Hopkins v Quinn [2018] NSWLEC 117

Land and Environment Court New South Wales

Medium Neutral Citation: Hopkins v Quinn [2018] NSWLEC 117 Hearing dates: 3 July 2018 Date of orders: 08 August 2018 Decision date: 08 August 2018 Jurisdiction: Class 4 Before: Moore J Decision: (1) The Summons is dismissed; and (2) Unless a party notifies my Associate by 4.30 pm on Wednesday 5 September 2018 that some other order for costs is proposed by that party, the Respondents are to pay to the Applicant's costs up to and including 26 April 2018, as agreed or assessed, and, from 27 April 2018, the Applicant is to pay the Respondents' costs, as agreed or assessed. Catchwords: DEVELOPMENT - proceedings commenced pursuant to open standing provisions of the Environmental Planning and Assessment Act 1979 - development carried out on adjoining property without owner's consent - carried out in breach of court orders - actual and potential functional deficiencies in works resolved - certification provided to applicant as to adequacy of drainage works - applicant persisted in pursuing litigation after adequacy certification provided to him - only outstanding matter whether agricultural drainage pipe installed across boundary with property not owned by the applicant - incursion shown to exist to a maximum of 60 millimetres - no functional impact on enjoyment of property resulting from incursion DISCRETION - proceedings commenced pursuant to s 123(1) of the Environmental Planning and Assessment Act 1979 not pursuant to s 123(2) - relevant guidelines from Warringah Shire Council v Sedevcic [1987] 10 NSWLR 335 set out - analysis of applicability of relevant guidelines - no appropriate basis to require rectification in light of trifling extent of incursion - requirement to rectify would also be contrary to principles of ecologically sustainable development - no utility in making bare declaration - summons dismissed COSTS - applicant commences Class 4 civil enforcement proceedings - utility in proceedings up until all functional issues in or potentially in dispute resolved - certification provided to applicant on 26 April 2018 demonstrated no functional issues unresolved - proceedings continued by applicant to a contested hearing despite no utility - proceedings not compromised or discontinued after certification provided on 26 April 2018 - no evidence concerning what took place between the parties after that date - prima facie appropriate costs outcome that the respondents pay the applicant's costs up to and including 26 April 2018, as agreed or assessed, and, from 27 April 2018, the applicant pay the respondents' costs, as agreed or assessed - opportunity afforded to seek some alternative costs order - if no alternative costs order sought within 28 days, costs to be ordered as proposed Legislation Cited: Encroachment of Buildings Act 1922 Environmental Planning and Assessment Act 1979, s 123(1) and (2) Cases Cited: Hopkins v Quinn [2016] NSWLEC 163 Hopkins v Quinn [2017] NSWLEC 31 Hopkins v Quinn (No 2) [2017] NSWLEC 76 Hopkins v Quinn (No 3) [2017] NSWLEC 101 Warringah Shire Council v Sedevcic [1987] 10 NSWLR 335 Category: Principal judgment Parties: John Hopkins (Applicant) David Quinn (First Respondent) Maria Quinn (Second Respondent) Representation: Counsel: Mr N Eastman, barrister (Applicant) Mr G Stapleton, barrister (Respondents)