Christensen v Austin (No 2)

Representation: Counsel:
Cecilia Rose (First and Second Respondent)

File Number(s): 2024/451962

JUDGMENT

1. The Applicants (Respondents on the motion) applied to the Court under the Trees (Disputes Between Neighbours) Act 2006 (NSW) (Trees Act) seeking orders for the removal of trees on their neighbours the Respondents’ land and building of a replacement Besser block boundary wall. On 22 August 2025 Christensen v Austin [2025] NSWLEC 1607 (Christensen No 1) was delivered by an Acting Commissioner. The Respondents (Applicants on the motion) filed a notice of motion for a charge of contempt on 25 February 2026. An amended notice of motion was filed on 10 July 2026 removing the orders sought in relation to contempt and seeking orders under Pt 40 r 40.8 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) and s 23 of the Land and Environment Court Act 1979 (NSW) (LEC Act). This judgment deals with that amended notice of motion. Mr Christensen the First Applicant appeared with leave as agent for Mrs Christensen the Second Applicant at the hearing of the amended notice of motion.

2. In Christensen No 1 the following 13 orders (Acting Commissioner’s Orders) were made:

3. The application is approved, in part.

4. The Respondents shall compensate the Applicants $145.50, equivalent to 50% of the cost of safety barrier installation, by electronic fund transfer (EFT) within 7 days of the date of these orders.

5. The Respondents shall engage and pay qualified licenced builders or qualified licenced landscape gardeners, with all appropriate insurances (the contractors), to dismantle the Besser block common boundary wall (the wall), block by block, down to the approximate level of the Respondents’ poolside garden bed (the garden) and remove debris, within 30 days of the date of these orders. Mattresses or similar padding shall be used to protect the Applicants’ property during wall dismantling, and the works shall include removal of the blocks or stacking for re-use, subject to the blocks’ condition and the parties’ preferences.

6. Within 30 days of the date of these orders, each party shall obtain and exchange one itemised quote from a qualified structural engineer to inspect the existing foundation (once it is exposed per Order (6)) and report on, (i) whether the existing foundation is sufficient for each party’s proposed wall, or, if not, (ii) supplementary works required to make the existing foundation sufficient for each party’s proposed wall, or, (iii) whether the existing foundation needs replacement for one or both proposed walls, and, (iv) to provide drawings and specifications for a foundation suitable to support the Respondents’ 0.6m retaining wall, based on the outcome of (ii) and (iii). Within 35 days of the date of these orders, the parties shall select a structural engineer. If the parties cannot agree on the engineer, the engineer with the cheapest quote shall be selected. The Respondents shall engage the selected engineer to inspect the foundation and report to both parties by email within 75 days of the date of these orders and shall pay the engineer within 7 days of their itemised invoice. The Applicants shall pay the Respondents 25% of the cheaper quote by EFT within 7 days of receipt of the itemised paid invoice.

7. The Respondents shall engage and pay suitably qualified AQF Level 3 arborists, with all appropriate insurances, to remove all 9 trees from the garden to near garden ground level and remove debris, within 40 days of the date of these orders. The palms shall be dismantled and lowered or dropped in small sections onto mattresses or nests of foliage. The works shall comply with the Safe Work Australia, Guide to managing the risks of tree trimming and removal work, 2016.

8. The Respondents shall engage and pay the contractors to dismantle and remove or stack the remainder of the wall, expose the wall’s foundations and remove sufficient soil and roots from the garden to provide safe, clear access for subsequent wall construction, within 50 days of the date of these orders. These works shall include removal of all debris including all blocks that are surplus to either party’s requirements.

9. Within 80 days of the date of these orders, the Applicants shall advise the Respondents by email whether they are opting to install their proposed replacement Besser block wall. If so, within 120 days of the date of these orders, each party shall obtain and exchange one quote from the contractors (who satisfy the requirements in Order (3)) for: (i) foundations required for a 0.6m tall Besser block wall retaining the Respondents’ garden, based on the engineer’s report, and, (ii) construction of a wall in the current location, comprising up to five courses of recycled Besser blocks topped with four courses of recycled Besser majestic screen blocks (to be clarified by the applicants) with pillars reinforced with concrete, at 3m spacing, including a functional replacement outdoor double power point.

10. The Applicants shall lodge their DA as soon as practicable and commence wall construction as soon as practicable. Upon respective completion of the foundations and the wall, the Applicants shall pay the contractors within 7 days, and the Respondents shall pay the Applicants 75% of each respective cheaper quote from Order (7) by electronic fund transfer (EFT) within 7 days of receipt of paid itemised invoices.

11. If the Applicants fail to complete wall construction within 12 months of the date of the orders, the option to construct the wall shall transfer to the Respondents and the Respondents’ liability to make further payments to the Applicants shall lapse.

12. If, within 80 days of the date of these orders, the Applicants advise the Respondents by email that the Respondents may proceed with their preferred fence, or the Applicants fail to advise the Respondents by email within 80 days of the date of these orders that the Applicants opt to install their proposed block wall, or the Applicants fail to complete wall construction within 12 months of the date of the orders, within 40 days of the date of one of these three triggers, each party shall obtain and exchange one quote from the contractors (who satisfy the requirements in Order (3)) for a ‘sufficient’ 1.8m high timber lap and cap paling fence with timber rails on the Respondents’ side and with steel posts concreted into a 0.6m high recycled Besser block retaining wall with sufficient foundations to retain the Respondents’ garden, based on drawings and advice in the engineer’s report.

13. The Respondents shall commence fence construction as soon as practicable. Upon completion of the foundations and the wall, the Respondents shall pay the contractors within 7 days, and the Applicants shall pay the Respondents 25% of the cheaper quote from Order (10) by electronic fund transfer (EFT) within 7 days of receipt of a paid itemised invoice.

14. Prior to re-establishing the garden, the Respondents shall engage and pay the contractors to install appropriate drainage behind the wall. Species planted in the garden shall be restricted to annual flowers and herbs or soft wooded perennials, with a maximum height of 1.5m, planted at least 0.5m from the fence. No ornamental grasses or bamboo shall be planted.

15. Upon at least 72 hours’ notice by email, each party shall allow all access required for the procurement of quotes, for the various works, and for efficient debris removal via their property during reasonable day time work hours. Each party shall email insurance certificates of currency and relevant licence details of engaged contractors to the other party, at least 72 hours before commencement of respective works.

16. The Respondents have caused work to be done which they consider complies with Orders 2, 3, 4, 5 and 6. This includes removal of nine trees on the Respondents’ property (Order 5). The boundary Besser block wall has been dismantled as required by Order 3. Most of the dismantled Besser blocks have been placed on the Respondents’ land. The extent to which Orders 4 and 6 have been complied with is disputed by the Applicants. Whether Order 4 has been complied with is also in dispute. The Respondents’ compliance with Orders 2, 3 and 5 is not in dispute. Orders 7 and 8 which provide for the Applicants to build a replacement Besser block boundary wall have not been complied with.

Respondents’ proposed orders

4. The Respondents are seeking the following orders (proposed orders):

5. Pursuant to r 40.8 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) and s 23 of the Land and Environment Court Act 1979 (NSW) (LEC Act), that the Respondents undertake the following work within the specified timeframes.

(a) Relocate the breezeway blocks retained for recycling located on the Respondents’ land to the Applicants’ land within 10 days of the date of these orders. (new) (b) Respondents’ contractors to enter the land of the Applicants and remove the existing barbeque structure and all associated debris to allow for the commencement of building works within 30 days of the date of these orders. The Respondents are to place the debris from demolition on the Applicants’ land next to the pool fence. (new) (c) Construct a 1.8m high lap and cap paling fence with timber rails within the Respondents’ land with steel posts concreted into a recycled Besser block retaining wall commencing at 0.6m high at the northern end, up to 1.1m high at the southern end, with sufficient foundations to retain the Respondents’ garden (emphasis added), based on drawings and advice from the engineer’s report obtained in compliance with Order 4 of orders made in the proceedings on 22 August 2025 (Variation of Order 10). (d) In the event that the fence in order 1(c) above requires a development application or a complying development certificate the Respondents are to prepare and lodge the development application or application for a complying development certificate (CDC) within 90 days of the date of these orders. The Applicants must provide land owner’s consent for any development application within 7 days of receiving the request for land owner’s consent from the Respondents. (new) (e) The construction of the fence in order 1(c) is to be commenced by the Respondents within 90 days of receiving the CDC or development consent. (new based on Order 11)

5. The Applicants are to pay the Respondents’ costs of the notice of motion.

Acting Commissioner’s judgment

6. Relevant extracts of Christensen No 1 are as follows:

“[88] The respondents wanted the boundary fence to simultaneously satisfy Council’s swimming pool safety requirements and retain the poolside garden soil. To this end, the Austin's proposed a 1.8m timber fence above a reinforced Besser block wall, about 0.6m high. To the best of my understanding, such a fence would be an ‘exempt development’ as a DA is not required where the masonry wall base is no higher than 0.9m. Nonetheless, as proposed in the respondents’ order (3), liaison with Council would be necessary to clarify whether the building works are exempt, complying, or require a DA.

…

[101] No orders shall be made for the respondents to contribute to barbeque reconstruction costs. Regardless of secondary damage from the trees impacting the wall, the barbeque appeared unused, forgotten, and significantly deteriorated from age-based wear and tear. While the existing barbeque may have been required to compensate for the wall’s structural inadequacies, such an edifice would be unnecessary to buttress a properly constructed reinforced boundary wall built to current construction standards. Particularly considering its derelict condition, I was not persuaded that Mr Christensen’s sentimental attachment to the barbeque justified the respondents paying for a replacement that would constitute property improvement for the applicants. Further, once a new pool fence was installed, a like for like barbeque as currently located would probably restrict access between the two fences.

…

[123] The applicants and respondents shall each obtain and exchange one quote from a suitably qualified tiler to re-tile the approximate half square metre area of damaged tiling plus any tiling damaged during wall dismantling and reconstruction. The quote shall itemise the cost of any replacement tiles, which shall match existing tiles as closely as practicable. The applicants shall engage and pay one of these two tilers to undertake the works. Upon completion, the respondents shall pay the applicants 75% of the cheaper quote by EFT within 7 days of receipt of a paid itemised invoice from the applicants…”

Chronology

| Date | Event | | 22 August 2025 | Original judgment & orders. | | 25 August 2025 | Respondents paid $145.50 via EFT to Applicants for safety barrier. | | 11-26 September 2025 | Respondents engaged Catlow Remedial Masonry (CRM) to dismantle breeze blocks and stack blocks for re-use. | | 22 September 2025 | Respondents engaged Aura Tree Services to remove 9 trees. | | 23 September 2025 | CRM attended property for digging works. | | 24 September 2025 | Structural Engineer Quoc Huy Nguyen (NITMA) inspected footings and verbally advised existing foundations were structurally insufficient for any replacement wall. | | 15 October 2025 | Formal structural engineering report issued by NITMA. | | 8 November 2025 | Applicants emailed Respondents opting to install 1.2m high wall with 2 courses of breeze blocks. | | 3 December 2025 | CRM attended site for further digging works. | | 4 December 2025 | Respondents installed temporary chain fence onsite. | | 17 December 2025 | Respondents provided CRM quote to Applicants for like-for-like wall construction. |

Respondents’ evidence

Mr Austin affidavit of 30 March 2026

7. Mr Austin the First Respondents affirmed an affidavit dated 30 March 2026. Mr Austin stated the Respondents sent instructions via email to NITMA Consulting Pty Ltd (NITMA) to provide a quotation for a structural engineer’s plan in line with the orders on 24 August 2025. Relevant extracts of the email stated:

“We are writing to request a quote for structural engineering served in accordance with court orders relating to a boundary retaining wall and associated works.

As part of these orders, we require a qualified structural engineer to:

1. Inspect the existing foundation once exposed.

2. Report on:

a) Whether the existing foundation is sufficient for each of two proposed walls, or

b) Any supplementary works required to make the existing foundation sufficient for each of the two proposed walls, or

c) Whether the existing foundation needs replacement for one or both proposed walls.

3. Provide drawings and specifications for a foundation suitable to support a 0.6m retaining wall (15m) to support either of the two alternative options:

a) A wooden lap fence, or

b) A breezeway besser block wall

We have sent the relevant order paragraph from the Land and Environment Court orders for your reference in a follow up email.

We kindly request that you provide an itemised quote for the above work. The report and drawings will be shared with both parties as part of compliance with the orders.

…”

8. On 22 October 2025 NITMA provided a structural engineering plan dated 15 October 2025 (NITMA October 2025 plan) for a suitable foundation to support a 0.6m retaining wall and a wooden lap and cap fence or a breezeway block wall (an enlarged version of this plan was marked MFI-1). The plan indicated 300mm wide and 450mm deep foundations. I was informed that the previous wall’s foundations were narrower. On 22 October 2025 NITMA confirmed via email receipt of an invoice payment for the October 2025 plan. Mr Austin annexed a bank statement showing the Applicants’ 25% payment of the invoice to NITMA on 23 October 2025 as required by Order 4.

9. Following receipt of the NITMA October 2025 plan the Respondents engaged Catlow Remedial Masonry (CRM) to complete additional digging work. This work was completed on 3 December 2025. Images of the digging work undertaken by CRM were annexed to Mr Austin’s affidavit.

Mr Austin affidavit of 10 July 2026

10. Mr Austin affirmed a second affidavit dated 10 July 2026 which stated that as the Respondents’ land slopes down to the south, the height difference between the Applicants’ and Respondents’ properties at the southern end of their gardens is approximately 1.1m. This slope was evident in the previous retaining wall, which was 0.6m high at the northern end of the Respondents’ property and 1.1m high at the southern end. A photograph of this height difference taken from the Applicants’ side of the wall prior to demolition was annexed to the affidavit. A higher retaining wall than the 0.6m wall described in Order 10 is required to retain the Respondents’ garden towards the southern end.

Applicants’ evidence

11. Mr Christensen affirmed an affidavit on 27 July 2026 which stated that on 8 November 2025 the Applicants advised the Respondents via email that they had decided “to opt to install their preferred replacement Besser block wall”.

12. NITMA was asked to provide another plan for a wall of a smaller height. In November 2025 NITMA provided a structural engineering plan showing foundations of 350mm (foundations of 450mm were specified in the NITMA October 2025 drawing). Mr Christensen annexed the November 2025 plan to his affidavit as Annexure D (Annexure D plan) (I note that the second NITMA plan was dated 15 October 2025 but must be a later date). NITMA presented an invoice for the drawing of $150 which the Respondents refused to pay.

13. The Respondents have referred to a 0.6m retaining wall consistently throughout these proceedings.

14. Roots and soil remain on the site. It is not possible to secure contractor quotations while soil and roots remain because contractors have expressed concerns they would not have clear access to the trench in which they would need to lay the foundations for the wall. Mr Christensen provided photographs of the roots at Annexures I and J of his affidavit.

15. The temporary site fence erected by the Respondents fully obscures a view of the site and prevents contractors from inspecting the soil embankment which must be removed prior to construction. Mr Christensen annexed an email dated 5 January 2026 from a landscaping contractor which stated they would arrange to visit the site again to quote on the updated fence specifications once the site was accessible (Annexure H).

16. A photograph of the original wall which remains in situ is attached to Mr Christensen’s affidavit at Annexure I-1. Photographs at Annexure J-1 and J-2 show a ‘step down’ in the Respondents’ garden at approximately 2.7m north of the southernmost end.

Respondents’ submissions

17. Orders are needed to ‘work out’ the completion of the remaining Acting Commissioner’s orders not yet carried out. The Respondents submitted Order 9 provides for the reversion of the responsibility to construct the wall to the Respondents if the Applicants did not build within twelve months of the Acting Commissioner’s Orders. Twelve months has elapsed since the Acting Commissioner’s Orders were made. As a boundary wall has not been constructed by the Applicants the Respondents now wish to construct the wall as specified in Order 10 with some amendment given current circumstances.

18. It is necessary to construct the wall promptly because the soil adjacent to the old wall which was demolished now remains adjacent to the boundary, unrestrained and exposed. The exposed soil can be seen in the photographs annexed to Mr Austin’s affidavits. The present state of the boundary between the two properties, with the temporary fence erected, can be seen in the photographs annexed to Mr Austin’s affidavit of 30 March 2026. The temporary fence does not retain the soil. It is needed for privacy and pool safety.

Proposed order 1 (a)

19. Order 1(a) in the amended notice of motion is sought because the breezeway blocks are currently stored on the Respondents’ land, and the wall will be unable to be constructed without relocating the breezeway blocks. The stored breezeway blocks can be seen in the photographs attached to Mr Austin’s affidavits. The Acting Commissioner’s Orders 9 and 10 do not contemplate re-use of the breezeway blocks. The breezeway blocks in these circumstances should be returned to the Applicants. This is not specifically provided for in the Acting Commissioner’s Orders but is a practical matter that needs to be addressed.

Proposed order 1(b)

20. Order 1(b) in the amended notice of motion is required because the wall contemplated under Order 10 cannot be built without the removal of the barbeque on the Applicants’ land. The Acting Commissioner’s Orders do not refer to the barbeque. At [101] of the judgment, the Acting Commissioner indicated that the Respondents should not be liable for any of the costs associated with the replacement of the barbeque. The Applicants have refused to demolish the barbeque. The location of the barbeque can be seen in photographs attached to the affidavit of Mr Austin dated 30 March 2026.

21. Footings wider than the footings of the previous wall need to be constructed to build a structurally sound fence. Additional soil had to be removed to accommodate the larger footings as specified in the NITMA October 2025 plan.

Proposed order 1(c)

22. Order 1(c) in the Notice of Motion reflects both Orders 7 and 10 of the Acting Commissioner’s Orders but removes the obligation for further quotations to be obtained. The Applicants have failed to execute their obligations under the Acting Commissioner’s Orders to date, and the Respondents are concerned that there is the opportunity to further delay the construction of the wall given the terms of Orders 7 and 10.

23. There is a substantial piece of land currently sitting above and adjacent to the Respondents’ pool area which is the area of soil previously retained by the base portion of the Besser block wall. It is soil and dirt held together only by the roots of the now removed nine trees. The temporary fence installed does not perform a retention function. Order 1(c) of the amended notice of motion is needed to progress the construction of the wall as quickly and efficiently as possible to enable proper retention of the soil along the boundary of the Respondents’ land.

24. The increase of the height of the retaining wall above 0.6m in part is necessary to retain the Respondents’ garden bed.

Applicants’ submissions

25. The Applicants seek the following orders:

(a) The Court makes a finding of fact that the Acting Commissioner’s orders are confirmed (Prayer 1). (b) The Court makes a finding of fact that Order 4 encompasses the provision of an engineering drawing approved for the construction of a 0.6m retaining wall fulfilling the Applicant preferred wall with two rows of breezeway blocks atop of that retaining wall (Prayer 2). (c) The Court makes a finding of fact that Order 6 encompasses removal of soil and roots in: (i) the space required for construction of the retaining wall foundation measured as 350mm deep and 320mm wide across the length of the wall and below the Natural Ground Level of Lot 267; together with (ii) the space on Lot 266 required for the installation of drainage behind the new wall and its foundation as per the approved engineering drawing procured under Order 4 (Prayer 3). (d) The Court makes a finding of fact that Orders 6, 7, 8, 10 and 11 with references to soil, roots and debris removal and/or works of construction encompass the requirement that ground protection mats be used by contractors to protect the property of the Applicants during the periods in which their property is the work site (Prayer 4). (e) The Court makes a finding of fact that orders referring to periods of time (measured in days) from the issue date of the orders, refer to 14 October 2025 (Prayer 5). (f) Orders stipulating actions by the Respondents to comply fully with Orders 4 and 6 which, at the time of this order, remain absent of Respondents’ compliance (Prayer 6). (g) An order is issued to implement the directions set out in paragraph 123 of Christensen No 1 (Prayer 7). (h) The Respondents’ notice of motion filed on 25 February 2026 and amended notice of motion filed on 10 July 2026 are dismissed (Prayer 8). (i) An order for costs is issued requiring the Respondents to pay the Applicants the amount of $770 being the cost of legal service fees incurred by the Applicants (Prayer 9).

Order 7 scope

26. The words in brackets in Order 7 (‘to be clarified’) enable the Applicants to choose the height of the wall they wish to build. The Applicants wrote to the Respondents on 8 November 2025 stating that they intend to build a Besser block wall with two courses of Besser majestic blocks (not four courses as the previous wall had), a wall 1.2m in height. The Applicants want to build their preferred wall based on the Annexure D plan which they consider was obtained pursuant to Order 4. This wall requires a smaller foundation. I understand the Applicants also consider the smaller foundation would let them keep their barbeque.

Inability to complete Order 7

27. The Applicants submitted as the Respondents have not fulfilled Orders 4 and 6 which are prerequisites to the completion of Order 7, they have not been able to construct the Besser block wall of their choice. The timeframe for the Applicants’ completion of Order 7 needs to be extended because of the Respondents’ failure to fulfil Orders 4 and 6.

Order 4 not complied with

28. The second quotation and plan provided by NITMA (the Annexure D Plan) with invoice not paid was obtained to satisfy Order 4 and was to enable building of the Applicants’ preferred wall as permitted by Order 7. The Respondents’ refusal to pay the invoice meant that Order 4 has not been complied with by them.

Order 6 not complied with

29. The Applicants submitted the Respondents have not complied with Order 6 by failing to remove sufficient soil to enable contractors’ quotations to be obtained. Consequently they have not been able to comply with Order 7 to build their preferred Besser block wall.

30. Order 6 imposes on the Respondents the duty to remove soil and roots “to provide safe, clear access for the subsequent wall construction”. Thus it separates and distinguishes between, the activities of soil/root removal and subsequent construction. The Respondents prefer instead to interpret the act of ‘construction’ as incorporating the act of ‘excavation’ which may be considered to be a synonym for ‘remove’. Such an interpretation would shift the expense of soil/root removal from a Respondent obligation to a shared expense with the Applicants. Thus, a difference of interpretation has arisen. There are three means of illuminating the correct meaning: first, an analysis of individual word meanings; second, a syntactic analysis of the sentence; and third, a contextual analysis arising from the overall findings of the Acting Commissioner.

31. The operative words in Order 6 are “remove” and “construction” where the latter can be considered in its verb form: “to construct”. “Remove” means to take something away. It is an antonym of the word “construct”. The word ‘construct’ means to create something. However, in the building industry the word “excavate” may be considered as a synonym to “remove” and the word “construction” may be taken to mean the sub-processes typically required to erect a building, one such sub-process being a clearing of excavation of the building’s site. In such a reading , the word ‘construct’ is a hypernym to the word “remove”; that is, “construct” may be read as an umbrella term encompassing others and the word ‘remove’ could be considered to be an hyponym of “construct”. However, when both words are placed near each other in the same sentence, as is the case in Order 6, the reader can expect that their different (opposed) meanings are intended. The Respondents’ interpretation of Order 6 fails: soil/root removal cannot be the same as “construction”.

32. Order 6 refers to “remove” and “construction” in the same sentence to convey two separate antonymous meanings, not a single meaning. To remove soil and roots cannot convey a meaning of the act to construct soil and roots, especially when these words are used in conjunction. Thus, on an analysis of the sentence meaning, the Respondents’ interpretation of Order 6 fails.

Cannot arrange inspection by contractors

33. The Respondents have erected an opaque site fence along the boundary obscuring inspection of the place where the wall will be built. This has made it difficult for contractors to quote as identified in the email marked Annexure H to Mr Christensen’s affidavit.

Barbeque

34. The Respondents’ claims regarding the barbeque demolition do not accurately reflect the facts. Demolition of the barbeque was not required by the Acting Commissioner’s Orders.

Retaining wall

35. The Applicants oppose any variation of the retaining wall height beyond 0.6m. This proposed order would override the Acting Commissioner’s clear ruling that the retaining wall be 0.6m high. The proposed order asserts that the Respondents’ above ground garden is deeper at its southern end compared to its northern end. That assertion is false.

36. In eight places in Christensen No 1 there are references to the height of the retaining wall being 0.6m. That is a foundational aspect of the Acting Commissioner’s Orders. To attempt to re-litigate that matter, in the absence of any changed circumstances would damage the “public interest in ensuring the finality of judicial decisions”: Smith v Kaddour [2017] NSWLEC 117 at [20]). The Respondents did not raise the issue of the wall height needing to differ from 0.6m yet they “could and should have” done so, if they had cause. Such a breach is prevented by ‘Anshun estoppel’ as explained by French CJ in Tomlinson v Ramsey Food Processing (2015) 256 CLR 507; [2015] HCA 28 at [22]:

“to preclude the assertion of a claim, or the raising of an issue of fact or law, if that claim or issue was so connected with the subject matter of the first proceeding as to have made it unreasonable in the context of that first proceeding for the claim not to have been made or the issue not to have been raised in that proceeding”.

37. Proposed order 1(c) advances the proposition that the Respondents’ garden with a height difference between the Applicants’ and Respondents’ properties reaches a height of 1.1m at the southern end. Two facts disabuse the proposition. First, as shown in photographs annexed to the affidavit of Mr Christensen there is a “step down” in the Respondents’ garden at approximately 2.7m north of the southernmost end. That “step” accommodates a reduced height in the garden at approximately the point where the partially above-ground pool becomes relevant. I note the second “fact” was information that arose at the hearing before the Acting Commissioner and referred to material that was not before me. The Applicant submitted the appropriate solution was a “step down” of the fence, meaning the fence would be built with two different heights.

38. Rule 40.8 of the UCPR therefore cannot apply to the Applicants. The Respondents are seeking to relitigate matters decided by the Acting Commissioner. Both notices of motion should be dismissed as abuses of process due to being res judicata, to which issue estoppel applies. The Respondents have a collateral improper purpose in this proceeding: to delay and prevent the Applicants’ compliance with the Orders so that the option to build is reversed.

39. An order to ensure protection of tiles on the Applicants’ land is needed, as provided for at [123] of Christensen No 1.

Finding

40. The orders made by the Acting Commissioner on 22 August 2025 have been partly complied with. The Applicants have not built a Besser block wall in the current location as contemplated in Order 7. A year has elapsed since the Acting Commissioner’s Orders were made on 22 August 2025. As a result under Order 9 if the Applicants do not complete construction of the wall in Order 7 the Respondents have the option of building a timber wall as provided in Order 10.

41. Rule 40.8 of the UCPR provides:

Part 40 Additional measures for enforcing judgments and orders of the Supreme Court and District Court

…

Division 2 Provisions applicable to the Supreme Court, Land and Environment Court and District Court

…

40.8 Substituted performance

(cf SCR Part 42, rule 9)

If a judgment requires a person to do an act and the person does not do the act, the court—

(a) may direct that the act be done by a person appointed by the court, and

(b) may order the person to pay the costs incurred pursuant to the direction.

42. Section 23 of the LEC Act provides:

Part 3 Jurisdiction of the Court

Division 1 General

…

23 Making of orders

The Court has power, in relation to matters in which it has jurisdiction, to make orders of such kinds, including interlocutory orders, as the Court thinks appropriate.

43. Rule 40.8 of the UCPR and s 23 of the LEC Act provide the Court with powers to make orders in the nature of substituted performance and other orders in respect of s 23: Queanbeyan-Palerang Regional Council v Alaa Abutaleb Pty Ltd [2025] NSWLEC 106 (Pain J) at [16].

44. The Court of Appeal in Australian Hardboards Ltd v Hudson Investment Group Ltd (2007) 70 NSWLR 201; [2007] NSWCA 104 (Australian Hardboards) at [50] (Campbell JA, Tobias JA agreeing) stated:

“When final relief has been granted in a suit, an order granting liberty to apply enables further orders to be made which are necessary for the purpose of implementing and giving effect to the principal relief already pronounced or, as it is sometimes called, ‘working out the order’. (Citations omitted). The manner of invoking liberty to apply is by a substantive motion on notice. (Citations omitted).”

45. While no express liberty to apply was granted in these proceedings, it is accepted that there may be an application made to “work out the orders”: Phillips v Walsh (1990) 20 NSWLR 206 (McLelland J) at 209-10 (Phillips). It was also accepted in Maurici v Kaldor [2024] NSWLEC 121 (Maurici) at [19] that:

“…the working out exception did not permit applications which would provide for relief that departs from either that which was originally sought in the originating application or the orders the subject of the working out application themselves: see Phillips at 209 and Australian Hardboards at [52]. Nor does such an application permit review or reconsideration of the orders in question: see Rosser v Maritime Services Board of New South Wales (No 2) (1996) 14 BCL 375 at 382.”

46. In both Urquhart v Hayman (No 2) [2012] NSWLEC 269 (Urquhart) and Maurici the Court accepted that it had power to “work out” orders made by Commissioners considering the Trees Act. In both matters the Court acknowledged that it was limited by the findings in the original judgment: Urquhart at [91]; Maurici at [19]. Further, it has been stated that recourse can be had to the reasons for judgment in order to consider whether to make a “working order”: Maurici at [21].

47. I consider the proposed orders are in the nature of “working out orders” of the character referred to in Phillips at 209-10 and as occurred in Urquhart and Maurici. The history of the matter as outlined in the parties’ respective affidavits and submissions suggest that the parties are at an impasse, one reason to make working out orders. A further reason to make working out orders is that the Respondents did the work required of them through contractors in September and December 2025. Because the required boundary wall with new foundation has not been built, the soil on the Respondents’ land is not retained at all by any built structure, as is clear from multiple photographs attached to Mr Austin’s affidavits.

48. As the photographs attached to Mr Austin’s affidavit make clear a wall with a retaining function is needed given that there is currently a ‘shelf’ of unrestrained soil for several metres between the parties’ properties as these are at different heights (the Respondents’ land is higher than the Applicants’ land). Making orders to work out compliance with the remainder of the orders is needed if the Acting Commissioner’s Orders are to be given effect. In order to determine the appropriate way to do so I have reviewed the orders and the entirety of Christensen No 1.

49. It is unnecessary to find fault by any party in relation to what has given rise to the orders not being able to be completed in order to determine the working out of the orders. I will nevertheless address the parties’ submissions.

Order 7

50. The explanation by the Applicants for not completing the wall contemplated in Order 7 is not accepted given the terms of that order and the judgment when read as a whole. The Applicants’ principal argument is that they considered they were permitted by Order 7 to nominate a preferred Besser block wall and chose to reduce the height of the wall to be built, as they advised the Respondents by email in November 2025 after the Acting Commissioner’s Orders had been made. Their preferred wall required a reduced foundation size as shown in the Annexure D plan.

51. Order 7 provides a description of the Besser block wall as “(i) foundations required for a 0.6m tall Besser block wall retaining the Respondents’ garden, based on the engineer’s report, and, (ii) construction of a wall in the current location, comprising up to five courses of recycled Besser blocks topped with four courses of recycled Besser majestic screen blocks (to be clarified by the applicants) with pillars reinforced with concrete, at 3m spacing, including a functional replacement outdoor double power point”. Numerous references to a 1.8m wall height are found in the judgment and expressly in Order 10. When the judgment and orders are read as a whole the Acting Commissioner was making orders requiring a 1.8m boundary fence to be built on a new foundation whether in Besser blocks (Applicants) or timber (Respondents). Order 7 did not provide to the Applicants an ability to reduce the height of the wall to be built.

52. I do not accept that the Applicants were frustrated in their carrying out of Order 7 by any actions of the Respondents. I find that Order 4 has been complied with by the Respondents. The NITMA October 2025 plan was obtained by the Respondents expressly to comply with the Acting Commissioner’s Orders as is clear from the request to NITMA. The invoice was paid by the Respondents (75%) and the Applicants (25%) as provided by Order 4.

53. The alleged outstanding failure to comply with Order 6 in that insufficient soil was not excavated is not accepted given photographs showing excavation of soil was undertaken including Mr Austin’s evidence that additional excavation work was requested and carried out by CRM on 3 December 2025 to accommodate the necessary footing. The only evidence of attempts by the Applicants to have a contractor attend to give a quotation was Annexure H of Mr Christensen’s affidavit of 27 July 2026. This email from a contractor does not support his submission as it is not apparent that the contractor attended the site having returned from holiday only the day before. No evidence of any request to the Respondents to provide access given the temporary fencing in place was provided by the Applicants.

54. The Applicants’ submission that the Respondents were impermissibly blurring a distinction in Order 6 between excavation and construction work as the two are separate activities is not accepted given the Respondents’ evidence. It is unnecessary to address the Applicants’ lengthy construction arguments concerning the meaning of Order 6 seeking to distinguish between soil and root removal, excavation and construction on the basis they considered the Respondents were incorrectly interpreting the order. I am able to accept that there is a distinction between the three terms but no necessity for construction of Order 6 arises from such a distinction including by introducing the concept of excavation when that word does not appear in the order. A plain reading of the order together with the evidence of the Respondents of what they had done by their contractors enables a conclusion to be drawn that the extent of the removal of soil and roots arranged by them means that Order 6 has been complied with.

Date of orders confirmed as 22 August 2025 – Order 9 in effect

55. The Applicants sought an order that the Acting Commissioner’s Orders be dated 14 October 2025, the date the judgment was amended in accordance with the slip rule. The utilisation of the slip rule does not change the date of the judgment being amended. The date of the Acting Commissioner’s Orders is 22 August 2025. Given the Applicants did not complete the wall by 22 August 2026 the reversion mechanism in Order 9 should take effect.

56. While the Applicants seek further time to build the wall provided for in Orders 7 and 8 such an order is not required for the working out of the orders. In the absence of agreement as to variation of the timeframes such orders are not available in my view. Nor in the circumstances of several months delay in building a Besser block wall would such an order be appropriate.

Modified Order 10 – Respondents’ proposed order 1(c)

57. The Respondents seek an amended Order 10 as they consider that is necessary to ensure they are in a position to construct the wall without further unnecessary delay. I agree.

58. The further amendment of Order 10 to consider is the retaining wall height variation sought by the Respondents. There is no basis identified in Christensen No 1 for increasing the height of the foundation above 0.6m, and as the Applicants emphasised there are numerous references to 0.6m in the judgment. I accept Mr Austin’s affidavit evidence that an increase in foundation height towards the southern boundary is necessary because of the variation in the depth of the garden bed resulting from the sloping land. While the Applicants have submitted the timber wall should be ‘stepped’ in height I agree with the Respondents’ submission that the Acting Commissioner’s reference to a ‘like for like’ wall suggests a continuous height wall reflects the judgment and reflects what is being replaced.

59. The terms of any amendment must identify precisely what can be built to ensure the overall timber section wall height is no more than 1.8m. Varying Order 10 in this manner is intended to finalise as far as possible matters in issue between the parties. An order in similar terms to proposed order 1(c) will be made with possible amendment to reflect the intention of having an overall height limit of 1.8m above any foundation.

Respondents’ proposed order 1(d)

60. As the precise scope of the wall will only be determined once these orders are made whether a CDC or development consent is required under the Environmental Planning and Assessment Act 1979 (NSW) is presently unknown and further consultation with the Council will be necessary to clarify the situation. If it is necessary to apply for a development consent, the consent of the Applicants as landowners will be necessary. An order in similar terms to proposed order 1(d) will be made in order to facilitate any such application.

Demolition of barbeque – Respondents’ proposed order 1(b)

61. The Applicants submitted an order requiring demolition of the barbeque is not warranted because the dimensions of the foundations do not require its demolition. This submission was based on the Applicants’ assumption that their proposed wall with a smaller foundation can be built. I have found no basis exists for that construction of the orders. Order 7 provided expressly for the wall to be constructed in the current location. The NITMA October 2025 plan identifies the size of the necessary foundation. As demolition of the barbeque is required the Respondents’ contractors can be ordered to do so. Before so ordering I will ask the Applicants if they wish to arrange for the dismantling of the barbeque. They can store the blocks in a location which will not impede the building of the new wall or dispose of them as they wish, with that work to be done in a short fixed timeframe of approximately three weeks or less. If not done in three weeks the removal of the barbeque can default to the Respondents’ contractor. Orders to require demolition by the Applicants or alternatively the Respondents in similar terms to proposed order 1(b) will be made.

Besser blocks – Respondents’ proposed order 1(a) not required

62. A timber fence will be built by the Respondents as provided in a modified Order 10. I understood from the Applicants during the hearing that the Besser blocks on the Respondents’ land are not required in these circumstances. Proposed order 1(a) need not be made so that the Respondents can dispose of these blocks on their land as they see fit.

Respondents’ proposed order 1(d)

63. Imposing a timeframe for the commencement and completion of the work by the Respondents’ contractors is necessary and desirable. An order in similar terms to proposed order 1(d) will be made.

Applicants’ orders not appropriate

64. The Applicants sought the making of nine orders. The orders sought by the Applicants are mostly not appropriate in that there is no legal reason to confirm the Acting Commissioner’s Orders (Prayer 1). No finding of fact can or need be made in the terms of Prayer 2 or Prayer 3. Ground protection of the Applicants’ land is already provided for in Order 3. No need for Prayer 4 therefore arises. No basis exists for Prayer 5 given my conclusion above at [53]. No basis exists for Prayer 6 given findings above that Orders 4 and 6 have been complied with.

65. Prayer 7 seeks an order for agreement about payment of costs for tiles recently damaged on the Applicants’ land, as is expressly referred to at [123] of Christensen No 1. No order in those terms was made in the judgment. Such an order appears appropriate provided that it can be worded so that there is minimal opportunity for disagreement as the parties are not presently able to act co-operatively. I will discuss possible wording with the parties for such an order.

66. No basis exists to make Prayer 8 as I am not dismissing the notice of motion. I consider costs below.

67. The Applicants’ submission alleging relitigation of matters determined by the Acting Commissioner does not accurately characterise the Respondents’ case. No Anshun estoppel arises and no improper purpose exists in the circumstances.

68. For clarification I have considered the Acting Commissioner’s Orders 2-9 above. Modification of Orders 10 and 11 is necessary for working out their overall implementation, together with new orders to achieve the same. I will provide six draft orders to the parties reflecting my reasons in order to provide an opportunity for their consideration and submissions before finalising the orders today. Timeframes will need to be closely considered to ensure that all required work has a completion date. The Acting Commissioner’s Orders 12 and 13 remain in effect.

Costs

69. The Respondents seek the costs of their amended notice of motion. The usual practice in Class 2 proceedings is that each party pay their own costs. Rule 3.7(2) of the Land and Environment Court Rules 2007 (NSW) (LEC Rules) states that in Class 2 proceedings the Court is not to make an order for the payment of costs unless the Court considers that the making of an order as to the whole or any part of the costs is fair and reasonable in the circumstances.

70. The Respondents submitted that it was fair and reasonable for the Court to award costs under r 3.7 of the LEC Rules. The Respondents submitted the Applicants had “acted unreasonably in the proceedings”, which is a circumstance to consider when deciding whether a costs order is fair and reasonable under r 3.7(3)(d).

71. Weighing up the matters before me and it not being necessary to find fault by either party, an award of costs is not appropriate in the terms sought by the Respondents in the amended notice of motion or in the terms of Prayer 9 as sought by the Applicants. No order in relation to costs will be made.

**********