• Lawyers in Sydney
• Lawyers in Melbourne
• Lawyers in Brisbane
• Lawyers in Perth
• Family lawyers
• Employment lawyers
• Criminal lawyers
• Wills and estates lawyers
• Find a lawyer

Cases Cited: Backhouse v Northern Beaches Council [2022] NSWLEC 1070

Category: Principal judgment

Parties: Brent Damien Backhouse (First Plaintiff)
Nerilee Kate Telford (Second Plaintiff)
Elizabeth Rebecca Harris (Defendant)

Representation: Counsel:
D Robertson (Plaintiffs)
WM Dawes (Defendant)
Solicitors:
Mills Oakley (Plaintiffs)
Equius Legal (Defendant)

File Number(s): 2026/00167066

Publication restriction: Nil

Ex tempore JUDGMENT - revised

1. Dee Why is a picturesque northern beachside suburb in Sydney, in the area of the Northern Beaches Council (t****he Council).

2. The parties are feuding neighbours who have the privilege to live there. Their respective houses are on a hill, by all accounts somewhat steep. The Plaintiffs own 53 Wheeler Parade, Dee Why (53) and the Defendant owns 55 Wheeler Parade (55). 55 was once known as 55A. The Defendant has been an owner of 55 since 2017. The Defendant used to own 55 with her then husband. She is now the sole owner.

3. 55 is in the shape of what is commonly referred to as a “battle-axe”, in some jurisdictions a “panhandle”. It sits behind 53 and the handle of the axe (or the pan) (the Handle), which is a driveway, passes 53 property on its south side.

4. 53 has a registered right of carriageway (the Right) over the Handle, which has been used by the Plaintiffs since they purchased 53 in 2013. It provides vehicle access to 53. The Defendant has been an owner of 55 since 2017.

5. They lived in peace until the Plaintiffs decided to build a new house.

6. In 2021, the Plaintiffs submitted a Development Application to the Council for the proposed new house. When the Defendant and her then husband learnt of it, they suggested buying the Right from the Plaintiffs, once construction was completed, but the Plaintiffs declined. The Defendant and her then husband instructed solicitors to write to the Council, which they did on 2 August 2021, expressing general support for the application but raising concerns about the Right. Consistent with their desire for relinquishment of the Right, they sought a deferred commencement condition requiring its release.

7. The Council refused the Development Application and it ended up going to the Land and Environment Court. On 20 December 2021, the Defendant’s solicitors wrote to the Plaintiffs’ solicitors. The tenor of the letter was that the Defendant and her then husband would seek to intervene to oppose the Plaintiffs’ application in the Land and Environment Court, unless the Plaintiffs relinquished the Right. The Defendant and her then husband then sought leave to intervene the proceedings. They failed.

8. The matter came before a Commissioner of that Court, before whom a conciliation conference was held on 7 February 2022. The Plaintiffs’ appeal was upheld: Backhouse v Northern Beaches Council [2022] NSWLEC 1070. The Development Consent granted was for construction of a three-level house with two levels and a basement, swimming pool and a car park area.

9. The Development Consent was subject to certain conditions based on plans which (amongst others) removed the hardstand parking area at the rear of 53. The plans show that there will still be access to 53 from the Right by pedestrian gate, but the necessity for, and the utility of, vehicular access (assuming the Right continues to exist: it is not extinguished by the Development Consent), will only be for so long as it takes the Plaintiffs to finish building the house, because the Plaintiffs will then have vehicle access from Wheeler Parade.

10. The existing house was duly demolished.

11. The construction activity has no doubt been a source of significant irritation for the Defendant. To facilitate vehicular access by builders and contractors, a portion of a wall which stood at the back of 53, along the border of the Right, was removed by the Plaintiffs. This would have allowed machines and trucks to enter and exit via the Right down the hill in a forward direction which is obviously safer than reversing out.

12. According to the First Plaintiff (Mr Backhouse), within days of building commencing, the Defendant erected a timber fence and gate on the Right, which meant in the Plaintiffs’ contractors had to reverse out into Wheeler Parade (obviously less safe than exiting in a forward direction). According to Mr Backhouse, this has not been the only interference by the Defendant. She has intermittently parked her car, for days, blocking use of the Right. Where the section of wall was removed by the Plaintiffs, she constructed a paling fence and has installed a gate across the Right. Inconvenience and extra cost have resulted because materials had to be carried by hand.

13. The house is now in an advanced state of construction. Construction is expected to be completed within six months from when vehicular access is restored.

14. On 20 April 2026, Mr Backhouse went to 53. He found excavation and building work underway on the Handle. A truck was blocking access.

15. The Defendant gave no prior notice to the Plaintiffs of her intention to do this work. That is because, she says, she does not speak to them.

16. Mr Backhouse returned to 53 on 21 and 22 April 2026. The Defendant’s works were still afoot. About 25 metres of the area covered by the Right had been excavated, vehicle access was not available, part of the driveway of 53 (not covered by the Right) had been excavated, and the retaining wall on 53 showed signs of cracking. There is no doubt that this work has interfered with the Plaintiffs’ access and has caused delay and additional expense to construction.

17. Faced with this situation, the Plaintiffs considered they had no reasonable alternative (and I agree), but to arrange for work of a temporary nature to be done to allow them to continue to use the Right. A significant problem was that the Defendant’s work had exposed the gas mains. Concern has been expressed by the Defendant that the temporary works contemplated by the Plaintiffs have safety problems (if this is so, it was brought about by her).

18. The Defendant retained Mr Simon Williams of GeoScope Utility Detection Services to undertake an underground utility investigation and to prepare a photographic and written report relating to the gas infrastructure servicing at the rear of 55. He inspected the site on 7 May 2026 and produced a report. His recommendations include assessment by a licensed gas contractor, reviewing the exposed/shallow gas service, considering various specified factors (which it is not necessary here to enumerate), and that temporary work be done by appropriately licensed and authorised personnel in accordance with Jemena (the gas supplier) requirements, and relevant Australian standards.

19. For their part, the Plaintiffs retained a town planner, Mr Vaughan Milligan, who expressed the opinion that the work being done by the Defendant requires prior Development Consent. It is not necessary for me to determine this. It is a matter for the Council, but I am confident that this judgment will come to its attention.

20. I am satisfied that, with appropriate professional expertise, the temporary work which the Plaintiffs wish to carry out can and indeed should be done.

21. To justify her work, the Defendant says that use of the Right has always been unsafe because of inadequate sight lines, its steepness and slipperiness, and there have been accidents. She also had concerns for the safety of her young children. Yet she did not embark upon any rebuilding until now, when the Plaintiffs are in the middle of building their new house. She says that part of her reasons for doing this now is that she thought that the Plaintiffs no longer needed access because there had been a lull in work at the site. But the building is manifestly some way from complete. Either way, I consider that the Defendant has unlawfully interfered with the Plaintiffs’ use of the Right. It is not necessary to determine whether the Defendant’s work was necessary at all, but it certainly cannot be said to have been necessary at this time. I say nothing more of the Defendant’s possible motivations.

22. The Plaintiffs approached the Court on 23 April 2026. The following day, Hmelnitsky J, sitting as Duty Judge, ordered on a without admission basis and until further order, that the Defendant stop the work she had initiated and otherwise be restrained from impeding or otherwise interfering with the Plaintiffs’ exercise of the Right. When the matter came before me a week or so later, I fixed it for final hearing. I was informed at that time that the Defendant had parked her car across the entry to the Right. I was subsequently informed that she had moved it.

23. I also made an order requiring the parties to attend an urgent mediation before a Registrar in Equity. Senior Deputy Registrar Czerwinski, at some personal inconvenience, accommodated an urgent mediation, but the parties did not settle. I made stringent directions to get the matter ready for hearing on a final basis, which to the credit of the practitioners on both sides were sufficiently complied with.

24. The matter proceeded by way of affidavit evidence with some cross-examination of the Defendant.

25. The Plaintiffs seek:

26. final orders restraining the Defendant from interfering with the Right by:

(a) further carrying on the work she has started; (b) by removing the gate and paling fence which she has constructed;

2. an order permitting the Plaintiffs to carry out the temporary works and the Defendant reimburse them for it;

3. to reinstate the surface of the Right to enable them and their contractors/invitees to use it;

4. damages; and

5. costs.

6. It was put on behalf of the Defendant that any injunction should have a “hard end date” coupled to the date of completion of the Plaintiffs’ building works. There is some merit in the submission.

7. I am satisfied that by reason of the Defendant’s interference with their rights, the Plaintiffs have suffered loss in the amount of not less than $2,825.43, which is supported by a tax invoice from their contractors dated 11 May 2026, admission into evidence of which was not opposed. The Plaintiffs claimed additional heads of damage but adduced no admissible evidence in support.

8. The relief sought by the Plaintiffs includes removal of the paling fence constructed where the portion of wall previously existed, ie. the wall demolished by the Plaintiffs referred to earlier. I do not consider that proper use of the Right extends to removing the fence which sits in the place where their own wall once sat and I decline to make an order to that effect.

9. I make the following orders (moulded to accommodate the particular circumstances of this case):

10. The Defendant is restrained from impeding or interfering with the Plaintiffs’ use of the Right created by registered dealing H341062, including by way of the gate which she has constructed (which is to be kept open for the life of the injunction referred to in Order 2).

11. The Defendant is restrained from continuing the building work initiated by her until practical completion of the Plaintiffs’ construction of their house or 31 December 2026, whichever occurs first.

12. The Plaintiffs are to notify the Defendant in writing upon practical completion of the building work taking place at 53 Wheeler Parade being reached if this occurs prior to 31 December 2026.

13. The Defendant is restrained from impeding or interfering with the Plaintiffs from carrying out such work as is necessary to ensure and permit access by them and their contractors to the Right so as to enable them to complete without interfering the building work which is currently on foot, noting that the Plaintiffs have through counsel undertaken to the Court that this work will be carried out in accordance with licensed experts, recommendations, and done by licenced contractors.

14. Judgment for the Plaintiffs against the Defendant for $2,825.43.

15. Liberty to apply.

16. The Plaintiffs seek the costs of the proceedings. The Defendant seeks that the parties pay their own. I consider that the Plaintiffs have succeeded, largely but not entirely. They have not obtained relief with respect to the paling fence and the amount of the damages that they have claimed is modest.

17. In all circumstances, I consider that the Defendant should pay 90% of the Plaintiffs’ costs of the proceedings and I so order.

**********