Cachia v Colaco & Anor [2002] NSWLEC 64 | Case summary

Judgment (5 paragraphs)

[1]

The applicant seeks a declaration that two conditions pertaining to building approval No. BA 75650/94 issued by Gosford City Council ("BA 75650/94") have been breached by the erection of two brick walls which obstruct a right of way. The applicant also seeks orders for their removal.
The applicant is the owner of land being Lot 456 in DP 29468 known as 154 Del Mar Drive, Copacabana ("Lot 456"). The respondents are the owners of the adjoining land which lies to the south of the applicant's land being Lot 455 in the aforesaid Deposited Plan and known as 156 Del Mar Drive, Copacabana ("Lot 455").
The right of way shown in DP 29468 was created by the registration of Memorandum of Transfer H371495. The right of way has a width of 3.66m and is located adjacent to the southern and eastern boundaries of Lot 455 as shown in the diagram incorporated in this judgment. It provides access from Del Mar Drive to the rear of many lots, including Lot 456.
The applicant acquired Lot 456 in approximately 1989. The respondents purchased Lot 455 in July 1999 from Norman Edward Fritter and his wife Anne Margaret Bain (hereafter referred to as "the Fritters") who had owned such lot since March 1996.

[2]

A single storey brick and tile cottage was originally erected on Lot 455. In 1994 Gosford City Council ("the council") granted approval for the erection of a retaining wall and fence on Lot 455 pursuant to BA75650/94. Such approval contains the following relevant notations:- NOTATION 3: It is the applicant's responsibility to check the title of the subject land to establish if the application is affected by any easements, covenants or restrictions on the use of the land which may affect the proposed structure. NOTATION 6: This approval is valid for five (5) years unless otherwise stated in the attached conditions of approval.

Subsequently the Fritters were granted permission ("BA550/96") for additions to the dwelling. Later they obtained permission ("BA3640/97") for a swimming pool to be constructed in the rear portion of Lot 455. Each permission contained a notation identical to Notation 3 set out above requiring the owner to check the title for any easements. 7. On 11 December 1998, a building certificate 1792/98 ("the certificate") was issued by council pursuant to s 149D of the Environmental Planning and Assessment Act 1979 ("the EP&A Act"). The certificate states that the council would not make orders under the EP&A Act or any other Act requiring any building erected on Lot 455 to be repaired, demolished, altered, added to or rebuilt. The certificate refers to BA 75650/94 and BA 3640/97 but makes no mention of BA 550/96. Such certificate does not prevent the applicant from instituting proceedings for the removal of the obstructions to the right of way. Construction of retaining walls 8. During the Fritters' ownership of Lot 455 brick walls were constructed across the right of way by extending the brick fences on the northern and southern boundaries of Lot 455 to the eastern most boundary. The height of the brick wall between Lots 455 and 456 varies between 2.76m and 1.86m being contrary to the height limit of 1.8m fixed by condition 3 of BA 75650/94. Other obstructions 9. The applicant claims that fill from the excavation for the swimming pool was placed on the right of way between the brick walls. Such fill varies between 1.5m and 40cms in depth. Mr Fritter has denied that he filled any part of the rear of Lot 455 other than to apply topsoil, and says that Lot 455 was always higher than the applicant's land. Applicant's submission 10. The applicant submits that he has a legal right to use the right of way which he has never abandoned. The right of way was last used in approximately 1995 when trucks, back hoes and other machinery were used to lay a sewer main within the right of way. The applicant said that he opposed the blocking of the right of way and had complained to the Fritters. Respondents' submissions 11. The respondents purchased the land without knowledge of the dispute concerning the obstruction of the right of way. Although the respondents were legally represented when they acquired Lot 455, they were not made aware of the applicant's claim. 12. The respondents also submit that the applicant has delayed the institution of these proceedings and that the Court, as a matter of discretion, should refuse the relief claimed. Findings 13. The right of way created by registration of Memorandum of Transfer No H371495 is a right of carriageway granted in favour of the applicant and other proprietors of lots in the DP 29468. In many places the terrain is precipitous, and would be impassable for vehicles. However, vehicular access could be provided from Del Mar Drive across the rear of Lot 455 to Lot 456. 14. The right of way is obstructed by the brick walls on each side of Lot 455 and by the placement of fill between these walls. The rear yard of Lot 455 is more elevated than Lot 456 but it is apparent that a substantial quantity of fill has been placed on the right of way between the brick walls. Although Mr Fritter denies having placed any fill in that position it was obvious from the View that the area between the brick walls has been elevated above natural ground level. 15. The Fritters had obtained a survey certificate from Cahill & Cameron Pty Limited, surveyors, dated 2 April 1997. The text of such report makes reference to the right of way but does not mention the obstructing walls. However the incorporated diagram appears to illustrate brick walls traversing the right of way. The report is referred to by council in the certificate, but no reference is made to the obstructing walls. 16. No plan exists showing the extent of the work which was authorised by the council pursuant to BA 75650/94. However, both parties request the Court to find that the brick walls were constructed across the right of way whilst work was being performed pursuant to such approval. In the absence of evidence to the contrary, the Court will draw such inference. 17. The brick walls and the fill on the right of way constitute a substantial interference with the use of the land in the exercise of the right of way and a court of equity would grant orders requiring removal of such obstructions: see Keefe v Amor [1965] 1 QB 334 at 347; in Prospect County Council v Cross (1990) 21 NSWLR 601 at 607-609. This Court has power to make orders to the same effect where breach of an environmental statute is proved. 18. Condition 3 and condition 7 of BA 75650/94 have been breached. Breach of a condition of a development approval granted under the EP&A Act constitutes a breach of the EP&A Act: see Cooper v Coffs Harbour City Council (1997) 97 LGERA 125 (CCA) per Howie AJ at 130; Hornsby Shire Council v Winsloe (1998) 101 LGERA 117. It follows that the Court has jurisdiction pursuant to s 20(2) of the Land and Environment Court Act 1979 ("the LEC Act") to make declarations and to enforce conditions imposed under the EP&A Act. Pursuant to s 22 of the LEC Act the Court is empowered to make orders to remedy such breach. Laches 19. The applicant had opposed the blocking of the right of way and had complained to the Fritters. The applicant had also complained to the council and having received no positive response had referred the matter to the Ombudsman. When the Fritters advertised Lot 455 for sale, the applicant sent several letters to the Fritters' selling agent giving notice of the dispute and requesting that such matter be brought to the attention of any prospective purchaser. Such information was never revealed to the respondents. The applicant had also written on several occasions to the respondents seeking a resolution but no reply had been received. In view of these facts there has been no delay or laches on the part of the applicant sufficient to disentitle the grant of the relief sought. 20. The applicant requires the use of the right of way for the purpose of carrying out improvements to the rear of his lot. The right of way provides the only means of vehicular access to that area, and entitles the applicant to relief requiring removal of the walls. Claim for Damages 21. The applicant claims exemplary and punitive damages arising from the alleged discourtesy, humiliation and "hurt feelings" which he allegedly suffered from the respondents denial to recognise his claim to the right of way. Brennan J (as he then was) in XL Petroleum (NSW) Pty Ltd v Caltex Oil (Aust) Pty Ltd (1984-85) 57 ALR 639 at 655: stated that "… an award of exemplary damages is intended to punish the defendant for conduct showing a conscious and contumelious disregard for the plaintiff's rights and to deter him from committing like conduct again …". 22. The respondents only became aware of the dispute concerning the right of way following their purchase of Lot 455. When they became aware of this claim, the respondents sought information from Gosford City Council and were advised that the certificate did not indicate that any remedial work was required. Accordingly the respondents believed that they were entitled to rely upon the certificate. In these circumstances it could not be said that their conduct was "contumelious". Further, this Court has no power to award general damages in respect of a claim founded in tort. Section 16(1)A of the LEC Act does not extend to such a claim: see NTL Australia Pty Ltd v Minister for Land and Water Conservation (2001) 112 LGERA 403; Nix and Dunn v Pittwater Council (1994) 84 LGERA 199; N&S Olivieri Pty Ltd v Fairfield City Council [2002] NSWLEC 35. Accordingly the claim for damages is dismissed. Conclusion 23. The applicant has established his entitlement to declaratory relief in respect of the obstructions of the right of way and for orders requiring their removal. Since the fill contained by the brick walls is an incidental obstruction an order for its removal will be made under s 16(1A) of the LEC Act. 24. The Court is mindful that the respondents were not informed of the applicant's claim when they purchased the land. To enable the respondents to carryout the requirements of the Court orders, a period of 12 months will be allowed for such work to be completed. 25. As to costs, the respondents acknowledge that the usual rule should apply namely that the successful party is entitled to an order to compensate it for its costs (Oshlack v Richmond River Council (1998) 193 CLR 72; 96 LGERA 173). Accordingly the Court will order that the respondents pay the applicant's costs. It is to be noted that since the applicant has appeared in person such costs will be awarded in accordance with the principles set out in Cachia v Hanes & Anor (1993-1994) 179 CLR 403. Orders 26. The Court makes the following declarations and orders:

Cachia v Colaco & Anor

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Judgment (5 paragraphs)

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Cases Cited (8)

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