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[2009] WASC 242
Supreme Court of WA
2009-08-28
Johnson J
Original judgment source is linked above.
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
CITATION : MARRON -v- CITY OF NEDLANDS [2009] WASC 242
Injunction - Non-disclosure - Failure to give notice of proposed works - Failure to consider submissions from all residents
Aim Maintenance Ltd v Brunt [2004] WASC 49; (2004) 28 WAR 357
Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd [2001] HCA 63; (2001) 208 CLR 199
Australian Broadcasting Corporation v O'Neill [2006] HCA 46; (2006) 227 CLR 57
Behbehani v Salem [1989] 2 All ER 143; 1 WLR 723
Bell Group NV (in liq) v Aspinall (1998) 19 WAR 561
Bentley v Nelson [1963] WAR 89
Brink's Mat Ltd v Elcombe [1988] 3 All ER 188
Brodie v Singleton Shire [2001] HCA 29; (2001) 206 CLR 512
Castlemaine Tooheys Limited v The State of South Australia [1986] HCA 58; (1986) 161 CLR 148
Cayne v Global Natural Resources Plc [1984] 1 All ER 225
Evans Marshall & Co Ltd v Bertola SA [1973] 1 All ER 992
Films Rover International Ltd v Cannon Film Sales Ltd [1986] 3 All ER 772
Independent Corporate Services Ltd v Stevens [2002] WASC 280
Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (No 3) [1998] HCA 30; (1998) 195 CLR 1
State Transport Authority v Apex Quarries Ltd [1988] VicRp 26; [1988] VR 187
Thomas A Edison Ltd v Bullock [1912] HCA 72; (1913) 15 CLR 679
Westwind Air Charter Pty Ltd v Hawker De Havilland Ltd (1990) 3 WAR 71
1 JOHNSON J: By Writ of Summons, the plaintiff, Errol Francis Marron, commenced proceedings in this court against the defendant, the City of Nedlands, in relation to proposed works to be undertaken on the road verge adjacent to the plaintiff's property in Adams Road, Dalkeith (the proposed works). The Indorsement of Claim seeks a declaration that the defendant's proposed conduct is in breach of the Local Government Act 1995 (WA) (the Act) and an injunction restraining the defendant from undertaking the works unless and until there is compliance with the provisions of the Act and it is established that no nuisance will be created.
2 By Notice of Motion the plaintiff also sought an interlocutory injunction restraining the defendant from commencing or continuing the works until further order. It is the application for an interlocutory injunction which is the subject of these reasons.
3 The plaintiff maintained that, whilst the defendant has advised the plaintiff of the proposed works, the defendant has not provided adequate notice of the proposed works. The plaintiff submitted that a proper notice would contain full particulars of the works to enable the plaintiff to make a decision as to the full effect of the works on his property. The plaintiff further submitted that the defendant has failed to reasonably consider the issues raised by the plaintiff with respect to the works or, alternatively, has failed to provide a written response to the plaintiff's concerns. According to the plaintiff, the works, which include a 'hammerhead' shaped turnaround, will obstruct access to the plaintiff's property, inconvenience the plaintiff and his family and cause serious safety concerns for the plaintiff, his family and the public generally.
4 The defendant submitted that the proposed works are the most suitable for the location having regard to:
(1) The plaintiff's attempted resumption of the road reserve by the construction of a brick parking area;
(2) The plaintiff parking his vehicle on part of the current turnaround area;
(3) The need to ensure safe access to motorists including the City's garbage contractors;
(4) The defendant's view that there is a need to remove the high retaining wall constructed by the plaintiff as it creates a danger to motorists/pedestrians and obscures the view to other houses on Adams Road;
(5) The need for the City to act responsibly in terms of managing the costs of projects such as this.
5 The defendant further submitted that to move the turnaround several metres towards the river, a solution which would remove or reduce the impact on the plaintiff's property, would:
(1) require a much higher and thicker retaining wall;
(2) require an extensive safety railing and fencing;
(3) require considerable fill and road surface drainage;
(4) obstruct to a greater degree some of the view from some properties in Adams Road;
(5) be against the wishes of all the residents of Adams Road other than the plaintiff;
(6) result in a steeper incline from Adams Road to the foreshore with an increased risk to any persons who may elect to use that area;
(8) cost considerably more to construct than the current design.
6 With respect to the 7th explanation, I note that trees from the river reserve have been removed which was likely to have had a significant adverse impact on the birdlife. As to the 6th explanation, the portion of the river reserve which follows the mostly flat area near the roadway, is already particularly steep. Moving the turnaround closer to the river would not make that portion of the river reserve steeper. It would have no impact on the gradient of that portion at all. As to the 8th explanation, the cost of a turnaround in that location must have been within the defendant's contemplation as the design was consistent with the defendant's initial instructions.
7 With the consent of both parties, I went to Adams Road to gain an accurate perspective of the location. The site visit took place in the late afternoon. On driving down Adams Road and stopping to look at the area below the intersection with Marlin Court, I then turned my vehicle around with ease using the cross-over of 5 Adams Road and parked further up Adams Road in front of 4 Adams Road. The vehicle I was driving was a Holden Calais. I then walked down to the river reserve and also walked the length of Marlin Court and back. There were no other pedestrians in either Adams Road or Marlin Court. There were no cars parked in front of 5 Adams Road but there was a car parked on the paved cross-over outside the gates to 6 Adams Road. It appeared to me that the whole of the road reserve between the gates to 6 Adams Road and the roadway had been paved. I note that the road reserve in front of 6 Adams Road is described in the sketch plans provided by Mr Sarris, and in the surveyed plan, as a 'steeply sloping fancy paved driveway'. With a vehicle parked outside the gate on the road reserve it was not possible to walk on that side of the road to the river reserve without moving on to the road.
8 The plaintiff has lived at 5 Adams Road in Dalkeith (the property) for approximately 26 years. Adams Road runs from Victoria Avenue in the east to the Swan River foreshore in the west. At the western end of Adams Road is a small grassed reserve which continues down to the river (the river reserve). The river reserve is controlled by the defendant. On either side of the river reserve, and facing one another, are the properties known as 5 Adams Road to the south and 6 Adams Road to the north.
9 On 18 August 2004, the plaintiff obtained approval to demolish his previous residence and to build a new residence on the property. The new residence was completed in December 2005.
10 On approximately 24 April 2007, the plaintiff noticed a surveyor outside his property who marked a yellow line on the cross-over. The yellow line was about one metre south from the white lines that, according to the plaintiff, were previously marked by the defendant where the cross-over commences and were made at the time the cross-over was installed.
11 In his letter to Mr Gary Martin, the defendant's then Acting Chief Executive Officer, of 1 May 2007, the plaintiff alleged that, when he contacted Mr Al Valvasori, the defendant's then Manager Technical Services, to enquire why a yellow line had been drawn, he was told that the yellow line was put in to ascertain where the plaintiff's driveway was in case the ranger had to infringe anyone for parking in the driveway. The plaintiff was also advised by Mr Valvasori that the defendant was proposing to construct a turning facility at the end of Adams Road. The plaintiff requested from Mr Martin an explanation for the proposed road works for Adams Road, including all plans and elevations of the proposal.
12 In a letter dated 4 May 2007 addressed to Councillor Cranston, the plaintiff alleged that there was only one person in the street who wanted to change the cross-over and who had asked other neighbours to sign some form of partition. Although the 'one person' was not identified in the letter, it is apparent from what later transpired that it was the owner of 6 Adams Road, or his son acting on his behalf.
13 A letter from the defendant dated 3 July 2007 alleged that the new residence did not comply with the approved development plans. The areas of non-compliance alleged by the defendant were the following:
14 It is relevant to note that it took the defendant 19 months after the completion of the new residence to raise with the plaintiff the areas of alleged non-compliance. In my view, this is consistent with the representatives of the defendant, who were involved with the building works at the time, not considering there was a problem with the work carried out by the plaintiff. It is also significant to note that the construction of the bituminised cross-over was not included in the list of non-compliant works. Another relevant observation is that it was not until the plaintiff had raised with the defendant his concerns regarding the construction of a turnaround that he was first advised by the defendant of the allegations of non-compliance relating to the construction of his new residence. From this point onwards the issue of the plaintiff's alleged non-compliance with planning approval and the issue of the proposed works were dealt with by the defendant as related issues.
15 As the plaintiff had not received a response from the defendant to his letter of 1 May 2007, on 27 July 2007 he again wrote to the defendant requesting a response.
16 By letter dated 30 July 2007 the plaintiff wrote to the defendant regarding the alleged non-compliance. He referred to a meeting with the then Chief Executive Officer, Shayne Silcox, and 'other city staff' in March 2004 to address the defendant's error in the October 2003 planning approval and all other outstanding issues in respect to the approval of his plans including changes to the garages, hard stand, cabana, cross-over and retaining wall. The plaintiff referred in his letter to an appeal to enforce the defendant's approval of a balcony. Apparently the defendant later withdrew the approval on the basis that it had been approved in error by the defendant. The appeal was commenced but, after the application to the Town Planning Appeal Tribunal was dismissed as being six days out of time, a point taken by the defendant, the plaintiff decided to simply commence building and forego the balcony.
17 The plaintiff also referred in his letter to the fact that, in all the confusion, an incorrect version of page 3 of 16 of the plans was forwarded to counsel which did not show the cabana and hardstand areas covered. The plaintiff maintained that it was always intended to have these areas covered to address overlooking issues. As the roof of the house is almost level with Marlin Court, this was without doubt a legitimate concern. The plaintiff also maintained that the surveyor marked the height of the retaining wall and it has been constructed to 9.5 metres. According to the plaintiff, the defendant did not want the verge to have a steep slope, like the verge was before the wall was constructed and this direction was followed. The plaintiff also maintained that the curve in the wall was reduced to appease the concern expressed by Mr Anderson, the owner of 6 Adams Road, in a letter to the defendant dated 17 February 2004, that a car may hit it, as well as his concern for vehicles turning in the plaintiff's driveway. Mr Anderson also asked that the balustrade not be a mesh infill. The reduction in the curved part of the wall was said to have been discussed with the defendant's building department officers. In relation to the verge, the plaintiff made the following statement:
In respect to your comment that the paving extends into the verge area. I went to considerable detail in my letter dated 1 May 07 to explain that the cross over was constructed in accordance with Al Valvasori, Jim Morton and Ron Ferguson specific instructions. Despite my vehement objection to the way they wanted it done and a direct approach to councillors Rob Brown, Ian Argyle and John Cranston they would not change their minds. I spoke at the Council Meeting on 26 September 2006 to explain this matter in full to all the Councillors and the Council staff.
Once again I found myself in a position to consider if I should commence proceedings to enforce my planning approval or to construct the cross over as they had instructed. The cross over was the last part of the construction before we moved into the property and this action by Technical Service Department personnel caused over two weeks delay and considerable more expense. The cost to construct the crossover increased from $2,700 to $14,000 a sum that I should not have been forced to expend and will be seeking to recover.
18 By letter dated 24 August 2007, the defendant advised the plaintiff that:
works to reinstate a turning area at the end of Adams Road is proposed for the 2007/2008 budget and capital works program.... Once budget approval is received the design will be prepared and consultation will be undertaken with local residents.
19 I note that there is no reference in this letter to the giving of notice or what that might involve.
20 On 14 September 2007, not having responded to the matters raised in the plaintiff's letter concerning the proposed works, Ms Eldridge again wrote to the plaintiff concerning non-compliance issues. In the letter Ms Eldridge alleged that the defendant had written to the plaintiff on 3 July 2007 and received a response from the plaintiff dated 30 July 2007. In her letter, Ms Eldridge identifies the areas of non-compliance as follows:
21 I understand the last item to be a referral to the paved area rather than to the cross-over.
22 I note that there is no reference to the cross-over in the list of non-compliant works. On that basis, it must be accepted that there is no non-compliance issue with the cross-over area. It is also the case that any complaints by residents concerning the cross-over could not be justified and the resident should have been advised that the cross-over was approved by the defendant.
23 Ms Eldridge's letter required advice from the plaintiff as to whether he would be amending the development to meet the current planning approval or submitting a retrospective planning application by 28 September 2007. Despite the lengthy explanations provided to the defendant by the plaintiff, including the fact that certain aspects of the development had been done at the direction of the defendant's officers, no reference was made to this in Ms Eldridge's letter which merely restates the original allegations and makes no attempt to address the matters raised on behalf of the plaintiff. Nor did Ms Eldridge indicate that any enquiries had been made to ascertain whether the plaintiff's allegations were correct. Indeed, at no point did the defendant respond to that allegation, despite the fact that, at that time, Mr Valvasori, who was alleged by the plaintiff to have been one of the defendant's representatives at whose direction the cross-over, the limestone wall and the paved area was constructed, was still employed by the defendant.
24 By letter dated 28 September 2007, the plaintiff wrote to Ms Eldridge and to Councillor Ian Argyle objecting to a turning area being constructed at the end of Adams Road. The plaintiff maintained that there was already ample turning access for the two residences that occupy the end of Adams Road and for the odd car that comes down the street. He expressed the view that any more vehicular turning was not necessary and was a waste of ratepayers funds. The plaintiff also made mention of the fact that there were several dead end streets in the area, naming seven of them, all of which had no vehicle turning. The plaintiff also referred to the fact that it was his understanding that only one property owner wanted a turnaround area.
25 The plaintiff's response to Ms Eldridge's letter of 14 September 2007 concerning the alleged non-compliance was dated 2 October 2007. The plaintiff stated that, with the assistance of town planners, he had checked the retaining wall alignment and maintained that it was constructed in the location shown on the drawings. He further advised that the levels on this area of land were running in a number of directions and the end result may appear different to what is on the plan. This is another assertion of the plaintiff which was never addressed by the defendant's officers. The plaintiff again advised that both the paving and cross over were constructed under the Technical Services Department supervision and in accordance with their specific instructions. The plaintiff also referred to a telephone conversation on 10 July 2007 in which he explained to Ms Eldridge that he was of the understanding that all items constructed had been approved.
26 No reply was received to this letter. Further, the plaintiff did not receive any correspondence or notices regarding the alleged unlawful construction of the retaining wall or the paving after this letter. In his affidavit of 27 June 2008 the plaintiff expressed the view that the issues of the roof over the cabana and hardstand areas are irrelevant to this action because they relate to the internal works inside the property. There is no doubt that this is correct, however, it remained something which was referred to and taken into account at every stage of consideration of the proposed works. Further, the plaintiff repeated his understanding that the realignment of the retaining wall and the limestone paving had been approved. He stated that, in particular, the limestone paving and the hump on the verge were constructed at considerable cost and inconvenience under the express instruction of the defendant's officers. Again, the allegation that the limestone paving was approved was never dealt with by the defendant and appears to have been largely, or completely, ignored.
27 The plaintiff's evidence concerning the construction of the bitumen cross over and the paved area is supported by the affidavit evidence of Darren Gregory Lockhart, an earthworks bitumen paver who has worked in that industry for approximately 20 years.
28 Mr Lockhart deposed to the fact that, at some time in 2005, the plaintiff asked him to provide a quote to construct a bitumen cross-over and driveway at the plaintiff's property. Some time later Mr Lockhart attended the property to commence the works. It took him approximately a day to complete the earthworks. Mr Lockhart stated that, at the time of completing the earthworks, employees of the defendant were present. To the best of his recollection, both Mr Ron Ferguson, the person who previously held the position which Mr Ian Hamilton now holds, and Mr Jim Mortin inspected the works. According to Mr Lockhart, Mr Ferguson was the person responsible for the maintenance of cross-overs and footpaths. According to Mr Lockhart, whilst inspecting the work, either Mr Ferguson or Mr Morton advised the plaintiff that he could not construct the cross-over as he had instructed Mr Lockhart because of water flow off the street. According to Mr Lockhart, because of the substantially increased cost of making the instructed changes, the plaintiff was not happy about the change directed by the defendant, however, Mr Lockhart advised him that he was required to construct the cross-over in accordance with the defendant's instructions.
29 As a result of the requested changes, Mr Lockhart cut a straight line into the verge line, as he understood had been surveyed by the defendant, removed all the bitumen and installed a road base over the entire cross-over. He confirmed in his affidavit evidence that the cross-over and driveway were constructed under the supervision of the defendant's officers.
30 On 3 October 2007 the plaintiff lodged an application with the defendant for retrospective planning approval for enclosure of the hardstand and the cabana only. This application was refused by the defendant on 14 April 2008. The plaintiff then lodged an application for review of the defendant's decision in the State Administrative Tribunal on 14 April 2008. It is of significance that no application was ever lodged by the plaintiff with respect to the retaining wall, the cross-over or the paved area. This is consistent with the plaintiff's assertion that those matters were carried out either with the defendant's oral approval or on the defendant's express instructions.
31 The plaintiff had not received any correspondence or notices from the defendant regarding the retaining wall and the limestone paving since the letter dated 14 September 2007. Neither have these issues been raised by the defendant in any documentation received from the defendant in relation to the proposed road works. Nor are they referred to in the minutes of meetings of council of the defendant made available to the plaintiff.
32 According to Mr Wayne Mo, the defendant's Design Engineer since July 2007, on commencing employment with the defendant, he was instructed to become involved in the design process of the defendant's proposed works at Adams Road. The proposal was not only to resurface the road but to replace the kerbs, upgrade drainage and also formalise a turning area for garbage trucks which was considered to be the worst case scenario in terms of the largest vehicle most likely to use this road. It is significant to note that there no evidence to suggest that any enquiries were made at the time as to whether the garbage truck would ever use that part of Adams Road, even if a turnaround area were constructed.
33 Having inspected the area it is apparent that Marlin Court is a very narrow street where it would be impossible for a garbage truck to turn around. Indeed, if cars are parked partially on the verge and partly on the roadway, it would not be possible for the garbage truck to even drive along Marlin Court. It is also the case that, for the garbage truck to service Marlin Court, it would have to either drive in and reverse out or reverse in and drive out. Either way does not require a turnaround at the end of Adams Road and would not be assisted by it.
34 Mr Mo was advised that these works would be carried out as part of the City's capital works programme for 2007/2008. The works were also said to involve part removal of a non-conforming retaining wall near the crossover to 5 Adams Road. It was Mr Mo's understanding that, apart from safety and amenity issues, the rehabilitation works were largely scheduled because of high level of building activity at 5 and 6 Adams Road and because there had been a large degree of public disapproval and complaints regarding the building works completed by the plaintiff.
35 On 4 January 2008, the defendant sent a letter to the residents in the vicinity of 5 Adams Road in relation to the plaintiff's application for retrospective approval. That letter alleged that the development does not comply with the average front set back, although in the context of a lesser level of set back being required to be off-set by open space. In fact, this is a reference to the roof over the hardstand and cabana area but could be seen to invite complaints about the reduced set backs at 5 Adams Road.
36 Comments regarding the proposal were sought within 21 days. The letter was sent to the owners of 2 Marlin Court, 3 Marlin Court, 2 Adams Road, 3 Adams Road, 4 Adams Road and 4/12 Victoria Avenue. The letter was not sent to Mr Anderson, presumably because 'overlooking' issues would not apply to 6 Adams Road.
37 On 24 January 2008 the defendant appointed Land Focus, engineering consultants, to prepare a design for rehabilitation works to be carried out on Adams Road. According to Alex Sarris, the Managing Director of Land Focus, the verbal design brief from Mr Mo was to take the following matters into account within the design:
(a) to minimise the height of the design of a proposed turnaround (known as a 'hammerhead' turnaround so as to not construct any avoidable visual barrier to the river views of residents further up Adams Road;
(b) to enable a car and more particularly a garbage truck to turn around in this area;
(c) to direct any overland flow from storm water drainage away from adjacent residences and be directed into proposed gully pits. Mr Mo suggested that the design incorporate reconstructing the Adams Road pavement to form a slightly inverted road so that storm water runoff flows down the centre of the road and away from adjacent properties; and
(d) to interface smoothly with adjacent properties in order to minimise the impact, where possible on existing vegetation and adjacent properties though not at the cost of compromising design.
38 It is clear from the instructions that the defendant specifically asked for a hammerhead turnaround, rather than asking the engineer to design any type of turnaround which would minimise the impact on adjacent properties. It is also the case that drainage was considered to be a significant issue.
39 Mr Sarris stated that he was to receive an updated survey before completing the draft layout for the location of the hammerhead turnaround. The survey was received on 29 January and, based on his discussions with the defendant, some time after 24 January 2008 he prepared a basic design layout for the hammerhead turnaround which placed part of the turnaround on the river side of the paved area adjacent to the front entry of 5 Adams Road. The proposed retaining wall heights based on this design were approximately 2.1 metres in retained height.
40 The criteria considered by Mr Sarris for his first proposed design was extracted from a number of different standards including the Main Roads Western Australia turning templates for vehicle movements within hammerhead turnarounds and an example drawing from a Western Australian Planning Commission document of hammerhead turnaround layouts and dimensions. Mr Sarris conceded that most of the standards on which he relied dealt more with major roads and intersections and most did not address minor road works or turnarounds. It is also clear that this design was consistent with the instruction to minimise the impact on adjacent properties.
41 According to Mr Mo, on 11 February 2008 he held a meeting with Mr Valvasori, Mr Fawcett, the City's surveyor, and Mr Sarris to discuss design considerations for the proposed works. However, Mr Mo indicated that, after this meeting, he received a copy of the preliminary design layout from Mr Sarris. As Mr Sarris confirms forwarding the first PDF copy of his sketch of the proposed design to Mr Mo on 7 February 2008, it would seem that 11 February is not an accurate date for the meeting.
42 Nevertheless, according to Mr Mo, the discussions at this meeting included the construction of a turn around area for vehicles on the road reserve which was to be either a cul-de-sac single movement clockwise turnaround bulb or a hammerhead type arrangement using a 3 point turn using a minimum design for a SU truck. However, a number of the other matters to which Mr Mo deposes as having been discussed at the meeting are consistent only with the design of the turnaround as a hammerhead having already been determined. Certainly, that was the evidence of Mr Sarris. In fact, Mr Mo deposes to the fact that, at the meeting, Mr Sarris said that after receiving the survey he would provide the City with a draft design including a layout of the hammerhead turnaround.
43 It is interesting to note that, in relation to 6 Adams Road, Mr Sarris was instructed to retain the crossover by designing away from it, thereby leaving it where it was. According to Mr Mo, Mr Sarris was also instructed to retain the brick paving area constructed in front of the plaintiff's property. Of course, later that requirement was dropped from the instructions whereas the instruction in relation to Mr Anderson's cross-over was never withdrawn.
44 In relation to the first design provided by Mr Sarris, Mr Mo stated that the turnaround was as far away a possible from the 'parking area/footpath' constructed by the plaintiff at 5 Adams Road and away from the crossover of 6 Adams Road. Mr Mo expressed the belief that the initial design was a good design given the many constraints that were imposed by the City.
45 On 29 February 2008, Mr Sarris received back comments from Mr Mo on the first proposed design. Only minor changes were made and the location of the turnaround remained. Again, it was made clear from Mr Mo's email that the turnaround was designed to allow use by a garbage truck. Sometime between 29 February and 18 March 2008 Mr Sarris incorporated Mr Mo's amendments into his design and forwarded completed drawings to Mr Mo for his review.
46 By letter dated 29 February 2008 the defendant advised residents that it intended to carry out construction works on all of Adams Road. The extent of the road works were stated as being
resurfacing, reconstruction, new pavement construction, drainage upgrades and a turnaround area which will be retained by a limestone wall.
47 However, the details of this work were not included in the letter. It was clear from the evidence of Mr Sarris and Mr Mo that the final drawings had not been completed at this stage and supporting information in relation to drainage and other issues had not been prepared.
48 The sketches enclosed with the letter indicated that the defendant intended to construct on the reserve and on the front verge of 5 Adams Road a turning circle for vehicles ('the hammerhead turnaround') and to remove part of the existing limestone wall to the front of the property. This is a reference to the curving limestone wall which retains the verge of the side street, Marlin Court, which is at a higher level than the front of 5 Adams Road.
49 After receiving this letter from the defendant, the plaintiff spoke with Mr John Anderson, the son of the owner of 6 Adams Road, about the proposed works. The plaintiff was advised by Mr Anderson that he was not aware of the proposed works and he had not received a letter from the defendant similar to the defendant's letter of 29 February 2008.
50 Mrs Susan Minshall from 3 Adams Road received the letter from the defendant and wrote to Mr Graham Foster, the defendant's CEO on 13 March 2008 requesting an accurate cross section with heights included of structures of the proposed turning circle so that she could accurately assess the situation. It is significant to note that Mrs Minshall considered the information initially provided as inadequate for the purpose of assessing the impact of the proposal. As her later correspondence contains no complaint about not having received the material, presumably it was supplied to her. However, the plaintiff's request for additional information was not met.
51 Having received the defendant's letter of 29 February 2008, in early March 2008, the plaintiff prepared a letter which was provided to approximately five of the residents of Adams Road and Marlin Court attaching a copy of the plan of the proposed hammerhead turnaround and requesting that those residents provide comments to the defendant regarding the proposed works. In the letter, the plaintiff made the following observation:
There is a problem with large vehicles driving in and out of Marlin Court, especially the rubbish truck, simply because the street is too narrow and the truck is now much larger than previous ones. But the addition of a vehicular turning at the end of Adams Road will not solve this problem.
When building is finished in the street tradesman cars will not park in Marlin allowing full access for the trucks and hopefully things will return to pre-construction days when there was no major problem with truck access.
52 I note that even the plaintiff objects to the height of the limestone wall and refers to the 'ugly vehicle crash rails at the end of the street and on top of the wall'.
53 However, the plaintiff does make the observation that there is no pedestrian access in the plans and no landscaping provided for in the plans. The suggestion made is that the best outcome would be if the whole block (the reserve) was landscaped and provision made for the many residents that use it for access to the river, not for turning cars.
54 As I have noted, the river reserve is an unkempt grassy area from which the trees have been removed, presumably to improve the view of surrounding residents. There is a relatively flat portion at the top after which the balance of the river reserve is steeply sloping down to the river. Contrary to the allegation of the defendant, the first design would not increase the steepness of the incline, it would simply remove the flat part, leaving the steep part to be traversed to the river as occurs now.
55 By letter dated 17 March 2008 the plaintiff wrote to the defendant's Chief Executive Officer expressing his concerns in relation to the proposed works, such concerns being the following:
(a) Inadequate provision of information by the Defendant as to:
(d) Safety concerns of vehicles coming within close proximity (approximately 1 metre) of the property;
(f) Nuisance caused by lights, noise and exhaust omissions to residents of the property from vehicles using the hammerhead turnaround;
(g) Restriction of access by the public to the Swan river foreshore;
(h) Satisfactory nature of current vehicle turning;
(j) The fear of further flooding to the property if adequate drainage is not constructed; and
(k) The general lack of information provided by the Defendant to enable the plaintiff to make a decision as to the extent and nature of the works to be carried out and the impact that the works may have on residents of and visitors to the property.
56 Many of the matters raised by the plaintiff are, in my view, legitimate concerns of any landowner in the plaintiff's situation.
57 In the letter was a request for the plaintiff to be sent a full set of drawings and include all of the items referred to in his letter marked up on the plans and the defendant's engineers draining volume calculations so that the plaintiff's consultants can fully assess what impact the proposed works would have on his home and street. These requests were never met.
58 The letter also asserted that the defendant was considering a turning area because the rubbish truck cannot easily enter Marlin Court which is extremely narrow and services at least 5 homes. As I have noted, to gain access to Marlin Court large vehicles like the garbage truck have no alternative but to either reverse in or out of Marlin Court. As the plaintiff observed, this will not change even if vehicle turning is constructed at the end of Adams Road. Further, the plaintiff referred to being told by Perthwaste that they would not be happy about using the proposed Adams Road turning area because the hill at the end of Adams Road is too steep for the rubbish truck to negotiate. It is indeed the case that the end of Adams Road where 5 and 6 Adams Road are located is much steeper than any other area of Adams Road or Marlin Court. The plaintiff maintained that the rubbish truck never enters the lower end of Adams Road because the residents take their bins up to Marlin Court every week. This obviously does not present any difficulty for the plaintiff. As for the owners of 6 Adams Road, they would need to take their bin a very short distance to the verge in front of 4 Adams Road. However, the plaintiff added that, in any case, trucks easily turn in the cross-over of 5 Adams Road.
59 Annexed to Ms Eldridge's affidavit is a statement from Perthwaste. That statement indicates that there are associated problems with collecting in Adams Road and Marlin Court. The main problem is said to be that they have to reverse out of the narrow street which I understand is a reference to Marlin Court. It is also said that there is insufficient area at the junction of Adams Road and Marlin Court for the truck to turn around. It is further stated that both Adams Road and Marlin Court cause them an issue with on street parking. This is said to only compound the difficulty with collecting waste in these streets. The combination of the lack of turning space, on street parking and the width of Marlin Court makes these streets a difficult operation. The final matter raised is that there are occasions when on street parking causes the collection vehicle to reverse up Adams Road which requires the truck to reverse on the busy road of Victoria Ave. Clearly this is a reference to on street parking in the top, flat part of Adams Road.
60 In my view, this statement does nothing to support the assertion that the garbage truck would use the turnaround if one were to be constructed or the allegations of the council officers that it is necessary to change the configuration of the end of Adams Road to accommodate, inter alia, a garbage truck.
61 In his letter of 18 March 2008, the plaintiff described the manner in which the defendant had handled the proposal as 'disgusting'. He stated that it would have been more appropriate for the defendant's staff to seek the residents' views on all issues relating to this proposal rather than sending out a half prepared sketch with a letter saying that work is going to start in April or May.
62 It is also the case that the plaintiff raised concerns about the proposal to change the configuration of the limestone wall erected on the Marlin Court side of the Adams Road verge next to the plaintiff's house on the ground of drainage concerns, in particular whether the shorter wall would provide the necessary protection from water flooding down Adams Place. At no stage has this issue been properly addressed.
63 The person who was primarily involved on behalf of the defendant in managing the proposed works was Mr Hamilton, who had been employed by the defendant as Executive Manager of Technical Services since March 2008. It is apparent from identifying his date of commencement with the defendant that Mr Hamilton had no involvement in, or knowledge of, the construction of the plaintiff's new residence and had no direct knowledge of the circumstances by which the area between the house and the street came to be the way it was when Mr Hamilton first became involved in the proposed works.
64 In his affidavit evidence, Mr Hamilton said that Mr Foster told him that he had contacted those residents of Adams Road who had contacted him to discuss their concerns, about a meeting on 18 March 2008 (the 18 March meeting). The purpose of the meeting was for the residents to discuss their concerns or any issue they may have had with the proposed works. Mr Hamilton observed that the plaintiff did not attend the 18 March meeting, something he could not have done because he had not been advised that the meeting was to take place. Mr Foster's version of events was that the plaintiff was invited but did not attend. This statement is inconsistent with the statement given to Mr Hamilton about who Mr Foster had invited. The plaintiff also denies being invited to the meeting.
65 At the 18 March meeting held in the defendant's offices, it was agreed that a follow up meeting would be held on-site on 26 March 2008 (the 26 March meeting) and that Mr Anderson from 6 Adams Road would be responsible for contacting all other residents, including the plaintiff, to advise of the meeting at the defendant's chambers. As it turned out, Mr Anderson did not contact the plaintiff.
66 On 18 March 2008 Mr Sarris received an email from Mr Mo seeking additional changes to the proposed design. The changes related to the limestone retaining wall on the corner of Adams Road and Marlin Court and not to the hammerhead part of the turnaround.
67 The plaintiff did not receive a written response from the defendant to his letter of 18 March 2008 or to any of his earlier letters concerning the proposed works. On or about 25 March 2008, the plaintiff was advised by one of the Adams Road residents, Ms Deanne Singara, that a meeting had taken place with the residents at the defendant's offices to discuss the proposed works. This would appear to have been the meeting of 18 March 2008. The plaintiff had not been invited to this meeting. According to Mrs Minshall, Mr Foster and Mr Hamilton attended on behalf of the defendant and the residents who attended were the following; Nick Lennon of 3 Marlin Court, Steve Anaston of 2 Adams Road, Warren Harding of 86 Victoria Ave (corner of Adams Road), Rosemary and Neil Tomlinson of 2 Marlin Court, Chris Courtney, the Anderson's architect on their behalf, and the Minshalls. In other words, eight people representing six households were present. Only one household was directly affected by the construction of the hammerhead part of the turnaround, although theoretically all would potentially be affected by the limestone retaining wall included in the proposed works.
68 Ms Singara advised the plaintiff that a meeting on site was organised for the next day, 26 March 2008, and that he should attend. The plaintiff contacted Mr Hamilton by telephone and asked if he could attend the meeting. Mr Hamilton agreed to the request. The plaintiff made it clear to Mr Hamilton that he would not participate during the meeting but would meet with him afterwards. The plaintiff explained that he felt uncomfortable attending the meeting because he had not been invited.
69 Mr Hamilton's account of being contacted by the plaintiff was that the plaintiff advised him that he would not be attending the meeting on site because he did not want to be part of any group meeting with other residents of Adams Road. That is not quite the same explanation as that given by the plaintiff. According to Mr Hamilton, the plaintiff requested a separate meeting with him after that meeting. As I have indicated, that is not unreasonable conduct in the circumstances of animosity which applied at the time between the plaintiff and certain of his neighbours.
70 The plaintiff stated that six residents attended the on-site meeting with Mr Hamilton on 26 March 2008. At the meeting, Mr Hamilton explained that the end of the street was too narrow for a cul-de-sac turning circle and, therefore, the defendant was proposing to construct a hammerhead turning circle which would take up the grass verge area in front of 5 Adams Road. In fact, a cul-de-sac turnaround had not been contemplated by the defendant and the engineer had not been given the opportunity to design one or a turnaround of any other configuration. The plaintiff asked if the defendant could construct the hammerhead circle 2 or 3 metres down the hill towards the river so that he could keep the grass verge in front of the property. Mr Hamilton advised that he would consider the proposal. It is apparent to me from the balance of the affidavit evidence that at no time was this or any other suggestion made by the plaintiff ever really considered by Mr Hamilton or the defendant.
71 Mr Hamilton stated that, during his consultation with the residents at the 26 March meeting, he tried to persuade the plaintiff to participate in the discussions. However, the plaintiff refused to participate and remained a short distance from the participants and Mr Hamilton. According to Mr John Anderson, the son of the owner of 6 Adams Road, those attending the meeting were Mr Hamilton, Mr and Mrs Minshall, Diane Shields of 88 Victoria Ave and Rosemary Tomlinson of 2 Marlin Court; that is, five residents from four households. Mr John Anderson made the allegation that the plaintiff appeared to be recording the meeting with a tape recorder. This is denied by the plaintiff but is typical of the unsubstantiated allegations raised on behalf of the defendant.
72 With reference to the sketch shown to those residents who attended the meeting, Mr Hamilton stated that the construction of a turning area on the side of 6 Adams Road would come within 2 metres of the wall at the front of the property. Whilst that statement is correct, the area within 2 metres of the wall of 6 Adams Road is further west than the paved cross-over of the verge and would have a limited and entirely unequal impact on 6 Adams Road and its residents as compared with the impact on 5 Adams Road and its residents. I would also note that a revised plan which the defendant later proposed to proceed with, although several metres further east, has absolutely no impact on the cross over verge area of 6 Adams Road and none on the verge of 4 Adams Road. All the impact was confined to the plaintiff's property.
73 According to Mr Hamilton, at the end of this meeting all the residents who participated said that they were generally happy with the proposal and said that they wanted to keep the retaining wall at the end of the hammerhead turnaround as far to the east as possible and as low as possible so as to preserve the view of the river and the open space as much as possible. Mrs Minshall confirmed that this was her view of the matter. Mr Hamilton also asserted that the residents indicated that they did not want to have a large steel safety rail. It is apparent that the primary objection to the initial proposal for the turnaround was the impact on the resident's view of the river.
74 In a conversation with the plaintiff after the 26 March meeting, Mr Hamilton alleged that the plaintiff told him that he considered the proposed works infringed on his use of the road reserve and that he wanted to leave the road reserve the way it was. According to Mr Hamilton he told the plaintiff that the road reserve was not for his exclusive use and that the reserve was a public reserve under the care of the city. He also maintains that he told the plaintiff that the proposed works would be going ahead in one form or another because it had 'become a real safety and amenity issue for the City' and further told him that 'he cannot build what appears to be a private footpath on a public road reserve'. In making this comment, it is apparent that Mr Hamilton either has not been advised of the plaintiff's assertion that the paved area was constructed under the direction of the defendant's employees or had rejected that assertion without making any enquiries.
75 On 26 March 2008, Mrs Minshall wrote to Mr Foster. Amongst the matters mentioned by her in her letter, Mrs Minshall makes the following statement:
Although a 'turning circle' was preferred to the 'hammerhead' design we understand and accept the explanation offered by Ian Hamilton that it is the most compact design and indeed the only design that will enable the Council to meet its legal/insurance responsibilities in the space available.
76 Two issues arise from Mrs Minshall's letter. The first is that a turning circle was the preferred option. The second is that, although there is evidence that the hammerhead design is a Main Roads Department approved design, it does not follow that it is the only design that will enable the defendant to meet its legal/insurance responsibilities, as alleged by Mr Hamilton. There is no suggestion that any legal opinion was obtained at any stage in relation to this issue or that another design would not have met any legal obligations. Mr Hamilton appears to have attempted to justify the defendant's position on the turnaround by making an uninformed reference to legal constraints.
77 On 31 March 2008, at 5 Adams Road, the plaintiff met with Mr Michael Klyne of Klyne Consultants Pty Ltd, an expert in road safety and traffic engineering. The purpose of the meeting was to discuss the proposed hammerhead turnaround. After showing Mr Klyne the defendant's original proposal he provided oral advice of how the design could be altered to address some of the plaintiff's concerns. He recommended an approximate 4 metre by 4 metre extension of Adams Road and indicated that vehicles could use the substantial amount of existing driveway to turn. The alternative design differed from the defendant's proposed works in the following ways:
(a) It limited the environmental impact of any works on Adams Road;
(b) It did not pose any safety issues to 5 Adams Road or to pedestrians or for vehicles using Adams Road;
(d) It would limit any exhaust fumes from vehicles entering the property at 5 Adams Road;
(e) It would limit the impact of lights from vehicles entering the premises at 5 Adams Road
(f) It would limit the disturbance to the residents of the property arising from the noise from vehicles;
(g) It would maintain the verge in front of the property; and
(h) It would provide a turnaround for vehicles that would satisfy the plaintiff's concerns.
78 The plaintiff asked Mr Klyne to prepare a sketch of the alternative design that he had suggested. However, Mr Klyne required an A3 scaled drawing of the original proposal to prepare his alternative design. The plaintiff requested an A3 copy of the proposal from Mr Hamilton but it was not provided.
79 Mr Klyne's oral alternative design did not address the issue of drainage because the plaintiff had not received any drainage calculations from the defendant as requested by him and, as a result, could not seek Mr Klyne's advice on this issue.
80 On 4 April 2008, the plaintiff met with Mr Hamilton and Mr Foster at the defendant's offices to discuss a redesign of the proposed hammerhead turnaround. Although the plaintiff had hoped to receive a prepared design that did not have an adverse affect on his property, Mr Hamilton provided the plaintiff with a rough sketch of a redesign. Mr Foster alleged that Mr Hamilton produced 'the various drawings and surveys that were then available' in relation to the proposed works and took the plaintiff through them. The rough sketch indicated that the hammerhead turnaround would be constructed on the grass verge area and on most of the limestone entry to the property. Mr Hamilton told the plaintiff that the defendant decided to move the hammerhead turnaround 3 metres east of the original proposal. I note that the new design created an even greater impact on the plaintiff's property as the turnaround would be within a short distance of the front gate and directly in line with the front door.
81 During the meeting the plaintiff requested that the defendant construct the hammerhead turnaround at a minimum of 1 to 2 metres west of the location in the original proposal. The rough sketch also shows the removal of the existing limestone wall to the property and the location of a new curved wall. According to Mr Foster, the plaintiff objected to the design and said words to the effect that he objected to having the turnaround area on the paved parking area that he had constructed.
82 At this meeting Mr Hamilton proposed to the plaintiff that the defendant would allow a small footpath outside the property (which partially encroached on the road reserve), but not on the limestone paved area. The offer was made to the plaintiff for the defendant's employees to construct the footpath, although in another location, at the defendant's cost, using the limestone bricks already there. It was also suggested that, instead of having the elongated parking area facing forward onto Adams Road, a footpath be constructed sideways, thereby reducing the amount of space currently taken up by the limestone paved area. According to Mr Hamilton, the plaintiff said that he wanted to keep the limestone paved area he had constructed and did not want to move the retaining wall he had also constructed. In terms of the limestone paved area, it is clearly an entrance across the verge to the front of the plaintiff's property. A pathway parallel to the gate would in no way replicate the effect of the paved area. In other words, no real concession was being made. The other matters referred to cannot be described as concessions as they in no way ameliorate the effect of the location of the hammerhead turnaround.
83 Mr Hamilton stated that, following the meeting, Mr Foster told him that it was important that the engineering staff designed the best and fairest solution to the problem and that the solution be implemented as soon as reasonably possible. In fact, as far as the court is aware, no design work to construct the best and fairest solution was undertaken. The proposal which Mr Hamilton determined upon after the meeting with the other residents was in fact the only option that was considered thereafter. The engineering staff may well have identified the specification of that turnaround but they certainly did not attempt to design the best and fairest solution to the problem.
84 On approximately 4 April 2008 the plaintiff met with Councillor Max Hipkins, regarding the proposed works at the property. At the same time Councillor Hipkins and the plaintiff discussed the position of the proposed hammerhead turnaround. On 8 April 2008, the plaintiff received an email from Councillor Hipkins who advised that, in his view, the proposed hammerhead turnaround would damage the property unnecessarily.
85 On 9 April 2008 the plaintiff wrote to Mr Foster referring to his letter of 17 March 2008 requesting dimensions on the plan and drainage flow calculations and noting that he had not received a reply to his letter.
86 On or around 9 April 2008, the plaintiff met with Mr Foster and Mr Hamilton and provided them with a copy of his 9 April 2008 letter. At this meeting Mr Hamilton showed the plaintiff a revised design which incorporated the new footpath that was previously offered. The plaintiff advised them that the proposed hammerhead turnaround would detrimentally affect the property and that he was opposed to the revised design. Mr Foster agreed to review the original proposal.
87 Mr Hamilton alleged that at that meeting he showed the plaintiff the revised design which incorporated the new footpath that he had previously offered to the plaintiff. The drawing of the revised design is in fact the same design with the footpath included. Not surprisingly, the plaintiff did not accept the offer and again stated that he wanted to keep the limestone paved area.
88 Sometime between 18 March and 10 April 2008 Mr Sarris incorporated Mr Mo's amendments in to the design and forwarded a copy to him. On 10 April 2008 Mr Sarris received from Mr Mo an email which included some JPG images of the Adams Road site, a copy of Land Focus' Autocad base file of the hammerhead turnaround layout which had been amended by Mr Mo to relocate the proposed hammerhead and an amended layout adjacent to the existing retaining wall further up the road. Mr Sarris was advised that this design was the layout preferred by the defendant. This design moved the hammerhead turnaround further up the hill and into the bricked parking area in front of 5 Adams Road. When he reviewed the design, Mr Sarris realised that the change would be far more cost effective as it reduced the height of the proposed retaining wall significantly (from 2.1 metres to 0.9 metres) and minimised safety issues associated with the retaining wall height. However, what the changed design did not do was to minimise the impact on adjacent properties, as requested in the original design brief. Mr Sarris was unable to say the precise saving involved in this design but considered it to be in the order of $150,000, possibly more. I understand that this is an estimate only, but in view of the nature of the change I have some difficulty with this figure.
89 Mr Sarris incorporated the changes in to his design. A copy of the amended design was forwarded to Mr Mo in late April 2008. Mr Mo considered this design to be satisfactory as the turnaround shape had not changed greatly from the original design. Of course, that is stating the obvious as both designs were for a hammerhead turnaround According to Mr Mo, the reason this design was selected was based on minimising impact to the river foreshore and took into account the resident's comments during the consultation process. However, it certainly did not take into account any of the plaintiff's concerns so clearly Mr Mo was referring to all residents other than the plaintiff.
90 On 11 April 2008, Mr Hamilton held another meeting at the defendant's premises with the residents of Adams Road to discuss the proposed works. In addition to Mr John Anderson, those who attended were Ms Tomlinson of 2 Marlin Court and Mrs Minshall of 3 Adams Road. According to Mrs Minshall, Nic Lennon and Chris Courtney also attended; five people from four residences. The plaintiff contacted Mr Hamilton to say he would not attend this meeting and that he had considered the defendant's sketch of the proposed works and 'did not want it'. The plaintiff is also alleged to have observed that he would be losing his lawn area.
91 It is apparent from Mr Hamilton's evidence that at no stage did he record who was present at these meetings or what was discussed. If he had, one would have expected such a document to be annexed to his affidavit, which was not the case. In those circumstances, Mr Hamilton's account of what transpired at these meetings must be carefully considered. Mr Hamilton stated that, although some residents objected, most of the residents agreed that the turnaround had to be built as soon as possible for the safety of residents of Adams Road and surrounding areas. Mr Hamilton did not indicate which residents objected, although clearly he was referring to someone other than the plaintiff. Again, no attempt is made to identify the safety issue.
92 According to Mr John Anderson, the purpose of the 11 April meeting was to discuss the proposed works at Adams Road and the results of a discussion held the previous day between Mr Hamilton and the plaintiff in relation to the proposed works.
93 Mrs Minshall states in her affidavit that at the meeting they discussed the fact that the plaintiff had complained about the proposed works and wanted it moved further west, notwithstanding that as a result of the community consultations the defendant had by that time, to the best of her recollection, already agreed to move it east of the original design. Mrs Minshall also purported to identify the views expressed by the various residents which were that 'the whole community that was consulted agreed with the proposal and only one person disapproved'. Of course, 'the whole community' constituted four or five homeowners and the one person who disapproved was the only person adversely affected by the proposed works.
94 According to Mrs Minshall, people did not want a very high retaining wall and it was thought that a larger tarmac area would further destroy the already compromised amenity of the street. Further, it was considered that the initial proposal would make it very difficult for the community to easily access the foreshore and enjoy it because it would be steeper and more hazardous. I have already referred to the fact that there is no substance to the proposition that it would be more hazardous to access the river because the river reserve would be steeper. Mrs Minshall also referred to the risk of people falling over the high wall and the fact that the residents did not want the hammerhead substantially projecting into the foreshore area. Finally, Mrs Minshall made reference to the fact that the residents did not want a further reduction of the open vista which meant that they did not want any reduction in their view of the river.
95 It can immediately be seen that Mrs Minshall's account of the issues discussed is substantially different from Mr Hamilton's account, which essentially only involved a reference to the impact on the view. In relation to the allegation that the foreshore access would be too steep, the proposal would only affect the top, flatter part of the reserve and the balance of the river reserve is already steep.
96 On or about 22 April 2008, the plaintiff met with Mr Hamilton, again at the defendant's office. Mr Hamilton advised the plaintiff during the meeting that he would not change the rough sketch but he could move the end of the road turning away from the main entry by approximately one metre. This would still bring the vehicle over hang to within a metre or so of the front gate to the property and in the plaintiff's view would pose a clear safety threat to pedestrians in Adams Road generally and, in particular, those pedestrians accessing his property. This was, in fact, the only real concession made to the plaintiff during the entire consultation process but it did not overcome the basic problem which was that the hammerhead turnaround remained in very close proximity to the front gate to the property which in turn is directly in line with and close to the front door.
97 By letter dated 28 April 2008, the plaintiff's solicitors wrote to Mr Foster expressing the plaintiff's concerns with the proposed works, in particular the construction of the hammerhead turnaround, as well as the lack of information provided in relation to the works. The letter raises the issue of the existing drainage which is said to be deficient and that the plaintiff's property had in the past been flooded by storm water from the road reserve. A concern was expressed that not only would existing drainage problems continue but that they may be exacerbated by the proposed works. This was the third occasion upon which the drainage issue had been raised in writing by or on behalf of the plaintiff. The proximity of the proposed works to the plaintiff's front gate was also raised in the letter and the allegation made that the design was in conflict with the residential amenity of the street generally and of the plaintiff's property in particular.
98 In the letter, the plaintiff's solicitors made the very salient observation that the existing hardstand area constructed on the verge could be used for vehicles to turn, if indeed it was necessary for vehicles to be permitted to turn into Adams Road, a need not adequately demonstrated in the plaintiff's view and supported by no evidence in the court's view.
99 On 29 April 2008, the plaintiff sent an email to the councillors of the defendant attaching a letter and photographs regarding the proposed works.
100 On 29 April 2008 Mr Sarris received an email from Mr Mo in which he proposed further amendments to the proposed design which increased the paved area to a width of 3.3 metres and made the paved area flush with the proposed road. This latter aspect was considered by Mr Sarris to constitute a safety concern because reversing vehicles would not have anything to stop them and if pedestrians used the area there was no differentiation between the road area and the paved path area apart from a different pavement type. Further, Mr Sarris considered that there would be problems with drainage because the existing cross-over grades down towards 5 Adams Road and it was difficult to get the storm water runoff away from 5 Adams Road. Mr Sarris stated that he had designed the proposed works in such a way that the paved area graded towards the river to minimise overland water flow going into the entry of 5 Adams Road. Mr Sarris advised Mr Mo of these views.
101 By letter dated 1 May 2008, the defendant responded to Hardy Bowen's letter and advised that the hammerhead turnaround was in accordance with Main Roads standards and that the drainage exceeded minimum standards. Minimum standards were identified and a statement was made as to the number of soakwells to be installed and the approximate area they would service. The matters raised by the plaintiff in his letter of 17 March 2008 or other issues raised by the plaintiff's solicitors were given no response. I might add that, although the hammerhead turnaround might well be in accordance with Main Roads standards, it does not follow that it is the only available option in the circumstances which applied in this case, in particular where one resident's property was so adversely affected and subject to the entire impact of the proposed works. It would appear that no attempt was made to find out whether any other configuration could still be in accordance with Main Roads standards or whether any alteration to the hammerhead configuration would serve the same purpose and still fall within those standards. The letter concluded with the statement that programmed works on the two retaining walls was to commence in approximately 3 - 4 weeks.
102 On 2 May 2008 Mr Sarris completed Mr Mo's proposed changes and forwarded the drawings to Mr Mo.
103 In an email dated 8 May 2008, Mr Hamilton wrote to the defendant's councillors. After referring to extracts or summaries of two High Court of Australia judgments, Mr Hamilton drew from those decisions the proposition that the City must review its assets and how they are maintained. He goes on to state:
The condition of Adam's [sic] Road and community safety concern accessing the river, were previously brought to the City's attention, the action taken was to include it on the city's capital works projects reflecting the precedence set by the high court's key factors, and demands of local residents.
104 Mr Hamilton's uninformed reference to the 'key factors' in the High Court authorities no doubt had the effect of convincing the councillors to proceed with the works as quickly as possible.
105 It must be noted that the portion of the Adams Road surface which is clearly in a very poor condition is the flat part of the Adams Road, the condition of the lower sloping part is in a far better condition. As to community safety accessing the river, it is difficult to see how the proposed works even address that issue. As I have already noted, the lower and larger part of the reserve is high sloping and it is this lower part which must be accessed irrespective of whether the hammerhead turnaround is built. Steps down to the river on one or other side of the reserve would be a far better way of facilitating safe access to the river.
106 Mr Hamilton acknowledged that the initial hammerhead turnaround design extended well into the road reserve and 'after considerable community consultation' the design was re-evaluated and moved approximately 2.5 metres west towards Victoria Avenue. Of course, this also brought the more intrusive part of the hammerhead turnaround directly in front of the entrance to the plaintiff's property with no impact whatsoever on any other resident. This was not specifically referred to by Mr Hamilton in his email.
107 The explanation for the change was given in the following terms:
The new location would not only reduce the visual impact of the hammerhead turnaround by reducing the height of the retainer wall from 2.1 metres to 1 metre and remove the need for vehicle barriers and subsequent fencing. This would also relate to a reduced cost in the constructions of the turnaround.
108 In the email there is also included drainage information. Mr Hamilton states that he has personally and extensively advised the plaintiff, as well as concerned residents in Adams Road and surrounding areas, of all works involved. However, he does not state whether the basis of the drainage figures he quotes were ever provided to the plaintiff as he had requested. Nor does he mention that all the plaintiff's requests for specified information had gone unanswered.
109 There is also a reference in the email to the proposal put forward on behalf of the plaintiff by Mr Klyne.
110 On or about 9 May 2008, Councillor Argyle provided the plaintiff with a copy of the email from Mr Hamilton to the councillors dated 8 May 2008. According to the plaintiff, that email contained a number of inaccurate comments. On or about 9 May 2008 the plaintiff rang Mr Hamilton to discuss with him the contents of the email, in particular the inaccurate statements contained in the email regarding the plaintiff's discussion with Mr Klyne.
111 On or about 12 May 2008, the plaintiff sent an email to the councillors in response to the email from Mr Hamilton dated 8 May 2008. In that email the plaintiff indicated that the turnaround area only affects two of the residents, the plaintiff and the owner of 6 Adams Road. He also mentioned that he was not invited by Mr Hamilton to either of the first two meetings of residents. The plaintiff explained that, being advised of the second meeting by a neighbour, he attended and, after the meting, raised with Mr Hamilton his concerns about the proposal, in particular the turning area being so near the front gate because it would be dangerous to have turning vehicles so close to the main entry. That is also a safety issue which appears to have been completely ignored.
112 The plaintiff further advised that, at their next meeting, despite agreeing to review the plan, Mr Hamilton told the plaintiff that not only was he going to remove the grass verge but also the limestone path to the front gate. Mr Hamilton further maintained that he would not change from the hammerhead design. Mr Klyne's alternative proposal was rejected by Mr Hamilton because cars may be parked in the driveways. The plaintiff's response was that the number of times that cars were parked in his driveway were minimal, and that Adams Road was not a major road and Mr Klyne's proposal would conform to Australian design standards for the volume of traffic that would use it.
113 With respect to the proposition put to council by Mr Hamilton in his email that the plaintiff had discussed the issue with Mr Klyne over a golf game, the plaintiff denied that allegation and made it clear that Mr Klyne had attended Adams Road and carefully considered all options for his suggested design. This is another example of the willingness of the defendant's officers to act on or repeat uninformed allegations concerning the plaintiff.
114 The plaintiff also discussed with Mr Hamilton his information from Perthwaste that the truck would not use the turnaround in any event. This is something which the defendant should at least have investigated before inflicting on residents a turnaround which was designed to meet a situation which was unlikely to arise. Indeed it was not until the hearing of this application that such information was obtained and that evidence did not, in my view, support the proposition that a garbage truck would, in fact, use the turnaround.
115 The plaintiff also referred to Mr Hamilton's reference to the case of Brodie v Singleton Shire [2001] HCA 29; (2001) 206 CLR 512 and rightly points out that it related to the failure of a shire to repair a pot hole and cannot be compared to the road extensions in Adams Road. The plaintiff also accurately pointed out that the issue for counsel was the possibility of an action being brought as a result of the construction of the turnaround which brings vehicles within very close proximity to the entrance to 5 Adams Road.
116 On or about the middle of May 2008, Councillor Negus provided the plaintiff with a copy of an email from Councillor Hipkins dated 9 May 2008, which contained information about the plaintiff.
117 Councillor Hipkins makes the observation that there has been extensive consultation with all parties and the proposed plan is the best compromise. However, it must be noted that there is no real compromise in the proposed plan. It is entirely adverse to the plaintiff's interests with no adverse impact whatsoever on the interests of the other residents of the street. Neither can four meetings with a few residents be considered extensive consultation. The email also makes the following statement:
The problem has arisen because Errol Marron has a large house on a small lot, which has resulted in his front door and windows being close to the street. He was given approval to undertake certain works in the street, which he departed from. In an attempt to gain more space around his house he has personalised the street and now doesn't want this disturbed by the road works.
118 Councillor Hipkins makes no reference to the fact that the large house on a small lot was approved by the council. The approved works which are said to have been departed from are not stated but presumably relate to the cross-over and the limestone paved area which the plaintiff asserts was approved and which the defendant has never disputed and has impliedly accepted by referring only to the cover over the hardstand and cabana areas in its correspondence complaining of non-compliance. Neither is the way in which the plaintiff has 'personalised' the street identified. It appears to me that the plaintiff has done exactly what the owner of 6 Adams Road has done and that is pave over the verge to give the appearance that no verge actually exists and uses it for parking vehicles.
119 Councillor Hipkins' email is further evidence that the defendant, in dealing with the proposed works, took into account the proximity of the house at 5 Adams Road to the boundary but failed to take into account that this had been approved by the defendant.
120 On 8 May Mr Foster met with Councillor Argyle and Mr Hamilton on site. He stated that he 'again satisfied himself that the City's proposed roadworks were necessary having regard to everything he knew and the proposed works were the best outcome in the circumstances'.
121 On 13 May 2008, the plaintiff had another meeting with Mr Hamilton at the property where Mr Hamilton provided the plaintiff with a revised drawing entitled 'Adams Road - Rehabilitation Works'. The plaintiff noted that the revised proposal was dated 13 February 2008, however, the drawing was not provided to the plaintiff with the defendant's letter dated 29 February 2008. The revised proposal reflected changes to the information provided to the plaintiff on 29 February 2008. The defendant had revised the original proposal so that the location of the hammerhead turnaround was now 3 metres further east than initially designed. The revised proposal was different to the original proposal, although it appeared to be consistent with Mr Hamilton's rough sketch. The effect of the revised proposal was that the hammerhead turnaround would occupy a large portion of the paved entrance to the front gate of the property which would affect access to the property. The plaintiff's view was that the revised proposal prepared by the defendant exacerbated the issues raised in the plaintiff's letter dated 17 March 2008.
122 Mr Hamilton stated that the revised plan provided at this meeting included an amendment to the paved area/footpath and bollards at the end of the road reserve. I note that this description is not consistent with the drawing annexed to his affidavit. One of the plaintiff's objections, according to Mr Hamilton, was that people would drive up to the front gate entry to his house. This is in fact a valid statement as cars would be turning directly in line with the plaintiff's front door and up to the gate which is a short distance from the front door.
123 According to Mr Hamilton, he told the plaintiff that he had taken everyone's comments into consideration and had tried to produce an outcome which best met both the needs of the defendant and the requests of the residents. However, Mr Hamilton does not indicate the way in which he attempted to meet the needs of the plaintiff or take the plaintiff's comments into account.
124 According to Mr Hamilton he 'addressed Mr Marron's concern pertaining to the drainage issue by explaining to him what the City proposed to do in that regard'. Mr Hamilton said he explained to the plaintiff the proposed camber of the road and the location of the various drains that were proposed. However, on any reading of the plaintiff's correspondence, he was not requesting Mr Hamilton's description of or assurances concerning these matters, he was requesting the actual information upon which Mr Hamilton's explanations were based.
125 On 13 May 2008, the plaintiff attended a Council meeting. The plaintiff addressed Council in relation to the concerns which he then had, noting that the plaintiff had only just received the revised proposal and did not know if this was the final form of the proposal, nor had he had an opportunity to take advice on it. The plaintiff at this meeting advised the Council that he did not object to the works, just the proximity of the hammerhead turnaround to the front entry of his property and the adverse effect the location of the hammerhead turnaround would have on the property. These were clearly legitimate concerns for any landowner in the circumstances.
126 According to Mr Hamilton, at this meeting the plaintiff said, in effect, the he did not agree with the plan. He produced a freehand sketch (not a formal design plan) and repeated that the revised proposed works meant that he would lose all the lawn area. At that meeting the Council directed Mr Foster not to proceed with the revised proposed works for a period of 3 weeks. According to Mr Hamilton, the plaintiff was present when this direction was given. Presumably, the significance of this observation was to suggest that the plaintiff should have been aware that the proposed works would be carried out in the not too distant future. The issue of the proposed works were not dealt with substantially at this meeting but deferred to the next Council meeting to be held on 27 May 2008.
127 In relation to another occasion on which Mr Hamilton attended Adams Road, he maintained that he had reversed his vehicle up Adams Road to demonstrate to two councillors present that it was dangerous. However, there is no need to reverse up that portion of the road as it is far easier to turn around using the bituminised area of 5 Adams Road. Mr Hamilton expressed the view that the current road layout was dangerous and that Adams Road had become a real safety and amenity issue for the defendant. Again, other than by unnecessarily reversing up the short steep portion of the road rather than turning around in the available area, Mr Hamilton does not identify the safety issue or the reason why it was becoming such an issue for the defendant. In this regard, it should be kept in mind that the new residence at 5 Adams Road, which is continually blamed for all that is said to be wrong with the street, was completed in 2005, some three years before. Further, clearly the officers who directed the building of the cross-over and the limestone path did not share the view that any safety issue arose.
128 On 21 May 2008, Mr Foster, Mr Hamilton and Councillor Hipkins met to discuss the proposed works. Councillor Hipkins asked 'if there was anything the City could do to help out Mr Marron'. Councillor Hipkins asked if the drawing of the revised proposed works could be amended to provide for an area of 4 sqm of turning area, a planter box, a paved area and a kerb line. Mr Hamilton said that the inclusion of a planter box would be fine and that they could replace some of the paving with lawn. In addition, the City could install a kerb and crash bollard as that would not interfere with the design of the hammerhead turnaround or with any safety standards. It is difficult to see how any of these matters would affect the issue raised by the plaintiff which was the proximity of the turnaround to his front gate.
129 According to Mr Foster, at this meeting there was a general discussion as to what the defendant would offer the plaintiff 'to appease some of his concerns' in relation to the hammerhead turnaround. Mr Foster also said there was a discussion about the provision of additional grass, a bigger curb and/or a plantar box. In my view, the nature of the changes which were intended to appease the plaintiff's concerns were minimal and in no way addressed his concerns. In my view, these changes were highly unlikely to appease any homeowner in the position the plaintiff found himself.
130 On 21 May 2008 Mr Sarris received an email from Mr Mo proposing the following amendment to the proposed design:
(a) The width of the paved area was to be changed from 3.3 metres to 2.65 metres;
(b) A barrier kerb was to be included to act as a wheel stop for reversing vehicles. Mr Sarris considered that this fixed the safety concerns he previously had. Mr Mo's understanding was that the purpose of this was also to provide a better way to channel the water away from the entrance;
(c) To include a planter box by way of a visual and physical barrier for reversing vehicle lights and exhaust;
(d) To include a grassed area into the design on the riverside area of the road reserve.
131 On 21 May 2008 the plaintiff sent an email to the councillors attaching the alternative design prepared by him based on the oral advice received from Mr Klyne and highlighting the advantages of the proposal.
132 On 22 May 2008 Mr Sarris incorporated the changes identified by Mr Mo into the design and forwarded the drawings once again back to Mr Mo.
133 On 25 May 2008 the plaintiff departed Perth for the United States of America and Canada, to return on 14 June 2008 and, therefore, could not attend the next Council meeting.
134 On 27 May 2008 Mr Hamilton drove Councillor Tyson and the Mayor of the City up to the road reserve at Adams Road. Mr Hamilton outlined to Councillor Tyson and the Mayor the scope of the revised proposed works and showed them both a copy of the revised plan. Mr Hamilton again demonstrated how any driver reversing up Adams Road in its current state could not see. Mr Hamilton said words to the effect that, ' you cannot see anything, let alone if you were driving a truck, you would have no chance of seeing a child'. According to Mr Hamilton, this satisfied him yet again that the current road layout was dangerous and needed to be remedied. However, as I have already noted, there is no need to reverse up Adams Road, because there is sufficient turning area with the combination of the road and the bituminised area in front of the plaintiff's house. It is difficult to see why, whenever he took councillors to the area, Mr Hamilton insisted on showing them the difficulties of reversing up the road but made no attempt to show them how to turn around using the existing road and the cross-over. It is interesting to consider Mr Hamilton's purpose in carrying out this unnecessary manoeuvre without indicating that a vehicle can turn at the end of the road. In my view, the obvious answer was that he was attempting to impress upon the councillors that a serious safety issue existed with a view to influencing their decision.
135 On 27 May 2008, the plaintiff's son, Rhett Francis Marron, attended the council meeting on the plaintiff's behalf. The purpose of this meeting was to further consider the proposed works. It appears that the design attached to the minutes of the Council meeting held on 27 May 2008 was consistent with the revised proposal. Mr John Anderson, on behalf of the owner of 6 Adams Road, addressed the councillors in support of the proposed works. At the meeting, Councillor Ian Argyle moved a motion to have the defendant's administrators reassess the proposed works. The proposal was for there to be a delay in commencing the works pending further independent investigation in relation to safety, amenity and extending the turning circle towards the river but not further than the boundary line at the Swan River foreshore between 5 and 6 Adams Road. The motion was lost 6 votes to 4. The original motion for the proposed works to go ahead was passed. According to the plaintiff, the Council meeting minutes purported to respond to an email dated 23 May 2008. The plaintiff has not seen a copy of the email that was referred to in the minutes of that meeting.
136 Included in the minutes of the meeting are the administrative comments from Mr Hamilton which refer to the email dated 23 May 2008. The comments deal with specific propositions relating to the proposal by Mr Klyne for a different turnaround decision. I find the comments in reply by the author to be superficial and to contain legal assertions without reference to any opinion from anyone legally trained. The tone of the document is dismissive.
137 In relation to some issues raised, the response is that community consultation revealed that residents did not support the issue. However, in view of the limited nature and questionable quality of the consultation, and the fact that the views of the neighbours were afforded greater weight than anything raised by the plaintiff, I do not consider such a response to be persuasive. Further, any suggestion that a particular proposal would remove the impact of the turnaround on the plaintiff's property is met with the comment that the road reserve is for all road users. That proposition may be legally accurate but it is practically questionable and is not a reason for failing to give proper consideration to whether all needs may be met as a result of a particular proposal. Further, if the reference to all road users is in fact a reference to the use of the road by the neighbours, then this is another example of the defendant taking the side of the neighbours without considering the fact that there were ongoing disputes between the plaintiff and some of his neighbours and without being in a position to determine the merits of the disputes.
138 When responding to the accurate proposition that there are several similar dead end streets in the city that terminate at the river reserve and none of them have any hammerhead turning area, one of the author's comments is that the small 'T' shape turnaround design would make turning around difficult if trucks or cars are parked illegally there. It seems to me that the potential for people to act illegally is not a sound basis for discarding that option. Dealing with the illegal parking by signs and fines would be the appropriate response, not preferring a larger and more invasive option rather than giving this design appropriate consideration.
139 One of the responses in this commentary to the submission concerning safety issues arising from vehicles being able to come so close to the plaintiff's house was to install crash bollards, an unsightly solution unlikely to be acceptable to any landowner and which shows the lengths to which the defendant was prepared to go rather than make any change which might alleviate the impact on the plaintiff.
140 Criticism is also made by Mr Hamilton of the fact that the drawing provided of Mr Klyne's design is a free hand sketch. In my view the design attached to the minutes of the council meeting is incomprehensible to the average homeowner. In those circumstances I find it somewhat hypocritical that Mr Hamilton criticises Mr Klyne for not providing a detailed design rather than a free hand sketch. A deferral of the issue, which was the motion before Council, would have allowed for proper detailed drawings to be provided.
141 As noted, I found the tone of the report to be dismissive and superficial and to show a clear preference for the interests of the neighbours at the expense of the plaintiff.
142 Mr Rhett Marron deposed to the fact that at the council meeting the councillors sought clarification from an employee administrator of the defendant as to why the proposed works were being conducted. He recalled that one of the reasons provided by the administrator for the proposed works was that a resident had complained that the use of the road by vehicles was dangerous to children. However, Mr Rhett Marron observed that the youngest person occupying the premises at 5 Adams Road is his 22-year-old sister and that only two people live at 6 Adams Road and both are approximately 60 years old. However, presumably the children being referred to are children using the river reserve. No evidence has been adduced as to how many children use that area.
143 The safety of children is always of paramount importance. However, in this case there was no evidence to suggest that the road was commonly used by children. However, allegations that the safety of children was a relevant issue, would have had considerable impact on the councillors deciding upon the proposed works.
144 Mr Rhett Marron also pointed out that the western most point of Adams Road abuts a reserve, and that, other than for weekly garbage collections, the area is rarely used by any vehicles other than those of the residents of 5 and 6 Adams Road. Accordingly, the volume of traffic in that area is very low and the need for the hammerhead turnaround is said to be unnecessary. That proposition is, in my view, strongly arguable, although it is not necessary for me to determine it.
145 It should be taken into account that the sloping part of Adams Road, which is otherwise quite level, is only that area on the left where 5 Adams Road is located and, on the opposite side is only that area where 6 Adams Road is located and approximately one-third to half of 4 Adams Road. That particular area is not conducive to parking on either side of the road and as the flat part of the street is only a very short distance from the reserve, anybody accessing the reserve by vehicle is far more likely to park on the roadway of the flat part of the street and walk the very short distance to the reserve. Similarly, the distance the occupants of 6 Adams Road need to take the garbage bin in order to be on the level part which is accessed by the garbage truck is, in my opinion, a very short distance indeed. The distance for 4 Adams Road is even less as part of the property is on the flat part of the street.
146 The plaintiff stated that there was little or no avenue of appeal available following the decision of the council at the meeting on 27 May 2008, other than by instituting court proceedings.
147 Around 28 May 2008 the plaintiff was advised that the defendant had revised the original plan for the hammerhead turnaround so that the location of the turnaround would now be 3 metres further east than initially designed, that is, 3 metres back from the reserve, thereby making the point of the hammerhead directly in front of the plaintiff's front entrance and thereby occupying a large portion of the paved entrance to the front gate of 5 Adams Road, clearly affecting access to 5 Adams Road and compounding the plaintiff's concerns with respect to the proposed works.
148 In June 2008 the plaintiff requested the defendant to, at a minimum, construct the hammerhead turnaround 1 - 2 metres west of the location in the original plan. However, during discussions with Mr Hamilton, Mr Hamilton had said that the defendant decided to move the hammerhead turnaround 3 metres east of the original plan because it was more cost effective for the defendant. Whilst it may well have been more cost effective, that was not the reason given by Mr Hamilton who said that it was based on the complaints of residents.
149 By letter dated 5 June 2008 from Hardy Bowen to the defendant, the plaintiff expressed his concerns with:
(a) the failure by the defendant to give notice of the works, as required under s 3.51(1) of the Local Government Act;
(b) the failure by the defendant to provide sufficient information to enable the plaintiff to make an informed assessment of the works to be undertaken, as required under s 3.51 (1) of the Local Government Act; and
(c) the failure by the defendant to adequately address the issues in the plaintiff's letter dated 17 March 2008.
150 A letter dated 6 June 2008 from the defendant to the plaintiff and other owners/occupiers of Adams Road, provided a sketch (obviously adequate for the defendant's purpose although not adequate if the plaintiff is putting forward an alternative proposal) of the final proposed works. That letter advised that as part of the City's Capital Works Program for 2007/2008 Adams Road would be rehabilitated to include:
(a) a proposed construction of a retaining wall at the river end of Adams Road;
151 According to the plaintiff, this letter, received on 6 June, advised that the construction works on Adams Road were to commence on Monday, 9 June 2008.
152 According to the plaintiff, on approximately 19 June 2008 he telephoned Mr Valvasori who is now an officer at the Town of Cambridge, regarding the defendant's allegations. The plaintiff alleges that Mr Valvasori said to him that the plaintiff had constructed the cross-over and limestone path in accordance with the instructions of the defendant's officers but he did not want to give evidence on the matter.
153 Mr Hamilton provides no explanation for why the notice was sent on 6 June 2008 for works to commence on 9 June 2008.
154 The preliminary issue is an allegation by the defendant that at the ex parte hearing for an interim injunction (the ex parte hearing) there was a lack of disclosure to the court by the plaintiff. The defendant alleged that there were two matters which should have been disclosed. The first matter which it was alleged the plaintiff failed to disclose was that the proposed works were to be carried out entirely within a road reserve. The second matter was the allegation that the works were to reinstate what the plaintiff had removed unlawfully. This is a reference to the defendant's allegation that there are various non-complying works at 5 Adams Road. It is on those bases that the defendant submitted that the injunction should be discharged.
155 The proposition that the purpose of the works was to remove what the plaintiff had removed unlawfully is not a matter of objective fact. I do not consider it is a matter which should have been disclosed to the court in those terms. The only possible subject of disclosure would have been the defendant's allegations that the plaintiff had carried out works on the property for which there was no planning approval.
156 In written submissions the defendant has identified a series of matters on which the affidavit in support of the ex parte injunction is said to be silent. In my view, a number of the matters are entirely irrelevant to the application. Other matters contain expressions of opinion which have at all times been contested by the plaintiff or were matters which the plaintiff could not have known the defendant was relying upon. However, the list is evidence of the fact that matters pertaining to the plaintiff's property, including matters that were approved by the defendant or alleged by the plaintiff to have been approved by the defendant, were taken into account in the process of considering the submissions made in response to the notice of 24 August 2007 and in the process of determining the nature of the proposed works.
157 In any event, the matters referred to generally fall within the two categories to which I have already referred; that the proposed works were to be constructed on the road verge and that the plaintiff is alleged to have carried out works on the property for which there was no planning approval.
158 Counsel for the defendant relied on the principle that it is the duty of a party seeking, ex parte, an order in the nature of an injunction, or an order which creates or confirms rights which otherwise would not exist, to bring to the notice of the court all facts material to the determination of the party's right to that injunction and it is no excuse for the party to say that he or she was not aware of their importance. It is said that the party is required to act with the utmost good faith and will fail in that obligation unless that party supplies the place of the absent party to the extent of bringing forward all the material facts which that party would presumably have brought forward in his or her defence to that application: Thomas A Edison Ltd v Bullock [1912] HCA 72; (1913) 15 CLR 679.
159 Reference is also made by the defendant to the following statement of the Full Court in Bell Group NV (in liq) v Aspinall (1998) 19 WAR 561, 570:
It is very difficult to give a general definition of the extent of the disclosure required because each case depends so much on its own facts. It is sufficient to say that the applicant must make a full and fair disclosure of all matters within its knowledge which are material to the proceedings and which tend in favour of the other party.
... in deciding whether to continue or discharge an injunction in the face of material non-disclosure, the Court takes into account a number of factors. They include the conduct of the plaintiff, the importance of the undisclosed facts, the prejudice that may be caused by granting or refusing relief and the public policy inherent in the rule requiring candour: see Brink's Mat Ltd; Fitzgerald v Williams [1996] QB 657.
160 As counsel for the defendant submitted, an applicant for ex parte injunctive relief must make proper inquiries before making the application and has a duty of disclosure not only of material facts known to the applicant but also any additional fact which would have been known if proper inquiries had been made. The extent of the inquiries which would be held to be proper, and therefore necessary, must depend on all of the circumstances of the case, including the probable affect of the order on the defendant, the degree of legitimate urgency and the timing available for the making of inquiries: Brink's Mat Ltd v Elcombe [1988] 3 All ER 188, 192.
161 In response to the defendant's allegation of non-disclosure, the plaintiff relies on the decision in Behbehani v Salem [1989] 2 All ER 143, 156; 1 WLR 723, 736 to the effect that it is a material consideration whether the injunction would have been granted if full disclosure had been made. It is said that the answer to that question will effectively determine whether an injunction should be dissolved for non-disclosure.
162 The plaintiff also relies on the decision in Westwind Air Charter Pty Ltd v Hawker De Havilland Ltd (1990) 3 WAR 71, 88 as support for the proposition that, where extensive instructions are taken in haste because of the circumstances which applied, the injunction will not necessarily be set aside. The plaintiff alleges that the haste in the present case was entirely the result of the inadequate notification process used by the defendant, in particular the lack of any lead time between the notice and carrying out the proposed works.
163 Counsel for the plaintiff also referred to other factors considered to be relevant to this issue of alleged non-disclosure, and they were whether the non-disclosure was innocent and whether the matter which was not disclosed was not of a major character overall.
164 In responding to the allegation that the plaintiff failed to disclose that the defendant's proposal was for the works to be carried out entirely within a road reserve, the plaintiff relies on the circumstances in which the application was brought as one explanation for any alleged lack of disclosure. Thus the plaintiff relies on the degree of legitimate urgency and the timing available for the making of inquiries, as identified in Brink's Mat v Elcombe. As mentioned above, the circumstances were that notice was given on Friday afternoon 6 June 2008 (although not brought to the attention of the plaintiff until after office hours) of the defendant's intention to commence the proposed works on Monday morning 9 June 2008. Consequently, the injunction application was brought in circumstances of great haste without the opportunity for making inquiries and with a very limited opportunity for consideration or preparation. In terms of making appropriate enquiries, it was also the case that the intervening period was the weekend. Counsel for the plaintiff submitted that these are the circumstances in which the preliminary issue is to be determined.
165 Counsel for the plaintiff also advised the court that the defendant's correspondence and minutes, including its correspondence to the plaintiff's solicitors of 2 May 2008, made no reference to there being a failure to disclose relevant material. Nor did the defendant raise this issue with the plaintiff's solicitors when they threatened to bring an injunction application. Counsel for the plaintiff emphasised this inconsistency with the issue now being relied on by the defendant as a ground to discharge the injunction.
166 Counsel for the plaintiff further alleged that, although the defendant raised the issue in general terms in correspondence of July and September 2007, it did nothing further when the plaintiff explained his position by letter dated 2 October 2007. As soon as the defendant articulated its concerns, initially verbally and then by email on 20 June 2008, and the plaintiff's legal advisers had the opportunity to understand them, the matter was disclosed to the court without delay.
167 Whilst I accept the inconsistency identified by counsel for the plaintiff, in my view the only issues are whether there was in fact a failure to raise the relevant issue with the court and whether that omission can be justified.
168 The plaintiff's principal response to the defendant's first allegation was that, in fact, the court was clearly advised at the ex parte hearing that the proposed works were entirely within a road reserve and the proposed works were not on private property. Unfortunately, there is no transcript of an injunction application heard on a weekend. At the hearing of the application for an interlocutory injunction, I advised the parties that I did not recall a specific reference to a road reserve, although I did not dispute that the reference was, in fact, made. However, it was at all times my understanding that, whilst the plaintiff's son was alleging that the proposed works affected his father's property, the works were not being carried out on the plaintiff's property.
169 With respect to the defendant's second allegation and the way in which it was expressed, the plaintiff does not agree with the proposition that the defendant is putting back what was there originally. In my view, it is an unnecessary and unfortunate way of alleging that the works carried out at 5 Adams Road in 2004 to 2005 had changed the configuration of an existing turning circle. Counsel for the plaintiff stated that there was never a turning facility of any configuration at the end of the road. Further, it is said that neither the plaintiff nor his solicitors were aware of the view expressed by the defendant's solicitors by email on 20 June 2008 until that email was received. The plaintiff maintained that the works he undertook were not unlawful and were undertaken at the express direction or with the express consent of the defendant.
170 The plaintiff's solicitor deposed to the fact that at the time of the notice to commence the proposed works, the plaintiff was in Canada and, although the plaintiff's solicitors were familiar with proceedings relating to some of the allegations of non-compliance, it was submitted that those issues had no apparent relevance to the issue upon which the application for injunctive relief was based; relating as they did to the roof over the hardcover area and the cabana. It was only once the plaintiff returned from overseas that it had been possible to collate all available documents and reach a proper understanding of the matter and the position adopted by the defendant.
171 Evidence was also adduced on behalf of the plaintiff alleging that, since the defendant's letter dated 14 September 2007, the plaintiff had not received any correspondence or notices regarding the alleged unlawful construction of the retaining wall, the cross-over or the paving. Consequently, at the time of preparing the application for injunction, the plaintiff's solicitors did not understand or appreciate that the defendant considered these to be live issues which it wished to agitate. Nor did they share the defendant's view that these issues impacted in any way on the decision to construct a hammerhead turn-around or on the consultation process. However, the plaintiff stated that any failure to bring this matter to the attention of the court was promptly remedied at the first opportunity.
172 In any event, the plaintiff also maintained that the matter is irrelevant to the triable issue which is whether requisite notice was given and appropriate consideration given to the plaintiff's submissions. I can readily see how the plaintiff drew that conclusion. Indeed some issues, such as the roof on the hardstand area and the cabana are clearly irrelevant to the proposed works or the process of giving notice and inviting and considering submissions. Neither is the relevance of the retaining wall on the corner of Adams Road and Marlin Court immediately apparent. The cross-over and the limestone paved path are only relevant insofar as the defendant alleged they were not approved by the defendant. The plaintiff's position at the time of bringing the interim injunction application was that these works were in fact approved by the defendant's officers as the plaintiff had advised. As no response was received over an extended period of time from the defendant to that assertion, the plaintiff's position was that it could not reasonably have considered the cross-over and pathway to be an issue relevant to the proposed works.
173 On behalf of the plaintiff it was also submitted that the court's consideration of the ex parte injunction would not have been any different had it been advised of the defendant's position.
174 It is the case that an order for an ex parte injunction obtained through material non-disclosure 'must almost invariably fail': Thomas A Edison v Bullock (682). Further, where there has been a deliberate lack of candour relating to material of a major character, a discharge of the order will follow almost as of course: Bentley v Nelson [1963] WAR 89, 90. However, in my view, none of these principles apply to the conduct of the plaintiff in bringing the ex parte injunction application.
175 I accept that it is the duty of a party seeking an ex parte order to bring to the notice of the court all facts material to the determination of the party's right to that injunction. However, on the material before me I am not satisfied that the plaintiff failed to disclose the information concerning the location of the works. As I have stated, I was at all times aware that the proposed works were to be carried out on the road reserve which I was aware was vested in the local authority, in this case the defendant. Consequently, the decision made on the ex parte application was not made on the basis that the works were to be carried out on the plaintiff's land. As there has been no non-disclosure I would not be prepared to dismiss the injunction on that basis, as requested.
176 As to the allegation of non-disclosure of the non-compliant works, I have already indicated that the majority of the identified works have no apparent relevance to the application. As to the balance, I accept that it was the defendant's last minute approach to giving notice which resulted in the plaintiff having to bring an urgent injunction before the court's duty judge in order for the plaintiff to exercise his lawful rights. In my view, those circumstances more than adequately explain the failure to disclose matters, the relevance of which was not immediately apparent in any event.
177 For myself, I consider that notice given on a Friday in relation to an event to occur on the following Monday effectively operates as no notice at all. In relation to many members of the public, the notice given by the defendant would be seen as depriving them of the ability to complain, or advise of some relevant factor, or to make submissions. In the plaintiff's case, his only recourse was to request his son to brief solicitors to bring an application for injunctive relief on a weekend, which inevitably led to the instructions being taken in haste without the opportunity for making inquiries and with a very limited opportunity for consideration. Those circumstances dramatically increased the potential for non-disclosure, particularly of marginally relevant material.
178 The plaintiff alleges that the haste in the present case was entirely the result of the inadequate notification process used by the defendant. I accept that to be the case.
179 I also accept that there was a legitimate reason for the plaintiff to conclude that, as a result of the defendant's failure to respond to his explanation, the defendant was not taking issue with the explanation that the relevant works had been constructed at the direction of the defendant's officers.
180 The plaintiff also submitted that the injunction would have been granted if full disclosure of the allegedly non conforming work had been made. I accept that the outcome would not have been any different if the court had been advised of the allegations of non-compliance. Consequently, the non-disclosure of the allegedly non-compliant works had no adverse impact on the defendant.
181 The conclusion I have reached is that there is no substance to the preliminary issue raised by the defendant.
182 In opposing the plaintiff's application for injunctive relief, the defendant repeatedly emphasised the plaintiff's alleged non-compliance with the planning approval with respect to his new residence. This issue is dealt with at length in various affidavits and the defendant's submissions even refer to various parts of the Local Government (Uniform Local Provisions) Regulations 1996 (the regulations) which it is alleged the plaintiff has breached. I have already indicated that it is difficult to identify the relevance of the allegations of non-compliance. Ultimately, it became apparent that the relevance is the fact that the alleged non-compliance was taken into account in considering the submissions in response to the notice as well as in determining the need for a turnaround and the appropriate configuration and location of the turnaround.
183 However, there is, in my opinion, absolutely no relevance to the application in the allegation that the plaintiff has breached various regulations. In fact, in my view, these provisions are only of arguable application, even if the factual circumstances were as the defendant alleged. Some of these allegations appeared to me to be little more than an obvious attempt to attack the plaintiff's character. That view is supported by the repeated use of pejorative terms in the defendant's affidavit evidence when referring to the plaintiff or his actions. Such terms are even used by officers of the defendant who were not employed by the defendant at the time the matters being referred to occurred and hence could not have had direct knowledge of the actual events at the relevant time. To take that approach when no attempt has been made to determine the accuracy of the plaintiff's allegations of verbal approval is, in my view, entirely inappropriate. It also seems that the defendant's approach was to suggest that, because of the plaintiff's alleged bad behaviour or poor character, the action taken by the defendant was somehow justified.
184 Further support for this view of the approach taken by the defendant is the reference to the fact that the plaintiff has a real estate licence and is a director of a company involved in property development. Yet again, the relevance of these issues to the injunction application is not immediately apparent. The danger in adducing such information and drawing unjustified conclusions based on that information, is evidenced by the plaintiff's statement that he has not practiced as a real estate agent since 1977 and the Marron Property Group Pty Ltd has never operated as a business and was set up to disburse superannuation payments. In my view, allegations of this type do not reflect well on the defendant' officers who appear to be prepared to clutch at any straw to make a point against the plaintiff rather than reflecting on whether their notice and consultation process may have been flawed in any way.
185 In my view, these personal attacks only detract from the defendant's argument that it provided the appropriate notice and gave proper consideration to all submissions received.
186 The proposition that the defendant's officers have relied on these allegations of non-compliance in forming their views is not a conclusion drawn from competing information. It is something to which the defendant's officers have themselves deposed.
187 This issue has been addressed in the section on the factual background to the application. However, as it is the case that the defendant's officers have taken matters in relation to the construction of the new residence into account in their decision making and in relation to the verbal submissions made at consultations with interested parties, I have chosen to address the issue in more detail.
188 On or about 9 July 2003 the plaintiff lodged with the defendant an application for planning approval to construct the new residence. Amended plans were lodged with the defendant on 18 August 2003. On or about 28 October 2003, the defendant approved the plans, subject to certain conditions.
189 On or about 21 November 2003 the plaintiff lodged an application to change the rear of the development. The amended plans were lodged on 30 January 2004. The amended plans show the garages relocated to street level and the limestone wall relocated to 3 - 4 metres east and curved as opposed to straight. On or about 29 March 2004 the defendant approved the January 2004 plans conditional on the removal of a cantilever balcony which the council maintained it had approved in error and as a result of which it refused to issue a building licence.
190 In March 2004 the plaintiff had a meeting with Mr Shayne Silcox, the then CEO of the defendant, and with other staff to address the error made by the defendant in approving the October 2003 plans and issues the plaintiff had in respect of the March 2004 approval including changes to the garages, hardstand and cabana.
191 On 19 May 2004 the plaintiff lodged further amended plans with the defendant. According to the plaintiff, due to all the confusion, drawing number 3 of 16 which formed part of the approved October 2003 plans showing the hardstand and the cabana uncovered was not updated in a set of plans lodged with the defendant on 19 May 2004, despite having resolved this matter in the March 2004 meeting. The plaintiff produced as an annexure to the affidavit a copy of drawing number 3 of 16 which shows the hardstand and the cabana covered and which the plaintiff alleges was the drawing that should have been submitted to the defendant.
192 The plaintiff commenced construction of the development in 2004 as an owner/builder and the development was completed in or about December 2005.
193 In dealing with the areas of alleged non-compliance, in particular the retaining wall, in his affidavit Mr Hamilton asserted that:
(a) the plaintiff has constructed the retaining wall significantly higher than that approved and in a position significantly further east of the position of the approved wall;
(b) the plaintiff has increased the gradients by realignment of the road reserve to accommodate 'the unapproved garage and the unapproved retaining wall.
194 However, the plaintiff maintained that the height and position of the retaining wall were constructed in consultation with the building department of the defendant. The plaintiff stated that, during construction of the wall in 2005, he met on site with Mr Faisal Kabadeh, the defendant's Building Surveyor. The plaintiff advised him that he wished to straighten the wall as opposed to constructing it curved at the end of the wall, as depicted in the March 2004 approved plans. Mr Kabadeh advised the plaintiff that he could straighten the wall. After completion of the wall, the plaintiff met with Mr Kabadeh once again on site and Mr Kabadeh confirmed that the construction of the wall was satisfactory.
195 Further, the plaintiff maintained that the March 2004 plans are endorsed to realign the natural contours into the retaining wall to maintain an even gradient into the garage opening. This was completed in accordance with the March 2004 approved plans. The plaintiff denied Mr Hamilton's assertion that the plaintiff increased gradients and notes that this is not one of the non-compliance issues raised by the defendant in the correspondence of July and September 2007. However, the plaintiff stated that he has no objection and never has had to some of the limestone blocks being removed to reduce the height of the retaining wall, as proposed by the defendant in its original proposal.
196 Although I have difficulty with the proposition that the construction of the retaining wall is relevant to the issues in this application, as it appears to have been included in the complaints that various witness made which the defendant's officers considered were justified, I have referred to the plaintiff's explanation for the way in which it was built. I should also emphasise that at no time has the defendant made a determination as to whether the plaintiff's account of the events surrounding the construction of the wall are accurate.
197 In my view, there can be no relevance to the application in the allegation that there was no planning approval for the roof over the hardstand area or the cabana. Reference to it only supports my conclusion that there has been a clear attempt to influence the court against the plaintiff. In so far as consideration of that issue has affected the decision to construct the turnaround or the consultation process, both processes would be flawed.
198 The construction of the paved pathway and the cross-over area are expressly stated by a number of witnesses of the defendant to have influenced the decision to build a hammerhead turnaround at the end of Adams Road
199 The plaintiff noted that the approved plans always contemplated that the road reserve would be part of the driveway and the entry to the property. I note that the road reserve in front of 6 Adams Road is paved and is the driveway to the property. The plaintiff stated that he has resided at 5 Adams Road for 26 years and the road reserve has always been used as a driveway to the property because of the shape of the block.
200 According to the plaintiff, the limestone path in the March 2004 approval was to extend approximately 3 - 4 metres into the road reserve on an angle and the plaintiff was happy to construct the path in accordance with the approved plans. However, he was required to extend the limestone path on the express instruction of the defendant's officers. The plaintiff's account of the history to the construction of the limestone path and the cross-over, including the hump on the cross-over, is that in October 2005, the plaintiff engaged Mr Darren Lockhart to construct the cross-over and the driveway in accordance with the March 2004 approval. The total cost was to be $2,700.
201 On 1 December 2005 the road base was laid. Before the bitumen was poured, either Mr Lockhart or the plaintiff contacted the defendant's Technical Services Department for a supervisor to inspect the works. It is alleged that Mr Ferguson and Mr Morton attended the property and advised the plaintiff to construct a hump on the edge of the cross-over to divert water down the street. The plaintiff stated that he was extremely unhappy about having to change the approved plans as the changes did not address drainage and resulted in the works being considerably more expensive. Further, about two months before commencing construction of the cross-over, the plaintiff had discussed the rainwater run off problem in Adams Road with Mr Ferguson and the plaintiff's understanding was that it was agreed that :
(a) the plaintiff would install a spoon drain at the end of the garage; and
(b) the defendant would install a spoon drain in line about 2 - 3 metres from the plaintiff's garage to pick up the run-off and connect it to the defendant's drain.
202 According to the plaintiff, there were no drains in Adams Road at the time and therefore the drain in the driveway and a drain at the north side of the street received all the water run off from Adams Road and Victoria Avenue. The plaintiff said that his property was seriously flooded twice due to the lack of drainage in Adams Road.
203 Because of his concerns, the plaintiff contacted a number or counsellors and told them that he wanted to construct the driveway in accordance with the approved plans but the officers wanted him to do it their way. The email which he sent on 6 December 2005 is consistent with the plaintiff's evidence that he was concerned about the drainage problem and the fact that his house had previously been flooded. It also indicated that there were no drains in the road, only on the plaintiff's property or on the verge area as the defendant's officers refused a request by the plaintiff for the defendant to install a spoon drain about 2 - 3 metres from the garage to pick up the run off after the plaintiff installed a spoon drain in front of the concrete floor at the end of the garage. The email also supported the plaintiff's allegation that there were problems at the time of the laying of the bitumen paving and that Mr Ferguson and Mr Morton were called in. There is, therefore, a contemporaneous record which is consistent with the plaintiff's account.
204 According to the plaintiff, one of the councillors said that he would speak with Mr Valvasori. The plaintiff said he was subsequently advised by that councillor that Mr Valvasori would not change his mind and the plaintiff should install drains at his own expenses, adequate enough to cope with the run-off.
205 The plaintiff stated that in December 2005 a surveyor from the defendant attended the property and re-surveyed the verge line which he marked with white lines. The defendant stated that he met Mr Valvasori and Mr Tim Halls on site and they confirmed what had to be done. Mr Morton advised the plaintiff that the drain in the road reserve was now the plaintiff's and that the defendant would take no responsibility for it. The officers of the defendant also insisted that a hump be installed to its specifications.
206 In accordance with the defendant's advice, the plaintiff instructed Mr Lockhart to cut a straight line into the verge where the defendant's surveyor had marked the verge line with white markings and removed all the bitumen from the verge to the property and garages and install a road base over the entire cross-over. The plaintiff stated that he had to install the limestone path before the contractor could construct the kerb and the bitumen hump on the edge of the limestone path. He also said that the limestone path was extended, on the defendant's instructions, to where the hump was to be constructed.
207 As the plaintiff was intending to move in the following week, and therefore wanted the cross over constructed urgently, he had to remove a considerable amount of bitumen road and install drains that he had not allowed for, increasing the cost for the cross-over from $2,700 to $14,000.
208 The plaintiff maintained that when the initial works were completed, he contacted the defendant's Technical Services Department and advised them that the works were ready for the bitumen to be poured. Mr Ferguson from the defendant then attended the property and supervised the pouring of the bitumen around the kerb and limestone path. On the plaintiff's account, the cross over, driveway and the limestone path were constructed under the supervision of the defendant's officers.
209 To a significant extent, this evidence of the plaintiff is supported by the evidence of Mr Lockhart.
210 It is not open to the court in an application of this type to make findings of fact. The detailed reference to the evidence of the plaintiff in relation to these particular areas of alleged non-compliance is that the explanation that the cross-over and the paved pathway had been constructed in accordance with the directions of the defendant's staff was provided to the defendant in reply to the defendant's letter of 3 July 2007, which included these matters in the areas of alleged non-compliance. In the defendant's letter to the plaintiff of 30 July 2007, again identifying the areas of non-compliance, the cross-over area had been removed from the list of non-complying works. This and the earlier letter also made it clear that it was the degree to which the paved pathway intruded into the road verge, rather than the fact that it did, which was said to be non-compliant. At no stage did the defendant address the plaintiff's allegations that the cross-over and the extension to the paved pathway were in fact verbally approved.
211 Because of the account given by the plaintiff, which, as I have noted, is supported in material respects by his contemporaneous correspondence with the defendant and by the evidence of the person who installed the cross-over and paved pathway, it is not open to the defendant to treat these works as if they are non-compliant without first making a determination of whether there is any substance to the allegation. In my view, it was not appropriate for the defendant's officers, who had no knowledge of the true facts and some of whom had not even been employed by the defendant at the time, to treat the works as non-compliant. Neither was it appropriate, before the plaintiff's allegations were addressed and assessed as to their accuracy, for those officers to take the allegedly non-compliant construction into account when dealing with the proposed works and with the complaints made or the submissions received in response to the notice.
212 For some reason, Mr Hamilton provided in his affidavit a history of the building applications and approvals relating to the new residence at 5 Adams Road, despite not having been in the defendant' s employment at that time. Mr Hamilton referred to the lack of approval for the construction of a 'fully roofed third garage' (an irrelevant issue), a 'large gazebo area [that] has a fully integrated roof' (another irrelevant issue) and a 'significantly higher than approved retaining wall' (which is at best marginally relevant). Mr Hamilton also referred to the construction of a bricked parking area on an area that is 'almost exclusively part of the City's road reserve'.
213 Mr Hamilton goes on to state that he had observed a number of vehicles that he had been told were vehicles of the plaintiff, or of persons connected with him or the residence, parked on the brick paving area and parked 'in the middle of the road reserve at the end of Adams Road.
214 Various officers of the defendant refer to conduct with respect to the road reserve as if it were something of which they had previously never heard. It is without doubt the case that the road reserve is vested in the local council and is not part of the landowner's property. Nevertheless, it is common for landowners to treat that verge as if they are entitled to use it to the exclusion of all others apart from the local council. Some landowners plant vegetation on the road reserve, some use it to park their cars, some mark it off with rope so that others cannot access it, some pave the entirety of the verge. For example, many landowners make inquiries of why neighbours have parked their cars, or their visitors have parked their cars, on the landowner's verge. Whilst there may be no legal basis to this possessory attitude to the road reserve, it is nonetheless common. This does not necessarily justify the plaintiff's conduct, particularly where the road is not wide enough for kerb side parking, however, it raises question of why the defendant's officers were so incredulous of conduct such as the parking of the resident's vehicles on the road reserve. Similarly, parking in a cross-over is common practice. Indeed, as I have noted, there was a vehicle parked on the paved cross-over to 6 Adams Road when I inspected the site.
215 For these reasons, I find it surprising that almost every officer of the defendant refers to this conduct as if it is unheard of and completely unjustified. Comments such as 'the road reserve is not for his exclusive use' and that 'the reserve is a public reserve under the care of the city' appear in the affidavit evidence. I might add that when I attended the site, I noticed that a vehicle was parked in the paved road reserve in front of 6 Adams Road. The effect of that was that there was no portion of the verge in front of that property which could be used to turn around.
216 Mr Hamilton alleges that the defendant's records do not reveal any application for or any approval for Mr Marron to build the brick parking area or 'to seek in any other way to claim exclusive use of the City's road reserve'. Constructing a pathway on a verge is not a claim to exclusive use of the road reserve any more than is building a cross-over. The use of this phrase, of itself, shows that Mr Hamilton is less than objective in his assessment of the plaintiff's conduct and is unjustifiably critical of the plaintiff. The statement is a pejorative description of the relevant area and the plaintiff's conduct and is unnecessary and inappropriate. Similarly, in relation to the retaining wall, Mr Hamilton adds, 'which from my observations has more than likely been done to provide access to the unapproved garage that has been constructed'. In my view, unsubstantiated expressions of opinion which have no evidentiary basis and no apparent purpose other than to present a negative view of the plaintiff have no place in an affidavit. Such statements are unhelpful and serve only to reinforce the view that Mr Hamilton has an adverse view of the plaintiff which raises concerns about his objectivity and the quality of the notice and the impartiality and fairness of the consultation process.
217 Mr Hamilton also refers to the approval of the design of the new residence which he clearly believes is responsible for some detrimental features of the roadway. These consequences are quite obviously attributed to the plaintiff without taking into account that they were approved by the defendant. It is clear that Mr Hamilton does not agree with that approval and, on his own evidence, he has taken it into account when dealing with the notice and consultation process. Mr Hamilton stated that the plaintiff was permitted (at his request) to build his house 500mm closer to the road reserve than would normally be permitted and that from his observations of the road reserve being marked on all the plans he is of the view that 'the plaintiff was fully aware of the road reserve'. This level of knowledge is attributed to the plaintiff on the basis that 'the plaintiff is a property investor and has been a director and the secretary of a company known as Marron Property Group Pty Ltd since 16 June 1989'. As I have noted above, the basis of Mr Hamilton's observation is entirely flawed.
218 Mr Hamilton then asserts that, as a result of the non-compliant works to which he has referred that the plaintiff 'has made it far more difficult and far more dangerous for road users to turn around at the end of Adams Road'. Mr Hamilton goes on to assert that the other residents of Adams Road, who are alleged to have complained on numerous occasions to the City, 'are justified in their views that the plaintiff has decreased the functionality of the turnaround area at the end of Adams Road and significantly increased the risk of injury or damage to road users and pedestrians'. Mr Hamilton's opinion is said to be based on the following:
(i) the increased gradients created by the realignment of the road reserve to accommodate the unapproved garage and the unapproved retaining wall;
(ii) the increased gradients causing blind spots to motorists;
(iii) the increased retaining wall height causing motorists to be completely unsighted as to other vehicles and/or pedestrians;
(iv) the lack of turnaround space caused by the plaintiff constructing a brick parking area on the road reserve;
(v) the plaintiff parking his vehicle on the remaining turnaround area.
219 Putting to one side whether Mr Hamilton has the expertise to make some of these statements, many of them simply do not withstand scrutiny. For example, the brick paving area makes little or no difference to vehicles turning because of the large bituminised area in which vehicles can easily turn. Further, as I have noted, the plaintiff is not the only person who parks on a paved verge outside their house. Neither did I observe any 'blind spot' when I attended the area. Indeed, both photographs of surrounding streets which terminate at a river reserve and my own observations of surrounding streets indicate that very similar configurations apply in those streets. If there is a safety issue it would equally apply to other streets in the area.
220 In the concluding part of his affidavit, Mr Hamilton again refers to the plaintiff's 'attempted resumption of the road reserve by the construction of the brick paving area'. In considering this statement it must be kept in mind that a paved pathway covering a portion of the road reserve was approved by the defendant. In any event, to speak of an attempted resumption because a landowner has paved a portion of the verge, borders on the ridiculous.
221 In considering Mr Hamilton's assertions concerning various aspects of the works carried out on 5 Adams Road, it is important to note that at no stage does he acknowledge that some works were approved and, as I have noted, nor does he address the plaintiff's allegations that these works were verbally approved at the time of construction by officers of the defendant. If he was not made aware of the plaintiff's allegations then his attitude is the result of ignorance of matters that should have been drawn to his attention. If he was aware, he should not have made such comments or acted upon the alleged non-compliance without the accuracy of the plaintiff's assertions being determined. In either situation, there was no justification for the repeated critical and pejorative terms used by him.
222 The evidence of Ms Eldridge was in a similar vein to Mr Hamilton's evidence. Ms Eldridge indicated that on 28 October 2003 the plaintiff was given planning approval to construct the new residence. Ms Eldridge refers to some of the conditions of that approval. Condition (vi) of the approval was that the cross-over to Adams Road shall be constructed to the City's Cross-over Specifications and the applicant/owner to obtain levels for cross-overs from the City's Technical Services under supervision on site, prior to commencement of works. However, Ms Eldridge makes no reference to the fact that the terms of this condition are consistent with the plaintiff's account of the verbal approval provided at the time of construction of the cross-over area.
223 Ms Eldridge referred to condition (vii) which states that a caveat be placed on the title to ensure that the owner and any future owners are responsible for all on-going maintenance and repairs from damage to the existing and new retaining walls and new railings on the verge at No 5 Adams Road and future owners to also indemnify the City. Ms Eldridge noted that no such caveat has been registered despite the fact that this could have no relevance whatever to the proposed works or to the issues before the court. Ms Eldridge also referred to other areas of alleged non-compliance including those which are clearly irrelevant, such as the roof over the hardstand and cabana areas. Again, there seems to be a concerted approach of identifying every possible negative point in relation to the plaintiff's conduct.
224 Ms Eldridge stated that the defendant's records reveal that, on completion of the construction of the new residence, the plaintiff was informed of his non-compliant works. In fact, the new residence was completed by the end of 2005 but the plaintiff was not informed of the allegedly non-compliant works until 3 July 2007 and not until the plaintiff had objected to the proposed works in a letter to the defendant of 1 May 2007.
225 Ms Eldridge goes on to state that it would appear that, as a result of the defendant's letter, the plaintiff submitted an application for retrospective approval on or about 4 October 2007. Although Ms Eldridge does not identify this fact, the plaintiff only sought retrospective approval to enclose the sides and roofing of the hardstand and roofing of the cabana. He made no application in relation to the areas which he maintained had been constructed in accordance with verbal approvals of the defendant's officers. Ms Eldridge also made no reference to the fact that she had originally included the construction of the cross-over in her allegations of non-compliance but, following the plaintiff's explanation, removed that allegation from subsequent correspondence. As I have noted, neither did Ms Eldridge specifically respond to the plaintiff's assertions of verbal approval of the retaining wall, the cross-over or the paved pathway.
226 On 14 May 2007 Ms Eldridge received a call from Mr Marron of which she made a note which indicated that she addressed with him the issue of him parking his vehicles at the end of Adams Road to which he said that he did so to prevent people driving over the limestone footpath. The plot ratio was also discussed. Ms Eldridge also spoke to the plaintiff about the retaining wall who advised that he had no issue with the change to the wall. As the plaintiff had clearly indicated that the retaining wall was constructed with verbal approval of the defendant's officers but, in any event, he had no objection to changing the wall, there was no basis for including this allegation of non-compliance in considering the turnaround or the submissions made in response to the notice.
227 Mr Foster also expressed the view that the plaintiff 'has to a very large degree contributed and/or caused the majority of issues that have now arisen at the end of Adams Road and which I consider must be resolved in the quickest and fairest way possible'. Even the CEO Mr Foster has taken no steps to have the plaintiff's allegations of verbal approval considered and determined. Mr Foster also makes the statement that he found many of the complaints about 5 Adams Road justified on the basis of the non-compliance issues, despite the fact that a number of the complaints relate to matters that were alleged to be verbally approved. Neither does Mr Foster draw a distinction between complaints relating to matters irrelevant to the issue of the turnaround and its location and those which are relevant, if established.
228 As commonly occurs in situations where there are renovations or building work being undertaken, because of the disruption and inconvenience which inevitably results to neighbours, and because of the impact of the new construction on the amenity of nearby properties, disputes commonly erupt which result in animosity between neighbours. In this case, nearby residents had to deal with the process and the consequences of two residences being built, one of which, the house on 6 Adams Road, took 5 years to complete.
229 According to the plaintiff, there are a range of disputes between neighbours which, although irrelevant to the application, have been elevated to a level of relevance by virtue of the fact that the defendant appears to have made its determination based on information which it has accepted, despite that information being only one side of two versions of various events. At no stage has the plaintiff been asked to respond to the allegations made against him. At no stage was he provided with a copy of any complaint.
230 The plaintiff admitted that he is in dispute with Mr and Mrs Anderson who live at 6 Adams Road and their architect Mr Chris Courtney. Both sides have accused the other of blocking entry to the other's property with motor vehicles. Various photographs were provided by the plaintiff of Mr Anderson taking photos of the plaintiff's home. A similar allegation was made against the plaintiff. Yet it was only the complaints of the plaintiff's neighbours which were taken into account. Although the defendant's officers may not have known of the plaintiff's complaints concerning the Andersons and their architect, therein lies the danger of accepting and acting upon the complaints of one party without the alleged conduct being established. It is relevant to note that the Anderson's son, Mr John Anderson, was asked to organise the meetings between the defendant and residents to discuss the road works. Such a request was completely inappropriate in the circumstances of animosity towards the plaintiff that was known to the defendant.
231 In relation to the Andersons and their architect, at one point, on 17 October 2004, the plaintiff wrote to the Officer in charge of the Claremont Police Station. The letter advised that the plaintiff's house had been demolished and they had started to build a new home. He advised that a fence had been erected around the site and signs were prominently displayed advising unauthorized persons not to enter the site. The letter alleged that on 15 October 2004, the Andersons' architect, Mr Courtney, approached the plaintiff on the plaintiff's site, ignoring the 'do not enter' signs and started yelling at the plaintiff that the concrete trucks on the plaintiff's site the previous day had caused some run off down their access way and that excavation vehicles had caused damage to a wall of the property. The allegations were denied, however, according to the plaintiff, Mr Courtney became very aggressive and shouted and the plaintiff felt threatened by his aggression and tone of voice. The plaintiff was concerned that violence might erupt and told Mr Courtney he was not authorised to be on the property and to leave.
232 Mr Anderson wrote on 14 May 2007 stating that he had consented to a plan for a verge retaining wall and over-width cross-over modification, subject to qualifications including that there be no change or modification to Adams Road. He asserted that '[p]lainly that qualification was not complied with, and ... may not be capable of being complied with'. He further alleged that the works do not conform to the plan to the detriment of the streetscape and public amenity and created a dangerous pedestrian/vehicle situation. Mr Anderson stated that he objected to any concessions being made to the non-compliant development both in relation to the cross over and the development generally. Mr Anderson does not identify the non-compliant work or the detrimental impact on the streetscape and public amenity. The reference to the 'dangerous pedestrian/vehicle situation' is easily alleged and would have to be verified before this assertion could be acted upon in any way. Further, it should not be verified by reversing up the street and claiming a lack of visibility when a standard sized vehicle is able to turn around using the cross-over.
233 On 15 May 2007 the defendant received a letter from Cullen Babington Hughes, Solicitors for Mr Anderson. This document was put before the court, presumably as being relevant to the injunction application. The author of the letter stated that he understood that the defendant was conducting a review of the development approval given in respect of No 5 Adams Road. Mr Byrne expresses a number of views including the following:
(a) The construction of the retaining wall and the configuration adopted for the paving was not necessary for the construction of a house on the property to proceed. Mr Byrne requested a copy of council's requirements pertaining to the construction of the cross-over.
(b) The development on the property by the construction of the subject cross-over over the roadway has effectively transformed all that area of road into a private enclave for the owner. The approval has effectively ceded public land for the exclusive use of the owner at no cost, to the visual amenity of those who live on or visit Adams Road or Marlin Court (unsupported expression of opinion). It creates traffic congestion and makes it difficult to turn around the bottom of Adams Road which is a danger to vehicles and pedestrians. It has detracted from the aspect of the public open space fronting the river immediately adjacent to Adams Road by transforming that area to land which is inaccessible. It constituted the transfer of part of the road for the exclusive benefit of the owner of the property.
(c) Council has exceeded its jurisdiction in approving the cross-over. By making another decision revoking the approval for the cross-over in its present configuration and making a new decision thereby curing the jurisdictional error.
(d) As the cross-over that has been constructed has not been constructed in conformity with the approved plans, it would, in any case, need to be removed and reconstructed to comply with the development approval, correction of the previous decision could not be said to have subjected the owner to unnecessary expense.
(e) Further, it is clear from speaking with some of the nearby residents that the level and alignment of Adams Road was altered without notice in writing, or any notice, being given to those residents.
234 The author requests that the contents of the letter be brought to the attention of councillors at the next meeting.
235 There are a number of comments which can be made in relation to this letter. The first is that it contains questionable legal principles such as that the defendant exceeded its jurisdiction in approving the cross-over and that by making another decision revoking the approval for the cross-over in its present configuration and making a new decision thereby curing the jurisdictional error. Further, it does so without citing any authority for that proposition.
236 The letter also lacks objectivity in that it alleges that 5 Adams Road has direct access to the river as if there is something inappropriate in that fact when the position is no different with respect to the access of 6 Adams Roads.
237 In paragraph (b) the letter sets out a number of exaggerated allegations and expressions of opinion such as the construction of the cross-over constituted the transfer of part of the road for the exclusive benefit of the owner; that the construction detracted from the aspect of the public open space fronting the river immediately adjacent to Adams Road; that the construction creates traffic congestion and makes it difficult to turn around the bottom of Adams Road which is a danger to vehicles and pedestrians; that the approval has effectively ceded public land for the exclusive use of the owner at no cost and has effectively transformed all that area of road into a private enclave for the owner by transforming that river reserve to land which is inaccessible. This latter statement is simply untrue.
238 It is most important to note that the works of which the author of this letter complains is the construction of the house, which was approved by the defendant, there being no reference to the roof over the hardstand or cabana area and the other works are the cross-over which the defendant did not include in its list of non-compliant works after receiving the plaintiff's explanation for its construction. On that basis, there can be no relevance of this letter to the consultation process or the consideration of the appropriate turnaround facility or the need for the works generally.
239 In one complaint, Mr Courtney advised that one of his cars was in the process of accessing the cross-over to 6 Adams Road and when avoiding the plaintiff's utility had to enter the public road immediately north of the cross-over to 5 Adams Road. In doing so the car bottomed out on the bitumen hump recently constructed in the middle of the original turn around area at the west end of Adams Road. Mr Courtney stated, 'Given that the turn around area will be eventually used as it was originally intended and designed, this may be a matter that requires your attention'. Again I would note that, according to the plaintiff, the hump was part of the works required and supervised by the defendant's officers at the time of construction of the cross-over. I should also add that I had no difficulty with the 'hump' when using the cross-over to turn around.
240 On 4 April 2007 the defendant received a further letter from Mr Courtney. Mr Courtney wrote concerning the Alinta subcontractors who had arrived to install the gas connection from the south side of Adams Road to 6 Adams Road. A mini excavator was employed to dig the trench but the contractor was not prepared to dig up the newly planted grass to the west of the kerb, nor to drive over the paved pathway because the black rubber treads to the excavator would mark the limestone pavers. Apparently, a hand excavation had to be carried out which was said to be time consuming and more costly and resulted in a large area of the recently grassed verge being disturbed. Mr Courtney complained of the defendant's delay in taking action and requested that the surveyor give some priority to defining the road surface boundaries. I note again that the entire road reserve in front of 6 Adams Road is paved with what appears to be tiles. In any event, these circumstances would probably have arisen in any event because the original plan approved a pathway over 3 - 4 metres of the road reserve.
241 A further letter dated 4 May 2007 was received by the defendant from Mr Courtney. The letter was addressed to Mr Foster and referred to a meeting between Mr Foster and Mr Courtney. Mr Courtney alleged that for over 12 months the Andersons and other neighbours have sought the defendant's assistance to address their concerns. He maintained that the Andersons 'signed off' on a March 2004 'DA' for modifications to the verge retaining wall and overwidth cross-over with the proviso that road surfaces/levels were not altered. The letter states that this proviso was ignored 'as evidence by its exclusion from the report to Council'. It is alleged that the 'as constructed' wall and overwidth cross-over has been the source of conflict since construction was completed. Mr Courtney further alleged that public access to the original road turning circle area at the west end of Adams Road is denied by the owner of 5 Adams Road who is alleged to have written to the Andersons and verbally abused people who have turned their vehicles onto what he now claims to be an area for his use only. Cones were at one stage placed to prevent access. According to Mr Courtney, the defendant is said to have formally advised the Andersons that the area is available to the public and yet continue to allow the owner of 5 Adams Road to park a vehicle illegally; that is, parked in front of a cross-over and or perpendicular to the road kerb. I accept that parking perpendicular to the road kerb is not appropriate and the defendant would have been entitled to have placed a no parking sign in that area and taken action against anyone who parked their vehicle there. However, this action on the part of the plaintiff, although inappropriate and inconsiderate does not provide a justification for the construction of a turnaround. It is conduct which should have been addressed by the defendant in the same way others who park illegally or in a way which prevents access to public areas.
242 The letter from Mr Courtney also raises the issue of what is described as 'an extraordinary history of approvals for 5 Adams Road'. It states that the defendant's agreement to reduce primary and secondary street set backs resulted in a residential design, for which the council waived the requirement for a 1:200 scale model that resulted in an overwidth cross-over, relocated and higher street verge retaining walls. Reference was also made to a site coverage increase. Mr Courtney states that the Anderson's focus is on the retaining wall issue and having the west end of Adams Road reinstated to provide the turning bay that existed when they purchased their block and that is said by Mr Courtney to have existed for 40 years prior. He said that the Andersons' focus was also to have unencumbered access to 6 Adams Road on a road surface on which their vehicles does not bottom out. Having viewed the site, I could see no way in which the Andersons' access to 6 Adams Road was encumbered by the construction of the plaintiff's new residence. It is further said that 'whatever process Council may instigate to remedy the situation should entail full 'neighbour consultation'.
243 It can be seen that, in this letter, Mr Courtney is in fact complaining about the defendant's approval of the works carried out on the plaintiff's property.
244 The Anderson property has been in the process of construction for the last 5 years. Mr John Anderson has been project managing the construction. He maintained that there is a fair amount of pedestrian traffic using Adams Road and put forward the figure of half a dozen people per day, hardly a high level of pedestrian traffic and an estimation in any event. He states that there are also a number of vehicles that come down the road. Again, Mr Anderson does not assert that there is a high level of traffic using that part of Adams Road.
245 Mr Anderson provided an affidavit which was filed on behalf of the defendant. He alleged that, when the plaintiff constructed his new residence, he extended the width of the cross over, constructed a parking area on the road reserve that formerly formed part of the old turnabout at the end of Adams Road, constructed a tall retaining wall at the upper end of the property, modified the shape of Adams Road, created a hump on the road reserve directly outside his property which was said to largely prevent vehicles using his driveway to turnaround and exit Adams Road. Mr Anderson also alleged that, as a result of the creation of the hump, the water runoff has been re-directed towards the Anderson property which is currently prone to risk of flooding. Included in the plaintiff's allegation of approval of the cross-over is the claim that the defendant's officers required the hump to be installed and its stated purpose was to divert water down the street. Mr Anderson further alleged that the plaintiff constructed a third garage further east and as a result has backfilled the road reserve. It is also alleged that the plaintiff frequently parks a vehicle on the bricked paving area outside his property which makes it difficult for vehicles to turn around at the end of Adams Road. He also allege that he has in the past observed a white utility which he understands is owned by a resident of 5 Adams Road parked at the bottom of Adams Road which prevented vehicle access to the Anderson property whilst under construction. I have already addressed this issue. However, I had no difficulty in turning my car around using the cross-over without in any way using the paved pathway.
246 It should also be taken into account that at the time all the complaints were being made and the 'consultation' was taking place, the house at 6 Adams Road was being constructed. The area at the end of Adams Road is an entirely unsuitable place for the number of tradesmen's and delivery vehicles which would be required for the construction of a home of that type and size and this must have caused an enormous amount of hostility between the residents. Apparently, some tradesmen would park their vehicles in nearby Marlin Court which has been alleged to be the cause of the problems with the garbage truck.
247 The plaintiff also stated that he was in dispute with Mr and Mrs Minshall who reside at 3 Adams Road which is to the rear of 5 Adams Road separated by the Marlin Court roadway. The Minshalls purchased their property in or about 2000 and constructed a two storey addition to the house that included a balcony. The balcony looks directly onto the plaintiff's property. Despite the fact that, in accordance with the planning approval, the balcony was to have an opaque balustrade, it was ultimately built with a wrought iron balustrade. When the plaintiff complained, the Minshalls applied for and obtained retrospective planning approval for the open balustrade. This dispute adversely affected the relationship between the plaintiff and the Minshalls and, during the construction of the new residence, it is alleged by the plaintiff that there was aggressive behaviour from Mr Minshall.
248 Mrs Minshall complained that the plaintiff constructed a larger, longer and higher retaining wall, backfilled the road reserve so that it was no longer gently sloping (I believe this is a reference to the road reserve where the retaining wall is), constructed a parking area of paving that formerly formed part of the old turnabout at the end of Adams Road, and created a hump on the road reserve directly outside his property which largely prevents vehicles using that part of the road reserve to turnaround and exit Adams Road. Mrs Minshall alleges that road users are also deferred by the fact that the road verge appears to be a private driveway. Not only was the original portion of the road reserve which was used to turn around also a cross-over to 5 Adams Road, all cross-overs in road reserves look like private driveways because they are the driveway to the particular house. However, road users are hardly constrained from using driveways to turn around and there is no suggestion on the part of the defendant that road users are not entitled to do so. Mrs Minshall also refers to the fact that the plaintiff frequently parks a white ute beside the parking area on the road reserve outside his property which makes it more difficult for vehicles to turn around at the end of Adams Road. I have difficulties with the proposition that this makes it difficult to turn around, however, I have also referred to the appropriate response to such conduct.
249 Mrs Minshall also expresses the view that the level of amenity and the streetscape of Adams Road has declined as a result of the plaintiff's alterations. She adds that it is very disappointing to her that this is a result of the plaintiff building what she is informed are unapproved structures on land that is owned by the defendant and designated as a public road reserve. Mrs Minshall's views on the decline in the level of amenity and the streetscape is subjective and is not something that should be taken into account when considering the proposed works.
250 As a result of complaints received from residents of Adams Road and Marlin Court concerning 5 Adams Road, on 15 May 2007 Ms Eldridge requested the City's planning officer, Mr Craig Shepherd, to attend 5 Adams Road with a view to reporting to her as to his findings. The request was clearly in response to the letter from the Anderson's solicitor's letter. On 18 May 2007 she received a report from Mr Shepherd who stated that he had undertaken a site inspection to establish the extent of non-compliance at 5 Adams Road. Mr Shepherd referred to a claim that the owner of 5 Adams Road did not carry out the work approved at Council on the road reserve to the specifications and subsequently has made the road reserve appear to be their own cross-over, thus making it difficult for adjoining land-owners to competently turn their vehicle without damaging their car.
251 According to Mr Shepherd, the reason for the change in road reserve was due 'to the owner's of No 5 Adams Road moving their garage forward of the allowed setback, thus reducing the measured turning circle'. Contrary to the implication of this statement, my understanding is that the reduction in setback was approved by council. Mr Shepherd also stated that the claim which had been made is that the road reserve at present is not extensive enough to provide an adequate turning circle. Mr Shepherd referred to the fact that the owner of 5 Adams Road had paved a section of the reserve and used it as his own for the parking of a vehicle. In addition, a strip of high-gradient had been placed to stop stormwater run-off. I believe this a reference to the hump. This was said to have, in turn, isolated the road reserve from the road and thus given the perception that No 5 Adams Road's cross-over commences at the strip. Providing that the 'strip' is a reference to the edge of the roadway, cross-overs always start at the edge of the roadway.
252 Mr Shepherd considered that, in order to resolve the dispute, the owner of No 5 Adams Road should amend the road reserve to include an at-grade strip drain which will act as stormwater catchment run-off. In addition the paved area which is currently located within the road reserve should be removed and the reserve made good. Mr Shepherd also observed that a response from the city was required urgently. It is apparent that Mr Shepherd was merely making a recommendation to resolve the dispute rather than making a determination of whether the works of which complaint had been made was authorised by the defendant. I note that there was no suggestion made by Mr Shepherd that a turnaround be installed to overcome the allegations made by the Andersons, some of which directly related to the inability to turn around in that area. I note also that the plaintiff alleged that he complained of the defendant's officers' refusal to install the spoon drain at or near the road edge. It is also the case that Mr Shepherd makes no reference to the fact that the defendant had approved some form of pathway into the reserve. However, it would appear that the complaint being considered was the parking of the plaintiff's car on the paved pathway.
253 Photographs attached to Mr Shepherd's report show the front of 5 Adams Road with a vehicle parked on the paved area. Another photograph shows two vehicles, a utility and a small truck parked perpendicular to the reserve. The photograph does not indicate which property those vehicles belonged to but if they are construction vehicles they were far more likely to be connected with 6 Adams Road as the construction at 5 Adams Road had concluded by the time of Mr Shepherd's inspection whereas, on my understanding, the construction at 6 Adams Road had not. It is also my understanding that the need for construction vehicles for either properties is at an end as both residences in that portion of Adams Road are completed.
254 According to Ms Eldridge, the counsel also received a further letter from Michael and Sue Minshall dated 25 June 2007. The letter referred to some 'major concerns' which are thereafter listed. One such complaint was that the Minshalls had been told by various council employees including Mr Valvasori, Ms Lumner and Mr Kabedah, that 5 Adams Road was fully compliant with approvals given. This is significant evidence as Mr Valvasori and Mr Kabedah are said by the plaintiff to both be involved in supervising and verbally approving the construction of the retaining wall, the cross-over, the paved pathway and the hump in the road surface. Reference is made by the Minshalls to a copy of the approved plans which were obtained under FOI by Mr and Mrs Anderson and apparently provided to the Minshalls who concluded that the statements of compliance were 'false and/or misleading'. A request was then made for the defendant to take all necessary steps to require compliance with the approved plans. It appears from the affidavit evidence that Ms Eldridge took no action in relation to the allegation that the Minshalls had been told by council officers that all works were approved. Neither was this evidence drawn to the plaintiff's attention. In my view, this exacerbates the conduct of the defendant, in particular that of Ms Eldridge, in not making appropriate inquiries, making a decision or placing the matter before Council and advising the plaintiff of the decision. If this had been done, the defendant's officers involved in consideration of the need for a turnaround at the end of Adams Road and in considering the complaints and submissions of the neighbours, would have been aware of which allegations of non-compliance and consequent adverse impact on the area could properly be taken into account. That was not done and the defendant's officers appear to have taken all the allegations of the neighbours into account.
255 After making reference to enclosing the hardstand area and the cabana, reference is made by the Minshalls to 'set back concessions on 3 boundaries'. The Minshalls ask for these to be reviewed noting that their views of the river have been adversely impacted on because the normal set-backs have not been required. Of course, this issue should not have been taken into account because the reduction in set-backs were approved by the defendant. The fact that the Minshalls have already had their view diminished by a validly approved construction should not affect consideration of the impact on the view of the proposed turnaround. That would be to penalise the plaintiff for lawfully constructing his residence in accordance with council approval.
256 In the letter, the Minshalls expressly seek 'reinstatement of a proper unencumbered turning circle and the removal of the high retaining wall and steel fence built upon and completely obstructing Council verge'. It is alleged that the Council has not acted in good faith 'in permitting public verge to be converted into a private enclave'. It seems that the Minshalls also rely on exaggerated or pejorative terms in describing the works carried out at 5 Adams Road. The Minshalls also seek '[t]he creation of a useful turning circle at the end of Adams Road so that vehicles can safely turn around at the end, instead of being forced to back up a hill in a "blind" and relatively dangerous manner'. I have already indicated that this is not my experience of turning around at the end of Adams Road. Further, the Minshalls seek the creation of a 'No Parking' area at the river end of Adams Road to stop vehicles being parked 'so as to prevent other vehicles from turning around at the bottom'. I consider the suggestion of a 'No Parking' sign to be a sensible one but vehicles can turn around in that area without utilising that part of the roadway.
257 On 15 July 2007 Mr and Mrs Minshall, having been advised of the upgrade to 5 Adams Road, again wrote to Ms Eldridge and referred to people reversing 'blind' up the road as happening 'many times a day'. I am no more in a position to accept that statement than the defendant's officers were unless they spent a day viewing the traffic flow in Adams Road, although, as I have already indicated, the need to reverse is questionable.
258 On 28 July 2007 Mrs Minshall sent an email to Ms Eldridge enquiring 'How are we going?' In her reply of 2 August 2007 Ms Eldridge stated that the road design and construction of the turning area was within the draft 2007/8 budget to be adopted by 31 August 2007. Ms Eldridge also states that, in relation to 'compliance issues', information had been received from the plaintiff which was being reviewed. The accuracy of that statement is questionable unless the second letter Ms Eldridge wrote to the plaintiff concerning non-compliance issues which removed the cross-over from the list of non-compliant works, was intended to represent a decision that the plaintiff's explanation was accepted in relation to the cross-over. However, there is no reference to this in her affidavit or that of any officer of the defendant including the CEO. Further, if that were the case then it would have been incumbent on Ms Eldridge to advise those officers involved in the proposed works in Adams Road so that the plaintiff would not be penalised for works which were approved by counsel and so that allegations made by neighbours arising from the construction of the cross-over would not be accepted or acted upon. It would also have been expected that Ms Eldridge or the CEO would have written to those neighbours lodging complaints arising from the construction of the plaintiff's new residence to advise that the cross-over had been approved and that no action could be taken in relation to those works or anything arising from the works.
259 On 9 August 2007, Mrs Minshall again emailed Ms Eldridge noting that adoption of the draft budget for the design and turning area construction did not address the Minshalls' original concerns about the very high and very long wall on Council verge. This would appear to be a reference to the retaining wall which the plaintiff indicated he had no objection to altering. Mrs Minshall also repeated her request to return the 'unencumbered turning circle' and the 'gentle gradient' that existed before. It is not clear whether that is a reference to the road reserve where the retaining wall is sited or to the end portion of the road.
260 Ms Eldridge's email response of 9 August 2007 is of particular significance. She states that the wall is being reviewed as part of both compliance with the planning approval but also as part of the design of the turning circle of Adams Road. She adds:
I couldn't pre-empt the design options the engineers may come up with once the survey has been done and they consider the area but safe sight lines ands access are crucial to road design.
261 There would be no problem with this approach if the wall was being reviewed as part of the design of the turning circle if that were simply to change the configuration of the wall. However, if the proposal for the hammerhead turnaround was being used as a method of overcoming the problems which had arisen from the approvals previously granted to the plaintiff or of any non-compliance issues, such conduct would not be appropriate consultation or decision making.
262 On 22 June 2007 the City received a letter from a resident at 2 Marlin Court complaining about the removal of the verge and the construction of the high retaining wall at 5 Adams Road. I note that the author stated that there was virtually no verge in Marlin Court. The author also makes note of the problems which had been created by the construction of 'two large houses at the bottom of Adams Road during the last 5 years or so including how the owners in Adams Road and Marlin Court have often had to contend with vehicles associated with one or at times both buildings causing constriction and at times blocking access to their homes'. Complaint is also made of destruction of reticulation on verges caused by cars sand trucks associated with the constructions and vehicles delivering to one or more of the building sites. Interestingly, the resident at 2 Marlin Court attributes the problems of which he or she complains to both 5 and 6 Adams Road.
263 However, the specific complaint made by the owner of 2 Marlin Court is the licensing by council of the verge obstruction carried out by the owners of 5 Adams Road, in particular the removal of verge, creation of a high wall and subsequent destruction of views down Adams Road. The letter further comments that the obstruction has taken place under Council's nose and apparently with its consent. I have already noted that, if the retaining wall were approved as alleged by the plaintiff, then the adverse impact on the view should not be relied upon to justify moving the proposed turnaround further to the east. In any event, the plaintiff had agreed to alter the retaining wall, therefore, that adverse impact on residents' views would be removed.
264 The Council also received a further letter from the owner of 2 Marlin Court. The letter is dated 22 July 2007 but is date stamped as having been received on 15 July 2007. The letter criticises the Council for not understanding the point made by the writer in an earlier letter. The letter further states that 'if a representative of Council had been on site to discuss the reason for the verge protection erected by the author's neighbour with them, it would have become obvious that they were only acting in the interests of all ratepayers'.
265 These are the only complaints identified by the defendant's officers although they allege that there many more complaints. However, it is clear that they kept no record of the complainant, the nature of the complaint or what it was in relation to. In that way, the plaintiff's right to question those complaints and to question whether those complaints justify the action taken by the defendant has been removed.
266 The plaintiff's counsel submitted that the disingenuous nature of the impression sought to be created by the defendant is pronounced in the evidence from the hostile neighbours. This evidence is described by counsel as largely subjective, argumentative and irrelevant. I would generally agree with that description although I have indicated where I have reached a different view in relation to particular aspects of the complaints. One example given by counsel is the 'before and after' pictures in Mrs Minshall's affidavit evidence. Counsel submitted that the purpose of these photos was to persuade the court of the diminished amenity enjoyed by Mrs Minshall and others due to the construction of the plaintiff's house. However, according to the plaintiff's counsel, even a cursory inspection of the 'before' picture showed that it was taken at a time when the plaintiff's former home had been demolished and before the new residence had been built. Obviously the view would be better if there were no residence to obstruct it. Further, the adverse impact on Mrs Minshall's view by the new residence is irrelevant because the residence was approved by the defendant. In any event, the diminished amenity arising from the construction of a house which has been approved by the defendant is entirely irrelevant to the issue of the proposed works and to the injunctions application. Indeed, it is difficult to see any relevance to these photographs.
267 It is not possible to make a decision as to who was at fault when neighbours are in dispute without having a full hearing involving the taking and testing of the evidence of each party. Neither is it a matter of whether the larger number of people take a particular view of a matter. In particular, it was not for the defendant's officers to be in any way influenced for or against any interested party as a result of allegations of wrongdoing which are not and cannot be fully investigated. This point is particularly apt in relation to the allegations of Mr Courtney. Most importantly, it is not for the defendant's officers to make decisions affecting any proposed works by taking unsubstantiated allegations into account.
268 Further, in considering the other residents' statements with respect to the hammerhead turnaround, some consideration must be given to whether they are being entirely fair. Certainly the issues they have with the plaintiff would hardly be likely to be ignored by them when considering whether to put forward or support a proposal which places the entire impact of the proposed turnaround on the plaintiff's property. It is certainly arguable that the defendant's officers did take these complaints at face value, irrespective of whether they related to Council approved works, and took them into account when making their decisions in relation to the proposed works and particularly during the consultation process.
269 Ms Eldridge admits that her section does not maintain all of the records in relation to objections received by the defendant but goes on to assert that, based on her discussions with 'various other officers of the City', the City received a very large number of complaints about the non-compliant building works which are further said 'to continue to this day'. I find it hard to accept that any complaint received 'to this day' were not annexed to or referred to in the affidavit evidence. It is also the case that, when talking about complaints with other officers, without reference to the actual documents or a record of a conversation, it is important to determine that both officers are not talking about the same complaint.
270 Mr Foster also stated that in mid 2007 he was aware that the City was receiving 'numerous complaints' regarding the construction of the new residence at 5 Adams Road. He neither identifies the source nor the number of complaints. However, it is alleged that the complaints contained various allegations concerning the plaintiff not building his residence in accordance with the City's approval and seeking to convert the City's road reserve to his own personal use. He states that he recalls other staff members receiving numerous complaints and a considerable number of complaints being directed to him. He adds that since mid-2007 he received numerous emails, letters and direct comments concerning the property at 5 Adams Road. At the request of a number of members of the community, mostly consisting of the residents on Adams Road, he had met with those people, to hear their concerns. Mr Foster does not refer to a single complaint by occasion or by name. Clearly he kept no record of this voluminous amount of complaints.
271 The letters of complaint identified in the affidavit evidence, particularly in the affidavit evidence of Ms Eldridge are said to be evidence of complaints from a representation of a nearby residents. The existence of these other complaints is simply not substantiated in any way. I consider this reference to 'many other complaints' to be an overstatement designed to add strength to the defendant's position. It is certainly easy to exaggerate the number of complaints.
272 I accept the submission of counsel for the plaintiff that the allegations in the letters of complaint need to be viewed with caution and should have been so viewed by the defendant's officers. The construction at 6 Adams Road took 5 years. Having seen photographs of various tradesmen's vehicles parked at the bottom of Adams Road in front of the river reserve, it is obvious that the street is not suited to this type of use and there could be no doubt that tempers might become frayed. It is also the case that large numbers of construction vehicles would seriously impair the ability to turn around at the end of Adams Road, irrespective of whether a vehicle is parked on the paved pathway or there is a hump between the cross-over and the road. In my view, there is a compelling argument that this correspondence does not constitute evidence of the need for a turnaround at the end of Adams Road. That level of vehicle activity would only occur in the event of further construction which is highly unlikely as both residences are new. Further, there is also a compelling argument that these complaints have been misused or misapplied in considering the need for a turnaround area.
273 I also consider there is a very strong argument that, rather than specifically addressing the issues raised by residents, or the plaintiff's explanation that the verge was approved by the defendant's officers, the defendant sought to overcome or avoid the issue and pacify the neighbours by deciding on a particular turning circle which would ameliorate the effect on the neighbours of the issues raised by them, notwithstanding that it adversely impacted on the plaintiff's property. Consequently there is also a strong argument that the entire process was flawed and inconsistent with the requirements of the defendant under the Act.
274 The evidence adduced on behalf of the defendant was that from observations of old photographs it was apparent that the paved pathway area on the road reserve formerly formed part of the old turnaround at the end of Adams Road. Mr Anderson is one of the neighbours which expresses that view. I note that this statement on behalf of the defendant is unsupported by reference to any of the photographs that led to that conclusion and is not supported by one of the photographs annexed to Mrs Minshall's affidavit provided to the court showing the streetscape after the house at 5 Adams Road had been demolished. This photograph shows an area which is clearly a cross-over to 5 Adams Road adjoining a straight piece of road ending at the river reserve. Certainly that cross-over area could have been used to turnaround but so can the present cross-over. In fact, it is the case that the area referred to is much smaller than the existing cross-over area.
275 Mrs Minshall also states that, prior to October 2004, as you entered Adams Road there was a wide vista to the river, far more gently sloping verges than exist today and a small and low retaining wall and a turning area to the left which enabled vehicles to turn around and exit Adams Road. It can be seen from the photographs attached that the area to which Mrs Minshall refers was also ashphalted and was in front of the garages of the property.
276 According to the plaintiff, there has never been a turning area at the end of Adams Road. As long as the plaintiff has lived there, it has never been possible for a vehicle to do a complete u-turn at the end of the street. The plaintiff states that road users have always been required to reverse in and out of the driveway of a property. This latter point is supported by the photograph annexed to Mrs Minshall's affidavit. Further, the road reserve has always been part of the driveway.
277 At the 18 March 2008 meeting with the plaintiff, Mr Foster recalls Mr Hamilton saying that the paved area was largely on the road reserve which had existed prior to the plaintiff performing the works, and the City intended to reinstate the road reserve as part of the hammerhead turnaround design. Therefore, it is clear that Mr Hamilton has accepted that proposition at face value as he was not employed by the defendant at that time.
278 Mr Anderson indicates that the proposed works provides the best compromise of the current situation as it largely reinstates what was previously there. In considering that statement, the defendant's officers would have to consider that Mr Anderson and his parents are far from objective in view of the flawed relationship between them and the plaintiff and also in view of the fact that the works ultimately proposed to be carried out have no impact on their property and complete impact on the plaintiff's property.
279 Having considered the submissions of both parties and the evidence, including the photograph of the relevant part of Adams Road when the house at 5 Adams Road had been demolished, it is certainly arguable that in making its determination with respect to the proposed works and in conducting the consultation process the defendant's officers inappropriately relied on allegations from the plaintiff's neighbours that there was 'a turning area' as opposed to another cross-over prior to the construction of the new residence at 5 Adams Road and accepted at face value the proposition that a hammerhead turnaround in the location proposed would return the street to the configuration prior to the construction at 5 Adams Road. It is also clear that in carrying out this process the plaintiff was either not advised that this proposition was being put on behalf of the neighbours so that he could respond, or his explanation was ignored. Neither was a satisfactory approach to such a significant exercise.
280 The evidence and the submissions made on behalf of the defendant repeatedly asserted that the construction of the cross-over and the paved pathway were a significant safety issue. Of course, when safety issues are emphasised it is particularly difficult for any organisation not to take the suggested action. However, an allegation that something is a safety issue is very easy to assert and, with one exception, this case was asserted by lay persons with nothing other than personal views on that issue.
281 Almost every affidavit filed on behalf of the defendant contained the deponent's view that the area had become a 'real safety and amenity issue'. In terms of amenity, Adams Road looks very much like many other streets in the area and many other cul-de-sacs in other areas. In many cases, the nature of the safety issue is not identified although the cause is asserted to be the construction in the road reserve of 5 Adams Road. In terms of safety, no evidence suggested that there had been any accidents or any greater number of accidents in that road as opposed to others in the area.
282 Despite admitting to having no formal qualifications in traffic management or engineering, after inspecting the area at the end of Adams Road Mr Foster considered it to be both unsafe to motorists and pedestrians and also unfair to road users and neighbouring properties in that the plaintiff had seen fit to construct non approved retaining walls and 'parking areas' on the road reserve. No mention is made of the plaintiff's allegation that each of these constructions was approved. That allegation has either been ignored or decided against him without advising him.
283 Mrs Minshall also expressed the view that, before the construction at 5 Adams Road, the road was safer. She makes no attempt to justify that proposition. Mrs Minshall also makes allegations concerning the increased risk of injury or harm to drivers, vehicles and pedestrians without reference to any statistics to support that proposition. Indeed, no evidence was adduced of any accident on Adams Road during the relevant period. She also alleged that vehicles frequently reverse up Adams Road because there is no turning area. Further, she observed that children and pedestrians are forced to walk on the road. This is clearly not the case as pedestrians can easily walk on the cross-over and paved pathway and the cross over on the other side of the road. No reference is made to the fact that children would also be forced to walk on the road in front of 6 Adams Road if a car were parked on the paved cross-over as I observed on the day I attended the site. Mrs Minshall also alleged that because of the lack of turning area, the garbage contractors are required to reverse up Adams Road and then reverse down Marlin Court which is dangerous for pedestrians and road users. She omits to mention that they reverse up Marlin Court because the width of the road is so small and there is no turning area and the garbage contractors cannot turn around in Marlin Court and would have to reverse all the way out if the drove in. I have addressed the issue of the garbage contractors elsewhere in these reasons.
284 Mrs Minshall goes so far as to state that Adams Road is a regularly used road and it is a regular event to observe drivers who drive down the end of the road, get stuck and then have to reverse back up the road. She estimates that 20 - 30 cars drive down Adams Road each day to the area earmarked for the hammerhead turnaround. It is said to be often used by children, elderly people and dog walkers. None of these assertions were verified by the defendant and some propositions are inconsistent with the evidence of Mr Anderson. In my view, this is not evidence which should be taken at face value in the circumstances of the relationship between the Minshalls and the plaintiff and the untested nature of the allegation.
285 Mr Anderson puts forward the view that the safety of Adams Road is compromised as there is no longer a turning area in which vehicles may turn around to exit the road and vehicles are required to reverse up Adams Road to exit the road. As I have indicated, that is simply not the case. The cross-over in front of 5 Adams Road is large and one can easily turn a vehicle around using that area. Mr Anderson refers to a young child being nearly hit by a vehicle being reversed up Adams Road but provides no details of that alleged incident and gives no details to properly assess the cause of the incident.
286 Mr Sarris does have some expertise as an engineer. I am unaware whether this also gives him expertise in safety issues affecting roadways. He also considered that the current situation in Adams Road was even worse from a practicality and safety perspective due to the construction of the brick paving which is flush with the road pavement and the significant gradient change at the juncture between what appears to be the road and what appears to be the plaintiff's driveway. This would appear to be a reference to the hump at the edge of the cross-over. Mr Sarris does not state that vehicles cannot turn around in that area. Neither does he state whether he has attempted to turn around at the end of Adams Road. More importantly, although this evidence was provided to the court, there is no indication from any of the defendant's officers that they were aware of this information at the time the decision was made to construct a hammerhead turnaround at the end of Adams Road. Clearly that information could not then have influenced their decision.
287 For these reasons I believe there is an argument available to the plaintiff that, this issue was given inappropriate emphasis during the consultation period. Having attended the area, and easily turned my vehicle around with the existing configuration of the road reserve and the roadway. I am unable to identify what the safety issue is in those circumstances, although I would concede that if people are reversing their vehicles up Adams Road there would be an increased safety risk.
288 In her affidavit, Ms Eldridge expressions the opinion that the resolution of the turnaround issue 'is now one that should be dealt with swiftly by the City'. The reasons she gives are as follows:
(a) The plaintiff has largely contributed to the current situation by completing unapproved building works that have had the effect of making it more difficult to turn vehicles around at the end of Adams Road and that he continues to exacerbate this problem by parking his vehicles on the City's road reserve obstructing other vehicles and/or causing difficulties with vehicles entering the premises at 6 Adams Road.
(b) The City is wasting an inordinate amount of time dealing with the various issue and complaints arising from the unapproved construction work conducted by the plaintiff and the proposed roadworks to the end of Adams Road.
(c) That in any event the current layout of the road is a danger to motorist and pedestrian.
289 In addition Ms Eldridge believes that she has spent a disproportionate amount of time on all of these issues.
290 None of these issues would allow of a decision that is not justified by the information available. I have already commented on the failure of Ms Eldridge to deal with the allegations of verbal approval made by the plaintiff. I have also commented elsewhere on the compelling nature of unsubstantiated allegations of safety issues. Further, the issue of the garbage truck is addressed elsewhere. The absence of bollards preventing people from proceeding on to the river reserve is something that was never in place, even before the construction of the plaintiff's new residence.
291 In any event, none of these reasons would justify circumventing a notice and subsequent consultation process required by law and would certainly not justify giving notice on a Friday to commence works on a Monday. Such an approach is consistent with attempting to ensure that no further consultation or consideration would be required by the defendant.
292 Mr Foster said that he formed the view that the plaintiff was a person who was going out of his way to be provocative and to antagonise his neighbours and that unless a solution was found quickly that it was likely that the defendant's officers would be involved for a further significant amount of time dealing with issues at Adams Road. This was apparently as a result of speaking to Ms Eldridge and Mr Hamilton and reading the defendant's records concerning the matter. However, Mr Foster could not identify any of the documents on which he based his opinion. In relation to Mr Fosters comments, neither would they justify a circumvention of the statutory requirements for giving notice and considering submissions made in response to the notice.
293 Mr Foster said that, having formed the view that a quick solution was necessary, he then directed Ms Eldridge and Mr Hamilton to ensure that the defendant's technical and engineering staff developed a 'quick but fair' solution to the ongoing issues in relation to traffic matters at the end of Adams Road. Mr Foster also stated that the defendant's officers 'collectively formed the view that the plaintiff would object to any solution determined appropriate by the City' and, accordingly, they resolved to proceed on the basis that the defendant would conduct an extensive consultation process with the residents of Adams Road, including the plaintiff so as to put the City in a position to implement the best and fairest solution to all concerned. Of course, whether the solution reached is fair depends very much on the circumstances and there was considerable unresolved dispute on those circumstances and no real attempt to investigate and determine the correct position. There is also a clear inconsistency between the propositions of a fair solution when notice is given of a different proposal with no opportunity given for responses in the time frame allowed before the works commenced.
294 The plaintiff maintained that the defendant's determination to be 'quick' caused the defendant to err in failing to comply with its legislative obligations. In my view, that was only one of numerous arguable errors made by the defendant's officers. However, I deal with that specific issue later in these reasons.
295 In my view, the statutory requirement to give notice must contain sufficient information for a landowner to fully consider the complete impact of the proposed works. If there is a particular issue in relation to the property in question, such a flooding and other drainage issues, then the defendant is required to provide that information. Otherwise the requirement to give notice, one of the few rights conferred on landowners in this context, would have a very limited impact. By the time the defendant is prepared to carry out the works all such information should be in its possession in any event and compliance would prove no difficulty. Further, if after consultation, the nature, extent or location of the works changes, then further notice, providing all the same type of information, and inviting the comment of affected landowners for consideration by the defendant must again be given. This is because the changed proposal could have a different impact on one of the affected landowners.
296 The proposition that such a construction of the obligation would create an almost never ending process can easily be answered. The obligation on the defendant is to consider the submissions made. That requires a proper and not a cursory or a pre-determined consideration of submissions. It also requires an objective consideration of any submissions. However, once that exercise is conducted appropriately, the defendant may decide to confirm the construction of which notice was given. That determination brings the requirement to give notice to an end. If the determination is to change the construction in other than a very minor way which could not reasonably adversely impact on any person, then the defendant should be required to give further notice.
297 I should also observe at this point that the iterative process of consultation whereby the nature of the construction is altered is not a substitute for the statutory process of give notice, inviting submissions, considering those submissions and making a determination whether to change the construction as a result of those submissions. In particular, where the consultation process is carried out without all interested parties being present at each consultation or absent parties being provided with a record of the consultation and any change to the proposed works, or absent parties are not given the opportunity to comment on all aspects of the changes resulting from such meeting as well as all aspects of the final version of the works, in my opinion, the process envisaged by parliament in enacting s 35.1(1) has not been met. In my view, it is certainly an arguable proposition.
298 It is of particular relevance in this case that the plaintiff disputes Mr Hamilton's allegation that the plaintiff's concerns regarding drainage were addressed by him. The plaintiff specifically asked Mr Hamilton to provide him with the engineer's water run-off calculations. These were not provided. Referring to the affidavit of Mr Mo, the plaintiff maintained that he was not provided with any drainage plans despite requests for the information. The plaintiff further noted that the information annexed to the affidavit of Mr Mo did not provide any run-off calculations. The plaintiff expressed his concern that the water would come down the hill at such a pace that the drains at the end of the street would not pick up the run-off and be ineffective.
299 As to Mr Hamilton's assertion that the letter giving notice by the defendant to relevant owners and residents dated 6 June 2009 was accompanied by a sketch of the final road works, the plaintiff maintained that he did not receive a copy of the sketch with his letter. In any event, the plaintiff, justifiably in my view, stated that the sketch did not provide sufficient detail of the proposal which should have included the following:
(a) Engineers drainage run-off calculations or information regarding whether the drains proposed are capable of adequately dealing with the volume of run-off from the street.
(b) Information as to how the water in the street will flow given that the level of the soak well in the road is 7.227, the level at the front gate to the property is 7.20 and the level at the kerb along the limestone path is 7.50.
(c) Information whether the hump along the cross-over will remain. The drain the plaintiff installed in the verge was not designed to cope with all the water run-off from the street.
(d) How drainage will be addressed if the flush kerb us removed.
(e) What the unlabelled pink lines represent on the verge line in front of the garages to the property.
(f) Dimensions, elevations or detail as to the defendant's intention as to the curve in the retaining wall, something not provided in the sketch.
300 In his affidavit the plaintiff stated that whilst he has been provided with a drawing of the proposed road works he still had no certainty that this was in fact what the defendant was proposing to carry out in all of its detail. Neither has he received any final notice in writing advising him of precisely what it is the defendant proposes to do. Nor did he receive notice inviting him to make submission on precisely what it is the defendant proposed to do accompanied by all supporting information potentially relevant to the impact on the plaintiff's property. He has only been requested to comment on the original proposal. He still maintains that the information he has been given does not give me sufficient information to enable him to take advice on issues such as the impact on drainage, something of particular relevance because of the fact that when the previous road configuration was in place, the plaintiff's property had been flooded on two occasions. None of the defendant's officers dispute that this occurred.
301 It must also be taken into account that the plaintiff never received a response to his written request for information concerning specific issues, including drainage issues. As I noted, the defendant appears to believe that the consultation process lauded by its officers as being extensive is a substitute for giving proper notice of all maters relevant to the proposed works including matters specifically requested by affected residents. I do not accept that such is the case.
302 In my view the plaintiff has a strongly arguable case that the notice given was insufficient and inconsistent with the requirements of the legislation. I will deal later in these reasons with the defendant's allegation that the legislation does not apply to the plaintiff or to the proposed works when dealing with whether there is a serious question to be tried.
303 I have already addressed the consultation process in the context of dealing with the requirement to give notice, invite submissions, consider those submissions and determine whether the proposed works are to be varied as a result.
304 The affidavit evidence indicated that there were three meetings conducted by the defendant with some of the residents of Adams Road: 18 March 2008, 26 March 2008 and 11 April 2008. The plaintiff was not invited to any of these meetings, although the plaintiff did attend the meeting of 26 March 2008. Contrary to the allegation made by Mr Anderson, the plaintiff did not use his mobile phone to record the meeting, he was turning it off.
305 The plaintiff denied he was asked to participate in the 26 March meeting. He maintained that Mr Hamilton rarely rang him to keep him informed of the progress of the road works. The plaintiff alleged that he was the one who was constantly calling Mr Hamilton to request the hammerhead turnaround not be constructed so close to the front entry to his property. He denied telephoning Mr Hamilton on 11 April 2008 to advise that he did not want to participate in a meeting involving other residents. He maintained that he was not invited to the meeting on 11 April 2008 and was not aware that it had taken place. I am not in a position to determine which version is accurate but it does raise questions about the efficacy of the defendant's consultation process where affected parties are not invited to a particular consultation and not advised of the outcome.
306 However, there were meetings between the plaintiff and the defendant's officers, in particular Mr Hamilton at which the proposed works were discussed. Therefore, although the plaintiff may not have been privy to what was occurring in the meetings with the residents, he was given an opportunity to put forward his views. The more significant issue is whether those views were ever given the appropriate level of consideration required of the defendant's officers under s 3.21.
307 Mrs Minshall expresses the view that the City consulted her properly about the proposed works and that she received adequate information about the proposed works. This gratuitous expression of opinion do not assist in the resolution of the issues under consideration. No doubt Mrs Minshall considered that she had been adequately consulted because she was indeed consulted and the outcome was entirely in accordance with her wishes. She is hardly an objective witness and it does not necessarily follow from the adequacy of the consultation with her and other residents that the same level of consultation was afforded to the plaintiff.
308 There is one aspect of the consultation process which is abundantly clear from the evidence of the content of Mr Hamilton's comments to the Council meeting concerning the solution put forward by the plaintiff but created by Mr Klyne. The defendant never provided the plaintiff with the costings for this or any other solutions that the plaintiff had suggested. Indeed, it would appear that this exercise was not undertaken at any time. The evidence simply refers to budget estimations and estimates of the comparative cost between the initial proposal and the final version of which notice was given on 6 June 2008. I note that the entire works budget for the upgrade of Adams Road was $100,00. That figure calls into question the proposition of Mr Sarris that the cost of the initial proposal was an extra $150,000 compared to the cost of the proposal which the defendant has attempted to implement.
309 Further, according to the plaintiff, comments on Mr Klyne's proposed design were not even communicated to him.
310 Reference is made to the fact that Mrs Minshall asserts that at a meeting she and other residents attended with Mr Hamilton on 18 March 2008, Mr Courtney (the architect responsible for renovations at 6 Adams Road) agreed to provide Mr Hamilton with information regarding drainage. The plaintiff stated that, if this information is correct, the drainage information was not provided to him.
311 In his affidavit Mr John Anderson makes the gratuitous comment that he believes the City's consultation regarding the proposed works was both thorough and detailed, that the proposed works had been well and truly discussed with the resident of Adams Road and the surrounding roads thereof in the area of the City and he considered that he had been given more than ample opportunity to express his views and received adequate information to enable him to understand the City's proposal. Of course, it is not for Mr Anderson to draw conclusions as to whether the City has discharged its statutory responsibilities. In any event, as I have noted in relation to Mrs Minshall's statements on this topic, it does not follow that the same level of consultation and consideration occurred in the defendant's dealings with the plaintiff.
312 Mr Anderson also expresses the view that the proposed works address the interest of residents of Adams Road and other surrounding roads to Adams Road in Dalkeith. He also expresses his support for the proposed works. Again, I have no doubt that Mr Anderson supports the proposed works because they have absolutely no impact on his parents or their property. Further, it is not for Mr Anderson to speak on behalf of the other residents.
313 In view of the evidence of the defendant's officers, in particular their statements of opinion in relation to the plaintiff, his conduct and his attitude to the proposed works, it is certainly open to the plaintiff to argue that the process of consultation between him and the defendant's officers was not the same as between those officers and the surrounding residents and hence did not meet the statutory requirements.
314 I have already foreshadowed that the statutory requirement is for the defendant to consider any submissions made. Although the Act does not qualify the term 'consider', the right conferred would be of limited effect if the defendant were not to give those submissions objective and reasoned consideration. Of course, there is no obligation for the defendant to act on any submission made but, in my view, that fact only supports the view that the consideration has to be approached in a way that gives the right conferred some substance and some effect.
315 According to the plaintiff, at the 4 April 2008 meeting the explanation given by Mr Foster for the change in the turnaround was because it was the most cost-effective for the defendant. I note that this was a different explanation to that given by Mr Hamilton in his affidavit which referred to maintaining the view of nearby residents. In relation to that issue, it should also have been taken into account that the impact on the view caused by the retaining wall, of which some residents complained, would be removed as part of the works and was not opposed by the plaintiff. Therefore, a consideration of the proposed works and the complaints should have taken into account that any impact on the view of the initial proposal could be ameliorated to some degree by removal of the obstruction of the retaining wall.
316 It could certainly be argued that the inability to give an accurate and consistent explanation for the final form of the proposed works is caused by a failure to properly consider the submissions or provide the true reason for the decision. In explaining the defendant's reasons against moving the hammerhead turnaround several metres towards the river, reference is made to obstruction of views and the fact that it would be against the wishes of residents. This is obviously a reference to residents other than the plaintiff whose wishes appear to have been given no real consideration. The other explanation is that it would result in a steeper inclined to the foreshore. I have already observed that an inspection of the river reserve does not support that proposition. In any event the river reserve and access to the river would be greatly improved for everybody by a set of steps down to the river along one side of the reserve. Mr Hamilton also refers to the decrease in the area of wild animals and birds which was an issue raised by the plaintiff against the initial proposal which Mr Hamilton has turned around on him. I might add that the removal of the trees which is apparent from the photographs provided to the court would also have had that affect.
317 Counsel for the plaintiff alleged that the defendant's view of the plaintiff's submissions and the decision, itself, has been coloured by the circulation of subjective views about the plaintiff and a selective and distorted impression of the plaintiff has been the result. There is certainly some substance to that proposition with the associated concern that his comments were not given proper consideration. Indeed, if the tone of the material contained in the affidavits is indicative of the defendant's attitude to the plaintiff, there is considerable doubt whether the submissions of the plaintiff were given any consideration at all.
318 Further, the inability to consistently identify all the reasons for the change in the proposed works lends support to the argument that the real reasons had much more to do with the defendant's opinion of the plaintiff, which I have referred to above.
319 Having considered in detail the evidence of the defendant's officers, I am left with real concerns about the attitude adopted by the defendant to the plaintiff. I accept the submission of counsel for the plaintiff that there was a perception, circulated around the defendant's organisation, that the plaintiff was a difficult person and the conduct of the defendant's officers was indeed coloured by this belief. In particular, the allegation that the plaintiff would object to any solution determined appropriate by the defendant is somewhat harsh when all solutions supported by the defendant had a significant adverse impact on the plaintiff's property and no impact on any other property. Mr Foster's evidence that he formed the view that the plaintiff was a person who was going out of his way to be provocative and to antagonise his neighbours, certainly supports that proposition. With the exception of the evidence that the plaintiff would deliberately park his car to prevent vehicles from driving over the pathway paved with limestone and other evidence alleging that he parked his vehicle at the end of the roadway, there is no evidence of the description attributed to the plaintiff by Mr Foster. The evidence that the plaintiff parks his car on the paved pathway which covers part of the road reserve, and allegedly impedes access to the river reserve, should be considered in light of the well known practice of landowners parking on the road reserve in front of their property and the fact that those living at or visiting 6 Adams Road do exactly the same thing with the same effect and have paved the entirety of their own much smaller road reserve, which similarly prevents pedestrians from walking on the road reserve past that house to the river reserve. This raises the question of whether the Andersons are provocative or deliberately antagonistic. I think not, and would be highly surprised if the defendant considered them to be so either. That then raises the issue of whether the Mr Foster's description of the plaintiff is justified or evidence of bias against him.
320 The issue regarding parking a vehicle at the end of the roadway is, in my view, being unnecessarily and inappropriately protective of the paved pathway but is something which could be dealt with in ways that do not adversely affect the plaintiff's property to the extent which would result from the proposed works. The usual practice of no parking signs and the issue of infringement notices would be the appropriate response.
321 It is also the case that there is evidence of a strongly held view of the neighbours and also of the defendant's officers that the design of the house at 5 Adams Road should not have been approved and that the works were a method of ameliorating the effect of what was perceived as a flawed authorisation. If that proposition is accepted, then the process of giving notice, inviting submissions and considering the responses was flawed. It is a matter of fact that the defendant did authorise the location of the house on the block and it is unfair to the plaintiff and contrary to the requirements placed on council officers to adversely affect the amenity of house in order to overcome the impact of what is perceived as an inappropriate house design, but nevertheless one which was authorised. There is, in my view, no justification for using the process involved in conducting construction works to retrospectively overcome a valid decision of the defendant.
322 Evidence of this approach can be found in the evidence of Mr Hamilton. After referring to the 26 March 2008 meeting, Mr Hamilton made the statement that, as the plaintiff had been allowed to build his residence further forward than would usually be permitted, he was aware that, to at least some degree, the view of the river from parts of the upper portion of Adams Road had been partially obscured as a result. In any event, Mr Hamilton considered the requests of the resident to be reasonable and formed the view that he would try and cause the defendant to accommodate their requests in so far as that was possible. It is apparent from this statement that Mr Hamilton based his decision, at the very least in part, on a desire to reduce the impact on other residents of the counsel approved design of the plaintiff's house and so as to cause no further impairment whatsoever of their view. In other words, it could well be said that the plaintiff was being punished for building his house in a position in accordance with counsel approval, simply because Mr Hamilton, coming on the scene at a much later date, considered that it was inappropriate for that approval to have been given. Further, the only approach taken once the decision was reached to reduce the impact on other residents was to consider a turnaround, the entire impact of which was on the plaintiff.
323 The desire to ameliorate the effect of the defendant's approval of the plaintiff's house cannot, on any interpretation, have provided the defendant with justification to accede to the request of the other residents that the full impact of the proposed works fall on the plaintiff. Whether or not others agreed with the decision of the defendant, it was a decision of the defendant and it is not for the defendant's officers to later seek to undermine the effect of that ruling or readjust it because they believe it was an approval which should not have been granted. The plaintiff is entitled to the full effect of that approval.
324 Councillor Hipkins' email is further evidence that the defendant, in dealing with the proposed works, took into account the proximity of the house at 5 Adams Road to the boundary but failed to take into account that this had been approved by the defendant.
325 Mr Hamilton then goes on to make, in my view, the wholly unjustified statement that 'by this time I had formed the view that Mr Marron was likely to try and frustrate any attempt to proceed with the road works'. It appears not to have occurred to Mr Hamilton that the plaintiff was doing no more and no less than the other residents were doing and that is, attempting to preserve his interests, which he is lawfully entitled to do. It is also the case that a refusal to agree to the proposed works cannot reasonably be categorised as an attempt to frustrate the proposed works. He was perfectly entitled to take that stance, particularly so in view of the impact of the proposed works on his property and was under no obligation to make the work of the defendant's officers easier.
326 Counsel for the defendant contended that the defendant formed a view that works of some kind were necessary and found itself having to make a decision in the middle of a battle between warring neighbours. That is clearly so, but the resolution of what was no doubt a difficult situation, was not to take sides in the war. The defendant's staff in their affidavit evidence, described by counsel for the plaintiff as being of 'questionable relevance', gave their views of the plaintiff. Those views were as follows:
(c) The way to resolve the problem was to make a quick decision and implement it.
327 I must say that it is rarely ever the best way to resolve such a problem to make a quick decision and implement it. I have already addressed the proposition that no proposal would satisfy the plaintiff as well as whether the conclusion that the plaintiff was the problem could be justified. A quick decision quickly implemented almost inevitably raises the question of whether there has indeed been proper notice given and whether submissions have been given appropriate, or even any, consideration. It also raises issues of perceived bias and concerns about whether the entire process was dealt with appropriately and objectively.
328 Counsel for the plaintiff submitted that what the defendant should have done, when it reached the final plan late in May or early June, was to have given proper notice at that point and permitted the plaintiff and any others, to make submissions and to objectively consider those submission without operating from a starting point that the plaintiff or the construction of his house was the problem and to approach consideration of the submission with a view to overcoming that problem and placating all residents other than the plaintiff.
329 Mr Foster also put forward the view that the plaintiff would not agree to any proposal which firmed Mr Foster's view that there was little prospect that the defendant would produce any design that would satisfy the plaintiff other than one which every other resident in the street would object to or one that would not satisfy the objectives of the City. It was not necessarily the plaintiff's role to put forward another design. The evidence establishes that at no time did the defendant consider any design other than a hammerhead construction. Counsel for the defendant submitted that this was the only design to meet Australian Standards but there was no evidence other than statements that a request was made of Main Roads for a relevant design configuration which met Australian Standards and the only one identified was the hammerhead turnaround. However, as I put to counsel, it does not follow that no other design, or an adjusted hammerhead design, would also meet those standard. Further, it is apparent that the hammerhead design will in any event require the vehicle using it to do a three point turn and there could well be other designs or an adjustment of the hammerhead design which would also require that type of turn and meet the appropriate standard.
330 However, it was made abundantly clear that there would be no alteration to the design of the turnaround; the other alterations which were put forward to 'appease' the plaintiff were simply window dressing unlikely to appease anyone in the plaintiff's position. The only 'alterations' offered were some extra grass and a plantar box or bollards.
331 In his affidavit Mr Sarris expressed the view that the hammerhead design would work more effectively than a T shape design. He also disagreed with the proposition put on behalf of the plaintiff that there is an abundance of space available to construct a turning facility for vehicles in Adams Road. However, whilst there may not be an abundance of space, and while the hammerhead design may be more effective than the T shape design, it does not follow that another design would not allow vehicles to turn in a similar manner. A varied design could well limit the impact on the plaintiff's property and yet at the same time overcome the other resident's concerns. However, it is absolutely clear from the defendant's affidavit evidence that there was to be no consideration of any other configuration. The way in which the proposal of Mr Klyne was dealt with, in particular the way it was summarily dismissed in Mr Hamilton's email to Council certainly supports that conclusion
332 In my view, the defendant's proposal certainly does not reasonably and practicably ensure that as little harm, inconvenience or damage is done to the defendant's property as was the original instruction to Mr Sarris. Indeed, it causes the greatest impact on the plaintiff's property and no impact on any other resident's property.
333 The plaintiff has also drawn to my attention the fact that the crash barrier now installed at the end of the road intrudes on to the road reserves for no apparent reason. I do not share the view of the plaintiff or other residents that the crash barrier is unsightly. In my view, the crash barrier is no more than the sort of construction which is utilised all over the metropolitan area as protection for those who may not realise the road ends. It is low and not unsightly. However, the crash barrier does extend into the road reserves and that is not something that crash barriers in similar roads nearby do. There are also a plethora of 'safety' signs erected in the relevant part of Adams Road. The necessity for having that number of signs is questionable and probably reflects a poor understanding of the defendant's legal liability. This may also explain, although not justify, the extension of the crash barrier into the road reserve.
334 It is also the fact that the defendant's own evidence supports the conclusion that the works were designed to overcome what were perceived to be the consequences of these allegedly un-approved works. Further, the defendant's conduct appears to have been heavily influenced by complaints made by neighbours, in particular, the neighbours at 6 Adams Road, in relation to that period of time when their house was being built and when there would no doubt have been a large number of tradesmen's vehicles in that area of the street, an area totally unsuited for that activity and harmonious living with neighbours. Further, it clearly appears to me that the defendant has 'taken sides' to the point where the entire impact of the proposed works is on the plaintiff and none on any other residents. This has occurred in circumstances where the size and reduced set backs of the plaintiff's residence were approved and the alleged non-compliant construction which is said to require the proposed works is alleged by the plaintiff to have been carried out at the direction of the defendant's employees, the truth of which has never been determined by the defendant. The failure to make that determination prevents the plaintiff from relying on the defendant's approval in relation to the cross-over and paved pathway and allows the defendant to rely on allegations of non-compliance in reaching its decision. In my opinion, any decisions relating to the construction of the roadway should in no way have been influenced by allegations which were irrelevant or have not been adequately investigated and should not been contemplated until the issue of compliance had been concluded.
335 I am also of the view that no consideration was given, or information sought, concerning whether the hammerhead turnaround would in fact be used by the garbage truck. The evidence put forward by the plaintiff in relation to the use of the end portion of Adams Road by the garbage truck, even with the hammerhead turnaround in place, was not, in my opinion, undermined or overcome by the evidence adduced by the defendant. As I have indicated, if it is in fact possible for vehicles to turn around using the cross-over of 5 Adams Road, despite the allegations of the neighbours, and the garbage truck is unlikely to use the hammerhead turnaround, then the defendant is to build a hammerhead turnaround at great expense for no real purpose. I might add that enquiries in relation to the potential for the garbage truck to use this turnaround should have been made well prior to the notice given on 6 August 2008.
336 I consider there is a wealth of evidence from the defendant's own witnesses which indicates that, for whatever reason, the defendant's officers lost their objectivity and the plaintiff's objections were not given any or any proper consideration. It is, therefore, open to conclude that the purpose of the exercise was at all times to ensure that the plaintiff's property bore the entire impact of the proposed works and the neighbours concerns, of any type, arising from any cause, even council approved causes, were to be overcome. That this has occurred is evidenced by the content of the material put before the court, the tone of Mr Hamilton's responses to any suggestion of compromise or change to a proposal which places the entire impact of the hammerhead turnaround on the plaintiff. It is at the very least arguable that the defendant has not given proper consideration to the matters raised by the plaintiff, has not provided him with the information necessary in such a case, and has not provided the appropriate notice and further consultation period required by the Act when a proposal for which notice has been given has changed significantly.
337 The principles upon which interlocutory injunctions are granted or withheld are well established. An applicant for an interlocutory injunction must demonstrate that:
(b) The plaintiff will suffer irreparable injury for which damages will not be an adequate compensation; and
(c) The balance of convenience favours the granting of the injunction.
See Castlemaine Tooheys Limited v The State of South Australia [1986] HCA 58; (1986) 161 CLR 148, 154; Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd [2001] HCA 63 [13]; (2001) 208 CLR 199 [13].
338 Those principles were amplified in Independent Corporate Services Ltd v Stevens [2002] WASC 280 [60] and Aim Maintenance Ltd v Brunt [2004] WASC 49 [63]; [2004] WASC 49; (2004) 28 WAR 357 [63] as follows:
(a) the applicant is to satisfy the court that there is a serious question to be tried;
(b) if so, no order will issue if damages are an adequate remedy;
(c) if so, and if damages are not an adequate remedy, then does the balance of convenience favours the grant of the relief sought;
(d) the relative strength and weaknesses of the applicant's case may be taken into account in considering the balance of convenience; and
(e) the court is not to decide factual conflicts on affidavits nor determine difficult questions of law.
339 Even if the court is satisfied that the plaintiff's claim is not frivolous or vexatious, it does not follow that there will be a serious question to be tried and the governing consideration is the requisite strength of the probability of ultimate success which depends upon the nature of the rights asserted and the practical consequences likely to flow from the interlocutory order sought: Australian Broadcasting Corporation v O'Neill [2006] HCA 46; (2006) 227 CLR 57.
340 In considering whether damages are adequate, the test is not simply whether damages will provide the plaintiff with an adequate remedy, but rather whether it would be just, in all the circumstances, to confine the plaintiff to that remedy: Evans Marshall & Co Ltd v Bertola SA [1973] 1 All ER 992; State Transport Authority v Apex Quarries Ltd [1988] VicRp 26; [1988] VR 187.
341 The factor commonly referred to as the balance of convenience is probably better described as the balance of risk of doing an injustice: Cayne v Global Natural Resources Plc [1984] 1 All ER 225, 227. It is also a fundamental principle in exercising the discretion to grant injunctive relief that the court should take whichever course appears to carry the lower risk of injustice: see Films Rover International Ltd v Cannon Film Sales Ltd [1986] 3 All ER 772, 781.
342 The impact of the injunction upon the interests of the public and third persons is relevant, having more or less weight according to the circumstances: Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (No 3) [1998] HCA 30; (1998) 195 CLR 1, 42.
11. Whether there is a serious question to be tried
343 Counsel for the plaintiff submitted that, notwithstanding the volume of evidence filed in relation to the application, it involves a relatively succinct and contained issue. In fact, counsel submitted that the considerable evidence filed on behalf of the defendant is largely irrelevant.
344 I accept that there is a considerable amount of irrelevant evidence which has been adduced on the part of the defendant. However, as I have noted, the real relevance of that evidence is that the matters identified were in fact taken into account in the consultation and decision making process. In order to determine whether there is a serious question to be tried, it is necessary to determine whether there are prospects of success of the plaintiff's action. I considered it necessary to determine whether the evidentiary basis was sufficient to support the argument raised concerning s 3.21 of the Act. It is on that basis that I have conducted a detailed assessment of the evidence, primarily admissions made by the defendant officers in their affidavit evidence, to determine whether there is evidentiary support for an argument which requires it. This issue involved is not purely legal. In particular, as the defendant argues that the original notice and the process which followed provided sufficient notice and appropriate consultation, it is necessary to consider whether there is evidence to support that proposition which could diminish the strength of the plaintiff's case.
345 The plaintiff submitted that there is a triable issue as to whether the defendant gave sufficient notice of the proposed road works on Adams Road, as required by section 3.51 of the Act and thus whether the defendant is proposing to act beyond its powers.Section 3.51 is entitled 'Affected owners to be notified of certain proposals. Subsection (2) states that the section applies to -
(a) fixing or altering the level, or the alignment of, a public thoroughfare; or
(b) draining water from a public thoroughfare or other public place onto adjoining land.
Subsection (3) provides that, before doing anything to which this section applies, a local government is to -
(a) give notice of what is proposed to be done giving details of the proposal and inviting submissions from any person who wishes to make a submission; and
(b) allow a reasonable time for submission to be made and consider any submissions made.
(a) in writing to each person having an interest; and
(b) if any land is likely to be adversely affected by the doing of the thing, by local public notice.
346 The expression 'person having an interest' is defined in subsection (1) to mean a person who -
(a) is the owner of the land in respect of which that thing is done, or any land that is likely to be adversely affected by doing that thing;
(b) is shown on the title to any of the land mentioned in paragraph (a) as holding an interest in any of that land; or
(c) is prescribed for the purposes of this section.
347 It can be seen, as counsel for the plaintiff submitted, that the defendant has certain statutory obligations before carrying out any proposed works of the type identified in subsection (2).
348 Counsel for the plaintiff also relies on s 3.21 of the Act which identifies the duties of local government when performing functions. Section 3.21(1)(a), which is the only part of s 3.21 relevant to these proceedings, is in the following terms:
In performing its executive functions, a local government, so far as is reasonable and practicable, is to -
(a) ensure that -
(i) the lawful use of any land, thoroughfare or premises is not obstructed, and any reasonable request that a person makes to avoid such obstruction is met;
(ii) as little harm or inconvenience is caused and as little damage is done as is possible;
(iii) danger to any person or property does not arise from anything done on land; and
(iv) anything belonging to it, or to a person who has exercised a power of entry on its behalf, that has been left on any land, premises or thing entered is removed as soon as practicable unless this Act expressly allows it to be left there;
349 Counsel for the plaintiff submitted that s 3.21 constrains the defendant's powers in performing its executive functions. The defendant is required to cause as little harm or inconvenience as possible and make sure as little damage is done. However, in considering those requirements in the context of the other requirements, I believe there is a stronger argument that s 3.21(1)(a) is actually directed at the carrying out of the proposed works rather than the nature of them.
350 On behalf of the plaintiff, it is submitted that when the express requirements of s 3.51 are considered together with s 3.21(1), the 'details of the proposal' to be contained in the notice required by s 3.51 must provide sufficient information to permit an interested person to determine whether council is exercising its executive powers in accordance with s 3.21. As I have indicated, I have reservations concerning the application of s 3.21(1) to the determination of the kind of works to be carried out, as opposed to the behaviour of the defendant's officers in the carrying out of the works. Nevertheless, I believe that s 3.51 has the effect that the plaintiff relies on, even without recourse to s 3.21.
351 The plaintiff asserts that the defendant is at some pains to depose through various sources to the level of 'consultation' that was engaged in by officers of the defendant. The court was taken to Mr Hamilton's affidavit evidence in which he asserts that the consultation was greater than is usual. Counsel for the plaintiff submitted that Mr Hamilton's subjective view of the comparative extent of consultation is irrelevant. I consider there are two problems with that part of Mr Hamilton's evidence. The first is that, saying something is better than usual says nothing about the quality of the standard currently being applied. Past practices can be so abysmal that an improved standard may still be less than appropriate and less than required by the relevant legislation. Secondly, whether the level of consultation was acceptable in all the circumstances is an issue for the court to decide on an objective basis. I would also make the observation that that it is not the number of consultations which is the relevant factor, it is the quality of the consultation process and whether it meets the requirements of the Act. For the same reasons, the evidence of neighbours that they found the consultation adequate is also irrelevant and, as I have indicated, may well be coloured by the outcome of the consultation process, which required no action or inconvenience on their part and also by the unsatisfactory nature of their relationship with the plaintiff.
352 It is further alleged that the defendant has failed to reasonably consider the issues raised by the plaintiff with respect to the Adams Road works or alternatively has failed to provide a written response to the plaintiff's concerns so that he had all the necessary information to make an informed decision as to the impact on his property.
353 I accept that there is a particularly strong argument that, whilst the defendant has advised the plaintiff of the proposed works, the defendant has not provided adequate notice of the proposed works. A proper notice would contain full particulars of the Adams Road works to enable the plaintiff to make a decision as to the full effect of the works. I have dealt with this proposition in detail under the heading 'Notice of proposed works'. I share the view of counsel for the plaintiff that much more is required than to simply provide a description of the works and a sketch of the proposal, if a sketch was in fact provided to the plaintiff. I am also of the view that, notwithstanding the provision of verbal information by the defendant's officers and further sketches, referring to the changes to the proposed works, as well as giving the interested parties the opportunity to comment on such changes, that it not the sort of notice envisaged by parliament in passing s 3.51. That would require proper plans and diagrams and all supporting information concerning the proposed works, including information of a particular nature if there is a special issue in relation to an owner's land. The drainage details are a clear example of such an issue and, in my view, compliance does not occur with verbal information on some aspects of the special issue, or a verbal assurance that the issue poses no difficulties. That is a matter for a resident such as the plaintiff to determine and he must be placed in a position to make that determination and/or to obtain expert advice on the issue.
354 Counsel for the plaintiff submitted that the letter of 6 June 2008 was plainly not notice because it did not contain sufficient detail and it did not contain an invitation to make submission, either on the face of the document or by reason of the truncated time frame. Counsel also submitted that, whilst accepting that the defendant's officers found themselves caught in a battle between warring neighbours, that difficulty does not exempt the defendant from the requirements of the Act. I accept both propositions.
355 It is submitted on behalf of the defendant that the plaintiff has produced no evidence that would tend to show that there is any serious issue to be tried in relation to any breach of the Act. Similarly, it is said that the plaintiff has produced no evidence that would tend to show that the defendant is guilty of creating a nuisance, if, it is submitted, the plaintiff can in fact establish that as a potential cause of action having regard to the fact that the proposed works are entirely on the defendant's road reserve. This latter proposition is largely irrelevant to the allegation of a nuisance being created. A person or other entity can create a nuisance to other properties as a result of something done on that person's or the other entity's own property. This is because nuisance is an effect from an action committed by one person on the enjoyment of life or property of another person. Further, the allegation in the Indorsement of Claim is that the injunction is sought to restrain the defendant from undertaking the works unless and until it is established that no nuisance will be created. Clearly, it is the concern that the proposed works may create a nuisance to the plaintiff and/or his property that is alleged, not that any nuisance will originate from the plaintiff's property.
356 The defendant further submitted that, to the extent notice was required to be given, it was given by providing notice of the original design. It is said that this is even acknowledged by the plaintiff in his affidavit where he admits receiving notice of the original design. I do not accept that proposition as acknowledgment of receipt says nothing of the content of the notice which is the salient issue in this matter. Neither is acknowledging receipt an acceptance that the notice was adequate for the purpose of determining the complete impact of the proposed works on the plaintiff and his property. Further, that proposition would be a complete answer to the application if it were not for the fact that the original design had changed over the period of consultation and also that the notice of the original design did not include all the matters which the plaintiff alleged should have been included before work commenced. The plaintiff's acknowledgment of acceptance of the notice is not an acceptance that the notice was adequate for the purpose of commencing the works.
357 The defendant maintains that, having regard to the nature of the works, the defendant can show thorough consultation. It is submitted that the defendant can also show that the plaintiff not only had an opportunity to make submissions but did so including addressing council at a council meeting.
358 In my view, and for the reasons to which I have referred in various parts of these reasons, both counsel for the defendant and the defendant's officers completely misunderstand the process envisaged by the Act. As I have repeatedly noted, consultation with interested parties, particularly ad-hoc, unrecorded meetings with some of the interested parties and at other times with other interested parties, against a background of the notice of the proposed works not including all details of the works including proper drawings or plans, specifications and all other engineering information relevant to the proposed works, is not a substitute for providing in the notice 'details of the proposal' and inviting submissions from any person who wishes to make a submission, allowing a reasonable time frame for submissions and considering any submissions. Most importantly, the Act requires the notice, which must include details of the proposal, must be in writing. Therefore, providing details of the proposed works verbally at ad-hoc meetings with only some of the interested parties, simply does not comply with the Act. In any event, because of the change to the proposal, the statutory process was required to recommence.
359 I do not accept the defendant's argument that this interpretation of s 3.51 will place a far too onerous obligation on it, which militates against the plaintiff's interpretation. I do not accept that proposition. The process undertaken probably took up more time that the proper process would have done. This argument is one which is commonly used on behalf of local government, advanced on the basis that, in some cases, there would be many people affected by some works proposed. However, I can see no reason why those affected by works which would require giving notice to a large number of residents and owners, should prevent those people from being notified and having their views heard and considered. To the vast majority of people, a potentially adverse impact on their home would be a very significant event to them. Ultimately, the argument that the statutory obligation is too onerous is one of resources and should be addressed with government rather than taking an approach which would limit the operation of the benefit to the community afforded by s 3.51.
360 The plaintiff's submission is that, to the extent that the evidence filed on behalf of the defendant is relevant to the triable issue, the defendant's affidavits serve to support the plaintiff's contention that requisite notice was not given.
361 According to counsel for the plaintiff, this is because the evidence filed on behalf of the defendant confirms the following propositions:
(a) The notice of February 2008 did not contain sufficient information to permit the plaintiff to assess the proposal against his legitimate concerns and to assess whether the defendant was acting within its executive powers;
(b) The proposal of February 2008 underwent changes and amendments which were both numerous and significant;
(c) When the defendant finally settled on a proposal in late May 2008, it did not then give written notice as required by the Act:
(d) On the contrary, on the afternoon of Friday 6 June 2008, the defendant gave written notice -
362 Not only did the notice not invite submissions, it did not allow reasonable time for the submissions to be made or for the submissions to be considered. In fact, it was apparent that the notice of 6 June 2008 was not intended to be a notice in terms of s 3.51 of the Act but was more in the line of a notification of the commencement of the proposed works.
363 According to counsel for the plaintiff, this conduct is to be assessed against the background that, at the relevant time (late May 2008), it would have been a straightforward matter for the defendant to have complied with its statutory obligations that are a prerequisite to the exercise of executive powers. Indeed, counsel submitted that it remains a straightforward course for the defendant to undertake as, presumably, if it was ready to commence works on 9 June 2008, it must have available to it all the information that a sufficient notice would require. If it did not, the defendant should not have been prepared to commence the works. Indeed, I must express my concern at the stance taken by the defendant. Rather than simply issuing an appropriate notice, inviting submissions and giving the submissions full and fair consideration before making a decision, the defendant has determined to assert, in my view with limited evidentiary or legal justification, that their processes are consistent with the Act. However, I do accept that the defendant is quite entitled to take that position and exercise its legal rights.
364 Counsel for the plaintiff also observed that, assuming the defendant's position to be correct that the proposed hammerhead turnaround is in almost the same location as the road existed prior to the plaintiff's construction of his house, it only serves to illustrate the veracity of the plaintiff's concerns about the proposal for drainage because when the road was previously in that location he was flooded out twice. Therefore this explanation provides no basis for not complying with the provisions of the Act. In any event, as I have mentioned, the evidence arguably does not support this basis for avoiding giving notice and, as the previous configuration involved using the plaintiff's cross-over, the position obviously changed with the new residence.
365 The defendant's submissions is that s 3.51 defines a person having an interest as 'a person who is the owner of land in respect of which that thing is done, or any land that is likely to be adversely affected by doing that thing'. The defendant contends that it is the land itself that must be adversely affected, not the amenity enjoyed by the owner. Thus on the defendant's case if a person's amenity or utility in relation to land is adversely affected but not the land itself, notice is not required. The short answer to that proposition is that one of the plaintiff's primary concerns was the drainage issue which, in my view, is clearly a potential adverse affect on the land and not merely a matter of amenity or utility.
366 Further, by way of example, preventing or affecting access to a property would also adversely affect the land, because in order to access the property, one has to access the land. The example that I raised with counsel was if the defendant built a high wall that prevented a resident from accessing his property. This would not affect the land in the way that the defendant's counsel proposes but it would reasonably be expected that notice would be given and the plaintiff would be heard on the issue of the impact on him and his property of not being able to obtain access. As there is no other statutory obligation to give notice, it is difficult to accept the defendant's interpretation that the Act does not require the giving of notice and the consideration of responsive submissions in this circumstance of a serious, perhaps the ultimate, impairment of amenity but would require the giving of notice for even the most minor impact on the land itself.
367 The plaintiff makes two preliminary points in relation to the defendant's submission:
(a) The plaintiff's claim includes a concern that his land will be flooded because of drainage problems. That is plainly an adverse affected on the land itself.
(b) The question for the court is whether there is a triable issue. The issue is that whether the plaintiff's construction is arguable.
368 The plaintiff also submits that there is no need to have recourse to other statutes because the meaning of s 3.51 is clear on its own terms. I accept that to be the case.
369 I am persuaded by the defendant's narrow interpretation of the phrase 'any land that is likely to be adversely affected by doing that thing'. I consider that the plaintiff's legal argument is far stronger than that of the defendant. When that observation is considered in tandem with the comments that I have made concerning the evidence adduced on behalf of the parties, I believe it is evident that there is a serious issue to be tried. I draw that conclusion being well aware that it is necessary to be satisfied that the plaintiff's position is more than merely arguable.
370 Counsel for the plaintiff asserted that the defendant has not produced any probative evidence of why justice requires the status quo to be disturbed. It is said that the only evidence relied upon by the defendant is that the concerns of the defendant and the occupants of three other properties in the street will not be addressed as quickly as they had anticipated. As the plaintiff's counsel asserts and as the defendant's own evidence demonstrates, these issues have been ongoing for some time. It is said that in these circumstances the balance of convenience plainly favours the plaintiff.
371 On the other hand, counsel for the defendant maintains that the balance of convenience clearly favours the defendant, in that:
(a) The defendant seeks to do work on a public reserve largely with the support of the relevant residents bar one (the plaintiff);
(b) Having regard to the requirement for local governments to be able to act in the maintenance of infrastructure without over burdensome requirements or the imminent risk of injunctions it is submitted that the court ought exercise its discretion with caution so as to protect the operation of local governments in this State.
372 I have already expressed my views on the proposition that the requirement to give notice and consider submissions is overly burdensome. Most importantly, however, the allegedly overly burdensome requirements are statutory requirements and compliance with those requirements should be enforced by the court in every case where the evidence supports a conclusion that there has been non-compliance or, in the case of injunctions, where the court concludes that there is a serious question to be tried. The defendant is not obliged to act on the complaints or suggestions made by interested parties but it is obliged to give them detailed notice of what is to occur and give full consideration to all submissions. I believe there is considerable importance in ensuring that residents and landowners are provided with the only and very limited protection from the actions of local government.
373 Counsel for the defendant also made the submission that the plaintiff has not shown any conduct on the part of any of the defendant's officers that could be said to be improper in any way. However, that is not the issue to be determined. The issue is whether the defendant has acted in accordance with the Act and provided adequate notice and properly considered the submissions made by interested parties. Even a conclusion that there is a strong argument that the defendant has not complied with the Act is not a finding that they have behaved improperly. It is merely a finding that they have acted without an understanding of the legal requirements of their task.
374 Another proposition put on behalf of the defendant was that the situation in which the plaintiff now finds himself is largely of his own doing. Presumably this is a reference to the allegation that certain work, in particular the works involving the road reserve, at 5 Adams Road were not authorised. I have dealt with this issue at length in other parts of these reasons. The fact is that the defendant has never made a decision on the plaintiff's allegation that these works were given verbal approval and were, in fact, carried out at the instigation of the defendant's officers. Other issues are before the State Administrative Tribunal and a decision of that Tribunal would be necessary before any conclusion can be reached that the works which are the subject of that application are non-compliant and the consequences are therefore of the plaintiff's own doing. In any event, I have already indicated that these aspects of the allegedly non-compliant works are irrelevant to the consideration of the defendant of the various submissions made. Further, the situation is, in fact, largely the doing of the defendant in approving the plans for the new residence and in not dealing immediately with any non-compliance. A delay of 19 months simply cannot be justified.
375 Counsel for the defendant also submitted that it was clear from the evidence that any further consultation or any further submission from the plaintiff was highly unlikely to lead to any change in the proposed design because his concerns had been accommodated in so far as the City can or is willing to. However, that is not a complete answer to the question of where the balance of convenience lies. In light of the observations I have made about the conduct of the defendant's officers, the more significant issue is whether the defendant's officers have given the plaintiff's submissions the objective, careful and thorough consideration they require, rather than being influenced by inappropriate views about the plaintiff and taking into account matters that should not have been taken into account. I have dealt with each of these issues in the earlier parts of these reasons. Further, one of the most compelling fact which leads to the conclusion that the balance of convenience favours the plaintiff is that, in my view, the defendant has failed to provide details of the final version of the proposed works and receive and properly consider submissions any submissions and this means that inadequate notice has been given and the statutory obligation has not been met. In those circumstances, it is difficult to see how the rigid assertion that the defendant will not change its plans, essentially no matter what submission is made to it, can properly be taken to shift the balance of convenience to the defendant. If that were the case all that would be required of any defendant would be to firmly take an untenable stance to succeed in opposing the application for injunctive relief.
376 For these reasons, I have no hesitation in concluding that the balance of convenience clearly favours the plaintiff.
13. Whether damages are an appropriate remedy
377 As counsel for the defendant accurately observes, the plaintiff makes no claim for damages whether in the alternative or otherwise. However, it is clear that damages would not be an appropriate remedy in this case as the issue involves an impact on the plaintiff's property, which can rarely be overcome by a payment of money.
378 I have addressed in detail the factual basis of the application and have reached the view that there is a serious question to be tried, that the balance of convenience firmly favours the plaintiff and that damages would not be an appropriate remedy. I should also add that the action involves a significant issue of non-compliance with a statutory obligation by a local government authority and, in my view, also involves either a misunderstanding of the defendant's obligations or an untenable, albeit firmly held, belief that the process actually undertaken by the defendant is superior to the process determined by Parliament to be required of the defendant. In my opinion, the defendant should seriously reconsider that position and not rigidly reject any suggestion that their processes are flawed and their approach to this particular case may have been unreasonable.
379 The interlocutory injunction is granted and I propose to hear the parties on the precise terms of the orders.
Aim Maintenance Ltd
Brunt
(2004) 28 WAR 357
(2001) 208 CLR 199
(2006) 227 CLR 57
(1998) 19 WAR 561
(2001) 206 CLR 512
(1986) 161 CLR 148
(1998) 195 CLR 1
(1913) 15 CLR 679
(1990) 3 WAR 71