New South Wales Supreme Court CITATION : Black v Apps [2005] NSWSC 943 HEARING DATE(S) : 16 September 2005 JUDGMENT DATE : 20 September 2005 JUDGMENT OF : Burchett AJ DECISION : Summons and cross-claim dismissed; plaintiffs to pay half defendants' costs of Summons; no order as to costs of cross-claim. CATCHWORDS : Encroachments on land - trifling - discretion of Court - disputes between neighbours Encroachment of Buildings Act 1922 LEGISLATION CITED : Dividing Fences Act 1991 Attorney General v The Municipal Council of Mosman (1910) 11 SR (NSW) 133 Margiz Pty Ltd v Proprietors Strata Plan No 30234 (1993) 30 NSWLR 364 Anagnostou v Vinicio [1995] NSWLEC 104 CASES CITED : Busways Management Pty Ltd v Milner [2002] NSWSC 969 Finlayson v Campbell (1997) 8 BPR 97675 Cantamessa v Sanderson (1993) 6 BPR 13127 Geoffrey Malcolm Black (first plaintiff) Loyce Antoinette Black (second plaintiff) PARTIES : Peter Apps (first defendant) Patricia Apps (second defendant) FILE NUMBER(S) : SC 4981/04 Mr M Meek (plaintiffs) COUNSEL : Ms M Allars (defendants) Stewart Cuddy & Mockler (plaintiffs) SOLICITORS : T McMinn (defendants) LOWER COURT JURISDICTION : - 8 - IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION BURCHETT AJ 20 September 2005 4981/04 GEOFFREY MALCOLM BLACK AND LOYCE ANTOINETTE BLACK V PETER APPS AND PATRICIA APPS JUDGMENT 1 On 10 September 2004 the plaintiffs, who live at 77 Northwood Road, Northwood, issued a Summons for hearing in the Equity Division of this Court against the defendants who live at 81 Northwood Road, Northwood, seeking an injunction to restrain entry upon their land, damage to a retaining wall and dividing fence and interference with drainage holes in the wall; an order for the removal of two electricity poles encroaching on the plaintiffs' land; and an order for damages for trespass. On 18 February 2005 the defendants responded with a cross-claim seeking declarations that the encroachment by the two electricity power poles was so trifling that relief should be refused and that the retaining wall of the cross-defendants encroached upon the cross-claimants' land so as to entitle them to relief under the Encroachment of Buildings Act 1922; an order for removal of the encroaching portions of the wall; a declaration that the fence had been erected without compliance with the provisions of the Dividing Fences Act 1991; and an order requiring the cross-defendants to erect a new dividing fence and to improve the appearance of the retaining wall. The protagonists have all filed affidavits from which the nature of their various disputes emerges. 2 The parties are near neighbours. The plaintiffs moved, in 2003, into their handsome new house at number 77 which is erected on the front portion, facing Northwood Road to the east, of a rather complex battleaxe development. The "handle" of the battleaxe extends down the southern boundary of number 77 and past it to provide access for number 79 which is at the far rear of number 77. This "handle" actually forms part of the land belonging to number 81 which, together with number 83, is at the rear of the next house to the south of number 77, number 85. There are rights of way over the laneway in favour of numbers 79 and 83. It is unnecessary, for the purposes of this case, to describe the general lay-out of the subdivision more particularly, except to point out that, since the laneway, subject to the rights of way, is land forming part of number 81, the southern boundary of the plaintiffs' property number 77, being the northern boundary of the handle of the battleaxe (ie the northern boundary of the laneway) is a boundary common to the plaintiffs and the defendants. It has become a casus belli. 3 The entrance to the front door of number 77 from Northwood Road is down the middle of the front garden, with a large garage occupying part of the space between the central entrance path and the southern boundary of the block. The wall of the garage extending along and very close to that boundary is a windowless expanse of painted cement. At the back of the garage, and a short distance from the front of the house, there is a door allowing egress from the garage across a paved open space to the house. It is the area just outside this door which was, at one stage, drained, not actually through a hole in the retaining wall, but through a gap of a few square inches between the end of the retaining wall and the end of the side wall of the garage. The retaining wall in question extends from the end wall of the garage along the edge of the battleaxe handle to the back of the plaintiffs' land. It has been built right on the boundary and, at several points, it encroaches up to about six centimetres onto the defendants' land. Along the top of it (it has a variable height of about three courses of stone) has been constructed an ordinary paling fence, supported at intervals by metal posts set in the stone construction. 4 Power to the properties at the rear has been provided by an overhead power line supported on power poles placed at or about the northern boundary of the battleaxe handle. Each of the first two of these, counting from Northwood Road, encroaches onto the plaintiffs' land, one by nine centimetres and the other by eight and a half. The one nearest the front is alongside the blank wall of the garage and about a centimetre or two from it. Obviously, if the pole were moved back a few centimetres so as to be wholly on the defendants' property, the only effect would be to widen that gap fractionally; no-one would be moving the wall of the garage from the position in which it has been constructed, nor was any such suggestion made in the case. Similarly, the next pole is hard against the retaining wall (indeed, partially encased within it) and the fence. It is impossible to imagine that any practical difference would be made either to the wall or to the fence by a slight correction of the position of the pole. There is, to the naked eye, no visible bowing of the fence at the point where the pole is, although the top of this pole has a lean that takes it further into the defendants' airspace. 5 The drainage hole in or at the end of the retaining wall, while it may well have caused annoyance briefly during heavy rain when it was first created, is without permanent significance. As became quite apparent when the Court had a view, the hole would have enabled a temporary build up of water to be drained away from outside the back door of the garage, but once proper drainage in that area of the plaintiffs' front yard was installed, it is impossible to imagine that the hole had any further practical effect. This particular grievance seems peculiarly attributable to a lack of communication between the parties, since it was obviously reasonable for Mr Black to alleviate a temporary difficulty as he did, and equally obviously it would not have been reasonable for him to continue to direct a volume of water onto the driveway instead of rectifying the drainage problem properly, as in fact he did. All that was required was a neighbourly discussion of the problem, but there is no suggestion in the evidence that this was attempted. Perhaps the parties were already too embroiled in their other disputes, and neither was prepared to make the soft answer that turneth away wrath. 6 The allegation of trespass relates to the blocking of the gap between the retaining wall and the garage, which was then unblocked by Mr Black and has since remained unblocked, and the shaking on a couple of occasions of one of the fence posts. The plaintiffs allege that the fence post was actually loosened by Mrs Apps by shaking it, so as to damage the retaining wall and affect the stability of the fence, while the defendants acknowledged she shook the post, but only to demonstrate its instability and without causing any damage whatever. The evidence shows that after the incident of the shaking of the fence the plaintiffs strengthened it at a cost of $130, but this fact does not answer the question whether the original instability was or was not due to anything done by one of the defendants. I am not satisfied that they are shown to have done anything more than Mrs Apps (who has architectural qualifications) concedes, that is, demonstrate an existing problem. It follows from these findings that no damage at all has been shown and, indeed, since an unstable fence is apt to lean and the fence post in question was on the southern side of the retaining wall so that any leaning would be towards the property of the defendants, I am not satisfied that any trespass at all took place by a grasping of the top of that post. I may add that the repair visible upon the view by the Court took the form of a bracing against movement in the direction of the driveway on the defendants' land. 7 Although a technical trespass was alleged to have occurred in relation to the blocking of the drainage hole, there was no evidence of any damage caused thereby, and this action was, of course, an attempt to abate a nuisance. 8 So far as the Summons seeks injunctive relief, the only continuing problem is the encroachment of a few centimetres by each of the two power poles that have been mentioned. I have some difficulty in seeing how the Court could grant relief in respect of these power poles without having before it the parties entitled to the benefit of the relevant easement; the only persons joined by the plaintiffs are the defendants as owners of the land forming the handle of the battleaxe, but the powerlines, of course, service also the owners of numbers 79 and 83 Northwood Road. A similar difficulty was noted by A H Simpson CJ in Eq in The Attorney General v The Municipal Council of Mosman (1910) 11 SR (NSW) 133 at 140-141. In the same case (at 142-143), his Honour concluded that an encroachment which did not cause appreciable obstruction was "too trifling to justify the interference of the Court" and accordingly dismissed the information with costs. This decision was cited with approval by Powell J in Margiz Pty Ltd v Proprietors Strata Plan No 30234 (1993) 30 NSWLR 364 at 368. See also Mitchell v Waugh [1993] NSWLEC 213 and Anagnostou v Vinicio [1995] NSWLEC 104. In the latter case Pearlman J referred to section 3 of the Encroachment of Buildings Act 1922 and said: "The principal feature of this case is that the encroachments are trivial. They are very minor indeed, and I am left with the abiding feeling that these proceedings truly arose because of the antagonism and bad relations between the parties and not because the encroachments caused difficulty and problems for the applicants. … It is a matter of some concern to me that proceedings are taken under the Act, seeking relief in respect of encroachments, where the real source of concern is not the encroachments themselves, but the personal differences between the parties. The Act, in my opinion, is designed to achieve a just settlement of rights where an encroachment exists; it is not designed, nor could it be, to settle the grievances of the parties when those grievances arise from causes quite independent of the actual encroachment. … Section 3 (3) of the Act empowers the Court to 'grant or refuse relief … as it deems proper in the circumstances of the case'. I have concluded that, because the nature and extent of the encroachments is trifling, because they have been in existence since 1982 without any perceived ill-effects, and because there was no evidence of any adverse effect upon No 31, I should, in the exercise of my discretion, refuse relief." Her Honour did so with costs. In Busways Management Pty Ltd v Milner [2002] NSWSC 969, Hamilton J referred with approval to an earlier decision in the same matter of Talbot J, in which also section 3 (3) of the Encroachment of Buildings Act had been relied upon as justifying the refusal of relief in respect of an encroachment described as "minimal" which had "no impact by way of a constraint on the … present or future use of the land". 9 Section 3 of the Encroachment of Buildings Act 1922 empowers the Land and Environment Court, amongst other things, to order, by section 3 (2) (c), "the removal of [an] encroachment". Subsection 3 then provides that the Court "may grant or refuse the relief or any part thereof as it deems proper in the circumstances of the case, and in the exercise of this discretion may consider amongst other matters: (a) the fact that the application is made by the adjacent owner or by the encroaching owner, as the case may be, (b) the situation and value of the subject land, and the nature and extent of the encroachment, (c) the character of the encroaching building, and the purposes for which it may be used, (d) the loss and damage which has been or will be incurred by the adjacent owner, (e) the loss and damage which would be incurred by the encroaching owner if the encroaching owner were required to remove the encroachment, (f) the circumstances in which the encroachment was made." By section 10 it is provided that: "In any proceedings before the Supreme Court, the Supreme Court may: (a) if it sees fit, exercise any of the powers conferred on the Land and Environment Court by this Act. …" 10 In Finlayson v Campbell (1997) 8 BPR 97675, Young J referred to the jurisdiction of this Court "to deal with claims made under the Encroachment of Buildings Act as incidental to proceedings before the court particularly when the incidental matters are raised in a cross-claim" and he referred to Cantamessa v Sanderson (1993) 6 BPR 13127. 11 In my opinion, I have ample power to decline to make any order for the removal of the power poles on the ground that the encroachments involved in their present positioning are trifling and have no practical effect upon the plaintiffs. The plaintiffs' Summons should be dismissed. As I understand the submissions for the defendants, in that case, they do not press the cross-claim. At all events, I would take a similar view of the slight encroachments made by the retaining wall. 12 That leaves the matter of costs. Apart from the fact that the plaintiffs brought a proceeding which failed and the defendants brought a cross-claim which also failed, and which included a claim in respect of the dividing fence that was withdrawn but only at the hearing, I was left with the firm impression that both parties had contributed to the bringing of what seem to have been escalating disputes before the Court without any real justification. There would be much to be said for the proposition that there should be no order as to costs, except that it was on the plaintiffs' part that the proceedings were actually launched. In all the circumstances, and having taken into account the terms offered by the plaintiffs in a belated attempt to settle the matter, I think the appropriate order is that the plaintiffs should pay one-half of the defendants' costs of the Summons and there should be no order as to the costs of the cross-claim. 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.