Consideration
27Section 3 of the Encroachment of Buildings Act is in these relevant terms:
"3 Encroachments
(1) Either an adjacent owner or an encroaching owner may apply to the Court for relief under this Act in respect of any encroachment.
(2) On the application the Court may make such orders as it may deem just with respect to:
(a) the payment of compensation to the adjacent owner,
(b) the conveyance transfer or lease of the subject land to the encroaching owner, or the grant to the encroaching owner of any estate or interest therein or any easement right or privilege in relation thereto,
(c) the removal of the encroachment.
(3) The Court may grant or refuse the relief or any part thereof as it deems proper in the circumstances of the case, and in the exercise of this discretion may consider amongst other matters:
(a) the fact that the application is made by the adjacent owner or by the encroaching owner, as the case may be,
(b) the situation and value of the subject land, and the nature and extent of the encroachment,
(c) the character of the encroaching building, and the purposes for which it may be used,
(d) the loss and damage which has been or will be incurred by the adjacent owner,
(e) the loss and damage which would be incurred by the encroaching owner if the encroaching owner were required to remove the encroachment,
(f) the circumstances in which the encroachment was made."
28As I indicated earlier, the retaining wall has now been removed. I have not been informed that it has been replaced and for present purposes that is not a matter of concern for me. Despite the fact that both parties have expended what must have been considerable amounts of money on experts and artisans searching for an acceptable proposal, I have never understood, and neither party has suggested, that I had at any time a power to order that some particular structure should be built to replace the retaining wall when it is finally removed. Indeed, I said as much in my judgment on 5 May 2011 as appears:
"As I understand the Act, I am empowered to order that the encroachment be removed, although the extent to which I can, if at all, order that a retaining wall be constructed in its stead or that any works of any sort at all thereafter be performed to retain the defendants' land from subsiding into the plaintiffs' lands is less clear."
29However, my power to order that the encroachment be removed was never in question. In the events that occurred, the order that I made for the removal of the encroachment was complied with. It does not in those circumstances become necessary for me to give any consideration to the discretionary factors enumerated in s 3(3) of the Act. In my opinion, the powers given to me to order the removal of the encroachment are now spent. As was observed by Bignold J in Wherry v Trustees of the Sisters of Charity of Australia [2000] NSWLEC 252; (2007) 111 LGERA 216 at [43] - [45]:
"[43] Although the matter was not the subject of detailed argument, I am of the opinion that when the Act refers to "compensation" payable to the adjacent owner, it is referring exclusively to compensation payable in respect of any grant to the encroaching owner of some title to allow the encroachment to continue to exist, on the land of the adjacent owner.
[44] This conclusion, I think, inevitably flows from the proper interpretation of s 3 and s 4 of the Act, in the light of the express objects of the Act. Properly interpreted, the reference in s 3(1) to the payment of compensation to the "adjacent owner" is limited to "compensation" of the type specified in s 4 of the Act, subsection (1) of which specifies "minimum compensation" and subsection (2) of which specifies the matters that the Court shall have regard to "in determining whether the compensation shall exceed the minimum and if so, by what amount".
[45] Accordingly, the relief provided for under the Act does not include compensation in the nature of damages for trespass or nuisance or other tortious act. The perceived deficiencies in the law which gave rise to the enactment of the Act in 1922 (such as are discussed in Boed's case) do not involve, as I would understand it, deficiencies in the law of trespass or nuisance etc." [Emphasis added]
30Moreover, no question of compensation under the Act arises or remains. This is because a fair reading of s 4 of the Act leads to the conclusion that compensation is only payable "in respect of any conveyance, transfer, lease, or grant to the encroaching owner". As the encroachment has now been removed, the prospect of any of those things applying has disappeared.
31Both sides have in these circumstances quite properly confined their attention to the separate question of whether or not Mr and Mrs Hill have made out a case for trespass to their land or nuisance and to the related issue of whether or not they are entitled in either case to an award of damages.
32I should commence my consideration of these matters by observing that it cannot have been easy or pleasant for either Mr and Mrs Hill or Mr and Mrs Higgins to have had to live and cope with what has transpired between them since shortly following 16 May 2006, effectively unremitting and unabated up to the present time. I assume that both sides would at all times have preferred to have an harmonious and pleasant relationship in which a spirit of cooperation flourished and in the context of which something as apparently innocuous as a boundary dispute could have been resolved without resort to litigation. It is unfortunate that things proceeded very differently.
33It also occurs to me that it may be inimical to the early restoration of civilities between the parties for me to refer, in any more detail than I have already, and particularly in a way that identifies a particular author, to the sad state of the correspondence that has passed between them. Much of what that correspondence contains is provocative, ill-considered and often disingenuous. It was in large part counter productive of any real progress towards resolving the dispute, often in my view intentionally so, and I have no doubt that it had that effect. Much of that correspondence has been characterised by a rigid and uncompromising insistence on strict legal rights, to the detriment of any likely solution to the conflict actually emerging, and where an approach characterised by common sense, basic intelligence and reasonable give and take should have prevailed.
34It is difficult in the third millennium to be impressed greatly by the seriousness of a complaint about the legal or circumstantial consequences to a landowner of the temporary deposit of a handful of bricks upon his or her land, or the associated consequences that are claimed to flow from the fact of a person entering upon the same land to remove them. (I put aside for present purposes the apparent inconsistency that arises from concurrent complaints about the bricks being on the land in the first place and the allegedly unauthorised entry onto the land by someone for the purpose of removing them in the second place). In the context of the present proceedings, the trespasses of which Mr and Mrs Hill complain are in truth no more than a collateral irritation spawned by the principal matter of concern. It hardly needs to be observed that the removal of the retaining wall, a not insubstantial structure consisting mainly of bricks, from quiet residential or domestic premises, would inevitably be difficult to achieve without some level of entry or intrusion upon the land and some associated level of interference with its amenity and appearance. That reality seems to some extent to have been overlooked or downplayed.
35I consider that the evidence clearly establishes that Mr Higgins was responsible for the partial demolition of the western end of the retaining wall and for the deposit of the bricks from that wall onto the land of Mr and Mrs Hill. I am also prepared to find that Mr Higgins arranged, quite understandably, for the removal of the bricks and that he did remove them using his utility, as seen by Mr Thurlow. As Mr Higgins said in his letter of 11 July 2008 written to Mr Hill with a proposal for a new wall, "I am happy to replace the bricks I removed and return the wall to its previous state until it needs repair at some point in time in the future". It is not without significance that Mr Hill never replied to that part of Mr Higgins' letter.
36Trespass is actionable without proof of material loss. A deliberate trespass is not a trifling matter. In Plenty v Dillon [1991] HCA 5; (1991) 171 CLR 635 at 654-5, Gaudron and McHugh JJ said this:
"In his judgment, the learned trial judge said that, even if a trespass had occurred, it was "of such a trifling nature as not to found (sic) in damages". However, once a plaintiff obtains a verdict in an action of trespass, he or she is entitled to an award of damages. In addition, we would unhesitatingly reject the suggestion that this trespass was of a trifling nature. The first and second respondents deliberately entered the appellant's land against his express wish. True it is that the entry itself caused no damage to the appellant's land. But the purpose of an action for trespass to land is not merely to compensate the plaintiff for damage to the land. That action also serves the purpose of vindicating the plaintiff's right to the exclusive use and occupation of his or her land. Although the first and second respondents were acting honestly in the supposed execution of their duty, their entry was attended by circumstances of aggravation. They entered as police officers with all the power of the State behind them, knowing that their entry was against the wish of the appellant and in circumstances likely to cause him distress. It is not to the point that the appellant was unco-operative or even unreasonable. The first and second respondents had no right to enter his land. The appellant was entitled to resist their entry. If the occupier of property has a right not to be unlawfully invaded, then, as Mr Geoffrey Samuel has pointed out in another context, the "right must be supported by an effective sanction otherwise the term will be just meaningless rhetoric": "The Right Approach?" (1980) 96 Law Quarterly Review 12, at p 14, cited by Lord Edmund-Davies in Morris v. Beardmore, at p 461. If the courts of common law do not uphold the rights of individuals by granting effective remedies, they invite anarchy, for nothing breeds social disorder as quickly as the sense of injustice which is apt to be generated by the unlawful invasion of a person's rights, particularly when the invader is a government official. The appellant is entitled to have his right of property vindicated by a substantial award of damages."
37The facts of that case are well known and significantly different from this case. That said, Mr and Mrs Hill maintain that the sanctity of their right to exclusive use and occupation of their land was assailed and that they are doing no more than claiming what is their well recognised legal right to redress.
38It is in my view important, however, not to permit the requirement to reaffirm and properly to apply well-settled law in a principled and consistent way, to mask the equally important requirement to decide cases upon their own particular facts. The facts in Plenty v Dillon could hardly have been more removed from the facts of the present case, and yet the plaintiff in that case was relying upon precisely the same principles as Mr and Mrs Hill in this case. The importance of the principles that the High Court reaffirmed in Plenty v Dillon is not diminished in my view by an assessment of damages in this case that recognises and applies the very significant differences between the two cases.
39A letter followed, not long after the events of early June 2008 of which Mr and Mrs Hill complain, from Mr Hill to Mr Higgins. It is dated 12 June 2008 and is in the following relevant terms:
"In consideration of the unauthorised access to and interference with my property on several occasions during the preceding weeks I am advising you in writing that I prohibit you, your rear neighbour/brother-in-law and your contractors from entering my property unless I give prior written permission. I therefore request that any application for access to my property be in writing and addressed to 42 Kurrawong Avenue, Hawks Nest for my consideration within a reasonable period of time.
Furthermore, on 7 June 2008 when my father-in-law arrived and you were on my property it is my understanding that you stated that Council had given you the right to be on my property and that the work is urgent. This is the complete opposite of your past attitude and previous statements regarding the retaining wall and therefore I can only conclude you are suddenly claiming it is urgent as a means of gaining unauthorised access to my property."
40The events of early June 2008 and the contents of Mr Hill's letter need to be considered in light of at least two factors. First, Mr Hill had been in detailed and regular correspondence with Great Lakes Council. In his letter dated 7 October 2007 he described himself as "the victim of this unfortunate mess". It was clear from that letter at least that Mr Hill was pressing the Council to resolve issues arising from the erection of the timber fence and the need to correct the problem with what he somewhat hyperbolically described in his letter to Council as the "hazardous retaining wall". He was clearly frustrated by the fact that no resolution appeared imminent. He concluded his letter to Council by saying, "Perhaps, if Council is unable to resolve this matter, the Ombudsman will be able to better handle the situation".
41Secondly, as already discussed, on 16 January 2007, Mrs Higgins had been given a notice by the Council of intention to give an order pursuant to s 121H of the Environmental Planning and Assessment Act 1979 and had been ordered pursuant to s 121B of the Act within a period of 60 days to do the following:
"Demolish the retaining wall Lot 72...40 Kurrawong Avenue, Hawks Nest and replace the retaining wall with a structurally adequate retaining wall designed by a suitably qualified Engineer...
OR
Submit to Council a report from a suitably qualified Engineer demonstrating the structural adequacy of the retaining wall and upgrade the retaining wall in accordance with any requirements of the report."
42The Council expressed the view in the documents addressed to Mrs Higgins that its reasons for making the order included the fact that "the retaining wall [was] considered to be a danger to the occupants of [Mr and Mrs Hills'] premises".
43It is in this context that the seriousness of Mr and Mrs Higgins' actions has to be assessed. Mr and Mrs Hill wanted something done about the wall. Access to their property was necessary for that purpose. (I note that there is evidence to suggest that the whole operation could be conducted from the Higgins' property but I reject that idea as failing to reflect the practical and financial realities). Mr and Mrs Higgins were entitled to be concerned with the need to comply with the Council's order. The bricks that were removed were at the front of the properties and had to be removed sooner or later. It was reasonable for Mr Higgins to dispose of them on the weekend following demolition of that part of the wall that was formed by them. It is highly unlikely that permission to enter upon the front of Mr and Mrs Hills' property in order to remove the bricks would not have been given to Mr Higgins if he had sought it in advance. The trespasses were of short duration and caused no damage. In the general scheme of unauthorised, intentional and tortious invasions of private property, the trespasses are almost as minor and as insignificant as it is possible to envisage in the particular circumstances of a case such as this. Damages for these trespasses should reflect that assessment.
44So far as concerns the claim for trespass caused by the encroachment of the retaining wall, it is in my opinion even less significant. It is very important not to equate the subjective concerns expressed about the safety of the failing wall or the objective seriousness or otherwise of the dangers thought to be associated with its dilapidated condition, with the extent to which it actually trespasses upon the adjacent land. This case is about the latter, not the former. It must be remembered that the trespass allegedly committed by the encroaching wall is limited, and falls to be characterised only by reference, to the extent to which the wall was physically upon or extended over Mr and Mrs Hills' land.
45There is at least one survey report in evidence, from C R Hutchison & Co Pty Ltd, dated 14 February 2007, relating to Mr and Mrs Higgins' property. It calculates the extent of any encroachments upon Mr and Mrs Hills' property by the brick retaining wall in measurements ranging from three centimetres to fifteen centimetres, with an average of any expressed measurements in the order of five and a half centimetres. Portions of corrugated iron extend as much as thirty-seven centimetres onto the Hills' land. The survey report says, "Other than as shown in the diagram, there are no obvious encroachments by or upon the subject land".
46The retaining wall was present when Mr and Mrs Hills purchased their property. Mrs Higgins purchased her property after that. The extent of the encroachment, and hence the trespass, by the wall is truly insignificant. It caused no readily discernible structural incursion onto Mr and Mrs Hills' property and did not in my opinion have any detectable, let alone adverse, impact upon Mr and Mrs Hills' exercise or enjoyment of his or her proprietary rights. This emerges clearly when one steps back from a microscopic examination of jurisprudential theory in order to view the competing claims using common sense and a realistic understanding of the world. I cannot accept in all of these circumstances that an award of anything other than nominal damages for this trespass is appropriate.
47This then leaves the claim pleaded in nuisance. As counsel for Mr and Mrs Hill has noted, the claim was never particularised. However, I have proceeded to deal with the claim broadly as one principally arising from the state of the "orphaned" strip of land owned by Mr and Mrs Higgins.
48Comment j to the Restatement of the Law of Torts, s 822, says this:
"Life in an organised society and especially in populous communities involves an unavoidable clash of individual interests. Practically all human activities, unless carried on in a wilderness, interfere to some extent with others or involve some risk of interference, and these interferences range from trifling annoyances to serious harms. It is an obvious truth that each individual in a community must put up with a certain amount of annoyance, inconvenience and interference, and must take a certain amount of risk in order that all may get on together. The very existence of organised society depends on the principle of 'give and take, live and let live', so that the law of torts does not attempt to impose liability or shift the loss in every case where one person's conduct has some detrimental effect on another. Liability is imposed only in those cases where the harm or risk to one is greater than he ought to be required to bear under the circumstances."
49To constitute a legal nuisance, the annoyance or discomfort must be substantial and unreasonable. As stated as long ago as Walter v Selfe (1851) 4 De G & Sm 315 at 322; 64 ER 849 at 852:
"And both on principle and authority the important point next for decision may properly, I conceive, be thus put: ought this inconvenience to be considered in fact as more than fanciful, more than one of mere delicacy or fastidiousness, as an inconvenience materially interfering with the ordinary comfort physically of human existence, not merely according to elegant or dainty modes and habits of living, but according to plain and sober and simple notions among the English people?"
50Similar sentiments can be found echoed in cases such as Don Brass Foundry Pty Ltd v Stead (1948) 48 SR (NSW) 482 at 486-487, Haddon v Lynch [1911] VLR 230 at 231 and Ruthning v Ferguson [1930] St R Qd 325 at 326.
51I would have to confess to a genuine concern about the direction of the law of nuisance if the facts in this case were thought to be adequate or sufficient to support such a cause of action. I have not visited the subject premises but the photographs that are in evidence are very clear and very helpful. They show what was once usually referred to as a side passage, with a house on one side and an unkempt strip of ground on the other. The state of the "orphaned" land depicted in these photographs does not seem to me to require more than a few minutes work with a mechanical edge trimmer or "whipper snipper" to return it to a neat and tidy state. It does not appear to present a threat to life or limb, and it does not appear to be toxic or malodorous. There is evidence of a discarded snake skin but no evidence of "vermin", and the land certainly does not constitute or appear to create anything approaching what I would consider to be a material interference with the ordinary physical comfort of human existence. I regret to have to say that Mr and Mrs Hill's claims of nuisance are a gross overreaction, are quite literally unacceptable and are really a fuss about nothing.
52I do not accept that the claim for damages for nuisance has been made out.