Hopkins v Quinn

Hopkins v Quinn - [2018] NSWLEC 117 - NSWLEC 2018 case summary — Zoe

[9]

The role of Dr Martens

Dr Martens is the principal engineer of the eponymous Martens & Associates. Three of the orders made in the final orders decision provide the ongoing role for Dr Martens. First, it is appropriate to reproduce orders (7) and (8) of those orders: (7) The Easement is to be limited only to existing encroachments being permitted to remain and the right to support and maintain the remedial drainage works and associated structures on the overland flow path, as set out in the drawings prepared by Mr Ted Bennett dated 13 August 2015 (revision C dated 3 April 2017) and technical drawing PS02-EZ00 prepared by Martens & Associates dated 4 August 2017 annexed to these Orders and marked "C" (Remedial Works), together with the works as set out in Order (8) below. [as amended 21 August 2017]. (8) In addition to the Remedial Works set out in the Bennett Plan, the First and Second Respondents are to ensure that the Remedial Works include the following additional remedial works (Additional Remedial Works) and/or any direction issued by Dr Martens for the implementation of the Remedial Works and the Additional Remedial Works: (1) The drainage cell behind the shotcrete wall is to: (a) Have base drainage outlets created at 1.5m centres with 25mm diameters; and (b) Be hydraulically connected to the internal drainage system at No. 11 Farnell Street. (2) In order to prevent further movement of the brick wall within the northern boundary and other structures on No.9 Farnell Street, high strength (at least 80 MPa) grout 'panels', with a width of approximately 150mm, are to be injected at 1.0 m centres within the void created by the drainage cell behind the shotcrete wall, such that: (a) The grout provides a firm contact between the shotcrete wall in its current form and the brick wall within the northern boundary of No. 9 Farnell Street; and (b) The grout is strategically placed to ensure that any subsurface water flow within the drainage cell is not significantly impeded and is drained to the drainage system for No. 11 Farnell Street. (3) Installation of the garage top slab to provide bracing for the shotcrete wall after the drainage cell behind the shotcrete has been tested and configured to properly drain. (4) The connection between the top of the shotcrete wall and the brick wall within the northern boundary of No. 9 Farnell Street is to be sealed to prevent any rainwater or stormwater ingress.
Dr Martens had two roles arising from my orders of 17 August 2017. The first of Dr Martens' roles is contained in the chapeau to order (8), as can be understood from the terms of that element of that order set out above.
The second aspect of the orders providing a role for Dr Martens arises from the terms of order (25) of those orders. Order 25 is in the following terms: (25) Mrs Hopkins' consent is given to the First and Second Respondent to carry out the Remedial Works referred to in Orders (7), (8)(1), (8)(2) and (8)(4) only, and not for any other works upon No 9. For the avoidance of any doubt, Mrs Hopkins' consent is not given to the construction of any additional structures not approved by Mrs Hopkins and Dr Martens.
Whilst, for the purposes of the first of these roles, it is one to be exercised solely by Dr Martens (or employees of his practice to which he delegated relevant tasks - Mr Harvey and Mr Harlow), his role arising from order (25) is, in terms, but half of an indivisible whole, namely, that consent for any deviation is only available to be acted upon by the Quinns if such consent is given by Dr Martens and by Mrs Hopkins.
As a consequence, although matters of technical detail and adequacy are expressly delegated solely to Dr Martens, to the extent that his technical directions involved departure from that which had been set out in the orders or imported by express reference in order (8), such departure was not permitted to be implemented by the Quinns unless Mrs Hopkins also expressly consented to it.

[11]

The design of the drainage in the passage

Although the final design of the drainage system along the side passage between Mrs Hopkins' wall and the Quinns' residence was not precisely as envisaged in the design prepared by Mr Bennett and approved in the Court orders (primarily, as I understand it, as a consequence of the need to incorporate a separate, additional drainage line to pick up the roof water discharged by a series of downpipes from the gutters on the southern side of the Quinns' residence), such changes arose under the supervision of Dr Martens (with his concurrence) and/or at the direction of Dr Martens.
In particular, accommodating the collection of the stormwater from the downpipes appears to have moved the design of the drainage structures in this passageway (as envisaged by the Bennett design), a small distance to the south toward the boundary with Mrs Hopkins' property.
Attached to Mr Hopkins affidavit of 3 May 2018, forming part of a group of documents transmitted by Mr Hopkins' solicitor to the Quinns' solicitor on 23 October 2017, is a photograph which shows portion of the location of the PVC pipe that needed to be installed to transmit the stormwater from the downpipes as part of the proper arrangement of a drainage system for the Quinns' property. A copy of that photograph is attached as Annexure D to this decision.
Although it does not appear that Mrs Hopkins was personally consulted to seek her agreement to such design changes (despite the requirement that such changes required her consent in addition to that of Dr Martens), the specific final complaint in these proceedings (after the certification made available to Mr Hopkins and his legal advisers on 26 April 2018) relates to the location of the agricultural drainage pipe and its intrusion into Mrs Hopkins' property.
I do not understand that there is any suggestion advanced on behalf of Mr Hopkins that non-compliance with the provision mandating Mrs Hopkins' consent, in addition to that of Dr Martens, for any variation to the Bennett design gives rise to any practical consequence in these proceedings.
However, even if there was such a concern, I am satisfied that the involvement of Dr Martens and his staff in supervising the installation of these drainage structures coupled with Dr Martens' certification of their functional adequacy and sufficiency would render it inappropriate for any intervention based on the lack of consent from Mrs Hopkins.

[12]

Introduction

The photographs at folios 77 and 78 in Vol 1 of the Evidence Book are reproduced as Annexures B and C to this decision. These photographs were taken along the passageway to the south of the Quinns' dwelling. Both photographs were taken looking westward along this passageway.
There are two matters of substance relevant to these proceedings to be observed from the photograph at folio 77. The first concerns the drainage elements able to be observed (elements to which it will be necessary to return in the context of this photograph and the photograph at folio 78).
For this initial commentary, it is appropriate to note, in the foreground of the photograph at folio 77, three elements which appear to be constructed of form ply and which appear to be protean elements for the forming up for the construction of a short set of steps to be installed in the passageway during some subsequent concrete pour. The possibility of steps, and their location, plays no functional part in my consideration, as nothing was made of this possibility of steps forming part of the concreted treatment along the passageway and was not a matter pressed as being of any criticality in Mr Hopkins' case.
However, it is to be observed that the southern (left-hand) end of each of these formwork elements has been affixed to the northern side of the wall to Mrs Hopkins' property. It is also to be observed that nothing in the terms of the easement earlier set out permitted any such fixing to occur (whether such fixing was of a temporary nature (as might be expected of formwork such as this) or of any permanent nature).
The photograph at folio 77 was appended to Mr Hopkins' affidavit of 22 December 2017 and imported by reference in (8) of that affidavit. This discloses that that photograph, and that at folio 78, were taken by Mr Hopkins on 21 September 2017.
It is to be observed that this photograph predated the withdrawal of Mrs Hopkins' consent for any work to be performed on her property, with that withdrawal of consent being effected on 29 September 2017.

[13]

Functional finality

In Mr Hopkins' affidavit of 3 May 2018, he deposes the following concerning material provided to his legal representatives by the Quinns' legal representative on 26 April 2018. The material was listed as: (a) Letter from Daniel Martens; (b) Work as executed plan by Bee & Lethbridge surveyor; (c) Hydraulic analysis by Edward Bennett; and (d) Certification from Glenn Coltman,
The first of these documents was in Vol 1 of the Evidence Book at folios 165 and 166. Critically, for finality about the functional adequacy of the drainage system, as installed along the passageway between the Quinns' dwelling and the northern wall of the Hopkins' property, was the following document provided by Dr Martens: 2. [I can confirm] That the additional remedial works noted in paragraph 8 of the Orders have been completed. I note: a. The drainage cell behind the shotcrete wall has outlets with appropriate diameters and spacing, and is hydraulically connected to the internal drainage system at the site. b. After receiving advice from you that it was too difficult to create the necessary void for the grouted 'panels', I accepted a design modification to replace the grouted 'panels' with grouted 'columns'. These 'columns' achieve the same engineering design outcome as the 'panels'. c. The installation of the garage top slab and subsequent bracing of the shotcrete wall has been completed. d. Sealant has been placed between the top of the shotcrete wall and the brick wall within the northern boundary of No. 9 Farnell Street to prevent surface moisture ingress. 3. I note that I inspected the basement at No. 9 Farnell Street on 13 March 2018 following a period of overnight rainfall. At the time of my inspection, no surface or groundwater was seeping from the southern path within the site into the basement at No 9 Farnell Street. 4. In respect of the qualifications of tradespersons used to undertake the remedial and additional remedial works, Mr Glen Coltman who is a licenses builder (licence No. 206982c), has provided certifications in respect of: construction of the stormwater and sub-soil drainage system; water proofing and sealing; and structural concrete works. 5. On the basis of the above, I certify that the engineering works in Orders 8 and 9 are complete.
The basis of Dr Martens' certification of this functional adequacy came from the material provided by Mr Bennett who was, as earlier noted, the Quinns' structural engineer.
This comprehensive material (to the detail of which it is unnecessary to turn) dealt with the hydraulic adequacy (including performance adequacy) of the elements of the drainage system, as installed and tested by him. It is to be observed that this works as executed plan (item (b) mentioned in the above list at [40]), which could be regarded as dealing with locational aspects of that which had been installed, does not act to provide any critical or necessary supporting information relating to the functional adequacy dealt with in Mr Bennett's material which formed Annexure K to this affidavit from Mr Hopkins.
Although the Quinn's legal representative had served a subpoena on Dr Martens to attend and give evidence, that subpoena was not called upon. There is nothing in the course records that would indicate that any subpoena of this nature was issued to Dr Martens on behalf of Mr Hopkins by his legal representatives. There was no technical attack made for Mr Hopkins and the adequacy of the certification given by Dr Martens and provided to Mr Hopkins' legal representatives on 26 April 2018. The absence of any technical evidence questioning of the certification means that it stands, uncontested, as to the adequacy of this drainage system.
The only conclusion that can validly be drawn from this material is that Mr Hopkins, through his legal advisers, was on notice from 26 April 2018 that, in a functional sense, the drainage system as actually installed (whether in accordance precisely with the design envisaged by order (8) of my orders of 17 August 2017 or not), it was functional and satisfactory as earlier noted.

[14]

The location of the agricultural drainage pipe

After the drainage works had been installed and covered with concrete, Mr Hopkins continued to press his concern that the agricultural drainage line element of the works remained trespassing on his wife's property. He sought to have the location of the agricultural drainage line identified by the drilling of test holes at a number of locations along the corridor between Mrs Hopkins' wall and the wall of the Quinns' dwelling.
He was sufficiently convinced of the correctness of his concern about the location of the agricultural drainage pipe, and of the righteousness of his continuing pursuit of the Quinns over what he considered to be the trespass onto his wife's property, that he offered to pay for the cost of the cutting of these exploratory holes into the concrete if they did not reveal the trespass which he believed had occurred. This offer is demonstrated by an e-mail from Mr Hones to Mr Sattler dated 14 November 2018, contained in the affidavit of Mr Peter Clarke sworn 21 June 2018, which was in evidence at folio 485 of Vol 2 of the Evidence Book.
Mr Hopkins continued to press his concern about the location of the agricultural drainage pipe after he and his legal advisers had been provided with Dr Martens' certification on 26 April 2018.
On 23 May 2018, five holes were cut through the concrete covering in order to reveal the location of the agricultural drainage line. These holes revealed the location of that line in a fashion which permitted a survey to be undertaken of the most southern extremity of the line at each point where it was exposed. Such a survey was conducted by Bee & Lethbridge, a firm of surveyors who had previously provided surveys in the earlier proceedings. A copy of the survey diagram and its accompanying certification was included at folio 304 of Vol 1 of the Evidence Book.
A copy of the survey diagram, in reduced size, is reproduced below:
Because of the importance of what was revealed by this survey to my reasoning as to the outcome of these proceedings, the survey diagram is also reproduced, at A4 scale, as Annexure E to this decision.
The survey diagram reveals (as can be seen with clarity from Annexure E), at the locations at the eastern and western end of the run of five holes revealing the location of the agricultural drainage pipe, there was no intrusion of it onto Mrs Hopkins' property.
However, for each of the three intermediate holes, the survey demonstrates that the southern edge of the agricultural drainage pipe does cross the boundary and intrude into Mrs Hopkins' property. The extent of the intrusions is as follows:

60 millimetres at the western of the holes disclosing an intrusion;
60 millimetres at the central hole disclosing an intrusion; and
40 millimetres at the eastern of these three holes.

It is to be recollected, providing the foundation for these proceedings as well as for the earlier proceedings, the northern wall of Mrs Hopkins' property is located a little to the south of the legal boundary between her property and that of the Quinns'.

[16]

The basis for Mr Hopkins' proceedings

I have earlier observed that Mr Hopkins has commenced these proceedings on the basis of the open standing provisions in s 123 of the EP&A Act.
For the purpose of the necessary analysis in these proceedings, it is appropriate to observe, with more precision, the basis upon which Mr Hopkins has embarked on these proceedings. Relevantly, s 123 of the EP&A Act contains two separate bases upon which such proceedings can be commenced. This can be seen from the terms of s 123(1) and (2) (as the provision read at the time of commencement of these proceedings (prior to the renumbering of the provisions of the legislation from 1 March 2018)). It is to be observed that the terms of the open standing provision were not altered by the renumbering when that was effected. The terms of these two elements of s 123 of the EP&A Act are reproduced below: (1) Any person may bring proceedings in the Court for an order to remedy or restrain a breach of this Act, whether or not any right of that person has been or may be infringed by or as a consequence of that breach. (2) Proceedings under this section may be brought by a person on his or her own behalf or on behalf of himself or herself and on behalf of other persons (with their consent), or a body corporate or unincorporated (with the consent of its committee or other controlling or governing body), having like or common interests in those proceedings.
As can be seen from the terms, s 123(1) provides, relevantly, that an individual can commence proceedings seeking to address an alleged breach of the Act, with such proceedings being commenced solely on their own behalf. The summons commencing these proceedings makes it clear, in terms, that this is the provision upon which Mr Hopkins has relied for the commencement of these proceedings.
As can also be seen, s 123(2) permits proceedings of the same nature, namely, to remedy or restrain a breach of the EP&A Act (or of statutory instruments subordinate to it), with such an action being commenced by an individual in a representative fashion on behalf of others.
It is clear from the Summons commencing these proceedings that Mr Hopkins has not sought to commence the proceedings in any representative fashion.
In particular, Mr Hopkins has not sought to commence these proceedings on behalf of Mrs Hopkins. It is to be observed that the property onto which the trespass of the agricultural drainage pipe has occurred, without the consent of the owner of that property, is the property owned by Mrs Hopkins.
Whatever might be any equitable or other potential interest that Mr Hopkins might have in Mrs Hopkins' property, such an interest is not engaged for the purposes of the giving of owner's consent for relevant purposes arising under the EP&A Act. That role lies exclusively with Mrs Hopkins.

[18]

The Sedevcic guidelines

In Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335 at 339 to 341, Kirby P set out a number of guidelines concerning the exercise of this Court's discretion in considering whether or not to intervene, in proceedings such as these, and order rectification of the breach of the EP&A Act occasioned by the carrying out of development in a fashion not consistent with any relevant statutory requirements..
The President set out nine matters potentially engaged in a discretion‑exercising process such as that with which I am engaged. Given the conclusion that I have reached in these proceedings, that it would be irrationally disproportionate to require the removal of that which has been installed along the gap between Mrs Hopkins' wall and the Quinns' property in order to permit rectification of the entirely trifling intrusion of the agricultural drainage pipe across the boundary with Mrs Hopkins' property, it is appropriate to set out, in full, the terms of the Sedevcic guidelines [4] to [8] inclusive. These guidelines are in the following terms: 4. In exercising the discretion, it must be kept in mind that the restraint sought is not, in its nature, the enforcement of a private right, whether in equity or otherwise. It is the enforcement of a public duty imposed by or under an Act of Parliament, by which Parliament has expressed itself on the public interest which exists in the orderly development and use of the environment. Attorney-General v BP (Australia) Ltd (1964) 83 WN (Pt 1) (NSW) 80 at 8712 LGRA 209 at 218. Because s 123 of the Act permits any person (and not just the Attorney-General or a person with a sufficient interest), to bring proceedings in the Court for an order to remedy or restrain a breach of the Act, there is indicated a legislative purpose of upholding, in the normal case, the integrated and co-ordinated nature of planning law. Unless this is done, equal justice may not be secured. Private advantage may be won by a particular individual which others cannot enjoy. Damage may be done to the environment which it is the purpose of the orderly enforcement of environmental law to avoid: cf Attorney-General v Harris [1961] 1 QB 74 at 94; Trimboli v Penrith City Council (1981) 48 LGRA 323 and Deane J (dissenting) in Lizzio v Ryde Municipal Council (1983) 155 CLR 211. 5. It is only in this sense that special circumstances need to be established to secure a favourable exercise of the discretion provided by s 124. There is nothing in the Act by which the discretion is fettered or limited to "special cases", as Mahoney J, as he then was, pointed out in analogous circumstances in Blacktown Municipal Council v Friend. But the obvious intention of the Act is that, normally, those concerned in development and use of the environment will comply with the terms of the legislation. Otherwise, if unlawful exceptions and exemptions became a frequent occurrence, condoned by the exercise of the discretion under s 124, the equal and orderly enforcement of the Act could be undermined. A sense of inequity could then be felt by those who complied with the requirements of the Act or who failed to secure the favourable exercise of the discretion under s 124. 6. Where the application for the enforcement of the Act is made by the Attorney-General, or a council, a court may be less likely to deny equitable relief than it would in litigation between private citizens: Associated Minerals Consolidated Ltd v Wyong Shire Council. This is because the Attorney-General or the Council are seen as the proper guardians of public rights. Their interest is deemed to be protective and beneficial, not private or pecuniary: cf Rowley v New South Wales Leather Trading Co Pty Ltd v Woollahra Municipal Council (1980) 46 LGRA 250. Of course, as the development or administrative law demonstrates, administrators who advise the Attorney-General or councils can sometimes act from motives which are less disinterested. Courts will be alert to insensitive, unthinking administration in this as in other fields of law. 7. Where the relief is sought against a static development (ie the erection of a building) which, once having occurred can only be remedied at great cost or inconvenience, the discretion may, in the normal case, be more readily exercised than where what is involved is a continuing breach by conduct which could quite easily be modified to bring it into compliance with the law: see Blacktown Municipal Council v Friend. But this observation is simply a reflection of the judicial perception in balancing, on the one hand, the public interest in equal compliance with the law and, on the other, the degree of irremediability occasioned by the breach and the expense or inconvenience which would follow the law's enforcement: cf Associated Minerals. It does not amount to a hard and fast exception to the discretion. That discretion must be exercised in every case in which it is invoked. Nor is it a reason to refuse relief where no static development can be proved. 8. The wide discretion has been described as an adequate safeguard against abuse of a salutary procedure: see Menzies J in Cooney v Ku-ring-gai Municipal Council (1964) 114 CLR 582 at 605(1963) 9 LGRA 290 at 306. It permits the court to soften, according to the justice of particular circumstances, the application of rules which, though right in the general, may produce an unjust result in the particular case. Sometimes this softening can be achieved by postponing the effect of injunctive relief: see, eg, Woollahra Municipal Council v Carr. Sometimes that evidence will not achieve a just result. The remedy of injunction, with its powerful sanctions, is not, after all, the only remedy available to a local government authority for breaches of the Act. Criminal prosecution, with its heavier onus of proof and rigorous procedures may offer an inadequate means, in the typical case, for the enforcement of environmental law in the public interest. Furthermore the provisions of s 123 of the Act indicate an enlargement of the availability of injunction for breach of that law. However the refusal of a court to grant an injunction, in the exercise of its discretion, does not necessarily conclude the authority's remedies.

[26]

Costs

I have earlier set out the basis upon which Mr Hopkins commenced these proceedings.
It is clear that, at the time of doing so, there was functional deficiency in the works as being implemented arising out of the orders made in the earlier proceedings. There was also, at that time, potential uncertainty as to the finalised adequacy of the drainage works to be constructed along the passageway between Mrs Hopkins' wall and the Quinns' residence.
As can be seen from the terms of orders (7) and (8) of the orders made as a consequence of my final orders decision, a regime had been established whereby Dr Martens would supervise the implementation of the works required by those orders (including making adjusting directions as and when required).
Under the circumstances, I am satisfied that there was sufficient basis to warrant Mr Hopkins commencing these additional proceedings.
In this context, it is unnecessary to refer to any details of the timeline of what has arisen in these proceedings until we get to 26 April 2018. It is on that date that Mr Hopkins, and those advising him, were in receipt of proper and adequate technical certification that all of the potential technical issues which gave rise to these proceedings had been resolved and that no matters of merit remained in dispute between Mr Hopkins and the Quinns arising out of the earlier litigation or these proceedings.
It was at that time that these proceedings should have been brought to a close.
Although the question of functional adequacy remained alive until 26 April 2018, that was no longer the position from that date onward. The certification made available on 26 April 2018 made it clear that, even had there been a significant incursion of the agricultural drainage pipe into Mrs Hopkins' property, that could have had no functional impact on Mrs Hopkins' quiet enjoyment of her property or on her property itself.
However, as the photographs taken by Mr Hopkins (folios 77 and 78) demonstrate, Mr Hopkins was aware, at that time, that the process of filling around, and concrete capping over, the agricultural drainage pipe could only possibly occasion, in a locational sense, a minor incursion into Mrs Hopkins' property.
After 26 April 2018, Mr Hopkins had no valid basis upon which to maintain the proceedings. All functional issues had been resolved and any possible incursions onto Mrs Hopkins' property (incursions being pursued by Mr Hopkins and not Mrs Hopkins, as earlier explained) were trifling.
There is, at the present time, no evidence before me as to what steps, if any, were undertaken by either Mr Hopkins or the Quinns, from 27 April 2018, to bring these proceedings to a conclusion without requiring a further contested court hearing.
As a consequence, given the position which applied up till that date is the only one about which I can have certainty and the absence of information as to what might have occurred between the parties between 27 April 2018 and the conclusion of the contested court hearing, it is not appropriate for me to make costs orders in these proceedings at this time.
It is, however, in the interests of finalisation of the proceedings, appropriate that I indicate what is my current intention as to the making of costs orders and to provide both parties, if they wish to do so, the opportunity to explain to me why some alternative costs order should be made.
I propose to allow the parties 28 days to consider whether they wish to be heard on the question of costs and, if they so advise my Associate, I will set the matter down for a further short costs hearing at 9.00 am (limit 55 minutes) after seeking mutually convenient dates from the parties.
However, if neither party notifies my Associate that they wish to be heard on the question of costs prior to the expiry of that 28-day period, I propose to order that the Respondents are to pay the Applicant's costs up to 26 April 2018, as agreed or assessed, and that, from 27 April 2018, the Applicant is to pay the Respondents' costs, as agreed or assessed.

[28]

Annexure A Orders 30 The Court orders that: (1) The Orders made by Craig J on 14 December 2015 are discharged. 31 The Court declares that: (2) The First and Second Respondents have breached conditions 2 and 3(a) of development consent granted to DA2014/1321 issued by Warringah Council and dated 21 July 2015 (Consent). 32 The Court further orders that: (3) Sandbagging is to be installed along the portion of the overland flow path between the garden beds and the shotcrete wall, in particular along the masonry brick wall that forms the southern edge of the overland flow path between No 9 Farnell Street, Curl Curl (No 9) and No 11 Farnell Street, Curl Curl (No 11) within 7 days of the date of this order, and is to be kept in place until completion of the Remedial Works referred to in Order (7) below and the Additional Remedial Works referred to in Order (8) below. (4) An easement that permits existing structures to remain together with the remedial works referred to in Orders (7) and (8) (the Easement), is to be prepared and registered, using LPI Form 11R, in favour of the First and Second Respondents consistent with the survey prepared by Bee & Lethbridge dated 9 June 2017 (the Survey), annexed to these Orders and marked "A", the terms of which are set out in Annexure B to these Orders. (5) The preparation of the terms and registration of the Easement in Order (4) is to be approved by the Applicant and undertaken and paid for by the First and Second Respondents. (6) The First and Second Respondents are to pay Mrs Sally Hopkins compensation in respect of the Easement in the amount of $59,446.47 within 14 days of the lodgement of the Easement with the NSW Land Property Information Office. (7) The Easement is to be limited only to existing encroachments being permitted to remain and the right to support and maintain the remedial drainage works and associated structures on the overland flow path, as set out in the drawings prepared by Mr Ted Bennett dated 13 August 2015 (revision C dated 3 April 2017) and technical drawing PS02-EZ00 prepared by Martens & Associates dated 4 August 2017 annexed to these Orders and marked "C" (Remedial Works), together with the works as set out in Order (8) below. . [as amended 21 August 2017] (8) In addition to the Remedial Works set out in the Bennett Plan, the First and Second Respondents are to ensure that the Remedial Works include the following additional remedial works (Additional Remedial Works) and/or any direction issued by Dr Martens for the implementation of the Remedial Works and the Additional Remedial Works: (1) The drainage cell behind the shotcrete wall is to: a) Have base drainage outlets created at 1.5m centres with 25mm diameters; and b) Be hydraulically connected to the internal drainage system at No. 11 Farnell Street. (2) In order to prevent further movement of the brick wall within the northern boundary and other structures on No.9 Farnell Street, high strength (at least 80 MPa) grout 'panels', with a width of approximately 150mm, are to be injected at 1.0 m centres within the void created by the drainage cell behind the shotcrete wall, such that: a) The grout provides a firm contact between the shotcrete wall in its current form and the brick wall within the northern boundary of No. 9 Farnell Street; and b) The grout is strategically placed to ensure that any subsurface water flow within the drainage cell is not significantly impeded and is drained to the drainage system for No. 11 Farnell Street. (3) Installation of the garage top slab to provide bracing for the shotcrete wall after the drainage cell behind the shotcrete has been tested and configured to properly drain. (4) The connection between the top of the shotcrete wall and the brick wall within the northern boundary of No. 9 Farnell Street is to be sealed to prevent any rainwater or stormwater ingress. (9) The First and Second Respondents are to be responsible for the ongoing maintenance of the Remedial Works as set out in the terms of the Easement. (10) Within 42 days of the making of these Orders, the First and Second Respondents are to procure, pay for and complete the carrying out of the Remedial Works and Additional Remedial Works, other than the works in Orders (8)(3) and (8)(4) with such works to be completed within 60 days of the making of these Orders. (11) The Remedial Works and Additional Remedial Works ordered pursuant to Order (10) are to be carried out by appropriately insured, qualified and licensed tradespersons and not by the First and Second Respondents, and are to be supervised and certified by Martens & Associates upon completion. (12) The Respondents are to pay for the supervision and certification carried out by Martens & Associates within 28 days of the rendering of any invoice by Martens & Associates for those services. (13) The Easement is to be lodged within 7 days after the Remedial Works and the Additional Remedial Works ordered pursuant to Order (10) are carried out. (14) Pursuant to s 5 of the Encroachment of Buildings Act 1922, the order for payment of compensation pursuant to Order (6) is to be registered, and thereafter will operate in accordance with s 5 of that Act, as a charge upon the land of No 11, until the compensation is paid in full. (15) The First and Second Respondents, in carrying out development upon No 11 pursuant to the Consent (including any modification of it), must comply and strictly abide with the terms of the Consent except as otherwise ordered pursuant to Orders (10) and (11) above. (16) Upon completion of the works on No 11 in accordance with the Consent (including any modification of it) and prior to the issue of an occupation certificate, the First and Second Respondents are to arrange and pay for a final dilapidation report (final dilapidation report) to be undertaken on No 9 by an appropriately qualified and licensed assessor, with that dilapidation report to be provided to the Applicant within 3 business days of being completed. (17) Any rectification works set out in the final dilapidation report are to be completed within 60 days of issue of the final dilapidation report. Such remedial works that are undertaken upon No 9 are to be carried out by suitably insured, qualified and licensed contractors nominated by the First and Second Respondents' Construction Works insurer and approved by Mrs Hopkins, and not carried out or approved by Mr Quinn. (18) If any insurance claim (including part of an insurance claim) for rectification of the dilapidation works set out in the final dilapidation report is rejected by the First and Second Respondents' insurance company, the liberty in Order (19) applies to approach Moore J for an order to be made addressing that, or those matters. (19) Liberty to restore is granted in the event that any issues relating to dilapidation, including the final dilapidation report, arise after the completion of construction on No 11 pursuant to the Consent that cannot be agreed between the parties. (20) Other than Orders (21) to (24), the First and Second Respondents are to pay the Applicant's costs of the proceedings, as agreed or assessed. (21) The First and Second Respondents are to pay 75% of the Applicant's costs of, and incidental to, the hearing on 10 February 2017 concerning the reopening of the proceedings, as agreed or assessed. (22). The Applicant is to pay the First and Second Respondents' costs of, and incidental to, the hearing on 28 March 2017 only in relation to the redesign of the stormwater system by Martens & Associates, on an indemnity basis. (23) Each party is to bear their own costs of, and incidental to, the hearing on 23 May 2017 concerning the costs argument. (24) The First and Second Respondents are to pay 50% of the Applicant's costs of, and incidental to, the hearing on 30 June 2017. 33 The Court notes that: (25) Mrs Hopkins' consent is given to the First and Second Respondent to carry out the Remedial Works referred to in Orders (7), (8)(1), (8)(2) and (8)(4) only, and not for any other works upon No 9. For the avoidance of any doubt, Mrs Hopkins' consent is not given to the construction of any additional structures not approved by Mrs Hopkins and Dr Martens.

At a glance

Court

Decision date

Before

Source

Judgment (29 paragraphs)

Parties

Cases Cited (7)

Cited By (1)