Land and Environment Court New South Wales Medium Neutral Citation: Hopkins v Quinn [2017] NSWLEC 31 Hearing dates: 10 February 2017 Decision date: 21 March 2017 Jurisdiction: Class 4 Before: Moore J Decision: At [34] and directions at [39] Catchwords: APPLICATION TO REOPEN – application seeking to revisit aspects of each four elements determined in principal decision – application to reopen concerning one element refused but granted concerning three elements – principal decision confirmed with respect to one reopened matter – principal decision varied in minor aspects with respect to two reopened matters – directions for parties to settle orders to reflect principal decision – if costs not agreed, costs reserved DEVELOPMENT – carried out on adjoining property without owners consent – carried out in breach of development consent – declaration and injunction to restrain further breaches EASEMENTS – application for easement to regularise encroachment – easement ordered – compensation ordered Legislation Cited: Civil Procedure Act 2005, s 98 Environmental Assessment & Planning Act 1979, ss 5, 123 and 124, Sch 1 s 10 Encroachment of Buildings Act 1922, s 4 Environmental Planning and Assessment Regulation 2000 Uniform Civil Procedure Rules, Pt 42, r 42.1 Cases Cited: Hopkins v Quinn [2016] NSWLEC 163Hunter's Hill Council v Minister for Local Government; Lane Cove Council v Minister for Local Government; Mosman Municipal Council v Minister for Local Government; North Sydney Council v Minister for Local Government; Strathfield Municipal Council v Minister for Local Government [2016] NSWLEC 124 Ireland v Cessnock Council 110 LGERA 311; [1999] NSWLEC 250 Jones v Dunkel 101 CLR 298; [1959] HCA 8 Kouflidis v Salisbury City Corporation 49 LGERA 17; (1982) 29 SASR 321 Latoudis v Casey 170 CLR 534, [1990] HCA 59 Warringah Shire Council v Sedovic [1987] 10 NSWLR 335 Category: Consequential orders (other than Costs) Parties: John James Hopkins (Applicant) David Quinn (Respondent) Representation: Counsel: Mr N Eastman, barrister (Applicant) Mr G Stapleton, barrister (Respondent) Solicitors: Hones Lawyers (Applicant) Sattler & Associates (Respondent) File Number(s): 153093 of 2016 Publication restriction: No TABLE OF CONTENTS Introduction The drainage corridor – refusal of leave to reopen The width of the shotcrete wall easement element The December 2016 survey The cabana intrusion at the western end The garden bed intrusion Conclusion Costs Directions Judgment Introduction 1. On 24 November 2016, I gave a lengthy extemporaneous decision concerning boundary issues between two properties located in the Sydney suburb of Curl Curl (Hopkins v Quinn [2016] NSWLEC 163) (my November 2016 decision). The property to the south of the common boundary is owned by Mrs Hopkins whilst that to the north is owned by Mr and Mrs Quinn. Other details can be found in my November 2016 decision. 2. In order to formalise what was required to be ordered as a consequence of my findings in that decision, I directed the parties to prepare and settle orders to give effect to it, with the ability to have recourse to me if they were unable to agree on the appropriate terms. 3. Shortly after that, the Quinn's solicitor filed a Notice of Motion seeking to revisit a range of matters about which I had given my determination. At a subsequent mention, the Quinns' solicitor was advised that, if the Quinns wished to pursue the matters sought to be traversed, a formal application (supported by an affidavit) to reopen the proceedings was necessary. A Notice of Motion and supporting affidavit was subsequently filed. This decision arises from my hearing of that application for leave to reopen and, to the extent that such leave was granted, those matters arising for further consideration as a consequence. 4. The application for leave to reopen related to matters dealt with in my December 2016 decision concerning the four separate sections into which the east-west running boundary dividing the two properties could be notionally separated for the purposes of the issues engaged. Those different sections of the length of the boundary between the two properties can be identified, in summary terms, from east to west along the boundary, as: 1. The shotcrete wall section; 2. The drainage corridor adjacent to the Quinns' dwelling; 3. The boundary portion incorporating the garden bed to the south of the Quinn's swimming pool; and 4. The cabana constructed at the western end of the Quinn's property. 1. As can be seen from my November 2016 decision, with respect to the first, third and fourth of these portions of the boundary between the properties, there is an actual encroachment by structures on the Quinn's property into the Hopkins' property. 2. For the drainage corridor adjacent to the Quinn's dwelling, for the reasons discussed in my November 2016 decision, there is a necessity to construct an encroaching structure across the boundary onto the Hopkins' property in order to address the need for proper stormwater flow management as a consequence of development being undertaken by the Quinns on their property - particularly the substantial shotcrete wall constructed by the Quinns in a fashion that encroaches onto the Hopkins' property. 3. It is unnecessary, for the purposes of this decision, to repeat the detail of my earlier decision, but it is appropriate to note, for present purposes, that my findings concerning the shotcrete wall and its construction were entirely adverse to Mr Quinn. 4. Although, perhaps, it might have been more prudent to deal with the question of leave to reopen to my consideration of matters of merit and deal with the question of leave in this decision before turning to such matters of merit (if any) that might warrant variation of my original determinations, I considered, on fine balance, during the course of the motion hearing that leave should be granted to reopen (except with respect to the drainage issue for the passage between the Quinn dwelling and the wall on the Hopkins' property – this being an element, for the reasons explained immediately below, entirely without merit) and thus deal with the substance of the other three matters arising from my substantive decision. The drainage corridor – refusal of leave to reopen 1. I turn, first, as it is convenient to do so, to the application for leave to reopen with respect to the drainage corridor immediately adjacent to the Quinn's dwelling. 2. As can be seen from my November 2016 decision, that which followed from my consideration of the issues engaged by this element of the case (and, particularly, the joint engineering evidence given) concerned resolution of the problems arising as a consequence of Mr Quinn's construction of the shotcrete wall. This wall runs from a point commencing at the eastern end of this drainage corridor (in a fashion which, effectively, removed any opportunity for stormwater drainage beyond this corridor in other than a full corridor-width fashion) and required a drainage treatment of this corridor. 3. The resolution of the impacts of Mr Quinn's unlawful construction causing the stormwater impacts on the Hopkins' property required a drainage solution to be constructed at the full width of this corridor. Doing that, for the reasons described in my November 2016 decision, required: * adoption of the design proposed by Dr Martens; * responsibility for construction and ongoing maintenance of this design by the Quinns; and * an easement along the full length of the corridor encompassing the narrow strip of Hopkins' land involved in construction for this purpose. 1. Nothing said by Mr Stapleton, orally or in his written submissions in support of reopening, demonstrates in any way whatsoever why there is anything either arising out of the law or the facts of my decision, or that has come to the attention of the Quinns or their legal advisers in the time since that decision, that would warrant leave being granted to reopen on this point. 2. In short, the necessity for the this element of the easement and the quantum of compensation for this aspect of the boundary issues arises expressly and directly as a result of Mr Quinn's construction of the shotcrete wall. This area of the easement and its attraction of triple-value compensation arising from s 4(1) of the Encroachment of Buildings Act 1922 (the 1922 Act) were and remain entirely appropriate. For that reason, leave was refused to reopen with respect to this point. The width of the shotcrete wall easement element 1. Mr Stapleton submitted that I should revisit the width of the section of the necessary easement at the eastern end of the boundary between the properties. This is the area where Mr Quinn's unlawfully constructed shotcrete wall, itself, intrudes into the Hopkins' property, but is also where Mr Quinn drilled holes to insert sections of reinforcing bar further into the Hopkins' property in order to provide support for his reinforcing steel framework during the construction of his unlawfully erected wall. 2. In my November 2016 decision, I determined that, in addition to the 75 millimetre acknowledged intrusion of the shotcrete wall, it was appropriate to have this portion of the easement regularise the intrusion of the supporting pins that, although now redundant for support, nonetheless, remain intruding, permanently, into the Hopkins' property. 3. I determined this to be an additional 200 mm giving a resultant element of the easement of 275 mm width with attraction of triple-value compensation. 4. This element of the reopening application permitted Mr Stapleton to submit to me that the depth of the easement required, in addition to the depth of intrusion of the shotcrete wall proper, should be limited to 100 millimetres rather than the 200 millimetres I had determined at [27] to [30] of my November 2016 decision was appropriate. The basis for this submission was that there had been included, in the evidentiary material, an affidavit from Mr Coltman, a builder who assisted Mr Quinn with this aspect of his construction activities. This affidavit included three paragraphs dealing with the intrusion of the retaining pins: 2. On or about 7 December I was on site at 11 Farnell Street, Curl Curl to assist Mr Quinn with the fixing of the metal fixings into the sawn bedrock on the southern boundary of his property, The purpose of the metal fixings, once placed was to support the steel reinforcing for the new concrete wall that was about to be constructed. 3. The metal pins were made up of 200mm long and 12mm thick steel reinforcing bar. 4. The pins were inserted using a 100mm drill bit into the sawn bedrock and in some locations the northern face of the masonry wall that was constructed on the common boundary between the 2 properties. So that the pins would effectively hold up the steel reinforcing we inserted them at a vertical angle of 45 degrees. This meant that in a horizontal sense that the pins were at a depth of approximately 75mm. [Emphasis added] 1. There are a number of matters that should be expressly set out in order to understand why, despite this evidence, I do not propose to depart from my original determination. First, Paragraph 30 of the Quinn's pleadings acknowledges that Mr Quinn caused: "three fixings, bolts, to be installed into holes up to 110 millimetres into the boundary wall drilled for the purpose of supporting steel cages erected on 11 Farnell Street for the purpose of casting concrete to build the new wall," and "eight fixings, bolts, to be installed into holes of up to 200 millimetres into the boundary wall drilled for the purpose of supporting steel cages erected on 11 Farnell Street for the purpose of casting concrete to build the new wall." 1. Although this Court is not one of strict pleading, it is a basic tenet that, at trial, unless leave is sought and granted to amend pleadings, a party is bound by those facts set out in the pleadings if the matter pleaded is critical to an aspect required to be adjudicated. This is because the opposing party is entitled to know the case to be answered and to avoid ambush. No such leave was sought during the hearing leading to my November 2016 decision. 2. Second, although Mr Quinn gave evidence concerning, amongst other things, this intrusion, I set out, in my November 2016 decision, my conclusions on Mr Quinn's evidence on this at [77]. There is no reason to revisit those conclusions. 3. Third, the evidence from Mr Bennett (Mr Quinn's expert engineer) on this point was based on hearsay and derived from instructions on this point given to him by Mr Quinn. I paid (and now pay) no heed to Mr Bennett's evidence on this point for this reason. 4. Fourth, Exhibit 4 was a length of R12 reinforcing rod, 400 millimetres long, said to be of the same length as the lengths of reinforcing rod used as the pins intruding into the Hopkins' property that were placed by Mr Quinn. At a length of 400 millimetres, there is nothing that this exhibit provides that is inconsistent with the finding made that the intrusion of the supporting pins was to a horizontally measured depth of the order of 200 millimetres rather than the shorter depth now sought to be agitated in this reopening. 5. Finally, Exhibit 4 was 400 millimetres long and not 200 mm long. The fact that Mr Coltman, 10 months after the events he describes in his affidavit, asserts that the metal pins were only 200 mm long causes me to conclude that his evidence on other dimensional aspects of this incident may well also not be accurate. 6. I am satisfied that the combination of Mr Quinn's particularization of the depth together with the evidentiary factors I have described above, causes me to consider that, despite the untested evidence of Mr Coltman, I should not alter my original finding on this point. In this regard I note that no mention of Mr Coltman's evidence was made to me during Mr Stapleton's closing submissions at the November 2016 hearing. 7. I am satisfied that there is no proper basis to disturb my November 2016 conclusion on the width of the easement for the shotcrete wall element of the boundary nor to change the tripling calculation of compensation for it. The December 2016 survey 1. Exhibit A on the reopening application was a new survey obtained by the Quinns after my November 2016 decision. It more clearly delineates the extent of the various intrusions into the Hopkins's property at the garden bed and cabana areas at the western end of their mutual boundary. The extent of the various intrusions at the western end – now including a pier I do not recall from earlier surveys – provides an appropriate basis for my reconsideration of these elements of the necessary easement. The cabana intrusion at the western end 1. Much of this element of the intrusion by structures on the Quinns' property beyond the boundary of that property and onto the Hopkins' property pre-existed the ownership of their property by Mr and Mrs Quinn. On the other hand, as part of Mr Quinn's construction activities, he has inserted a vent pipe (for a toilet installed in the cabana) beyond the boundary of the Hopkins' property. 2. I accept that the general intrusion beyond the boundary (other than Mr Quinn's vent pipe) predated Mr and Mrs Quinn's ownership of their property. I also accept that, with the exception of the vent pipe installed by Mr Quinn, the intrusion that pre-existed this installation would not have necessitated an easement of the width which I proposed as appropriate, in my November 2016 decision. 3. It remains appropriate there be an easement for this section of the boundary to accommodate the intrusion elements at the width necessary to accommodate them as shown on the December 2016 survey. That width should be capable of factual settlement between the legal representatives of the parties based on the December 2016 survey. 4. Although the vent pipe intrusion potentially triggers the triple compensation calculation provided for in s 4(1) of the 1922 Act for its intrusion, this element of Mr Quinn's intrusions into the Hopkins' property, on reflection, is sufficiently de minimis not to warrant the application of any value loading to this element of the compensation to be paid to Mrs Hopkins for this easement. 5. I am therefore satisfied that Mr Quinn's vent pipe provides a basis for ordering compensation for this cabana portion of the easements, but that I should exercise the s 4(1) discretion and not "load" the compensation. There does not appear to be a discretion given by s 4(1) not to award compensation given the use of the word "minimum" in the section. The garden bed intrusion 1. I accept that the planter bed intrusion beyond the boundary predated Mr and Mrs Quinn's ownership of their property. I also accept that the intrusion that pre-existed would not have necessitated an easement of the width which I proposed as appropriate, in my November 2016 decision. 2. It remains appropriate there to be an easement for this section of the boundary to accommodate the intrusion elements at the width necessary to accommodate them as shown on the December 2016 survey. That width should be capable of factual settlement between the legal representatives of the parties based on the December 2016 survey. For the reasons set out concerning the cabana, this element of the easement should be on a single valuation rate basis. Conclusion 1. Although I dealt with the question of reopening on the four aspects sought to be revisited by Mr Stapleton on behalf of Mr Quinn, I have explained in this decision why I refused leave with respect to the issue of the drainage between the Quinn residence and the wall on the Hopkins' property, including the necessity for the compensation for the necessary easement. 2. Having considered Mr Stapleton's written and oral submissions, and those of Mr Eastman in reply for Mr Hopkins, on the three matters for which I permitted reopening, the result of my consideration of the matters raised, in each instance, is as follows: 1. There is to be no change to my original determination concerning the extent of the easement necessary over the Hopkins' property for the pinning of the shotcrete wall (either as to its horizontal intrusion into Mrs Hopkins' property or to its triple valuation); and, 2. With respect to the two easement elements to the west, I accept that it is appropriate to vary my original conclusion with respect to them, resulting in minor calculation adjustments of the nature set out in the body of this decision. Costs 1. As the matter of costs in the substantive proceedings remains to be determined, I will merely express a preliminary conclusion concerning costs of the reopening proceedings. 2. The parties will have the opportunity to address this preliminary conclusion further because of any submissions on costs relating to the principal proceedings, if such further costs hearing is necessary. 3. However, if the overall orders to dispose of the proceedings, including costs, are able to being settled between the parties, pursuant to the directions set out below, it is my view that, as the Quinns have only been successful on two of the aspects sought to be addressed by reopening (and those aspects were of far less significance in their outcome when compared to those upon which they were unsuccessful), the Quinns should be ordered to pay 75% of the costs of the reopening application. Directions 1. The parties are directed to provide to my Associate, by the close of business on Monday 27 March 2017, Short Minutes of Order to reflect the merit outcomes of my November 2016 decision as revised, to the limited extent earlier set out, by this decision. 2. These orders are also to deal with costs, if there is to be no further argument on costs, on the basis that the Quinns are to pay the costs of the principal proceedings and 75% of the costs on the application to reopen. If there is no agreement as to the orders for costs, the orders are to provide that costs are reserved. 3. If there is no agreement on the terms of the orders, or there remains some further need for submissions on costs, the matter is set down for mention before me at 4.15 pm on Tuesday 28 March 2017. If costs remain to be argued, I will set the time for that at the mention on 28 March 2017. ********** 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. Decision last updated: 22 March 2017