Diab v Cavasinni

Land and Environment Court (NSW)|2020-06-24|Before: Robson J

Judgment

These civil enforcement proceedings commenced on 15 December 2017 essentially involve a dispute between neighbours. By way of amended summons filed on 16 February 2018, Mrs Dolly Diab, the registered proprietor ('applicant') of 29 Nelson Parade, Hunters Hill seeks declaratory and consequential mandatory injunctive relief against each of Mrs Maria Cavasinni, Mr Francesco Cavasinni and Cavcorp Australia Pty Ltd (collectively, the 'respondents') in relation to certain construction and development undertaken at 27 Nelson Parade, Hunters Hill.
Although the amended summons and points of claim filed by the applicant seek detailed relief, the issue presently before the Court involves a preliminary determination as to whether certain building works undertaken at 27 Nelson Parade ('Cavasinni property') were contrary to a development consent granted in 2010. As such, apart from making factual findings, this judgment does not involve consideration of appropriate relief.

Background

Although I summarised the background to the dispute when I dismissed an application made by the respondents to adduce further expert evidence in Diab v Cavasinni (No 2) [2020] NSWLEC 32 at [4]-[11], some further explication of the procedural history and background facts is necessary.
The applicant is the registered proprietor of 29 Nelson Parade ('Diab property') comprising a two-storey dwelling house that steps down from Nelson Parade towards Parramatta River, and is connected to Nelson Parade by way of a right of carriageway being a concrete driveway running across the northern part of the adjacent Cavasinni property at 27 Nelson Parade.

Evidence

Over the course of a four-day hearing, which initially proceeded in court on 3 and 4 February and thereafter by audiovisual link on 20 May and 24 June 2020 (in accordance with the Court's COVID-19 Pandemic Arrangements Policy), the Court received extensive documentary, affidavit and oral evidence, as well as detailed written and oral submissions.
Mr J Hutton, of counsel, appeared for the applicant and Mr J Doyle and Ms A Kumar, of counsel, appeared for the respondents.
The applicant relies on two affidavits of Danny Diab, the applicant's husband, sworn 12 November 2018 and 29 January 2020; two affidavits of Stuart de Nett, surveyor, sworn 28 September 2018 and 29 January 2020; an affidavit of Shirley Kit-Ling Leung, solicitor, affirmed 31 January 2020; and various documentation comprising survey plans and various historical photographs.
The respondents rely on three affidavits of Francesco Cavasinni affirmed 20 November 2018, 23 December 2019 and 31 January 2020; an affidavit of John Bottaro, surveyor, sworn 31 January 2020; an affidavit of Wayne Spicer, electrician, affirmed 29 January 2020; an affidavit of Livio Pace, earthmoving contractor, affirmed (during his oral evidence) on 4 February 2020 which annexes an earlier affidavit affirmed 18 November 2016; and documentation comprising photographs and other documents produced by Mr Spicer.
Each of Mr Diab, Mr de Nett, Mr Bottaro, Mr Spicer, Mr Pace and Mr Cavasinni gave oral evidence.

Issues in dispute

As a number of allegations of breach made in the points of claim are admitted by the respondents and noting that some further aspects of the works are agreed (in the statement of agreed facts) to be not in accordance with the Consent, it is convenient to record that the following breaches (although there remains some dispute regarding the extent of some of the breaches) are now generally admitted: 1. The lower roof ridge levels (also referred to as the "apex of the gables") are approximately one metre higher than the height specified in the approved plans; 2. Two additional glass full length windows (alternatively described as "French doors") have been added to the west elevation that are not included in the approved plans; 3. The footprint of the garage and the configuration of the surrounding landscaping are not in accordance with the approved plans; 4. The structures labelled "garage", "storage room" and the roof depicted in "Annexure A" to the points of claim (and similarly this judgment) encroach upon the "Easement for Support", "Easement for Services" and "Right of Carriageway" shown in that annexure. 5. Steps and a tiled landing have been constructed on the boundary with the Diab property; and 6. Concreting and planting of vegetation has been undertaken in the area of the Cavasinni property to the north of the concrete driveway (Right of Carriageway).
Given the respondents' various admissions, the issues remaining in dispute (in relation to breach) have been narrowed substantially and, although there are a number of disagreements between the parties regarding various aspects of the works, the following primary matters remain for determination by the Court at this stage of the proceedings: 1. Whether the roof of the dwelling has been constructed otherwise than in accordance with the Consent or the EPA Act and, if so, the extent of any non-compliance with the approved plans; 2. Whether a private electricity pole erected on behalf of the applicant has been removed otherwise than in accordance with the Consent or the EPA Act; and 3. The nature and extent of the material removed adjacent to the concrete driveway and, in particular, whether the respondents (in concreting and the planting of vegetation referred to at 25 above) have excavated what is alleged by the applicant to be a substantial sandstone outcrop (variously referred to in the evidence and submissions as "rock outcrop", "stone outcrop", and/or "rock escarpment") located north of the concrete driveway servicing the Diab property or whether, as the respondents contend, the excavation undertaken was only so much as was necessary to "dig planters", and whether such removal constituted a breach of either the Consent or the EPA Act.
Notwithstanding the above, the further discrete matters that arise for consideration include whether the approved plans permitted the construction of piers, a fence and stone utility cupboard (also referred to as "electricity box") within the Easements for Services, and the precise form in which the Court would make findings given the separate nature of these proceedings.
Given that extensive evidence was marshalled and the submissions were directed to the various issues in the order mentioned at [26]-[27] above, and that the parties each proffered draft proposed orders in a similar form, following some preliminary comments I shall consider the issues in a similar sequence.
On behalf of the respondents, as a preliminary submission, Mr Doyle raises a number of matters which he submits would affect the manner in which the Court approaches the consideration of the evidence in relation to the remaining issues. First, he submits that the Court would be conscious that the allegations concern conduct which occurred up to 10 years ago with the consequence that the respondents have been deprived of the opportunity to marshal the type of evidence that they may otherwise have been able to if the allegations, and these proceedings, had been brought earlier. He points to various authorities in which courts have considered prejudice resulting from the unavailability of evidence due to the effluxion of time and, more particularly, whether evidence which may have cast a different complexion on the matter may have been lost.
Second, Mr Doyle submits that there is some disadvantage to the respondents arising from the manner in which Preston J directed this separate question. In particular, he says that although the nature of the allegations made would ordinarily render certain defences such as delay and laches available, the manner in which the Court is now considering the matter appears to disentitle the respondents from raising these defences at this stage. He also raises the concern that a number of the breaches could be dismissed as being de minimis.
Finally, as I understand the submission, Mr Doyle suggests that the Court would be conscious that discretionary matters will arise when the Court is later considering whether to grant relief that may follow from the findings with which the Court is presently engaged.
Mr Hutton submits that as a result of the concessions made at a late stage by the respondents in the amended points of defence and the clarification of their position in the respondents' written submissions, the issues in dispute (on the breach) have been narrowed substantially. He states that no explanation has been given for why the respondents saw fit to keep those allegations and issues alive for over two years and only made admissions after the failure to have the present hearing dates vacated. This submission relates primarily to a claim that the applicant has incurred significant legal costs over several years in relation to certain breaches which he submits have belatedly been admitted.
In response to a suggestion on behalf of the respondents that the Court should not make orders in relation to matters that are not specifically pleaded, Mr Hutton submits that the Court may make any order in respect to any part of a claim that is to be substantially determined by the separate question. In particular, he submits by way of example, that although the points of claim contain confined breaches in respect of the roofline to the lower roof ridge levels, in the amended points of defence, the respondents contend that the extra height is the result of the pitch of the gables and Mr Cavasinni deposes that there is no corresponding "increase in the height across the entire roof". In these circumstances, the applicant submits that these submissions raise matters that are appropriate for determination and the Court would not, at this stage, allow the respondents to argue that the extent of any breach in respect of the roofline was de minimis or otherwise.

Construction of the roof

In relation to the roof, the points of claim confined the alleged breach to the constructed height of the ridges of the lower roofline. This was admitted. However, as noted above, the applicant submits that although the respondents have accepted this breach, they also contend that there is no corresponding increase in height "across the entire roof". The applicant submits that this contention must relate only to the question of discretion which is not presently before the Court.
I consider that the extent to which the roof is not compliant with the Consent is a matter properly within the preliminary question articulated by Preston J and has been addressed in some detail in the expert evidence.
In making my findings in relation to the height of the ridges, I have considered the detailed evidence of both expert surveyors, being Mr Bottaro and Mr de Nett, which includes their affidavits and their oral evidence given on the first day of the hearing.
The expert surveyors substantially agreed on issues relating to the ridges of the lower roofline and regarding the height of the gutter.
In relation to the ridges of the lower roofline, Mr de Nett considered that they have been constructed to a height of RL31.19 and Mr Bottaro considered that they had been constructed to a height of RL31.20, with both witnesses accepting that the difference was not material - that is, within a reasonable margin of error. In the circumstances, I find that the approved plans depicted RL30.16 which is a difference of a little over one metre.
Although there was a suggestion (and an expression in the amended points of defence) that the extra height is principally a result of a steeper pitch of the gables, having considered the documents prepared by Mr de Nett (being a marked-up version of drawing DA-A-303 and drawing DA-A-402, which was annexure "E" to the affidavit of Mr de Nett sworn 29 January 2020) which Mr de Nett marked as "built roofline on top of the approved roofline", I consider that the lower roofline does exceed the approved roofline and I do not accept that the extra height is principally a result of a steeper pitch of the gables.
As to the ridges of the main roofline, Mr de Nett considered that the ridges of the main roofline had been constructed to a maximum height of RL31.94 and Mr Bottaro considered that they had been constructed to a height of RL31.91. Both witnesses accepted that the difference was within a reasonable margin of error. As such, I find that the ridges of the main roofline have been constructed to a height of approximately RL31.94 in circumstances where the approved plans require a finished RL of between RL31.35 and RL31.76, depending on whether height is determined by scaling the plans or by using the height expressed in numerical figures. Although there was some debate regarding the use of scaling, in the circumstances I accept the evidence of Mr de Nett that the main roofline exceeds the height required by the approved plans.
In relation to the height of the gutter, it was agreed between the experts that the surveyed height of the gutter (as constructed) was RL28.6 and while there was no printed numerical figure on the approved plans showing the height of this feature, Mr de Nett, by a scaling exercise, determined that the approved height was to be RL28.1. While Mr Bottaro had some concern in relation to the scaling exercise, he did not disagree with the manner in which Mr de Nett had undertaken that exercise. Although Mr de Nett was challenged in cross-examination as to this scaling exercise, as there is no numerical figure on the plans for the gutter, in the circumstances I accept Mr de Nett's figures and his manner of determination. As such, I will record my finding below that the gutter has been constructed to an RL of 28.6 and the approved plans (by scale) depict a finished RL of 28.1.
In passing, noting that the Court is presently only making findings in relation to breach, although the Court has received evidence of various witnesses regarding the effect of the finished roofline of the Cavasinni property upon neighbours and that the finished roofline substantially reflects a height of roofline which was earlier proposed in plans in the Class 1 appeal proceedings in this Court which resulted in the Consent, I do not consider that evidence to be relevant and do not attribute any weight to it in relation to the matters presently before me.

Electricity Pole

The applicant claims that demolition work involving the removal of a private electricity pole owned by the applicant and Mr Diab was not in accordance with the Consent, in circumstances where it was not permissible to remove the pole without development consent pursuant to the EPA Act. In simple terms, it is alleged that the pole, which was located on public land and had been in situ for over 10 years, was removed as part of the development of the Cavasinni property.
The respondents deny removing the pole and plead that it was removed by the local electricity network operator after consultation with the applicant and/or her husband.
As candidly noted by Mr Hutton, this issue has never been a "major" issue and, despite the relief sought in the amended summons, the applicant does not seek that the pole be reinstated. Mr Hutton submits that the applicant's real complaint was that, previously, the electricity pole was on public land and she was not beholden to the owner of the Cavasinni property in respect of accessing her electricity supply. Although she now has an underground electricity line, it is one where her junction box (variously referred to in evidence and submissions as "stone utility cupboard" and "electricity box") is "squeezed between two piers" in part of the Cavasinni's metal palisade and sandstone fence which the applicant also maintains is non-compliant with the Consent.
The evidence and submissions in relation to the pole were extensive. It is clear that the pole was installed when the applicant and Mr Diab developed their residence in about 2004, however there is significant disagreement as to whether the applicant or Mr Diab agreed to the removal of the pole as provided for in the respondents' evidence and submissions.
Mr Diab gave evidence that neither he nor (to the best of his knowledge) the applicant had ever agreed to the removal of the pole. Contrary evidence was given on behalf of the respondents by Mr Cavasinni as well as Wayne Spicer, the electrician who undertook the electrical work on and in the area of the Cavasinni property.
Mr Cavasinni deposes that he had detailed conversations with Mr Diab in which the arrangements for the relocation of the electricity services (including the removal of the pole) were explained to Mr Diab and that Mr Diab had accepted these arrangements.
Mr Spicer gave evidence that he carried out work including the removal of the pole and the installation of the underground electricity connections in 2016, and that he had discussed what was occurring with the "owners of no 29". He deposes that he is an electrical service provider accredited by Ausgrid and that the work he undertook involved both the private electrical installations on the Cavasinni property, as well as connections to the applicant's property which were "part of Ausgrid's infrastructure".
The respondents point to documentation produced by Mr Spicer including an email from Mr Spicer to Ausgrid of 13 September 2011 which states that "the property owner of 29 has agreed to the changes at Cavcorp's expense" as corroborative of his evidence. While he was cross-examined about that email and other documents, Mr Spicer maintained that he spoke to the applicant or her husband and "told them what we were going … to do". Although he was unable to produce documentation showing that the applicant agreed to the work being undertaken, he remembers being given access to the Diab property.
In relation to a conflict in the evidence, the respondents submit that Mr Spicer's documented independent evidence is to be preferred to the recollections of Mr Diab, and the applicant submits that the Court would find at most that the applicant was told that electricity works were being carried out and that these works would require the electricity to be disconnected for a period of time.
The applicant submits that the Court would not find that either the applicant or Mr Diab gave consent for the removal of the pole or the relocation of the junction box which replaced the electricity pole.
Given the Court has conflicting evidence and noting that the evidence of Mr Cavasinni in relation to his dealings with the applicant or Mr Diab does not coincide with that of Mr Spicer, I consider that the fact that the events the subject of the evidence took place up to eight years ago goes some way to explaining the differing versions of events. Accepting that it is not contended by the applicant that Mr Spicer was not an honest witness, there is some strength in the applicant's submission that Mr Spicer's evidence should instead be understood as reflecting his long experience as an electrician that owners generally prefer underground to overhead electricity lines and would usually agree to that type of installation. Further, when pressed, as Mr Spicer's only actual recollection was having a discussion with the applicant (and not Mr Diab), the applicant submits his evidence would not be seen to be compelling.
In the circumstances and having read the material including the background documentary material produced by Mr Spicer, and observing each of Mr Diab and Mr Cavasinni and Mr Spicer in the witness box, I am unable to conclude that it was more likely than not that the applicant and/or Mr Diab were not told about, and did not agree to, the removal of the pole. However, I do not consider that this finding is necessarily determinative as I have a concern regarding whether the verbal consent or otherwise of the applicant (either on her own behalf or through Mr Diab) is, or would be, determinative of the issue presently before the Court which is the question of whether the Consent provided for the removal of the pole.
In this regard, the respondents submit, first, that the approved plans do not provide for the electricity pole to remain such that, if any electricity pole remained, it would be a departure from the approved plans. Second, the provision of a "discrete plinth hidden behind a pillar" (referring to the electricity or junction box) is more consistent with the approved plans than leaving a pole in place, particularly in circumstances where there was previously an electricity box suspended two metres in the air which, if required to be maintained, would have been conspicuous and have been reflected in the approved plans. Third, to the extent that the removal of the pole has "facilitated construction of the Cavasinni residence" as contended by the applicant, that submission supports the proposition that the construction of the Cavasinni residence would require, and involve, the removal of the pole. Fourth, the complaint is made many years after the removal such that the issue of delay arises strongly.
In the above circumstances, I am not satisfied that the removal of the pole was not in accordance with the Consent nor that it involved a breach of the EPA Act. That is not to say that I do not have a residual concern as to the conduct in relation to the removal of the pole and whether, as noted above, there were conversations or otherwise. Again, and put simply, the consent or agreement to the pole's removal by the applicant (or her husband) would not, in any event, determine whether the Consent (or the EPA Act) was complied with. Despite this, leaving aside a preference for, or acceptance of, one or more of the competing versions of events given by Mr Diab, Mr Cavasinni and Mr Spicer, there is force in Mr Doyle's submission that the pole does not appear to figure in the documentation necessarily incorporated in the Consent (being the approved plans and other material), and although there is some evidence as to its location in the records adduced by Mr Spicer, a determination is unable to be made in relation to its precise location. Although I have a concern in relation to the location of the junction box (into the palisade and sandstone fence), I am not satisfied that this on its own or in combination with the removal of the pole was not authorised by the Consent.

Sandstone outcrop

The applicant claims that, contrary to the Consent, excavation of a substantial sandstone outcrop and removal of vegetation has been carried out in the area of the Cavasinni property to the north of the concrete driveway servicing the Diab property. The respondents deny any significant excavation of sandstone in that location "other than to dig planters" into the stone for plants - however, they admit that a mechanical excavator was used to remove material in the area and that there was some reconfiguration of the "finished landscaping in that location to accommodate the parking of vehicles which has involved additional concreting" which they accept is a breach of the Consent. As such, this aspect of the dispute involves whether the respondents excavated a substantial area of natural sandstone, as noted above variously described as "rock outcrop"; "stone outcrop"; and/or "rock escarpment" and replaced this feature with concrete for carparking spaces. There was significant evidence called in relation to this issue.
The essential dispute between the parties concerns the precise nature of the material that was in the area marked "RETAIN EXISTING VEGETATION" on the approved plans before the work was carried out. The applicant contends that there was a "sandstone outcrop" in that location and that it was a natural, intact sandstone structure of up to approximately 2.75m in height. The applicant submits that its earlier presence and extent is indicated on a survey dated 26 March 2004 undertaken by Garvin Morgan & Company and, as also noted on a more recent survey prepared by Mr de Nett.
It is common ground that the approved plans contain the words "RETAIN EXISTING VEGETATION" in the area which now presents as a flattened concrete surface. The extent of the concrete is shown in the survey plans prepared by Mr de Nett (annexure "A" to his affidavit of 29 January 2020) and Mr Bottaro (Exhibit 1). It is clear that the approved landscape plan provided for the retention of existing vegetation in the area generally to the north of the driveway. It is also common ground that certain work in the area was undertaken by Livio Pace who was contracted in 2010 by the third respondent to undertake work at the Cavasinni property, having been specifically asked by the second respondent to "clean an area to the north of the Right of Carriageway". In conducting this work, Mr Pace deposes that he used an "IHI mini excavator" to remove matter including "loose rocks and boulders". It is also common ground that the work done by Mr Pace, at the direction of one or more of the respondents, resulted in a changed presentation of the area.
Although Mr Pace could not recall specific items that were removed from the area, he recalled that floating rocks and boulders were "mixed in with fill" and that the material he removed from the north of the driveway may have included boulders. Despite this, he says that he did not excavate any solid "rockface" and could not use the IHI mini excavator to remove solid "rockface".
The applicant submits that the evidence indicates that the sandstone outcrop that was removed was physically connected with, and formed part of, either underlying bedrock or the face of the sandstone wall that presently stands to the north of the carparking area. The applicant accepts that the sandstone outcrop may have had some cracks and fissures rather than being "entirely monolithic".
The respondents submit that there is little evidence of a "sandstone outcrop" in the area to the north of the driveway and contend that the material that was removed comprised nothing more than "building waste and debris [including] rocks of different sizes, logs, pallets, builders waste such as bricks and fill covered with lantana and creeping weeds"; or, "rubble, vegetation and various sized rocks or boulders" (as per the second respondent's affidavit affirmed 31 January 2020); or, "rubbish, debris, lantana, noxious weeds, loose rocks and boulders"; and/or, "floating rocks and boulders … mixed with fill, under which there was garden vegetation and timber" (as per the affidavit of Mr Pace affirmed 2 February 2020).
Mr Doyle, having directed the Court to various exchanges of evidence recorded in the transcript, and while not suggesting that the evidence of Mr Diab involved deliberately "concocting falsehoods" to deceive the Court, suggests that Mr Diab's evidence was coloured over the years by the animosity existing between the Diabs and the Cavasinnis. He further suggests that an available explanation for Mr Diab's recollection of seeing the removal of the sandstone material was that Mr Diab himself had used an excavator to cut away certain stone in the area adjacent to the Diab property which may have clouded his recollection of events regarding the removal of material to the north of the concrete driveway. Further, Mr Doyle submits that the Court would not accept the evidence of Mr Diab because, as a lay person, he was unlikely to have been in a position to confidently distinguish between floating boulders sitting in fill, natural rock, and other materials. Mr Doyle further suggests that the absence of the applicant, and in particular, as to what observations she may have made of the pre-existing state of the area, raises a Jones v Dunkel inference.
Mr Doyle, raising the matters noted at [29]-[31] above, submits that the effluxion of time has caused prejudice to the respondents, in particular their inability to marshal documents and witnesses, and that the Court would take this into account when considering the veracity of the material. Specifically, if the applicant's complaints about the removal of the material had been brought in a timely manner, other witnesses such as tradesmen and consultants involved in construction at the Cavasinni property may have been able to provide firsthand evidence. In these circumstances, Mr Doyle submits that the onus of proof residing with the applicant has not been satisfied.
Mr Hutton submits that the early and contemporaneous survey evidence which describes and depicts certain formations as "rock outcrop" (and similar designations), combined with the photographic evidence available to the Court from the time before the works were carried out, clearly shows a sandstone formation adjacent to the northern edge of the driveway. He submits that material, combined with the direct evidence of Mr Diab, provides the best evidence the Court has as to the form and composition of the area to the north of the driveway before the works were carried out.
Mr Hutton submits that the Court would accept the evidence of Mr Diab's direct observations of the state of the sandstone outcrop and his observations of its removal. He submits that Mr Diab's evidence is more compelling in the light of the photographic evidence, the historical survey evidence, and the fact that the approved plans themselves provided for the retention of existing vegetation where it has clearly been substantially removed.
Mr Hutton submits that, in the light of this evidence, the Court would find that Mr Cavasinni's evidence deliberately misdescribed the appearance of the area and, further, that the combined evidence of Mr Cavasinni and Mr Pace was inconsistent and unreliable and should be rejected. In particular, the evidence of Mr Pace was unreliable because the basis of his evidence, being that the rock formation could not have been "bedrock" or a "solid mountain of rock" simply because the IHI mini excavator he used was not capable of excavating bedrock, did not account for the likelihood that the sandstone formation was more easily excavatable because of its nature.
Mr Hutton also points to the long-term relationship between Mr Cavasinni and Mr Pace in circumstances where Mr Cavasinni's accountancy firm provided services to Mr Pace and that Mr Pace had given earlier evidence in support of Mr Cavasinni in the 2016 Council civil enforcement proceedings as matters that would make Mr Pace's evidence less reliable. Mr Hutton also brought the Court's attention to what was submitted to be Mr Pace's inconsistent answers about the use of saw cutters and jackhammers on the Cavasinni property.
Having considered the extensive evidence and submissions and having observed each of the witnesses giving evidence, I have come to the view that a not insignificant sandstone formation (be it described as sandstone or rock outcrop) has been removed, and that formation along with the vegetation thereon (although not necessarily comprising a single monolithic rock, extrusion or other descriptor), was removed in breach of the Consent. The area has been concreted and this conduct is a clear breach of the Consent. My reasons, which generally accept the submissions made on behalf of the applicant, follow.
The photographs from the time before the works were carried out, in my view, clearly show a significant sandstone-like formation partially overgrown with vegetation adjacent to the northern edge of the driveway. I find that the large colour photograph taken in December 2009 (Exhibit C) shows a particularly clear depiction of the sandstone-like formation. Further, the photograph taken in April 2005 (being the first photograph in annexure "J" to the affidavit of Mr de Nett sworn 29 January 2020) is also a clear depiction of the formation. Further, the photographs taken from the video (and the video footage itself) recorded on 25 July 2009, in particular the A3 photographs before the Court, show various views of the "escarpment" area which can be compared to and contrasted with the more recent photographs (including those being annexure "K" to the affidavit of Mr de Nett sworn 29 January 2020, taken by Mr de Nett on 20 June 2017, the photographs being annexure "S" to the affidavit of Mr Diab sworn 29 January 2020, and the photographs in Exhibit D). I find these photographs show the extent of the removal of the material and its replacement with a flat concreted area.
I find that the material which was cleared was a significant sandstone formation and not necessarily comprising "bedrock or a single monolithic extrusion of bedrock" (as described by Mr Pace).
Further, the historical photographs referred to show the extent of vegetation existing on and over the sandstone or rock formation before it was removed. I find that this is clearly within the area marked on the approved plans as "RETAIN EXISTING VEGETATION".
Apart from the photographic evidence, the survey dated 26 March 2004 ("Garvin Morgan & Company Survey Plan" - Exhibit B) discretely marks the formation to which I have referred as "ROCK OUTCROP" and contains further notations "BRK", defined in the legend to the survey as "BOTTOM OF ROCK", in an area close to the northern side of the area surveyed as "CONCRETE DRIVEWAY", and effectively provides a contour line of the sandstone outcrop. Further, the Court has been assisted in the interpretation of this survey by the evidence of Mr de Nett, who indicated that the survey showed a "fairly steep gradient" increasing in height as one moves towards the east and the north of the sandstone outcrop. In these circumstances, I accept the submission made by the applicant that it is highly unlikely that the surveyor who prepared the survey could have carried out the necessary work to accurately mark the contours on the survey and have been mistaken as to whether the structure was a "rock outcrop" as opposed to a "loose collection of boulders, rubble and assorted waste", as contended on behalf of the respondents.
In addition to the above, I accept the submission that the approved plans would not have had the words "RETAIN EXISTING VEGETATION" if that area was in fact degraded as the respondents contend. I also accept that the approved plans themselves, in particular the east elevation on (drawing DA-A-401-D), appear to show that the subject area comprises a natural landform.
I have noted the above matters separately because I consider they are sufficient to establish a finding as contended for by the applicant, without necessarily requiring detailed consideration of the conflicting oral evidence. That is not to disregard the detailed evidence given, but it does allow consideration of objective and, in some cases, contemporaneous material in evaluating the respective positions. Despite this, there was conflict between the evidence given by Mr Diab and that given by Mr Cavasinni and Mr Pace on behalf of the respondents. In particular, Mr Diab's evidence of his observations of that which existed prior to the work undertaken, and his view that the structure was effectively solid sandstone which had vegetation growing on top of it, accords with the photographic and survey evidence. While I have noted the criticism of Mr Diab's evidence made on behalf of the respondents - primarily that his evidence was coloured by the animosity between the relevant parties, and that his evidence and observations of the cutting of the sandstone was given late and in cross-examination, I consider that his evidence was credible. He was willing to make appropriate concessions, particularly in relation to the height of the sandstone elements being 2.75m rather than being "about 3.5m" which he had previously stated. I also accept that Mr Diab's account was not seriously challenged despite careful cross-examination. Suffice it to say, I accept Mr Diab as a credible witness despite the criticisms made of his evidence.
Despite this, while I prefer the evidence of Mr Diab, I do not accept the applicant's submission that the Court should find that Mr Cavasinni deliberately misdescribed the appearance of the area and the nature of the work done. I also do not accept that Mr Pace had conducted himself in a similar fashion. While I accept that Mr Pace was clearly supportive of Mr Cavasinni's interests, although accepting his evidence that an IHI mini excavator would not have been able to excavate "bedrock" or a "single monolithic extrusion of bedrock", there is a probability that the formation was not necessarily a solid rock outcrop and may have had (as the evidence seems to indicate) certain fissuring.
In addition, I accept the submission that Mr Pace's evidence was somewhat inconsistent, particularly in relation to his original evidence that he did not use a stone cutter on any part of the Cavasinni property, as he later revised his evidence to say that he did not use a stone cutter to the north of the driveway but could not recall whether he did so elsewhere on the block. Further, I do not place emphasis on the suggested differences between the evidence given by Mr Pace and Mr Cavasinni in relation to whether or not jackhammers were used to the north of the driveway.
It is clear that the relationship between the parties could not be described as a good neighbourly relationship. While this is unfortunate, it may explain the absence of further evidence, in particular evidence of the applicant herself, I consider that the nature of the relationship between the parties is not apposite to the matters presently before the Court. While I accept there were inconsistencies between the evidence called on behalf of each of the parties, I consider the survey and photographic evidence summarised above, considered alongside the evidence of Mr Diab as to his observations of the nature of the sandstone formation and the work conducted over a period of time, to be compelling. As such, I am satisfied to the requisite degree that the work undertaken on the Cavasinni property involving the removal of a significant sandstone structure and its replacement with a cleared concreted area for carparking was not in accordance with the Consent.
In the above circumstances, I am satisfied that before the sandstone formation was excavated, it consisted of a natural intact rock-like structure rising to approximately 2.75m in height. I am satisfied that the excavation of this formation, as depicted (in the sense of being marked on the survey plan as reflecting Mr de Nett's opinion of where the base of the sandstone outcrop was before the construction) in the revised survey plan dated 23 January 2020 being annexure "A" to the affidavit of Mr de Nett sworn 29 January 2020 (and partly depicted in the survey plan prepared by Garvin Morgan & Company dated 26 March 2004), was not in accordance with the Consent which did not provide for the removal of this feature and its replacement with a concrete area for carparking. I find that the approved plans required that this formation and the vegetation overlaying it be retained.

Garage, storage room and roof

The applicant claims that the structures labelled "garage", "storage room" and the roof depicted in annexure "A" to the amended summons (and to this judgment) are not in accordance with the Consent and encroach upon the Easements for Services and the Right of Carriageway. The respondents admit that the footprint, and the configuration of the surrounding landscaping has changed "to a minor degree"; that these "minor changes are a breach of the development consent"; and that the constructed garage, storage room and associated excavation extend into the Easements for Services and the Right of Carriageway.
The respondents accept that the footprint, eaves and gutters of the garage and storage room (also referred to as "garbage storage room") are constructed differently to those in the approved plans and intrude into the area of the Easements for Services as well as the Right of Carriageway. Each of the parties has proffered proposed orders and although there remains an issue in relation to the wording of the appropriate orders which arises primarily because the approved plans in evidence do not clearly depict the Easements for Services.
The expert surveyors, Mr de Nett and Mr Bottaro, gave evidence in relation to the garage and storage room. It is common ground that the built garage and the storage room structures do not conform with the approved plans primarily because the shape of the storage room as built is different from that shown on the approved plans and because the garage is in a slightly different location. It is agreed between the experts that the north-east corner of the roof and eaves of the garage intrude across the Easements for Services and into the adjacent Right of Carriageway.
Although it is agreed that the approved plans do not authorise the construction of any part of the garage (except for its roof and eaves) within the Easements for Services, the experts disagree as to whether the approved plans authorise the construction of part of the storage room within the Easements for Services.
A difficulty arises because the approved plans do not show the southern boundary of the Easements for Services. However, the experts agree that the garage and the storage room as built intrude into the Easements for Services and there is no significant difference between the expert surveyors as to the extent of the intrusions. Mr de Nett's survey shows the storage room and garage (excluding the roof and the eaves thereof) intruding into the Easements for Services by between 0.72m and 0.89m whereas Mr Bottaro's material indicates the intrusion is "up to 0.85m".
The remaining issue is whether any parts of the floor or walls of the storage room were authorised by the approved plans to be constructed in the Easements for Services. Having heard the evidence and considered the approved plans, specifically DA-A-201 (the first-floor plan) and drawing 101F (the landscape plan) and considering the survey prepared by Mr Bottaro for the respondents (Exhibit 1), I consider that the walls of the garage have been constructed in the Easements for Services and this is not in accordance with the approved plans. However, the position in relation to the walls of the storage room is less clear.
As I understand it, the respondents' position (per Mr Doyle at Tcpt, 24 June 2020, p 25(35-40)) is that it is agreed that the floor and walls of the garage extend into the Easements for Services and that the eaves of the garage extend into the Right of Carriageway and, further, that it is clear from the survey evidence that the storage room encroaches into the Easements for Services. However, Mr Doyle submits that approved plans DA-A-201 and DA-A-202, being the first-floor plan and the ground floor plan respectively, indicate that the storage room is approved to be encroaching into the Easements for Services.
I accept that the approved plans present some difficulty because the southern boundary of the Easements for Services is not clearly marked in the area of the location of the storage room. Mr de Nett concluded that the approved plans do not "clearly show that any structure (storage room or garage) is authorised to be built in the easement for services", while Mr Bottaro maintained that the approved plans indicate that "the storage room was going to be built over a bit of that easement".
Although the approved plans are not clear, possibly due to their age and the quality of the reproduction now before the Court, from my perusal of the plans and, in particular, the location of the easements, I am of the view that no part of the floor and the walls of the storage room is authorised to be constructed in the Easements for Services. Further, I find, as the applicant submits, that it would be expected that a substantial building structure would not be constructed within Easements for Services, which may be of importance to the applicant's property. Despite this finding, whether the fact that construction that has encroached into the Easements for Services has any practical or deleterious effect upon the proper use of any of the Easements for Services is not a matter for present consideration.
Although there was some dispute canvassed in the parties' submissions in relation to the form of the orders (more particularly those which had been proffered by the applicant) relating to the footprints, roofs, eaves and gutters of the garage and storage room, and although there was some acceptance and concessions made on behalf of the respondents in final submissions, in relation to these discrete matters and my findings above, I intend, with minor amendments, to adopt the form of the orders proffered by the applicant.

Steps and tiled landing

The respondents accept that a number of steps and a tiled landing have been built on the boundary between the Cavasinni property and the Diab property as depicted in annexure "A" to the amended summons (and to this judgment). This construction extends along the boundary otherwise than in accordance with the approved plans (which show landscaping in that location) and is therefore a breach of the Consent. Accordingly, I have included a discrete finding in relation to these matters.

Piers, fence and stone utility cupboard

The applicant contends that the structures labelled "pier", "masonry retaining wall" and "stone utility cupboard" depicted in annexure "A" to the amended summons (and to this judgment) are not in accordance with the approved plans and that the approved plans (in particular, the approved landscape plan) show planting or soft landscaping along the southern side of the concrete driveway where the sandstone and palisade fence is now located, and, further, that the piers have been clad in sandstone as opposed to the nominated rendered finish in the approved plans.
The respondents deny that the piers and the fence, as constructed, depart from the approved plans and submit that the piers and the fence are as depicted in the approved plans.
In relation to the fence, the respondents direct the Court's attention to approved plan DA-A-402 ("east elevation") which depicts a metal palisade-style fence with piers and 600mm rendered plinth infills between the piers and submit that the fence as constructed is effectively authorised by this drawing. In response, the applicant submits that this drawing does not properly indicate the location of the fence (as running alongside the driveway), but rather, the approved landscaping plan depicts planting or soft landscaping in that location. Further, the applicant submits that the fence (as built) does not comply with the form of the drawing in any event as it is bulkier as well as having a differently detailed and finished design.
Considering the submissions and the evidence, the form and the sandstone cladding of the constructed fence does not in my view accurately reflect that shown in the approved plans. Although the location of the fence is not clearly shown in the approved plans, and noting that the east elevation does show (albeit being an elevation which figuratively foreshortens the form of the fence) a fence of not dissimilar detail to the otherwise depicted "metal fence" with "render brickwork" pillars, it is nonetheless clear from the photographic evidence that that which has been constructed does not have the 600mm plinth infills as a base for the metal fence and it is clear that the pier-like structures constructed have been clad in sandstone as opposed to being rendered.
In the circumstances, I am of the view that while the approved plans do make provision for a fence in the location where it has been constructed, that which has been constructed does not have the 600mm plinth infills as otherwise required and, as noted above, has pillars with sandstone cladding in circumstances where the approved plans provided for a rendered brickwork finish. As such, it is clear that the fence constructed is not strictly in accordance with the approved plans; however, I accept that a metal fence with rendered brickwork piers was to be provided in the location where the subject fence has been constructed. As a result, apart from the sandstone finish and the failure to provide the 600mm plinth infills, I consider that the fence, in a locational sense, is otherwise in accordance with the Consent.
In relation to the "stone utility cupboard" (or electricity box), the respondents accept that, strictly considered, this was not provided for in the approved plans. However, they submit that the said cupboard has instead been incorporated into the fence that has been constructed. Although the applicant submits that the respondents "could have built an unobtrusive conventional electricity box", the respondents submit that the cupboard structure itself is unobtrusive, is within the design of the otherwise approved fence, and is similar in location to where the electricity pole (referred to above) was located. In summary, the respondents submit that the structure which is installed in the fence is significantly less obtrusive than that which was located at, near, or on, the electricity pole that was previously in a not dissimilar location.
In the circumstances, I consider that the "stone utility cupboard" (also referred to as "electricity box") is not specifically provided for in the approved plans. However, given its nature and location within the fence, and my consideration and findings in relation to the electricity pole, I do not intend to make any discrete order or finding in relation to this structure.

Conclusion

For the reasons given, and again noting that the present question before the Court concerns the question of breach alone and does not require consideration of any relief, I make the following orders reflecting my consideration of the evidence and my findings detailed above.
I reserve the question of costs.

Orders

The orders of the Court are: 1. The Court answers the question of breach of development consent DA 08-1096 ('Consent') and the Environmental Planning and Assessment Act 1979 (NSW) by determining that the development on Lot 3 DP 840284, otherwise known as 27 Nelson Parade, Hunters Hill, is otherwise than in accordance with the Consent in the following respects: 1. As to the height of the roofline: 1. the ridges of the lower roofline of the new residence have been constructed to a height of approximately RL31.19 to RL31.20, whereas the approved plans require a finished RL of RL30.16; 2. the ridges of the main roofline have been constructed to a maximum height of approximately RL31.91 to RL31.94, whereas the approved plans require a maximum finished RL of RL31.76; and 3. the gutter has been constructed to an RL of RL28.6, whereas the approved plans (by scale) depict a finished RL of 28.1. 1. Two full-length French doors have been added to ground floor of the western façade to supplement the windows approved on the approved plans. 2. The footprints, roofs, eaves and gutters of the garage and garbage storage room as constructed are different to those shown in the approved plans as follows: 1. the footprints (floor and walls) of the garage and storage room are built in the Easements for Services and intrude into that Easements for Services by between 0.72 and 0.89 metres as depicted in the survey plan dated 23 January 2020 being annexure "A" to the affidavit of Stuart de Nett sworn on 29 January 2020 ('de Nett Survey') in circumstances where: A. no part of the floor and walls of the garage was authorised to be constructed in the Easements for Services; and B. no part of the floor and walls of the storage room was authorised to be constructed in the Easements for Services. 1. the roof and eaves of the garage extend across the Easements for Services and intrude by approximately 100mm into the Right of Carriageway for the benefit of the property at 29 Nelson Parade, Hunters Hill (as depicted in the de Nett Survey) in circumstances where no part of the garage was authorised to be constructed in the Right of Carriageway. 1. The "steps" and "tiled landing" located on the boundary with the property at 29 Nelson Parade, Hunters Hill (as depicted in the de Nett Survey) are not in accordance with the approved plans, which show landscaping in that location. 2. The "piers" and "fence" located adjacent to and south of the driveway servicing the property at 29 Nelson Parade, Hunters Hill (as depicted in the de Nett Survey) are not in accordance with the approved plans, in that the piers have been clad in sandstone as opposed to the nominated rendered finish and do not include the 600mm rendered plinth infills for their whole extent. 3. The excavation of the sandstone outcrop or formation ('sandstone formation') to the north of the driveway servicing 29 Nelson Parade, Hunters Hill as noted in red on the de Nett Survey as the "approximate base of sandstone outcrop prior to excavation", partly depicted in the survey plan prepared by Garvin Morgan & Company Survey Plan dated 26 March 2004 and shown in the photograph taken in December 2009 (Exhibit C in these proceedings), was not in accordance with the approved plans, which required that the sandstone formation and the vegetation overlying it be retained. 4. The subsequent flattening and concreting of the area where the sandstone formation had been located to make an area for the parking of cars was not in accordance with the approved plans, which required that the sandstone formation and the vegetation overlying it be retained. 5. Before it was excavated the sandstone formation consisted of a natural intact rock-like structure rising to approximately 2.75m in height as partly depicted in Exhibit C. 1. The issue of the appropriate remedy and relief arising from the breaches identified as part of the separate determination by orders of Preston CJ of LEC on 24 December 2019 is reserved. 2. The proceedings are adjourned for further mention and directions after the delivery of judgment in the Class 1 appeal proceedings (Cavcorp Australia Pty Ltd v Hunter's Hill Council, proceedings number 00403392 of 2019). 3. Costs are reserved.

Annexure A (910948, pdf) DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 24 August 2020

At a glance

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Judgment (13 paragraphs)

Parties

Legislation Cited (2)

Cases Cited (2)

Cited By (4)