In that admission, "south west" should clearly read "north east" .
25 A survey carried out by Bissett & Wright, on behalf of the defendants in December 2002 shows the toe of the excavation as passing inside the north-eastern corner of the plaintiff's land. The copy of the survey which was tendered in evidence is not to the original scale, so the extent of the incursion into the plaintiff's land which that survey shows can only be derived by calculation. That copy shows the boundary between the land of the plaintiff and of the defendants as being 21.91m long, represented by a line which is 98mm long. It represents the toe of the excavation as crossing the plaintiff's northern boundary at a point about 1mm from the plaintiff's north-eastern corner, and crossing the plaintiff's eastern boundary at a point about 7mm from the plaintiff's north-easternmost corner. If one scales those figures up, the survey would therefore be showing the toe of the excavation as crossing the plaintiff's northern boundary 22.35cm from the north-eastern corner, and crossing the plaintiff's easternmost boundary approximately 1.56m from the north-eastern corner of the plaintiff's land. When the purpose of the survey was to show the surface detail, and in particular the contours, I approach that derivation from it with some caution. Even so, it seems to me to provide the best evidence of the extent of the trespass insofar as it constituted excavation.
26 The plaintiff has a close friend, Mr Robert Bech, who is a Senior Environmental Health and Building Officer with a Sydney Council. He has provided assistance and advice to the plaintiff throughout the events which are the subject of this litigation. There are numerous photographs, taken by the plaintiff, Mr Bech, the defendants, geotechnical experts, and an officer of the local council, which show the land the subject of the dispute at various stages. Photographs taken in October 2002 show that the roughing-in of the driveway resulted in the creation of a low near-vertical wall of soil as the result of cutting away of land including, as is now known, a small part of the plaintiff's land immediately adjacent to her north-eastern corner. As well they show that there has been some scraping or scarring, of no great depth, of the bank which rises to the west of that near-vertical section. The scraped or scarred area shows on the photographs as being mottled in colour, with light brown, tan and off white components in the colouring. It is not the whole of the bank which has been scraped or scarred, but large parts of the area of the bank on which the scraping or scarring occurred have been scraped or scarred.
27 A comparison between a photograph showing that bank before the cut was made, and the bank after the cut was made shows that, before the cut was made the slope was covered with low vegetation like grasses and bracken. That low vegetation has been removed from the bank immediately above the cut, exposing the earth underneath.
28 The area of the plaintiff's land which was affected in this way cannot be precisely identified, but would extend of the order of 2 or 3m up the bank immediately adjacent to the plaintiff's northern boundary. While the area which has been affected in this fashion extends for substantially all of the length of the cut, because the cut is made at an angle the area of the bank on the plaintiff's land which has been cleared of vegetation and had its surface scraped or scoured would decrease in height, as one traversed along the plaintiff's eastern boundary from the north-eastern corner.
29 The plaintiff said, in the course of cross-examination, and with reference to what she could see from her balcony on 18 October 2002,
"… with the earthmoving, that arm twists right around and I can see it very clearly from my top balcony and it moves around and it's scraping down with all the trees and shrubs and so forth coming with it …"
30 While I do not accept this evidence insofar as it refers to her seeing trees being brought down by the arm of the earthmover, I accept that this evidence explains the mechanism by which the scrapes or scars on the bank above the cut, which are visible in the photographs, were created.
31 The plaintiff has given affidavit evidence that on 26 October 2002 she and Mr Bech drove to her Surf Rider Avenue frontage. Her affidavit evidence was:
"I could see that the excavator was making a cut across my land to construct what looked like a future driveway for the Rodiers land. I saw Mr Rodier standing on the opposite side of the road. I also observed that approximately 4 metres across the boundary of the property had been excavated to at least 10 metres in length."
32 In cross-examination, the plaintiff agreed that the "4 metres across" was the flat section of the driveway. The plaintiff did not impress me as a witness who had a particularly precise recollection of the events. As well, some suspicion was raised in cross-examination, which has not altogether been dispelled in my mind, that the plaintiff may not at the time have clearly understood the distinction between the land which she owned, and the road reserve.
33 Mr Bech gives evidence of having seen the excavation on 18 October 2002, when he observed "a large Caterpillar excavation and a number of male persons in and around the lower part of Margaret's property". While he said that "The excavator appeared to be coming on to Margaret's land and removing vegetation, soil and rocks from it," I am not persuaded that he had, at the time, a clear appreciation of precisely where the boundary between the plaintiff's land and the road reserve lay.
34 On 26 November 2002 Barry Hunt, surveyor, prepared a survey which identified the location of the gravel access drive which by then went from Surf Rider Avenue into the defendants' property, contour lines around the north-eastern corner of the plaintiff's property and also, on the western side of the gravel access road, lines identified as "bottom of bank", and "top of bank". On that survey, the "bottom of bank" forms the western boundary of the gravel access track. The "top of bank" runs roughly parallel to the "bottom of bank". By scaling from that plan, the "top of bank" is a little more than 2m up the plaintiff's northern boundary from its north-eastern corner. From that point, the "top of bank" gradually becomes closer to the plaintiff's eastern boundary, until it meets it around 9.5m from the north-eastern corner of the plaintiff's land. Taking into account that the area of a triangle is half its base times its height I would estimate the area of land which lies between the "top of bank" and the plaintiff's boundaries at somewhere between 10sqm and 12sqm. It is within that area that the bank which was on the plaintiff's land was cleared of vegetation, and in part scraped or scoured.
35 That area of 10sqm to 12sqm is one in a horizontal plane. The area of the face of the bank which was so affected would be larger.
36 At the time, the principal concern which the plaintiff expressed to anyone else was not that her own land had been cut or scraped, but that excavation within the road reserve might cause slippage problems on her land. By a letter dated 19 October 2002 (which the Council received on 21 October 2002), headed "unauthorised removal of Council land", the plaintiff complained that the driveway was not in accordance with approved plans, and said:
"Excavation has commenced of a driveway within a Council easement for support without adequate shoring and sediment control erected at the base of my land.
It is extremely urgent that this cut is retained as it may result in land slip of my land and loss of trees and vegetation."
37 Another letter which Mr Bech wrote to the Council, in the plaintiff's name, on 21 October 2002, complained that amongst other things, "… nor has council been advised of the excavation in council's road reserve."
38 These letters led to Mr Garry Male, a council officer, attending the property on 22 October 2002, and telling the defendants to stop work. He returned to the property on 29 October 2002, and found that further work had been done. I accept the evidence of Mr Male concerning these matters (on which he was not cross-examined) in preference to some contrary evidence from Mr Rodier about the dates on which Mr Male attended.
39 On 1 November 2002 Mr Prior, a solicitor consulted by the plaintiff, wrote to the defendants threatening legal proceedings, and requiring them to:
"1. Not come onto our client's land except for the purposes of restoring and rectifying her property.
2. Attend to immediately restore our client's property to the same state and condition it was in prior to the commencement of your works.
3. Replant vegetation of a similar kind and nature to that which was previously growing on our client's property."
40 On 6 January 2003 the Council wrote to the defendants, enclosing a draft of an order requiring them to, in effect, reinstate the land they had interfered with in the plaintiff's land and the road reserve, build in accordance with the approved plans, and provide engineering evidence that their works were adequate. The Council invited representations as to why that order should not be made.
41 The defendants made such representations on 20 January 2003. After some consultation with the plaintiff, on 25 February 2003 the Council wrote to the defendants stating:
"… that Council would not instigate legal proceedings for the works carried out to the driveway subject to strict compliance to the following:
1 The retaining wall and associated subsoil drainage is to be constructed wholly within your property and the road reserve. No part of the works are to encroach on No 27 Table Top Road.
2 Ground levels are to be reinstated to existing levels on No 27 Table Top Road, together with replanting of native species, similar to the vegetation that was in existence prior to the excavation commencing.
3 At completion of works a certificate being submitted to Council by a geotechnical engineer and a practising structural engineer. The certificate from the geotechnical engineer is to certify the stability of the site in connection to the excavation and reinstatement to ground level works.
The structural engineer is to certify the structural engineering works carried out with the construction of the retaining works.
4. These required works are to be carried out within twenty-eight (28) days from the date here-of."
42 Mr Stephen Goodworth, another Council officer, gave evidence, on which he was not cross-examined, and which I accept, that:
"(a) The Rodiers' unauthorised cut into the slope was a reality that had to be dealt with in the interests of both the Plaintiff and of public safety. The area was known to have landslip issues and there was a recent history of heavy rain. The cut was unsupported and needed to be retained as a matter of urgency. Any action that prevented this from occurring was not in the interests of the Plaintiff or of public safety.
(b) Once the cut was made it was no longer feasible to consider options, such as that sought by the Plaintiff, involving reinstatement of the cut."
43 Not only was this Mr Goodworth's opinion - as well, he told the plaintiff about it. On 4 March 2003 Mr Goodworth spoke to the plaintiff at her home, and said words to the effect of:
"The cut that has been made down there went further than we approved, and it is not in the approved location. But now that it is made, it is not possible to simply put the land back, and safely retain it. In order to retain the slope the existing cut will have to be retained."
44 The conditions upon which the Council had, on 25 February 2003, told the defendants it would not proceed with an order were not complied with within 28 days, or at all. On 31 March 2003 the defendants requested an extension of time from the Council. That request does not appear to have been replied to. Neither, however, did the Council issue any notice to the defendants.
45 On 8 May 2003 the plaintiff commenced these proceedings. She named Mr and Mrs Rodier, and the Council, as defendants. She sought orders restraining the Rodiers from doing any more work on the driveway, restraining them from using the driveway insofar as it traversed the plaintiff's land, a mandatory injunction for Mr Rodier to restore the land to its previous condition, and (from all defendants) damages, interest and costs.
The Position of the Council in this Litigation
46 It is convenient to deal now with the position of the Council in this litigation. The plaintiff continued to seek damages, interest and costs from the Council in these proceedings, but in the course of the hearing the claim against the Council was settled. Thus, the Court received evidence not only from Council officers, but also from a geotechnical expert engaged by the Council. The settlement did not entitle the plaintiff to receive any money from the Council.
The May 2003 Collapse
47 10 May 2003 was the start of a period of heavy rain. In the course of that rain, a part of the plaintiff's land and of the road reserve uphill from the excavation collapsed. The collapse occurred in several stages. Some slumping of the embankment occurred on 14 May 2003. On 15 May 2003 additional slumping of the embankment occurred, resulting in several cubic metres of clay slumping from below the soil profile that caps the upper edge of the embankment. A young tree collapsed from the bank above the driveway, falling across the driveway. By comparison between the length of the tree when horizontal as shown on a photograph taken on 17 May 2003, and the width of the access driveway shown on that same photograph, and which is known from Mr Hunt's November 2002 survey to be between 3 and 4m wide, I conclude the tree was over 6m tall. The tree's roots had helped to hold the bank together. It is not possible to reach a firm conclusion about whether that tree stood in the plaintiff's land or in the road reserve.
48 Mr Brink, a geotechnical engineer engaged by the defendants, attended the site on both 14 and 15 May 2003. He wrote a report (dated 14 May 2003, but obviously completed after that date as it also refers to an inspection on the afternoon of 15 May 2003) in which he expressed the view that:
"The current failures have not yet affected the upper part, but unless the failures are arrested, they very likely will.
It is recommended therefore to construct an engineer designed retaining wall to sufficient height to allow the slope above it to be laid back at batters not exceeding 1V:2H. Adequate drainage needs to be provided to accommodate seepage and run-off waters.
The slope above the retaining wall needs to be covered with vegetation as soon as possible after completion."