Meadth v Nye

Supreme Court of NSW|2024-11-27|Before: Elkaim AJ

JUDGMENT

This is a neighbourhood dispute. At the commencement of the hearing the parties asked me to deal with a threshold issue: whether or not the Supreme Court had jurisdiction to deal with this litigation. The plaintiffs said that, at least to the extent that they were pursuing the amended statement of claim, the Supreme Court had jurisdiction. The defendants said the whole matter fell within the exclusive jurisdiction of the Land and Environment Court (the LEC).
In accordance with the wishes of the parties I heard their respective submissions and then adjourned the matter to the following day to consider the jurisdiction question. On the second day of the hearing I told the parties that I was satisfied that the Supreme Court had jurisdiction and that I would provide my reasons in the principal judgment.
I specifically told the parties that I was satisfied the Supreme Court had jurisdiction to hear an action in nuisance against the defendants, as pleaded in paragraph 15 and thereafter of the amended statement of claim.
Before examining the question of jurisdiction it is important to note that the plaintiffs effectively abandoned the whole of the amended statement of claim except those paragraphs alleging the tort of nuisance. In addition, the plaintiffs' narrowed the relief they sought from that asserted in the amended statement of claim, to that described in a document entitled "Orders" provided with the plaintiff's preliminary written submissions on 21 November 2024.
The relief sought in this document is as follows: "1 ORDER that the Second Defendant update and maintain the website: https://www.goldenridgeanimalfarm.com.au/ (the Website) being the website of Golden Ridge Animal Farm trading from 686 Old Northern Road, Dural (the Business) to ensure that: (a) each booking made through the Website indicates whether the visitor(s) to the Business will be arriving by vehicle and require parking. 2 ORDER that the Defendants, must not (directly or indirectly) aid, abet, counsel, induce or procure: (a) more than 50 vehicles to book online through the Website to attend the Business prior to 12pm on: (i) Each day comprising a gazetted public holiday in New South Wales that results in a long weekend being the Friday, Saturday, Sunday and/or Monday (as the case may be) of that long weekend; and (ii) Each day comprising public school holiday periods as published by the NSW Government from time to time. (b) more than 50 vehicles to book online through the Website and attend the Business after 12pm on: (i) Each day comprising a gazetted public holiday in New South Wales that results in a long weekend being the Friday, Saturday, Sunday and/or Monday (as the case may be) of that long weekend; and (ii) Each day comprising public school holiday periods as published by the NSW Government from time to time."

Background

There are two plaintiffs, they are married and have two young children together. The second plaintiff brought six children to the marriage. The plaintiff's live with their two children and three of the second plaintiff's six children in a property in the outer Sydney suburb of Dural. This suburb falls under the umbrella of the Hills Shire Council. The other three of the second plaintiff's six children reside with the plaintiffs from time to time.
The plaintiffs' residence is situated at No 8 of a semi-rural road. The road is bitumen but has no curbing or guttering, and not many streetlights. There is no footpath. It is about 2 km long and the speed limit is 60kph.
The defendants submitted that there were some line markings on the roadway, but I could not identify them in the photographs or the videos. The plaintiffs did not concede the existence of any line markings. I am satisfied there are no line markings on the roadway.
No 8 is owned by the first plaintiff, who purchased the property in November 2019. The second plaintiff owns No 6. He bought it in 2016. No 6 adjoins No 8.
A new residence is being built on No 6. When it is finished, the plaintiffs and their children will reside at No 6.
The defendants are father and daughter. The first defendant, together with his now deceased wife, are the owners of a property ('the Farm') which is situated near to, but not abutting, both No 6 and No 8. The following aerial photograph illustrates their respective locations.
Importantly, all three properties have their respective entrances along the same road.
The first defendant has lived at the Farm since 1985. The second defendant grew up on the Farm, but no longer lives there. The first defendant and his wife started a business on the Farm called the Golden Ridge Animal Farm. It continues to operate, but it is now run by the second defendant. The second defendant's involvement in the Farm was not conceded. As will be seen below, I am satisfied the second defendant is running the business.
The first defendant suffers from ill-health and is generally confined to his residence on the Farm.
There are 37 parking spots in the Farm's grounds. There are up to 15 spaces available for parallel parking on the roadway immediately adjacent to the Farm. This area, and some of the internal parking, can be seen in photograph '6' of Exhibit A. Exhibit A is useful in that it shows the path a vehicle would take after turning into the roadway and then continuing on past Nos 6 and 8. One of the parking signs which can be seen in some of the photographs is shown in Exhibit 2. It allows "Parallel Parking Only" on either side of the sign.
The business operated on the Farm is a "hands on farm for children." There is a kiosk, there are pony rides and feed buckets can be purchased to feed animals located within the Farm. Chickens apparently roam across the property and their eggs are available, for a price, to be collected.
The dispute in this case is primarily concerned with parking and traffic. Visitors who do not find internal parking, if they have bothered to look for it, will park along the street sometimes extending past the entrance to No 8.
The 'problem' is said to be particularly acute on long weekends and during school holidays.
According to the plaintiffs these are the following deleterious consequences of the street parking: 1. When visiting vehicles are parked up to and beyond the driveway to No 8, exiting from their properties (both No 6 and No 8) is dangerous because the parked vehicles obscure the view up and down the road. Venturing out of the driveway has often resulted in 'near-misses' with vehicles travelling along the road. 2. Once on the road, the danger persists. In particular, if vehicles are parked on both sides of the road, the already narrow road is even more constrained so that vehicles travelling in the opposite direction cannot safely pass each other without one vehicle pulling over to the side. 3. Persons who park along the road often perform dangerous manoeuvres, such as U-turns, which present an obstacle to other users on the road. 4. The occupants of the vehicles that have been parked along the road will walk along the road to the farm, or back to their vehicles, creating a danger to themselves. 5. The occupants of the vehicles that have parked along the road will often leave rubbish on the verge. The castaway products might include "poppas (juice), soiled nappies, plastic bags, food, food packaging and plastic drink bottles." The allegations concerning garbage were ultimately abandoned. 6. Efforts made by the second plaintiff to cordon off part of the road from parking vehicles have been hampered by "a female driving a 4WD that came out of the Farm driveway" who then removed the flags and plastic fencing that had been erected by the second plaintiff.
The defendants deny there is a problem, saying the traffic is no worse than any Sydney street and they challenged the assertions of difficulty in exiting driveways.
The first complaint about parking was made on 11 October 2019. Mr Madadghar attended No 6 in relation to demolition works he was arranging at this property. When he came to the entrance to No 6 he found that it was partially blocked by motorcars. Mr Madadghar also noticed that the roadway had motor vehicles on both sides, and he was worried that there could be an accident. Mr Madadghar went into the Farm and asked to speak to a manager. A manager spoke to him and in response to his concerns said: "Talk to my hand. You are free to complain to whoever you want."
The plaintiffs asked me to infer that the manager was the second defendant, the inference being derived from the person being a manager and being female. I think the inference is something of a 'stretch' and decline to draw the inference. I do not think the point is of much significance. Whether the manager was the second defendant or not, the fact is that a complaint was made to the business, and it is the business which is the source of the alleged nuisance.
The plaintiffs sent an email to the local council on 11 September 2020 complaining about the traffic situation, as well as concerns about garbage. The council responded that the erection of "No Parking" and "No Stopping" did not "abide with the Council's Policy regarding on street parking restrictions …"
There was an on-site meeting between a council representative and the second defendant on 12 April 2021. The Council officer summarised the meeting in an email to the second defendant on 20 April 2021. In the email the officer says that the development consent had been breached. The following are excerpts from the email: "As agreed by you the customers will be informed through business website to park within the premises and those who turn up without booking will be asked to leave." … "As a business owner you have been informed of the potential triggers of impacts on living amenity of the adjoining neighbours such as traffic, parking and noise. As discussed in meeting you have recognised these issues and has assured to minimise any impacts."
The first plaintiff is both a solicitor and a real estate agent. In her former guise the first plaintiff wrote to the defendants on 11 May 2021 complaining that they were in breach of their development consent and pointing out the dangers associated with parking along the street. In particular, the letter states that the parking was "inherently dangerous by reason of the fact that pedestrians are compelled to walk on the road in order to access the Business."
Solicitors acting for the second defendant, Dina Lawyers, responded to the first plaintiff's letter of 11 May 2021 by a letter dated 18 May 2021. They attached the email from the council dated 20 April 2021, referred to above. The letter from Dina Lawyers includes the following: "We confirm that our client is aware of the issues and obligations involved, and your clients can rest assured that our client will do everything possible to ensure that her obligations are met."
Besides the assurance just quoted, the letter serves another purpose. I said above that the defendants did not concede that the second defendant operated the Farm business. I think the letter from Dina Lawyers stating that they were instructed by the second defendant, the second defendant owning the business name and the absence of any contrary evidence, in particular from the second defendant, combine to enable me to comfortably be satisfied that the business was being run by the second defendant.
These proceedings were commenced on 22 June 2021.
The Farm was shut from a date in June 2021 until 14 October 2021 due to the COVID-19 pandemic.
The first plaintiff says that the parking and traffic issues resumed on 3 April 2022 and have continued until the present time.
The plaintiffs submitted that despite the assurances given to the Council and the assurances given in the letter from Dina Lawyers, no action has been taken to address the parking issues. In fact, to the contrary, as seen in the unchallenged evidence of the second plaintiff, his erection of "coloured flags and plastic fencing" at the entrance to No 8 was defeated by a person, emanating from the Farm, removing the flags, and fencing and throwing them to the side of the road. The second plaintiff says, again unchallenged, that this happened at least 10 times. These events obviously occurred prior to 16 November 2021, the date of his affidavit.
The defendants made the submission that there was no evidence to establish that the motorcars parked along the roadway were associated with persons attending the Farm. It is of course quite possible that some of the vehicles were not associated with visitors to the Farm, however the overwhelming inference from the videos and photographs, in particular the pedestrians walking to and from the Farm, is that the vehicles had transported visitors to the Farm. There is also the 'coincidence' that the videos were filmed at times when the plaintiffs assert the Farm was at its busiest, namely weekends and school holidays.
I will return to the witnesses and tendered evidence below, but think the above is a sufficient description of the history to enable me to state my views on jurisdiction.

The plaintiffs' case on jurisdiction

The plaintiffs assert the existence of both a private and public nuisance.
A useful general description of private nuisance was given by Campbell J in Malliate v Sharpe [2001] NSWSC 1057 at [39]: "The tort of private nuisance aims to protect an occupier's interest in the beneficial use of his or her land, and of his other interests in land. It occurs when activities of the defendant interfere, to a greater extent than is reasonable, with the plaintiff's use of his or her land."
A more detailed analysis was conducted by Peden J in Rifai v Woods [2024] NSWSC 374, from [23]-[26]: "23. The law of private nuisance seeks to balance the interests of one land owner using their land as they see fit, and the interests of another land owner, whose use and enjoyment of their own land is interfered with because of the other's actions: Bayliss v Lea (1961) 62 SR (NSW) 521 at 529 (Owen J, Ferguson J concurring), citing Fleming, The Law of Torts (2nd ed, 1961, Clarendon Press) at 362-363. 24. A private nuisance is a continuous or recurrent state of affairs: Hargrave v Goldman (1963) 110 CLR 40 at 59 (Windeyer J). To establish private nuisance, the state of affairs must amount to or involve a material and unreasonable interference with a plaintiff's use and enjoyment of their land: Brown v Tasmania (2017) 261 CLR 328 at [385] (Gordon J); Gales Holdings Pty Ltd v Tweed Shire Council (2013) 85 NSWLR 514 at [138] (Emmett JA, Leeming JA and Sackville AJA agreeing) (Gales). A material and unreasonable interference can include both physical damage to property and non-physical damage: Quick v Alpine Nurseries Sales Pty Ltd [2010] NSWSC 1248 at [167] (Ward J). 25. The question whether an interference is material and unreasonable requires the Court to make a value judgment in the circumstances: Southern Properties (WA) Pty Ltd v Executive Director of the Department of Conservation and Land Management (2012) 42 WAR 287 at [119] (McLure P, Buss JA agreeing). In making this judgment, regard must be had to 'plain, sober and simple notions among ordinary people', as well as to 'the character of the locality in which the inconvenience is created and the standard of comfort that those in the locality may reasonably expect': Gales at [138]. In this respect, allowances must also be given for a certain amount of 'give and take' between neighbours: Gales at [138]. 26. Liability for private nuisance is established if the defendant created, adopted or continued the state of affairs which constitutes the nuisance unless the defendant's conduct involved 'no more than the reasonable and convenient use of its own land': Gales at [131]. The 'reasonable and convenient' user defence has been variously described in terms of whether the defendant's conduct was necessary for the common and ordinary use of the land or a natural use of land: Gartner v Kidman (1962) 108 CLR 12 at 45 (Windeyer J) (Gartner). The proper question to ask to determine whether a particular use is reasonable and convenient is whether the use 'is reasonable according to the ordinary uses of mankind living in society, or more correctly in a particular society': Elston v Dore (1982) 149 CLR 480 at 488 (Gibbs CJ, Wilson and Brennan JJ) (Elston), citing Sedleigh Denfield v O'Callaghan [1940] AC 880 at 903-904 (Wright L)."
In Wallace v Powell & Ors [2000] NSWSC 406, Hodgson CJ in Eq, at [32] said this about a public nuisance relating to a roadway: "A public nuisance is an act or omission which materially affects the reasonable comfort and convenience of the life of a class of the public. Obstruction of a public highway may amount to such a nuisance, depending upon the degree and length of time and reasonableness of the obstruction. Those liable for such a nuisance would be the persons who created it, and also persons who unreasonably failed to end it. In this case, although the damage caused to persons other than the plaintiff appears to be small, in my opinion the substantial nature of the obstructions is such as to make them a public nuisance."
The plaintiffs submitted that, whether a public or private nuisance, they had a pleaded cause of action and a consequent entitlement to a remedy. This combination gave the Supreme Court jurisdiction. They submitted that the Supreme Court unquestionably has jurisdiction in relation to the tort of nuisance and the plaintiffs sought no more than to establish nuisance on the part of the defendants and to obtain an appropriate remedy.

The defendants' case on jurisdiction

The defendants' argument proceeded in this way: 1. Section 9.44(a)(i) of the Environmental Planning and Assessment Act 1979 (NSW) (the EP&A Act) says that a reference to a breach of the EP&A Act is a reference to a "contravention of or failure to comply" with the EP&A Act. 2. Section 9.44(b)(iii) says that a reference to the EP&A Act includes a reference to a "consent granted under" the EP&A Act, "including a condition subject to which a consent is granted…" 3. Section 9.45 permits any person to bring proceedings in the LEC for breach of the EP&A Act. This includes, by reason of the above-mentioned subsections of s 9.44, breaches of the conditions of a development consent. 4. Section 20(1)(c) of the Land and Environment Court Act 1979 (NSW), (the LEC Act), gives jurisdiction to the LEC to deal with proceedings under s 9.45 of the EP&A Act. 5. Section 20(1)(e) of the LEC Act refers to proceedings which fall under s 20(2). 6. Section 20(2) of the LEC Act gives the LEC the same jurisdiction as the Supreme Court would have, but subject to s 71 of the LEC Act. This jurisdiction includes, broadly, dealing with issues arising from development consents, including the enforcement of rights obligations and duties. There is also power to make declarations and award damages. 7. Section 71 of the LEC Act says that proceedings referred to in s 20(1)(e), subject to s 58 of the LEC Act, "may not be commenced or entertained in the Supreme Court." 8. Therefore, the current proceedings necessarily involving an alleged breach of the development consent, can only be heard in the LEC. The defendants also added that if the matter was transferred to the LEC, that the LEC would be able to deal with the assertion of nuisance because it would have all of the powers of the Supreme Court. This was said to arise from s 149 of the Civil Procedure Act 2005 (NSW) (the CPA).

Does the Supreme Court have jurisdiction?

Condition 14 of the development consent dated 19 September 1989 states: "The development is to be conducted in such a manner as not to interfere with the amenity of the adjoining and nearby area."
The modification to the consent in 1991 did not change the above condition. There was no dispute that the "adjoining and nearby area" referred to in the condition encompassed the properties owned by the respective plaintiffs.
There was also no dispute that a finding of nuisance necessarily involved a finding of a breach of this condition. This exchange occurred between me and counsel for the plaintiffs: "HIS HONOUR: A finding in your favour of a nuisance, would that of itself amount to a finding of a contravention of the development consent? KLOOSTER: It would have to, yes. It would have to."
At first sight, the defendants' approach seemed attractive. If a finding of nuisance, assuming such a finding can be made, necessarily involves a finding that the development consent was contravened, then the only place that the proceedings could be heard would be the LEC.
However, when one goes back to the amended statement of claim it is evident that the pleading alleges both breaches of the development consent and, separately, commencing at [15], allegations of nuisance. These allegations do make reference to the development consent but fundamentally rely on "an unreasonable and substantial interference with the quiet use and enjoyment" of the plaintiffs' respective properties.
I agree with the defendants that the allegations before [15] of the amended statement of claim would fall within the exclusive jurisdiction of the LEC. But the allegations of nuisance are separate, and while their establishment might also involve a breach of the development consent, they stand alone.
The defendants referred me to the decision of Leeming JA in Minister for Local Government v Blue Mountains City Council (2018) 97 NSWLR 1132; [2018] NSWCA 133 which deals with the jurisdiction of this court and that of the LEC. The jurisdiction point was described by Leeming JA, at [57] as follows: "The critical question in the present case is whether statute, in the form of s 20 and s 71 of the Land and Environment Court Act 1979 (NSW), denied jurisdiction to the Supreme Court."
In his Honour's summary of conclusions on jurisdiction, he stated, at [59]: "I have concluded that if the proceeding were brought pursuant to s 673 of the Local Government Act, then the Supreme Court would have lacked jurisdiction. The proceeding would have been within Class 4 of the jurisdiction of the Land and Environment Court, and within that Court's exclusive jurisdiction. Indeed, I favour the view that the entirety of Class 4 of the jurisdiction of the Land and Environment Court is exclusive to that Court, although that conclusion does not stand in the way of the Supreme Court having jurisdiction to make orders which are ancillary to the exercise of that Court's jurisdiction (one example would be an order granting leave to proceed pursuant to s 471B of the Corporations Act 2001 (Cth) to a corporate respondent to Class 4 proceedings to which a liquidator had been appointed). But, contrary to Council's submissions, that is not the nature of the jurisdiction it sought to invoke."
I think his Honour is stating that while the LEC might have exclusive jurisdiction in respect of Class 4 matters, that does not mean the Supreme Court does not have jurisdiction to make orders ancillary to the Supreme Court's jurisdiction. The point here however, is different. The orders sought under the cause of action of nuisance are not ancillary to the court's jurisdiction and they are not a product of a breach of the development consent. They are entirely a product of the courts otherwise uninhibited jurisdiction to deal with a cause of action in nuisance.
A case more akin to the present case is Bathurst City Council v Saban (1985) 2 NSWLR 704, where Young J stated, at p 708: "The jurisdiction problem in this case arises because of the Land and Environment Court Act 1979, ss 20(2) and 71. Section 71 forbids proceedings of the kind referred to in s 20(1)(e) (which virtually means s 20(2)) of the Act from being entertained in the Supreme Court. Section 20(2) provides that one of these matters is proceedings to enforce any right, obligation or duty conferred or imposed by a planning or environmental law. A planning or environmental law includes the Local Government Act, Pts XI or XII, the Environmental Planning and Assessment Act, or any statutory instrument made thereunder. Exhibit A, which is the certificate under the Environmental Planning and Assessment Act, s 149, shows that the land is zoned Residential 2(a) under the Bathurst Planning Scheme published in Government Gazette No 124 of 24 November 1972, and that such land may be used for dwelling-houses, but may not be used as a junk yard. In Grace Bros Pty Ltd v Willoughby Municipal Council (McLelland J, 1 October 1980, unreported but noted (1980) 44 LGRA 416-417), McLelland J held that an interim development order made under the Local Government Act, Pt XIIA, was not a planning or environmental law within the meaning of the Land and Environment Court Act, s 20(3). However, in a later case involving the same parties, reported Grace Bros Pty Ltd v Willoughby Municipal Council (1980) 44 LGRA 400, it was held that if the Environmental Planning and Assessment Act, s 76, has to be called in aid by the plaintiff, then the Supreme Court does not have jurisdiction even if a pre-1979 planning scheme is in question. The Environmental Planning and Assessment Act, s 76(3), provides that: '… where an environmental planning instrument provides that development specified therein is prohibited, a person shall not carry out that development on land to which that provision applies.' Section 20(3) was amended by Act 153 of 1980 and again by Act 63 of 1985 so that the section in its current form clearly confers exclusive jurisdiction to police environmental laws on the Land and Environment Court, at least so far as direct enforcement is concerned. Accordingly, unless I am somehow or other invested with appendant jurisdiction, I cannot see how I can issue an injunction that the defendants not keep a junk yard even if I was satisfied on the facts that such an injunction should be made. However, the plaintiff's summons does not seek such an order. It seeks orders for injunctions in respect of public nuisances that the defendants abate the unsightly conditions in their yard. A plaintiff is entitled to elect what remedy it will seek: see Moynihan v Attorney-General [1957] NZLR 347. As Bowen LJ said in Knowles v Roberts (1888) 38 Ch D 263 at 270: 'The rule that the Court is not to dictate to parties how they should frame their case, is one that ought always to be preserved sacred.' The question is, however, how far s 20(2) prevents not only this Court entertaining an application for an injunction in terms of the Environmental Planning and Assessment Act, s 76, but whether it also operates to prevent the Court making any injunction which would have the effect of enforcing an environmental law. My present state of thinking is that the Court's power to make such an order as the plaintiff seeks is not affected by the Land and Environment Court Act, s 20, notwithstanding that if an injunction was made on the public nuisance ground, it would have an indirect effect of making the defendants comply with the Environmental Planning and Assessment Act, s 76. There are two reasons favouring this view; (1) it takes very clear words to deprive a Supreme Court of jurisdiction; and (2) Wootten J's judgment in Grace Bros Pty Ltd v Willoughby Municipal Council makes it clear that s 20 is not to be read so widely as to produce jurisdictional chaos between two State courts."
Accordingly, I rejected the attack on the jurisdiction of the court to the extent that the plaintiffs are pursuing their case only as a breach of the tort of nuisance.
Consequent upon my finding of jurisdiction I permitted the plaintiffs to file a further amended statement of claim. The defendants complained, more than once, that the new pleading added to, or expanded, the plaintiffs' case. I reject this complaint. There is nothing new in the new pleading; to the contrary, it substantially reduces the scope of the amended statement of claim and adds no new particulars to the allegations of nuisance.
In relation to a point made by the defendants arising from s 149 of the CPA, I do not agree with the defendant's submission. I think this section is aimed exclusively at transfers to the District Court and the Local Court, but not to the LEC. The LEC is a court of equal standing to the Supreme Court and is not a "lower court" as referred to in s 149. The LEC is a superior court of record.

The evidence

The evidence was made up of affidavits, some cross-examination of two deponents, the documents and videos exhibited to the affidavits and other documents. A separate video was also tendered (Exhibit B).
The plaintiffs read the following affidavits: 1. Ms Alexandra Meadth (the first plaintiff) dated 10 November 2021, 29 September 2022, and 22 November 2024. 2. Mr Medhat Eleisawy (the second plaintiff) dated 16 November 2021. 3. Mr Aziz Madadghar dated 19 November 2021.
The plaintiffs were cross-examined. Mr Madadghar was not cross-examined.
The defendants read these affidavits: 1. Mr John Nye (the first defendant) dated 7 March 2022. 2. Mr Raymond Zeaiter dated 7 February 2022. 3. Ms Jasmine Grieve dated 7 March 2022.
None of the defendants' deponents were cross-examined.
Mr Zeaiter lives at No 1 and has resided there since 2017. He exits his driveway about three times a day and has "never felt unsafe or worried about getting hit by another car." Mr Zeaiter says that his "view of the road has never been obstructed by customers of the Farm."
Mr Zeaiter hasn't seen much rubbish on the roadway, but when it has been there it has been picked up by staff of the Farm.
Ms Jasmine Grieve lives "directly across the road from" the Farm. She has been there for about a year and a half and has recently extended her lease "because I love living there".
Ms Grieve has "never felt unsafe pulling out of my driveway" and has not seen any damage to the nature strip.
The absence of an affidavit from the second defendant gave rise to a submission that inferences should be drawn against the second defendant. I think there is merit in the submission, at least to the extent of two areas of contention: 1. whether the second defendant ran the Farm business; and 2. whether the second defendant had taken any steps consistent with the assurances given on her behalf to the council and to the plaintiffs.
These two areas were put in issue by the defendants, and both were obviously within the knowledge of the second defendant. No explanation was given for the second defendant not being called. I do not think it is an answer to say the second defendant had been subpoenaed by the plaintiffs and not called by them. They have enough evidence to prove the above two allegations. If the second defendant wished to justify her denial, I would have expected her to put on evidence.
I think I can comfortably draw an inference that, in respect of the above two contentions, the second defendant's evidence would not have assisted her case.
The cross-examination of the plaintiffs was limited to questions about the video evidence, primarily challenging ease of access to and from the driveways of No 6 and No 8 and lines of sight along the roadway.
All of the witnesses who gave their views on dangers, or absence of dangers, of the roadway and the traffic circumstances were treated as providing their personal opinions.
I think it important to note the following. The first plaintiff was not challenged on her assertion that her complaints about traffic and parking continued to the present time. Of course, the actual existence of any danger was in dispute.
As already mentioned, the second plaintiff was not challenged on his statement that the coloured flags and plastic fencing he erected in front of No 6 were removed each Saturday by a person emanating from the Farm.
The very limited cross-examination did not permit me to form any view which might affect the credit of the plaintiffs. I also obviously cannot express any opinion on the credit of the deponents of affidavits who were not cross-examined. Ultimately credit is not an issue in the case. While there were some challenges to the evidence they did not emanate from any allegation of a lack of credit on the part of any witness.
Much more helpful were the videos. Caution must obviously be taken when viewing videos and photographs, in particular in trying to assess angles and measure distances. Nevertheless, I did find the videos and photographs to be of assistance, in particular in giving credence to the factual assertions made by the plaintiffs about their difficulties in using their respective driveways and the existence of pedestrian and vehicular traffic on the roadway.
I think the videos establish the following: 1. When vehicles are parked along both sides of the roadway, then, at certain lengths of the road, it is difficult, perhaps impossible, for vehicles travelling in opposite directions to pass each other without a real danger of contact. This can be seen in Video ME 5. 2. Vehicles emerging from the driveways of No 6 and No 8 can face a real issue of a lack visibility to enable a safe entry to the roadway. This is especially the case when they are turning right, towards the Farm. This can be seen in Video AM 33. The defendants suggested there was a gap next to a black Mercedes Benz giving a line of sight. This is simply a coincidence occurring on the particular day. I note the applicable speed limit is 60 kph, which I would regard as high in a congested area. I suspect that in the many roadways referred to by the defendants as being part of the 'normal' traffic congestion of Sydney, the speed limit is more likely to be 50 kph, if not, as increasingly seen, 40 kph. 3. The absence of a footpath requires pedestrians, often including young children, some in strollers, to walk or be pushed along the roadway (See Videos AM 19 and ME 5). The speed limit is again relevant in respect of pedestrians. It may well be the law that, whatever the speed limit, drivers should drive according to the circumstances. Unfortunately, many drivers treat the speed limit, presuming they are not exceeding it, as the legitimate speed at which they may travel. 4. Travelling along the roadway is not impossible and not necessarily dangerous. At times vehicles perform U-turns or three-point turns. More important however, is the potential for danger, in particular when emerging from a driveway, passing opposing vehicles and passing pedestrians on the roadway.
Having reached the conclusion that the presence of vehicles parked along the roadway, extending past the driveway to No 8, has the potential to create a dangerous environment for both pedestrians, vehicles on the road, and vehicles emerging from Nos 6 and 8; the question then arises as to whether the circumstances amount to a nuisance. If this question is answered in the affirmative, the next question will be whether the nuisance was caused by the defendants, or one of them.

Has private nuisance been established?

I think the answer is 'Yes'. I have approached the question through the ingredients stated by Peden J in Rifai: 1. Has the use and enjoyment of the plaintiffs' land been interfered with by the actions of the defendants? The defendants submitted that there was no interference with the plaintiffs' land, both at No 6 and No 8, because any interference only arose on public land. This is obviously the case when driving along the roadway but also when stationary waiting to exit onto the roadway because, at the relevant stage, the vehicle would be on council land. There was no dispute that the driveways to No 6 and No 8 were on council land between the roadway and the entrance to the respective properties. In my view this is not a bar to the existence of a private nuisance. The inability to safely egress from the property is a restriction on, or interference with, the plaintiffs' ability to enjoy their land. Similarly driving on the road to and from the driveways, when there were vehicles parked on both sides of the road and the pathway was narrowed, would be an interference with the enjoyment of the plaintiffs' land because of the interference in being able to safely drive to, or leave their land. 2. Is the nuisance a current state of affairs involving a material and unreasonable interference with the plaintiffs' use and enjoyment of their land? The evidence of the first plaintiff is that, on long weekends and during school holidays, the interference has existed for some time and continues to exist. 3. In Rifai it was stated that the assessment of unreasonable interference may involve "the character of the locality in which the inconvenience is created and the standard of comfort that those in the locality may reasonably expect". The defendants submitted that on-street parking, narrow roadways and difficulties leaving driveways because of nearby parked vehicles are a common feature of Sydney suburbs. There are certainly many areas of Sydney where this is correct. However, the suburb of Dural is not such an area. Rather it is an area favoured by its residents for its semi-rural nature, no doubt including the contrast to the 'jammed' streets of more urban suburbs. 4. "Liability for private nuisance is established if the defendant created, adopted, or continued the state of affairs which constitutes the nuisance unless the defendant's conduct involved 'no more than the reasonable and convenient use of its own land'" as stated in Rifai. Other than the interruption during the COVID-19 pandemic, the nuisance has remained constant (during long weekends and school holidays) and no efforts to combat the nuisance have been made. This has been the case despite the assurances given to both the council and the plaintiffs many years ago. Further, while inviting patrons to the Farm and acknowledging that they would almost entirely come to the Farm in vehicles, is a completely reasonable business activity, it is not reasonable that the business has effectively ignored the impact to the roadway and the neighbours.

Has a public nuisance been established?

Again, I think the answer is 'Yes".
Returning to the passage quoted above from Wallace, the class of the public affected are road users both as occupants of vehicles and pedestrians. During long weekends and school holidays, which together amount to protracted periods, the extra traffic and parking effects of the business at the Farm amount to an obstruction of the roadway and an impediment to the safety of the users of the roadway.
The plaintiffs submitted that the same conduct can amount to both a public and a private nuisance. In the present case I think there is a distinction. I do not think the nuisance, as a public nuisance, can be extended to the interference with the plaintiffs' egress from their respective driveways. This nuisance can only be a private nuisance.
Another approach to the establishment of public nuisance is through the four ingredients set out by Cavanagh J in Hunt Leather Pty Ltd v Transport for NSW [2023] NSWSC 840, at [950]: "The elements of the tort of public nuisance are less controversial. They are that: (1) there is a common injury to members of the public generally; (2) the defendant knew or ought to have known of the nuisance to the public generally; (3) the defendant had the means to abate the nuisance; and (4) the defendant failed to take steps to abate the nuisance."
Although the final decision in Hunt Leather was overturned on appeal, the findings in respect of public nuisance were not disturbed (Transport for NSW v Hunt Leather Pty Ltd; Hunt Leather Pty Ltd v Transport for NSW [2024] NSWCA 227).
The only one of the above ingredients that I think is open to argument here, is the third, namely whether "the defendant had the means to abate the nuisance." As will be seen below I think the abatement of the nuisance is only effectively achievable through council signage. Nevertheless, the defendants made no attempt whatsoever to deal with the nuisance of which they were plainly aware and in fact defeated steps taken by the plaintiffs to deal with the parking problem. I am referring to the removal of the flags and fencing that had been put up by the second plaintiff.
Although I reject the solution put forward by the plaintiffs, I do think an attempt could have been made by the defendants to deal with the parking problems even if their measures would have been of limited efficacy.

Remedies

The plaintiffs have not distinguished, in the remedy they have requested, between the nuisance being public or private or both.
I have set out above the orders, by way of injunctions, sought by the plaintiffs.
The plaintiff's described the injunctions as being quia timet in nature. The defendants disputed this description, suggesting the injunctions were mandatory and not quia timet. I was taken to the judgment of the House of Lords in Morris v Redland Bricks Ltd [1970] AC 652 to illustrate the difference between the two types of injunction. Lord Upjohn said at pp 664-665: "But to prevent the jurisdiction of the courts being stultified equity has invented the quia timet action, that is an action for an injunction to prevent an apprehended legal wrong, though none has occurred at present, and the suppliant for such an injunction is without any remedy at law." … "My Lords, quia timet actions are broadly applicable to two types of cases: first, where the defendant has as yet done no hurt to the plaintiff but is threatening and intending (so the plaintiff alleges) to do works which will render irreparable harm to him or his property if carried to completion. Your Lordships are not concerned with that and those cases are normally, though not exclusively, concerned with negative injunctions. Secondly, the type of case where the plaintiff has been fully recompensed both at law and in equity for the damage he has suffered but where he alleges that the earlier actions of the defendant may lead to future causes of action. In practice this means the case of which that which is before your Lordships' House is typical, where the defendant has withdrawn support from his neighbour's land or where he has so acted in depositing his soil from his mining operations as to constitute a menace to the plaintiff's land. It is in this field that the undoubted jurisdiction of equity to grant a mandatory injunction, that is an injunction ordering the defendant to carry out positive works, finds its main expression, though of course it is equally applicable to many other cases. Thus, to take the simplest example, if the defendant, the owner of land, including a metalled road over which the plaintiff has a right of way, ploughs up that land so that it is no longer usable, no doubt a mandatory injunction will go to restore it; damages are not a sufficient remedy, for the plaintiff has no right to go upon the defendant's land to remake his right of way."
Based on the just quoted passages, I think the orders sought by the plaintiffs are more in the nature of a mandatory injunction, namely "an injunction ordering the defendant to carry out positive works." It may however be equally appropriate to describe the remedy sought as a mandatory quia timet injunction.
Whatever the correct description, an injunction should only be sparingly granted. I think there are a number of problems attendant upon the plaintiffs' desired orders: 1. Order '1' is simple enough and probably possible of implementation but unlikely to be productive of any abatement of the nuisance. 2. Order '2' has these vices: 1. Vagueness; in particular what conduct would fall within "aid, abet, counsel, induce or procure". As stated in Morris at p 666: "If in the exercise of its discretion the court decides that it is a proper case to grant a mandatory injunction, then the court must be careful to see that the defendant knows exactly in fact what he has to do and this means not as a matter of law but as a matter of fact, so that in carrying out an order he can give his contractors the proper instructions." 1. 50 vehicles before 12pm and 50 vehicles after 12pm does not cater for the evidence of the first defendant that the Farm runs 2-hour sessions four times a day. A suggested amendment to 100 vehicles per day might address this issue but does not allow for any expansion of the business. The plaintiffs were admirably firm in their intention not to have a harmful impact on the Farm's business. 2. Bookings are not made by vehicles.
Some of the points I have made in the preceding paragraph, especially the last, are perhaps pedantic and could be 'tweaked' to achieve a better and more understandable reading. However, I do not think it appropriate to devise alternate orders which have not been the subject of scrutiny and argument by the defendants. The plaintiffs, only days before the hearing, abandoned the original relief they claimed and substituted the orders now sought. I think they should be bound by their choice, perhaps only subject to slight amendment.
There is another reason, and perhaps one of much more significance, which I think dictates my reluctance to make the orders as requested by the plaintiffs. This is a recognition that the only practical means of achieving the effective and sustained abatement of the nuisance lies in the hands of the local council. The simple erection of 'No Stopping' or 'No Parking' signs and the delineation of space surrounding driveways would achieve the plaintiffs' purposes.
In addition, the local council, perhaps even with the assistance of the police, would be the only entity capable of enforcing the restrictions. Whatever was put on the defendants' website might sometimes alleviate the nuisance, but it would not prevent vehicles parking along the roadway perhaps even at some distance from the Farm, leaving space for a walk to the Farm.
The injunction sought is requested to be permanent. Ultimately, I cannot see that its effect would be other than minor, if not meaningless, and certainly not achieve the relief the plaintiffs' desire. At the same time, as long as the orders were in place, the defendants would be bound to attempt to give them effect.
There is authority that an injunction should not be over specific, rather it should generally seek to prevent the continuation of the nuisance. Slattery J stated in Lord v McMahon (No 3) [2016] NSWSC 1686, at [28]: "The Court usually neither prescribes nor supervises the execution of particular engineering solutions to nuisance problems but express its orders in general language. A common standard form of injunction in a nuisance case consists of an order forbidding the defendant from the acts complained of 'in such a manner as to constitute a nuisance to the plaintiff': Thompson - Schwab v Costaki [1956] 1 WLR 335 at 340 and mandatory injunctions are commonly couched in language to take 'all steps necessary' to bring about a certain result: Kennard v Cory Brothers & Co Ltd [1922] 1 Ch 265."
The present case does not have the engineering elements present in Lord. However, an injunction in general terms, as described in the quoted passage from Lord, would have no efficacy in the present case, in particular because the only practical way of preventing the nuisance is through the council erecting appropriate parking limitation signs.
The plaintiffs chose to sue in this court. They chose not to join the local council. They chose not to make any application to transfer the matter to the LEC. In my view, while they have successfully established a nuisance they have not presented a formula for viable relief both because it is probably not effectively attainable from the defendants and amounts to relief that could only properly be instituted by the local council.
This is not to say that an action in the LEC would necessarily be successful. That would be a matter for the LEC. My point is simply that the relief sought in this court is to a large extent not understandable, but more importantly, not viable or likely to be productive of its intended purpose.
The result is that I decline to make the orders sought by the plaintiffs, or any other orders in their favour.
I should add here that had I found in favour of the plaintiffs the judgment would only have been against the second defendant. The unchallenged evidence from the first defendant is that he no longer takes any part in running the Farm and therefore could not be liable for the continuing nuisance.

Costs

There were three primary issues fought in this court; jurisdiction, the presence of nuisance and, if nuisance was established, the remedy for the nuisance. The plaintiffs succeeded on the first issue, although only after abandoning those areas of the claim that were justiciable exclusively in the LEC. The defendants made no concessions even after the reduction of the claim.
The second issue, nuisance, was won by the plaintiffs.
The third issue, remedy, was won by the defendants.
The result of the litigation is a win for the defendants which would ordinarily result in a costs order in their favour. However, I have a wide discretion in costs. I note the plaintiffs asked for a costs order against the defendants following my ruling on jurisdiction. They said a full day had effectively been wasted by the argument.
At the commencement of the hearing, I asked the defendants' counsel if an agreement could be reached to achieve some relief for the plaintiffs. The answer was 'No". I was told a mediation had been unsuccessful. Counsel enjoined the plaintiffs to "Speak to the council".
Counsel's counsel regarding the council effectively accords with my view on the appropriate remedy. Nevertheless, because the plaintiffs wished to argue for a costs order on the jurisdiction issue I will not make an order for costs now, but permit the parties to make further submissions on costs.

Orders

I make the following orders: 1. Judgment for the defendants. 2. The parties are directed to provide written submissions on costs within 7 days; the costs issue to be decided on the papers. 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: 09 December 2024

(2018) 97 NSWLR 1132

At a glance

Court

Decision date

Before

Source

Judgment (11 paragraphs)

Parties

Legislation Cited (4)

Cases Cited (16)

Cited By (1)