidentified date, probably before the end 1991 or early 1992. It was and is clear that the obligations under Clause 27 continued after completion. It was accepted that it would be impossible to comply with them, or at least some of them, until work on the service road had been completed. 9 The construction authority for the roadworks for the new Bruxner Highway and the new service road was the Council. The design authority was the RTA. There was a planning team upon which were representatives of the RTA and the Council, for the most part being engineers and surveyors. Mr Trent, who was at that time the deputy shire engineer, was the main representative of the Council and a Mr Eastwood, who was an engineer with the RTA was the senior officer from that organization involved with the design and construction. In essence funds for the project came from the RTA and the Council was responsible for the construction. 10 The plans as prepared by the RTA were in a final form at the end of May 1992. There was a variation to these agreed shortly thereafter under which it was proposed that the height of the service road would be lowered by about two metres, and that one of the culverts at what is described as chainage 8740 on the motorway would be deleted. The general effect of these amendments was to assist in re-directing any storm water towards the east on to land owned by the Council to the east of the area in question in these proceedings. Mr Eastwood saw this re-design and he approved of it and it was marked on the design plans, but in any event it was within the general authority given to Mr Trent as the representative of the Council involved in the roadwork construction. This redesign caused no problems. 11 So far as the area to the north of the right of way is concerned, the plan provided for a culvert and drain under the new highway at chainage 8880. This pipe was a 600 millimetre diameter pipe. The water coming from it was directed down a bank towards the northern side of the service road, from which it would flow for the main part into an existing 375 millimetre pipe under the old Bruxner Highway which became part of the service road. The RTA plans showed this existing pipe, but did not provide for its extension. In fact, on construction the existing pipe was extended by a further length, this being necessary to take it to the southern boundary of the service road. From thence it discharges down an embankment more or less directly onto the right of way, for the most part flowing east along it, creating a deep scour and then turning south down a natural gully on Lot 3 flowing down towards Duck Creek. There is a rise, at one point, in the level of the right of way track as it goes from west to east, which would prevent any natural flow of water along the track of the right of way from going on to Lot 4. The RTA plans had provision for what is called an energy dissipater at the outlet of the 600 millimetre pipe and did not have provision for a concreted drain at such outflow, which was constructed by the Council, which I find would have been likely to increase the velocity of any water flow after a severe storm. The RTA design plans did not make provision for the extension of the 375 millimetre pipe under the old Bruxner Highway, but it was explained by Mr Trent that the extension was necessary because otherwise the service road would have disintegrated as a result of undirected water underneath its bitumen surface. I accept that to be the position but the RTA was not consulted so far as the evidence goes about the extension and it was not consulted about the deletion of the energy dissipater or the inclusion of the concrete drainage way. 12 Construction of the batter embankment from the boundary between Lot 4 and Lot 5 commenced round about the end of February 1993 and was completed by the middle of May 1993 or slightly earlier. It had been envisaged and it was provided in the plans that the fill for this would come from a cut on the new main highway. In other words the earth fill did not have to be moved very far to its destination on Lot 5. The embankment is about 10 metres in vertical height at its steepest point. The RTA plan provided for a batter slope of 1.5 horizontal to 1 vertical which, at that time, was the normal slope required for RTA designed batters. It was intended that it be compacted by roller and what was described in evidence as a sheep's foot roller was available for that purpose. There was a considerable amount of rock in the fill and it was intended that this be compacted as part of the batter but in the events that happened for the most part it appears the rock was used on the batter wall. The RTA design plan for the batter showed that in one place, at the head of a gully, going south down to Duck Creek, round about the centre of Lot 4, the batter design had the commencement point of the rise more or less immediately against the boundary. There was no boundary fence there at that time. 13 Mr Brown was the foreman from the Council in charge of the work site on Lot 5. He was an experienced foreman. When he pegged out the site for the batter, he concluded that if constructed to the RTA design, the foot of the batter at some points would extend into Lot 4, namely the plaintiffs' land. He reported this to Mr Trent. The encroachment would not be along the whole of the foot of the wall, but an area at the head of the gully to which I have referred, around chainage 100 to 120 which was the steepest part of the slope. Mr Brown discussed this with Mr Trent and they came to the conclusion that the batter could be steepened and that a rock facing should be put on it. This rock facing was in no way a retaining wall, but more a wall to protect the batter, particularly from erosion. In other words, rain falling upon it would flow down the rock face rather than down the packed earth face. I am satisfied that Mr Trent discussed the encroachment problem with Mr Eastwood from the RTA and told him what he proposed to do and Mr Eastwood expressed no objection to it. In contrast to the other amendment to the RTA plans, namely the lowering of the level of the service road and the other changes to bring about more of a flow to the east, this change was not shown on any design plans. The method of construction proposed was that rather than have a slope or incline of 1.5 horizontal to 1 vertical, the slope would be considerably steeper in the order of 1 horizontal to 1 vertical until it met the original design line, from which it would proceed at the original design slope. While that may have been the intention the batter as constructed was not regular that way and at the centre of the gully is particularly steep, being about 1 horizontal to 2.3 vertical for a short distance. In any event a batter with a surface of boulders, nor specifically cut for the purpose could never produce a regular incline. 14 The boulders on the wall were placed with an excavator with a bucket. It is accepted that this not the perfect method of operation as it is not possible to have precision placement, but that was the machine available to the Council at the time. The evidence also seems to be that the boulders used were those available on the site and no attempt was made to obtain boulders of sizes particularly suitable for this purpose. Mr Verco, one of the experts called by the cross-defendant said that smaller rocks should have been used to fill in gaps between the larger boulders and if these were not available then the existing boulders should have been broken up to ensure that smaller rocks were available. That was not done. 15 The method of construction was a generally approved one whereby the batter was built up in stages, boulders being placed in stages and fill compacted behind the boulders. The RTA requirements required compaction tests each metre and evidence was that these took place, although the results are not available. In any event I accept that if the compaction tests were unsatisfactory, the RTA engineers would have required remedial action to be taken by the Council. There was no suggestion the tests were not satisfactory. Towards the top of the batter, layers were thinner. In other words, compaction by machine took place every 300 millimetres rather than each metre. I do not think there is any suggestion that this was not satisfactory. The method of construction allowed the compacting machine to go close to the edge, bearing upon the boulders and making them more an integral part of the batter wall. 16 Some rocks or boulders were dislodged from the batter face during the construction stage and rolled into Lot 4. Most of these were removed during construction and some were removed by a crane when the work on the service road north of Lot 4 was complete. 17 As I have explained, most of the manual work on the banana plantation on Lots 4 and 5 was carried out by Mr Rixon. Mr Simpson seldom visited it. For reasons which will become important later, it is accepted that production from this land finished in December 1992, although some work was done on it for the next few months by way of caretaking. Mr Rixon said that after May 1992, it became impossible to access the plantation by the right of way due to it constantly being washed out. From then on he said so far as possible he obtained access by using paths across Duck Creek, although this was impossible in times of heavy storms. He also said that while he was working on the banana plantation in the early part of 1993, presumably by way of maintaining it and killing weeds on it, on a number of occasions, probably three, boulders dislodged from the wall and came past him in the plantation. It is accepted that most of these would not have rolled more than fifteen metres from the boundary fence. There is no direct evidence of anybody seeing boulders rolling from the batter wall after its construction was completed. There is, however, some evidence of boulders appearing on Lot 4 between July 1993 and probably January 1995, which were not there at an earlier stage. Evidence to that effect was given by Mr Simpson when he was recalled and although there are some doubts about his credibility and although that evidence was contrary to parts of his affidavit evidence, I have concluded that I should accept it. There is other photographic evidence of some boulders, but not very many, having somehow got onto to Lot 4, between July 1993 and January 1995. The evidence of Mr Rixon which I will come to in more detail later was to the effect that he, together with Mr Simpson, had decided to bring their banana farming activities north of Duck Creek to an end by December 1992, because they could not gain access to it and in any event they were not prepared to work there after construction of the wall commenced due to the danger from falling boulders. 18 It is now necessary to consider some matters relating to the contractual obligations. Throughout the period in question, and particularly from 1990 to 1992, Mr and Mr Simpson were involved in applications to the Council for approval for the subdivision of land on the northern of Duck Creek into what are described as rural residential blocks in a rural residential subdivision. Ultimately these applications were refused and appeals to the Land and Environment Court failed. It may well be that the expense of those proceedings was responsible for Mr Simpson's current financial problems. The final appeal to that Court was dismissed in 31 March 1994. 19 Mr Trent said that he was telephoned by Mr Simpson at home one night in about April 1992 who asked for a meeting on the site. He said that he went there the next day which was easy for him as he was living at Alstonville and drove past the site every morning to his office in Ballina. He said that Mr Simpson told him that he was confident that his proposal for subdivision would now be approved and that he would be going out of bananas on the north side of Duck Creek. What he was concerned about was obtaining road access to his land for the subdivision as he had wished to obtain it more or less in the centre of Lot 4 towards the head of the gully. Mr Trent said that he explained to Mr Simpson that he did not think this would be possible due to the height of the service road there, although it might be possible to lower it a little. It should be noted that this is what happened although in no way would it have made it possible to construct access towards the head of the gully. In any event according to Mr Trent Mr Simpson thought that access would be best obtained at the north eastern corner of the land in question, where there was, at the very least, a rough track leading more or less from Lot 4 on its boundary with Lot 5 up towards the old Bruxner Highway. This track appears on aerial photos and I am satisfied that it existed. In fact, on the view I walked up that track. According to Mr Trent, Mr Simpson said that under the new circumstances he would not need work to be done on his farm tracks or on the access way and Mr Trent asked him what help the Council could give to substitute for that part of the consideration on the contract for the sale of land. According to Mr Trent, Mr Simpson suggested some road work for that subdivision, which he indicated could not be done as that might indicate approval and that he suggested that he could arrange for some pipes to be delivered to Mr Simpson, who could use those on his land however he wished. In his original evidence Mr Trent said that he arranged for three pipes to be delivered to the property, these pipes appearing in some of his photographs. In later evidence, and it seems probably after the view, which took place in the first week of the hearing, Mr Trent said that he arranged for nine pipes to be delivered. There is no doubt that he did so and there is no doubt that all nine pipes were used on the property for drainage at various places. 20 This is one of the more extraordinary parts of the case. There is no suggestion that Mr Trent was doing anything to hide from his superiors some benefit which he was giving to Mr and Mrs Simpson. The order for the pipes appears to have been quite open and the pipes were delivered adjacent to Lot 4. It seems from the evidence that six of them were put reasonably quickly onto Lot 4 and that the remaining three remained at the edge of the service road for some time until Mr Trent told Mr Brown to place them on the Simpson land to ensure that they were delivered, telling Brown that this was to be done instead of any work being done on the banana tracks. The only other explanation for the pipes turning up on the site was that they were required to reinstate the banana tracks and to comply with that part of the contract. The difficulty about that argument, which I will come back to, is that if that were the position then it is clear that the pipes were not used for that purpose but were taken by Simpson and used for his own purposes. If these had been intended to be used to relocate the banana tracks then that work would have been done by the Council not by Mr Simpson. There is no suggestion that the pipes where presently located has anything to do with the position where the tracks would have been relocated as a result of the acquisition by the Council of Lot 5. Pleadings between plaintiff and defendant 21 The first claim of the plaintiff is based on the contract and special condition 27, which I have already set out. The original claim was based upon breach of that condition and a claim for specific performance of it. There is, however, an alternative claim in damages. No claim is now maintained in respect of the boundary fence. No claim is now maintained in respect of the internal farm tracks, this being subject to a concession made on the part of the Council, that there is no claim for return of the nine pipes. The claim for specific performance under special condition 27(c) or damages in lieu is maintained. The statement of claim in paragraphs 4A and 4B alleges first an implied term to the effect that the obligations under special condition 27 would be performed so as to ensure to the plaintiffs the continuing use of Lot 4 as a banana growing and grazing property, and second an implied obligation of good faith requiring the defendant to co-operate with the plaintiffs in performing its obligations under special condition 27 so as to ensure continued use and occupation of Lot 4. There is a claim that in breach of this implied term or obligation of good faith, the Council constructed the highway and service road and drainage works in a manner preventing the continued occupation and use by the plaintiffs of Lot 4 as a banana plantation. There is then a pleading in negligence not particularly well expressed, alleging a duty of care in the construction work and a breach of that duty causing damage to the plaintiffs, namely damage to their property and to their business. Finally there is a claim in nuisance; the claim being that the run off of the drainage water and the falling of rocks has caused a substantial interference with the plaintiffs' use of their own land. Various particulars of loss are alleged, some of which are not maintained. Those which are not maintained are the claim of damage to the existing fences, and cost associated with re-locating the packing shed, which was never an issue. There was also a claim for soil erosion in the banana plantation, which has not been made out and in any event, no damage being established. The principal relief sought is: (1) for specific performance of special condition 27(c) or damages in lieu; (2) damages for negligence or nuisance resulting from the loss of the ability to earn income from the banana plantation on Lot 4; and (3) claims for permanent injunctions to restrain the nuisance caused first by flow of water interfering with the right of way, and second the threat of danger from falling boulders from the rock face of the batter. 22 Although denied by its amended defence, the Council in fact admits a duty of care and therefore admits that if the plaintiffs have suffered as a result of its work in constructing the batter and rock face and the drainage works, then the plaintiffs are entitled to damages. However, insofar as the contractual claims are concerned, the defendant pleads an agreement made between Mr Simpson and Mr Trent around May 1992, under which it is said that the Council was discharged from its obligations under that special condition on its agreement to provide nine lengths of concrete pipe to the plaintiffs which consideration was provided in about May 1992. In further defence to the plaintiffs' claim that they could not obtain access to Lot 4, the Council says that there were alternative means of access available, either by crossing Duck Creek or from the northeast corner. Finally, there is a plea in mitigation, that the plaintiffs have failed to repair or maintain their right of way. I should say at this stage that I do not think that plea was pressed, nor could it have been. If the evidence is accepted that there is a continuing nuisance at times of reasonably heavy rainwater run off then constant maintenance work could not be required, particularly as it is clear this would involve expenditure of funds. 23 Whether or not the plea of discharge could be made out the facts which are said to support it if made out would have a considerable bearing upon the plaintiffs' claim for damages for economic loss. Pleaded damages claim 24 In essence the plaintiffs' claim is for the income which they would have continued to receive from the Lot 4 plantation had they still been able to farm it in co-operation with Mr Rixon. It should be noted that no claim is made by Mr Rixon, so that the plaintiffs' claim is limited to what they say would be one half of the production from Lot 4, less all the expenses of production. What that production would have been and the extent of financial loss has been the subject of many experts' reports and much evidence in this case. Reply 25 In reply to the defence of the Council as to a discharge by new agreement, which the plaintiffs in any event deny, they say first that the agreement is ineffective as not being in writing, as required by s23C of the Conveyancing Act 1919 and that s54A of that Act prevents it being sued upon even though raised by defence. There is a further reply to the defence raising under s14(1)(a) of the Limitation Act 1969. In answer to the defence about alternative access the plaintiffs say that they did not have access from the north east corner because it was blocked by a pile of topsoil, second, that the access track was not suitable for farm vehicles loaded with bananas, third that they could not cross Duck Creek during extended periods in heavy rain and if they could the crossing was not suitable as the boulders in the creek would mean that the trailer would bump and that bananas would be bruised. I should say that this last claim could in my view not possibly be made out. The evidence is perfectly clear that the crossing could have been cleared of boulders and could have been available at all times other than in times of heavy rain. There had been boulders there before and it was this crossing which was used on many occasions for access to the Lot 4 plantation and for transporting bananas across it. Pleadings on the cross claim 26 This claim is based purely upon a claim of deficiency in design. It is claimed that the construction of the Perry's Hill deviation, which includes the new Bruxner Highway to the north of the plaintiffs' land and the service road, was carried out in accordance with design drawings and specifications issued by the RTA and in accordance with instructions by its supervising engineer and that the design was deficient in respects which are said to be outlined in a report of Mr Tinni dated 11 February 1995 and to the extent to which there were departures from the design they were carried out upon the instructions of or with the acquiescence of Mr Eastwood and accordingly that insofar that the Council is found liable to the plaintiffs then the RTA would, if sued by the plaintiffs, have been liable to it as a joint tortfeasor and is thus liable to contribution under s5 of the Law Reform (Miscellaneous Provisions) Act 1946. There is another claim for contribution in equity which was not pursued and which could not have been pursued. The cross-defendant denies any fault in design, denies that the amendments were its responsibility and says that it is released from any liability by special condition 30 of the contract between the Simpsons and the Council, which I have not set out and which was ultimately not relied upon and by Clause 61 of the general conditions of assistance to the Councils for works on roads which it claims form part of the basis upon which funds were advanced for the particular project. I will discuss this later but I should say now that I have concluded that the term relied upon has no bearing whatsoever upon this claim for faulty design, nor should it have. Issues 27 The discussion to date leaves for determination the following questions. They may seem to be simply stated, but as I have said the trial was long and in some ways difficult. 28 The questions for determination are: 1. Did the works, the subject of this action, cause the plaintiffs' right of way to be eroded, preventing access to the banana plantation by means of that right of way? 2. If so, is this a continuing nuisance justifying the grant of a permanent injunction? 3. On the basis that there is a breach of special condition 27(c) should specific performance or a mandatory injunction requiring performance of that term be granted or issued or should damages be awarded in lieu, and if so, damages in what sum? 4. Were the continuing obligations under the contract discharged, waived or varied by new agreements made between Mr Trent and Mr Simpson and if such an agreement were otherwise made, is it ineffective or unenforceable, by reason of s23C or s54A of the Conveyancing Act or by reason of being barred by the Limitation Act ? 5. If the right of way was not available for access to the plantation after December 1992, was access available to the plantation by any other means or direction, namely from the north east corner or across Duck Creek? 6. Was it inability to access the plantation from the right of way which caused the plantation to be closed down and put into caretaker mode? 7. Was there faulty construction or faulty design in the rock faced batter or the drainage bearing upon such batter? If so, has this been the cause of rocks falling from the rock faced batter onto the plaintiffs' land? If so did this bear upon the plaintiffs ceasing to use the land for banana growing or their failure to bring it back into production when their development application failed? 8. Does the batter wall as constructed represent a continuing nuisance for the plaintiffs' land and if so should a permanent injunction be granted? 9. If either lack of access or the falling rocks or both brought about continuing nuisance preventing the operation of the banana plantation, what is the consequential loss to the plaintiffs as a result? 10. Was there fault in design of the RTA leading to or contributing to the plaintiffs' loss? I will deal with these issues but not necessarily in turn, but first I should discuss the contract claims for an implied term and good faith. There is no basis to find the implied term pleaded. The contractual terms are clear; there is no need for the term put forward; nor is it obvious. This claim fails. It is not necessary to discuss the recent cases dealing with good faith. In circumstances such as exist here if the works were negligently carried out, or if they result in nuisance, that is actionable. Good faith here means no more than carrying out the contract. It does not extend some obligation in respect of work not the subject of contract. Was the agreement varied and if so was the variation binding through lack of writing? 29 In spite of the earnest arguments of Mr Wilson, he was unable to explain to me why the variation of the contract upon which he relied did not have to be in writing to be effective. There was no plea or argument that reliance on the requirement of writing or the statute was itself fraudulent or unlawful. Accepting for the moment that the pipes would have been adequate consideration for the giving up of the other entitlements the fact is that the agreement, if it existed, could not have amounted to a release or recision of the original contract and the bringing into existence of a new contract as for the most part the original contract had been performed by transfer of land. I can see no basis upon which it could be said that it was anything other than a variation. If it were a variation then as the original contract was required to be in writing, variation of it except of some unimportant term, would be required to be in writing: Tallerman & Co Pty Ltd v Nathans Merchandise (Victoria) Pty Ltd (1957) 98 CLR 93 at 113. It is apparent therefore that the variation agreement cannot be relied upon in answer to the contractual claim, or set up as a defence to it: Perpetual Executors and Trustees Association of Australia Limited v Russell (1931) 45 CLR 146 at 153; Conveyancing Act 1919 s54A. As the land the subject of the contract was transferred pursuant to it I do not consider s23C of the Conveyancing Act is relevant. It is not necessary to deal with the Limitation Act reply. 30 The second matter for decision is whether or not the oral agreement which Mr Trent claims he arrived at with Mr Simpson was entered into. Mr Simpson said the meeting did not take place and he had never telephoned Mr Trent at home. The matters which support Trent's claim are that at that particular time Mr and Mrs Simpson had a subdivision application before the Council and had, they thought, I think with reason, a reasonable chance of getting it through. In fact the evidence appears to be that the Council staff recommended its approval, but the Council rejected it and the Land and Environment Court at a later date dismissed consolidated appeals. Had the application been successful then there is no doubt that access to the subdivided lots would have been more likely to have been obtained from the north east rather than along the right of way. I do not think that is in dispute. If the agreement was made as Mr Trent suggested it was, then the pipes were delivered at an appropriate time and were clearly not intended for use for relocation of banana tracks as otherwise they would have been used for that purpose by the Council not by Mr Simpson as it suited him in other places. Mr Trent always thought that the clause in contract as to re-instatement of the access way meant reinstatement at the turning point onto the old Bruxner Highway. That is at least a reasonable explanation and may have been a reasonable construction of the contract if the construction to which I have referred had not been agreed upon. 31 As against this, and in favour of the plaintiffs, there is the evidence of Mr Johnston, who was the solicitor for the Simpsons, of a meeting at the site in February 1993 at which Mr Trent was present. Mr Johnston said that was to discuss both the subdivision and the Clause 27 matters. I accept that. Mr Trent did not suggest the obligations to re-instate the right of way had been waived. Mr Trent's agreement about this may, of course, have related to the point of access onto the service road at the western end of the right of way, but on the other hand, if the contract had been varied so that this was no longer required, there was no reason for him to carry out the work whatever it was, although it was ultimately done by Mr Brown. In any event, the meaning of Clause 27(c) was at least a matter of doubt, perhaps as much for Mr Johnston as anyone else. 32 The evidence of Mr Trent at the early stage was to the effect that the contract was for the provision of three pipes, these being apparent from his photographs, whereas the other six pipes had been used and were not noticeable. It is likely that it was only after the view that he realized or remembered that nine pipes had been delivered and used on the site. This casts some doubt on his reliability. In addition to that some doubt was cast upon his testimony, in that some photos which he said showed the condition of the plantation after the service road was completed across the top of Lot 5, were obviously taken at a much later date. This became apparent after some photographs were produced by Mr Ahern, who was an inspector for the Department of Agriculture, after which Mr Simpson was recalled for further cross-examination. It would have been possible to ask for Mr Trent to be recalled to put this to him, but no such application was made. In spite of that, whether by accident or design, the evidence about the photographs was incorrect. 33 As I understood the evidence, the destruction of the banana stools on Lot 5 did not take place until work on the service road on the Lot 5 area commenced. In those circumstances it seems unlikely that there would have been any work on the reconnection of the banana tracks prior to January 1993 at the earliest. In those circumstances there would be no reason to deliver the pipes in May 1992 to do that work. 34 I have come to the conclusion that the evidence of Mr Trent should be accepted. This is a matter which has caused me some doubt, but it is supported by the view I take of the evidence of Mr Rixon as to the intentions for future farming. It is also supported by the failure of Mr Simpson on affidavit to disclose his use of 9 pipes and his misleading statements about the pipes. Was access along the right of way prevented from May 1992? 35 If access was prevented from this date, which I doubt, it is really against the plaintiffs' claim for an injunction for nuisance as the drainage work adjacent to the right of way had not been commenced at that stage. It is not clear to me when that drainage work by way of diversion from the 600 millimetre diameter pipe to the 375 millimetre pipe was carried out, but the extension of the smaller pipe towards the south was not carried out until 1993. What is, however, apparent and appeared apparent on the view, is that whatever the question of catchment area, there will, because of the hard surface, be a greater run-off of water as a result of the construction of the new highway and there will be a greater velocity of flow of such water by reason of the construction of the new highway and the diversion of the water under the highway at chainage 8880 into the culvert and then underneath the service road causing a considerably stronger flow out onto the right of way. The plaintiff would have been entitled to an injunction to prevent this in any event. However, I think the evidence is sufficient to establish and I find it established that the road works caused damage to the right of way actionable in nuisance. Whether or not this would have prevented access after May 1992, or even after December 1992 is not so clear. Certainly it would have prevented access at times of major flow but, like Duck Creek, I do not think it has been established that the right of way became impassable at all times after those dates. There has never been any complaint about lack of access. The fact that Mr Johnston may have thought that work would be attended to after the April 1993 meeting is not sufficient to explain lack of complaint thereafter at least until this action started. Did farming stop because of lack of access? 36 In support of an application for the development approval, Mr Rixon had made a statutory declaration in January 1993 stating that farming the plantation on the northern side of Duck Creek ceased in December 1992. This was in relation to the use of chemicals on the site. He did not say that this cessation was because of lack of access. A body of written material produced to support the application for sub-division of the Simpson land north of Duck Creek indicated the land was not suitable for banana production. Nevertheless the evidence is that some money was being made from the production on that site, albeit that as it was south facing it was not as good for farming bananas as a north-facing slope. The experts in the long run all agreed upon that and I accept it to be true. The question then is whether or not lack of access had anything to do with the cessation of farming. Mr Rixon agreed in cross-examination that: (a) the statutory declaration was true; (b) that farming the plantation ceased in December 1992; and (c) that this was consistent with the state of the plantation and weed growth observed by Mr Ahern from the Department of Agriculture in December 1992 and July 1993. Then the following passage appears on page 191 of the transcript in cross-examination of Mr Rixon: Q. The circumstances were that in December 1992 the decision had been taken that the growing of bananas on lot 4 was not going to continue, wasn't it? A. Correct. Q. And you made that decision in consultation with Mr Simpson, didn't you? A. Yes. Q. And I suggest to you that at that time he was very keen to develop lot 4 by way of the rural residential subdivision that he had before the Council; that's correct, isn't it? A. Yes. Q. And that your decision to give up share farming on lot 4 didn't change after December 1992, did it? A. No. Q. In your affidavit sworn on 8 December 2002 - do you have a copy of that with you? A. Yes. Q. Can I ask you to turn to paragraph 21. You start off by saying to all of those considerations, you intentionally neglected your obligations under the Plant Diseases Act 1924, and so on? A. Yes. Q. The considerations to which you refer were those set out in paragraph 19, lack of access; is that correct? A. Correct. Q. And the difficulties in transporting the bananas by trailer as referred to in paragraph 20? A. Correct. Q. Were there any other matters that you had in mind when in paragraph 21 you said "having regard to all those considerations"? A. Only the workload put on me while I was in full-time employment. Q. But what you haven't said there is that you had decided by December 1992 not to continue with the share farming? A. Correct. Q. And I suggest to you that was the principal factor why weeds were allowed to grow through the plantation at the time of Mr Ahearn's inspection in December 1992? A. Yes. Q. And, indeed, what you say about those other considerations in paragraph 21 is a smokescreen, isn't it? A. I don't understand the question. Q. What I am suggesting to you is that there was one reason and one reason alone why weeds grew on the plantation in December 1992, and that was because you had decided to give up the share farming arrangement? A. That's incorrect. Q. You have said in your affidavits at various times that you gave up the work on lot 4 in April 1993? A. Correct. Q. If you wish to go back, have a look at paragraph 16 of your first affidavit. What you are suggesting is that you continued working on the property up until April 1993? A. Only in a caretaking capacity. Q. I suggest to you that you had given up work on this property, on lot 4, in December 1992? A. Yes. Q. As at December 1992 and up until April 1993 you were working full-time for an employer, weren't you? A. Correct. Q. The time that you spent on lot 4 in that period of approximately four months as a caretaker, what did it involve? A. It involved spraying the weeds, picking up bunch covers, chopping down bunches that had gone ripe to avoid flying foxes coming in. Q. And what was your intention as at December 1992 in respect of lot 4? A. Because I had lost all access, I thought, well, I will cease with it. But I still had an obligation to at least keep vermin out. Q. You say that you had lost all access as at December 1992? A. That's correct. Q. Is that an accurate statement? A. As far as I can remember, yes. Q. As at December 1992, what were the methods that you employed to get access to lot 4? A. It was either walking down off the old Bruxner Highway-- Q. Of what part of lot 4? The north-eastern part or the north-western part? A. The north-eastern. Q. So there was pedestrian access of some type in the north-eastern corner? A. Yes. Q. How else did you get access to the property? A. It was over Duck Creek until that became impassable. Q. When you say over Duck Creek until it became impassable, it didn't remain impassable from December 1992 forever more, did it? A. That's correct. Q. But that's the impression that you seem to want to convey in your affidavit evidence and in your oral evidence. Is that what you want to do? A. At the time it was impassable. Q. What, impassable for a week or ten days? A. No, it would be-- Q. Or a fortnight? A. Yes. Q. But that doesn't mean to say that when the flow of water in Duck Creek subsided that you couldn't gain access, does it? A. No. 37 Mr Rixon said that after December 1992 he got access only from the north east corner and had to carry his sprays and other materials down by hand. He said, or his evidence appeared to say, that Duck Creek became impassable after December 1992. This was obviously not correct and he accepted that his affidavit evidence was exaggerated to that extent. It was probably impassable for a period of two or three weeks during a particularly rainy stretch and at times thereafter, as it had been at times before. While access from the north east corner would have been down a slope which itself may have been inaccessible in periods of heavy rain, the access track was there and available, albeit that to use it would have required some of the banana stools to be destroyed. I find as a fact that access was available on most occasions from the north east corner of Lot 4. Further it is clear that any pile of dirt which is said to have prevented access was not in position at that time and, in any event, on the evidence I find it would not have prevented access. It follows from this that I find that Mr Simpson and Mr Rixon had decided, prior to the commencement of the building of the rock wall, to discontinue banana farming on the northern side of Duck Creek and that they did not come to this conclusion because they were denied access as a result of work on the new highway and associated drainage prior to that date. Some of the evidence as to access is inconsistent with access not being available along the right of way since May 1992. I accept that there was a greater flow of water causing damage to the access track; I do not accept that this permanently prevented access by that route from May 1992. I consider the evidence of Mr Rixon as to the time at which it was decided to abandon the plantation to be far more reliable than that of Mr Simpson who said falling rocks and a lack of access were the two reasons which brought about its abandonment in April 1993. Mr Simpson did accept access was physically available, at least from April 1993, from the north east corner, but thought some legal problem prevented this. On any basis that was incorrect, but he went on to say if he had permission he could have used that access, yet he did not ask for permission. While it is just possible that he may have been thinking about the controlled access road, I do not accept his explanation of this, which I found to be quite unconvincing. Nuisance to the right of way 38 I consider the evidence to be overwhelming that the piping of water from the new highway to the northern side of the service road and then onto the service road to flow onto the right of way, causes a serious interference with its use. It is obvious that the extension of the pipeline to take it closer to the right of way increases that interference. It was put that the work, which is claimed in this action to have brought about the nuisance, did not bring about any greater flow than that which had existed for many years. That is contrary is the evidence of Mr Rixon and of Mr Simpson and to what was clear from the site inspection which was held. So far as the catchment area is concerned that may be correct, but water falling on agricultural land is to a large extent absorbed into the soil. Water falling on a paved surface runs or falls to a low point or to a culvert at a far greater velocity than it may run from agricultural land. The evidence is clear that there would be an increased volume of water as a result of the 600 millimetre pipe under the new highway at chainage 8880 and that this would be carried at an increased velocity partly flowing into the existing pipe under the old highway and partly flowing south east across the service road. That increase in volume and velocity was exacerbated by the omission of the energy dissipater which was shown on the RTA plans and by the inclusion of a concrete drainage way from the new pipe which was not shown on those plans. 39 Interference with a right of way is an actionable nuisance even without damage: Nichols v Ely Beet Sugar Factory Limited [1936] Ch 343: Pollock Law of Torts 11th Ed 379. Leaving aside the interesting question of variation of contract, the plaintiff is entitled to a permanent injunction restraining that nuisance irrespective of the contract. This can be framed in the usual way as a restraining order but will obviously require the Council to take positive remedial action to deal with the flow of water through the pipes. The fact that Mr Simpson told Mr Trent that he was not concerned with the access way in 1992 or might not need it for his subdivision does not mean that he had abandoned it. 40 In light of my conclusion as to the effectiveness of the agreement varying the contract, and the admitted failure to comply with special condition 27(c) the question is whether specific performance of a particular unfulfilled term of the contract should be ordered or damages should be awarded in lieu. In ordinary circumstances, as it is over ten years since the sale of the land was concluded it would be likely that damages would be a more appropriate remedy. In the present case, however, where work will be required to comply with the injunctive order it seems to me that an order for specific performance should be made so that all necessary work can be done by the Council at the same time. Apart from anything else this should result in less cost to the Council. As the requirements of Clause 27(c) are independent, and the rest of the contract has been executed, the usual prescription against ordering specific performance of part of a contract need not apply. Claim in respect of erosion by water 41 While the evidence is probably sufficient to establish some run off of soil from the embankment or from the new highway during construction, there is no evidence of continuing flow of water greater than previously existed, nor of any continuing flow. In fact the table drains on the north of the same road and the fall to the east should result in less run-off onto Lot 4 than previously. There is no evidence of continuing siltration of Duck Creek nor I find of siltration caused by the roadworks. In any event there is no evidence of damage flowing from any such water or erosion. In the long run the claim was not strongly pressed if put at all and does not sound in damages nor give rise to a claim for an injunction. Falling rocks 42 Mr Rixon stated that he worked in the plantation on Lot 4 in a caretaker mode after December 1992 and I accept that to be true. It appears that he was engaged in weed control and that he was also engaged in taking off some clumps of remaining bananas. Whatever it was it is my view the retreat to caretaker capacity was not brought about by lack of access. He states that it was during this period while he was working in the banana plantation that three boulders rolled past him. I accept that to be true. I find that was probably sufficient at least to make him wary and perhaps somewhat frightened of continuing to work in that plantation, although it is by no means clear that he stopped doing so as a result of this. In fact I think it is clear that he continued to do some work there after the boulders rolled past. It was during this construction period that it is accepted that some boulders did fall from the wall, which were for the most part later taken from Lot 4 and replaced in the embankment. It is accepted that some of them still remain on Lot 4. The solicitor's letter of complaint, annexed to the statement of claim, referred to a small number of boulders rolling. The fact that they did so did not in itself prevent farming taking place. The falling boulders caused damage to the fence during construction, but this was repaired. I do not accept that the cattle, which Mr Simpson said got through the fence up onto the highway, shortly after construction concluded in May 1993, did so after construction had been completed. The state of the fence in July 1993 is quite contrary to such a finding. I have also come to the conclusion that the evidence from Mr Tinni's photographic record and other photographs makes it more likely than not that some boulders have fallen from the rock embankment between April 1993 and January 1995. This supports the evidence of Mr Simpson when he was recalled for further cross-examination. By that time of course, the plantation had been abandoned and the Department of Agriculture had required it to be eradicated completely. That had been done. There were just some suckers coming back from time to time. There is no evidence of any boulders having moved from the wall onto the Simpson property since January 1995. 43 In some ways this is the most difficult part of the action. As I have found that the falling rocks were not the cause of the plaintiff abandoning the plantation little damage has been caused by the rocks which have fallen. There is now no claim in respect of the fence. There is no evidence that the plantation would have been replanted at any time after 1993 were it not for the falling rocks. Mr Rixon is farming elsewhere on the plaintiffs' land. While there is evidence of the cost of replanting there is no evidence that this is intended. If it were then one must assume that some application for an interlocutory injunction would have been made many years ago. Until recently Mr Rixon had not been on Lot 4 since 1996. Mr Simpson has been there on few occasions. On the expert evidence relating to rock falls and distances, the likelihood of a boulder rolling more than twenty metres from the northern boundary is so remote that it would not, I think, be sufficient to prevent a careful person farming Lot 4 south of twenty metres from its northern boundary. That however is not significant. What is significant is that there is no suggestion of intention to resume banana farming on Lot 4. A further subdivision application was lodged in 1995 which was refused in 1996. The case was not put forward as one for damages for lost opportunity to recommence after all subdivision attempts failed. 44 I move then to the question of present stability. This must be considered in light of my finding that some boulders, probably not more than twenty, have fallen from the wall between July 1993 and January 1995. I should say that no complaint was made to the Council about this and it is related only to the question of continuing nuisance. The question of whether there is any existing nuisance imposing a threat to the use of Lot 4 and its enjoyment must be considered in the light of the fact that there is no evidence of any boulder falling from the wall in the past eight years, apart from one dislodged for test purposes, which dislodgement required some effort. 45 The plaintiff relied on the evidence of two experts, namely Mr Tinni and Mr Delaney on the question of stability. The plaintiff also relied on the fact that the defendant and cross-defendant did not ask their experts to address the stability question. 46 The evidence of Mr Tinni was that the rock facing was badly constructed. He said this was obvious because the rocks had not been carefully placed, there are obvious gaps between them, there was no drain at the foot, the wall is far too steep in places and that it had already collapsed once and that a new collapse was imminent. He said that the boulders had been dumped, not placed. He said the omission of the SG dyke on the southern side of the service road shown on the RTA drawings, would allow water to flow down the batter wall causing erosion of soil underneath it. He said there was ponding in the northern table drain of the service road which would cause seepage into the batter and weaken the earth embankment. Anyone listening to his evidence would think that there was a certain risk of fall. But he has not been on site since 1995. 47 It is fair to say the evidence of Mr Tinni was to some extent coloured, because he was not aware to amendments to the original design plans and when he wrote his original report he did not have a full set of those plans but only some of the pages. He did not know or understand that the plans provided for the water on the service road to fall to the south which would bring about a requirement for an SG dyke, but that ultimately the centre line became the high point. He had failed to realize that there was provision for a constant lowering of level from west to east bringing about a flow of water from west to east and his evidence of rocks being dumped was just wrong as was his evidence of a first collapse. 48 It is not suggested, except by Mr Tinni, that the wall as originally designed was not a suitable batter wall. His main criticism of it was the fact that its foot at the steepest point on Lot 4 was almost immediately upon the boundary between Lots 4 and 5. While that might have made construction or maintenance more difficult, it was not something which made it unsafe or unstable. Neither, I think can it be said that a slope of one horizontal to one vertical would not have been quite safe if properly constructed. When Mr Brown concluded that the embankment as designed placed its foot into Lot 4 in part it was decided to steepen the embankment at its foot until it met the original design line of 1.5 horizontal to 1 vertical and then proceed on that line. However, it is not really clear at what angle it was proposed to construct the lower slope and as finally constructed its slope in at least one place is on the order 1 horizontal to 2.3 vertical for a short distance. At this particular point as the foot was commenced at a greater distance from the boundary, than at other points, additional rocks were added at the foot to give it greater stability. It is those rocks which caused Mr Tinni to report that there had already been a collapse. The evidence is that the compaction tests were taken as required of the soil component. There was nothing to suggest any instability in the soil. In my view there is no basis to suggest that the defendant should have produced evidence of stability and failure to do so requires some inference it was not in its interest to do so. The onus was on the plaintiffs. Mr Tinni said that water penetration would cause instability and this would come about by the lack of an SG dyke and seepage from ponding in the table drain on the northern side of the service road. His opinion that this had already caused instability as shown by a collapse, was shown to be wrong. There is no evidence the earth embankment is at present unstable. The effect of ponding was exaggerated in view of the slope to the east. This and the centre line high point were accepted by other experts as reason to eliminate the SG dyke. I accept those views. 49 Mr Delaney, an engineering geologist called by the plaintiff, considered the rock facing was not constructed in accordance with modern engineering practice. This related mainly to its steepness in part. He assessed the risk of rock fall to be high. He based this on the presence of rocks on Lot 4, the steepness of the batter and his discussions with Mr Simpson. He gave evidence of the calculations of rolling rocks from the top the batter which in essence showed the likelihood was that of any rocks falling between 63 and 100 percent would fall within five metres of the boundary, between 0 to 37 percent would fall within ten metres of the boundary and 0.1 to 0.4 percent would fall within fifteen metres of the boundary. He considered this to be an unacceptable risk for a rural residential development or to persons undertaking agricultural activities on that site. He stuck to his opinion of the high risk of instability as a result of the steepness of the batter, the erosion of the soil on the batter and the lack of proper locking between rocks. 50 Mr Verco, an expert engineer called by the RTA was of the opinion that the rock facing appeared stable. He agreed that if rocks had fallen then it was some evidence of bad construction. On the other hand he thought the rocks were properly linked, although it would have been better practice and better construction to put in smaller rocks to fill gaps and that this could have been done by breaking up the larger boulders available on the site. 51 I have concluded that the evidence does not support a finding that the rock facing is now unstable. It certainly does not support a claim that the earth embankment is becoming unstable as a result of erosion by water so as to represent a nuisance. It is reasonable to say that the evidence and inspection on the view would lead to a conclusion that a better batter could have been built. That is not evidence of nuisance to occupiers to adjoining land by threat of fall without evidence of any fall for the past eight years. The claim for an injunction to restrain a nuisance for the rock faced batter wall is not made out. Other findings 52 In the light of my finding that the plaintiffs have not sustained economic loss as a result of lack of access or falling rocks it is unnecessary to deal with the claim of such loss. However, a lot of time was spent at the trial on this aspect and a lot of evidence of agronomists went towards it. In case, therefore, my conclusion is found not to be correct I set out briefly the findings I would have made. 53 The plaintiffs, the defendant and the cross-defendant each called expert evidence from agronomists, namely Mr Wilkie, Mr Campbell and Mr Ivey respectively. I consider that of these Mr Ivey is by far the most reliable. The evidence of Mr Wilkie was to some extent made less acceptable by his continual refusal to accept much disadvantage in the south facing slope, by his evidence as to the percentages of krazmosin and podsolic soil on the property and by his reliance on the achievements of Mr Simpson on other parts of the plantation when the one in question was not farmed by him. The estimated yield of 2,800 cartons per hectare could not be accepted. It was in the upper range of yield from banana plantations and was, I think, far in excess of the yield Mr Simpson was achieving where he was farming himself. Mr Campbell's evidence as to the soil types was, I consider, somewhat inaccurate. I consider that he placed too much reliance on the aerial photographs and I have also come to the conclusion that he placed too much emphasis on the disadvantages of a south-facing slope. Mr Ivey may have incorrectly considered agreement had been reached on soil types, but his views as to the percentages of one type from the other was, I consider, more likely to be correct. Generally on all matters I considered him an impressive witness. It is more likely than not that about 50% of the plantation comprised podsolic soils. 54 The problems about yield arose because the plaintiffs kept no records of the yield from Lot 4 and neither did Mr Rixon. If the plaintiffs' share of the yield was ever brought to account, which is very doubtful, it was never separate from the yield from other parts of their plantation. I expressed the view during the hearing, and remain of that view, that the best evidence of yield likely to be achieved was from evidence of past yields if that could be obtained. I said that I considered this could be obtained from Mr Rixon's disclosed income from the plantation over the years in question, which would have been from about one half of the total yield. It was never suggested that his income figures were not correct. If the income from each year of known figures was divided by the average Flemington wholesale price for that year per carton and doubled, an annual yield could be estimated from the plantation, which was likely to be far more accurate than an agronomist's estimate formed on some other basis. Mr Ivey agreed with this approach. It is fair to say however that the yields so determined varied so much that there must be some doubt about the approach, although an averaging would probably bring a reasonably fair finding. It would show beyond doubt that Mr Wilkie's estimated yield could not be supported. 55 This figure is subject to one further adjustment. The evidence was that Mr Simpson had contracts with supermarket and other retail outlets so that he sold at what were called "retail prices" rather than wholesale prices through the markets. This of course is different from the final retail price paid by the customer. On this basis as Mr Ivey explained, as Mr Simpson was buying in bananas from others to fulfil his contracts his loss was the amount that he had to pay for the wholesale bananas. Once again on the sparse evidence that price is about 75% of retail price so that in calculating loss one could take either the Flemington wholesale price each year from 1992 and relate that to the yield estimated as I have mentioned, or take 75% of the retail price obtained by the Simpsons shown by what most experts agreed to be an insufficient sample. If it were necessary to do so I would have chosen the Simpson figures because while a small sample it was probably real rather than being some average from the Flemington prices. In fact on the evidence shown in the Ivey report there would not be a great deal of difference. The plaintiffs in the long run accepted that the buy-in price was the proper figure to work on. I have marked the plaintiffs' final schedule of damages claimed as Exhibit X so that this can be understood if future reference is necessary. This does not take into account the acceptance of the relevance of the buy-in cost. Damages from the fallen rocks 56 No attention was given to this. I am satisfied there is some damage and I would be prepared to award damages of $1,000 including interest, but counsel may address further on this if they wish. Cross-claim 57 In the light of my conclusions it is only necessary to consider any liability of the cross-defendant in respect of the nuisance to the right of way as the cross claimant did not really press a claim in respect of design of the wall and of course the amount is very small. If it had been necessary to consider any liability in respect of the rock faced batter I would have found for the cross-defendant. The reasons for that are that it was not built to the design of the RTA, and in any event Mr Trent, as the authorised representative of the Council was entitled to make changes to it and did so. The fact that the original design was an RTA design had no bearing on the current state of the wall. In other words, there is no suggestion that the original design was not satisfactory nor that the design, which was certainly accepted by Mr Eastwood for the lowering of the level of the service road was not in itself satisfactory. The fact that the wall as designed did not fit within Lot 4 did not cause damage to the plaintiff. If anything did it was the construction not the design. In coming to this conclusion I do so on the basis that the wall as designed encroached on Lot 4. The drawing in Exhibit 43 makes it clear it did. 58 So far as the continuing nuisance to the right of way is concerned, I have come to the conclusion that it has not been established that the work of the RTA in the design phase has caused or contributed to the nuisance. That is for two reasons. First because the drainage at the point in question has not been constructed in accordance with the RTA design, and second because there is no evidence that the extension to the existing pipe under the service road, which extension has, I consider, increased the nuisance, was ever discussed with the RTA. Certainly it was not envisaged in its design. In those circumstances the cross-claim must fail. 59 There was a further defence to cross claim based upon what are called General Conditions of Assistance to Councils (the Grey Book). Clause 61 of the conditions was as follows: Any damages, costs, charges or expenses of any nature whatsoever paid, suffered or incurred by the Council in respect of any action, claim suit or proceedings taken by or against the Council in respect of any work is to be paid or borne by the Council and is not to be charged to the cost of the work and the Council is to indemnify and save harmless and keep indemnified the Commissioner from and against all such damages, costs, charges and expenses. 60 The clause relates to construction works by the Council, not to defects in design by the RTA. A reading of the whole document makes that clear. In my view it would be no defence to the cross-claim for faults in design if they had been made out, which they were not. Costs 61 The main claim of the plaintiffs has failed. In those circumstances I will have to hear argument on costs. The cross-claim should be dismissed with costs. The plaintiffs should be protected against the additional costs to them involved in the cross-claim being heard with this claim. It should be borne in mind they sought a separate hearing. Proposed orders 1. Declaration that the defendant is in breach of special condition 27(c) of a contract for the purchase by the defendant from the plaintiff of the land in Folio Identifier 5/261323, which clause on its true construction as agreed between the parties, required the access way of the plaintiffs to Lot 4 in DP 261363 by means of a right of carriageway over Lot 3 in DP 261363 to be reinstated by the defendant by shaled upgrade. 2. Order this term of the contract be specifically performed by 1 June 2003. 3. Order that the defendant be permanently restrained after 1 June 2003 from interfering with the Plaintiffs' right of way over Lot 3 by causing or allowing water to run or discharge on the right of way from pipes located under Duck Creek Mountain Road. 4. Judgment for the plaintiff against the defendant for damages and interest in the sum of $1,000. 5. Plaintiffs' other claims dismissed. 6. Order that the cross claim be dismissed with costs. 7. Stand over question of balance of costs to a date to be fixed. ********** Last Modified: 05/02/2003 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.