Urquhart v Hayman

Land and Environment Court (NSW)|2012-06-06|Before: Sheahan J

Introduction 1This judgment concerns a serious dispute which has arisen regarding compliance with and performance of a complex suite of 19 orders, made after the hearing of these proceedings under the Trees (Disputes Between Neighbours) Act 2006 ('the Act'). 2The substantive proceedings were finalised by Commissioners Moore (SC) and Galwey (AC) on 7 September 2010. They concerned the impact of two Canary Island Date Palms on a wall which separates adjoining residential properties at 152 and 154 Hereford Street, Glebe, owned respectively by Mr Urquhart and Ms Hayman. The trees are growing in the rear of no 154. 3The relevant wall was built, essentially on the applicant's side of the shared property boundary, during extensive renovations to his property in 2004-05. At the same time, the combined root ball shared by the two trees was pruned, without adverse consequences. 4The orders made by the Commissioners required action by both parties to the original dispute, and they do not quarrel with them. The orders spell out clearly, and in detail, their respective obligations. 5What is now in contention before me is the proper construction and reach of one particular order.

The present Notice of Motion 10The applicant Urquhart elected to proceed by way of a Notice of Motion ('NOM'), in which he seeks a declaration to put beyond doubt, or further dispute, any question of his compliance with his obligations under the orders. 11If such compliance is established, the respondent Hayman should comply with the order requiring the consequential payment of money (which payment would be less than the maximum amount stipulated in the orders). 12The relief sought in the NOM of 24 February 2012 is as follows: 1. A declaration that the Applicant has complied with orders 1,2,4,8 and 11 as made by Commissioners Moore SC and Galwey AC in Land and Environment Court Proceedings No 20366 of 2010 on 7 September 2010; 2. That the Respondent pay to the Applicant the sum of $23,335.00 in accordance with Order 9 within 28 days; 3. Costs; and 4. Such other orders as the Court considers appropriate. 13As I have already indicated, it emerged, at the hearing before me, that the real issue between the parties concerned Order 8, and, perhaps also, Order 11. It now appears to be common ground that the other three orders nominated in the NOM (1, 2, and 4) have been complied with.

The Legislative Regime 14The statutory provisions relevant to the substantive proceedings, and the making of orders by the Commissioners, appear in Part 2 of the Act. 15Section 7 provides: Application to Court by affected land owner An owner of land may apply to the Court for an order to remedy, restrain or prevent damage to property on the land, or to prevent injury to any person, as a consequence of a tree to which this Act applies that is situated on adjoining land. 16Section 8 requires notice to be given of any application for an order. 17Section 10 of the Act provides (my emphasis): Matters of which Court must be satisfied before making an order (1) The Court must not make an order under this Part unless it is satisfied: (a) that the applicant has made a reasonable effort to reach agreement with the owner of the land on which the tree is situated, and (b) if the requirement to give notice has not been waived, that the applicant has given notice of the application in accordance with section 8. (2) The Court must not make an order under this Part unless it is satisfied that the tree concerned: (a) has caused, is causing, or is likely in the near future to cause, damage to the applicant's property, or (b) is likely to cause injury to any person. 18Relevantly s 9 also provides: Jurisdiction to make orders (1) The Court may make such orders as it thinks fit to remedy, restrain or prevent damage to property, or to prevent injury to any person, as a consequence of the tree the subject of the application concerned. (2) Without limiting the powers of the Court to make orders under subsection (1), an order made under that subsection may: (a) require the taking of specified action to remedy damage to property, or (b) require the taking of specified action to restrain or prevent damage or, if damage has already occurred, further damage, to property, or ... (e) authorise the applicant concerned to take specified action to remedy, restrain or prevent damage or (if damage has already occurred) further damage to property, or ... (h) require the payment of costs associated with carrying out an order under this section ... 19Section 12 sets out the matters to be considered by the Court before it determines any application under Part 2.

The Commissioners' Reasons for Decision 20Before the Commissioners, it was alleged that the root ball caused actual damage to the wall, which was located entirely within the applicant's property, and that it constituted a risk of injury to persons in the rear yard of the applicant's property. 21Expert engineering evidence, and a site inspection by the Commissioners, confirmed that the root ball had regrown to and across the boundary, to exert pressure on the wall. 22The Commissioners considered that, if that pressure were not removed, cracking of the wall would continue to be exacerbated (par [7]), but they were, however, not persuaded by submissions by the respondent that the wall had not been constructed in accordance with the engineering drawings. They were satisfied that the wall was adequate, and concluded that the jurisdictional test arising under s 10(2)(a) of the Act was engaged. They said (at [8]-[9] - emphasis mine): 8 Although Mr. Blackwell, solicitor for the respondent, endeavoured to persuade us that the wall had not been constructed in accordance with the engineering drawings (and was, thus, at least in part, if not in entirety, responsible for the damage as a consequence of the inadequate construction), we are not persuaded that this is the case. We have, in evidence, photocopies of the plans for the applicant's renovation - including the structural engineering plans. Although, as earlier noted, the engaged piers for the southern element of the wall are located on the opposite side of the wall to that depicted on the plans, we do not consider that this can found a submission that the wall is structurally inadequate. However, as will be discussed later, this is a matter to be taken into account in the orders that we have made as a consequence of our conclusions. 9 We are satisfied that the wall is adequate as we have the uncontradicted structural inspection certificates that were issued during and after the construction process. In addition, although Mr. Blackwell submitted that the plans showed a double skin brick wall, and thus a wall 200 mm thick to full height, a correct reading of the plans shows a lower portion of the wall constructed to that thickness with the upper portion being of single brick thickness. The actual construction of the wall, as able to be viewed by us, was not inconsistent with compliance with the plans in this regard. 23As at the date of the hearing before them, the Commissioners were not satisfied that the trees were likely to cause any personal injury, and they also came to the view that further root pruning should not impact their stability (par [11]). 24The Commissioners said (in pars [13] and [14] - again emphasis mine): 13 ... it is not reasonable to require retention of the trees unless we are able to be satisfied that the damage to the wall could be rectified; the trees retained; and future damage to the wall avoided. 14 In this instance, it is perfectly clear that, had the root ball of the two palm trees been pruned to the boundary, on a regular basis, and had the applicant's wall been constructed at the location where it is presently located but with the engaged piers on the applicant's side of the wall rather than on the respondent's, as was proposed by the approved plans, damage to the wall would not have been occasioned. As the respondent had not taken any steps, on the evidence available to us, to prune the root ball on a regular basis, the inevitable consequence was, we accept, that the damage that has been caused to the wall would be so caused. 25The Commissioners concluded (at [17] and [18] - again emphasis mine): 17 ... a combination of the fact that the applicant's engineering evidence, including the inspection certificates, demonstrate that the wall is constructed as required for the purpose for which it is intended - namely as a boundary fence between properties and, on the other hand, the fact that the respondent has no right to permit the roots of her trees to intrude onto the applicant's property in a fashion that causes damage to this otherwise properly constructed wall. 18 As a consequence, we have concluded that it is appropriate to make orders that will require the present and future pressure problems caused by the trees' root balls to be removed by root pruning - both immediately in order to permit reconstruction of the wall (but in the fashion we have determined as being appropriate and in compliance with the engaged pier design originally proposed) together with requiring the respondent to meet the costs of the reconstruction of the wall but making allowance for the respondent's financial circumstances and thus allowing a period of time within which reimbursement is to take place. 26The Commissioners determined that the wall would need to be demolished prior to the required root pruning, which they expected would remove the likelihood of future damage to a reconstructed wall, provided it was reconstructed at the location and in the form provided in the orders. They noted (in [20]): However, to permit any pruning of the root ball of the trees, in the immediate future, and thus to permit reconstruction of the wall (and space for ongoing maintenance root pruning), because of the location of one of the engaged piers that has been constructed on the western side of the existing wall between the two properties rather than on the eastern side as required by the plans, the wall will need to be demolished prior to the required root pruning (ordered below) being undertaken. To guard against the eventuality that the respondent may not undertake the required root pruning to facilitate the reconstruction of the wall in the form we have determined, within a reasonable period of time, we propose to reserve the right for the applicant to re-approach the Court for further orders concerning the trees if necessary. 27Order 9 noted that the quotation for demolition and reconstruction was in the sum of $25,135, inclusive of GST. The respondent provided no evidence alternative to that estimate, but was unemployed and had limited financial resources, apart from her significant capital asset in her property. Extended time was proposed by the Commissioners to meet her financial circumstances. (The evidence includes a receipted account, as required by Order 11, in the sum of $23,335). 28The Commissioners opined (in [25]) that the orders they proposed would provide certainty to both parties, and: ...a timetable within which the various steps are required to be undertaken. In the event that the respondent does not meet her obligations pursuant to order number two, the orders provide for the applicant to have liberty to re-list the matter for further consideration of alternative orders, including further consideration of whether orders ought be made for removal to the trees; if the applicant does not meet the deadlines provided in orders numbers three and five, all remaining obligations on the respondent will be discharged.

The applicant's evidence on the Motion 29The applicant's NOM was supported by an affidavit sworn by Daniela Fabiano, one of his solicitors. 30Before Assistant Registrar Anastasi, on 7 March, the parties agreed upon the following directions: 1. The respondent is to file and serve her evidence including expert evidence on or before 18/4/12. 2. The applicant is to file and serve any evidence in reply including expert evidence on or before 30/5/12. 3. Liberty to restore on 3 days' notice. 4. The matter is listed for hearing on 6 June 2012. 31On 16 April, in timely response to those directions, the solicitor for the respondent filed: a. An affidavit by Jim (Dimitri) Kapetangiannis, a project or property development manager, who is a friend of the respondent, and sometimes employs her on a casual basis. b. A statutory declaration by a consulting civil and structural engineer Geoffrey Robert Ball, verifying his expert report. 32The deadline for any evidence in reply by the applicant passed on the 30 May, and the three days liberty to restore was not exercised, but, at the hearing on 6 June the applicant sought, and I granted, leave to file in Court an affidavit by his expert Paul Tinslay. The major objection to any reliance on Mr Tinslay's affidavit was its lateness, but I could find no prejudice to the respondent, because Tinslay was available for cross-examination, and was closely questioned on his evidence. 33Mr Kapetangiannis was also required for cross-examination. His evidence, and that of Mr Ball, raise for the Court's determination, according to the summary by counsel for the applicant (in his written submissions, par 10), the following three issues, all of which involve the correct construction of Order 8: (a)whether the new wall complies with the drawings by Tinslay Consulting Engineers, which are referred to in Order 8; (b)whether the drawings by Tinslay Consulting Engineers comply with Australian Standards; and (c)whether the pier footings to the wall and the wall itself are in the correct place.

Local Court proceedings 34Fabiano's affidavit essentially puts in evidence relevant correspondence, as well as some documents (Annexures 'B' and 'C') regarding proceedings brought by the applicant in the Local Court of New South Wales seeking orders that the respondent pay the amount of $23,335. 35The Statement of Claim in the Local Court asserted that the plaintiff Urquhart had complied with Orders 1, 2, 3, 4 and 8, and that the defendant had complied with Orders 5 and 7. Notice had been issued by the plaintiff, pursuant to Order 11, in a letter dated 21 January 2011, said to have been personally served on the defendant on 5 February 2011. Payment was required, in accordance with the orders, by 5 August 2011. When the payment was not made, the Local Court proceedings were commenced, on 19 September 2011 to recover the $23,335, plus the following costs: Structural Engineers Report $594.00 Certifications $440.00 Legal Costs $2,007.00 Filing Fees $147.00 Flights $3,600.00 Total $6,788.00

36The defence filed in those Local Court proceedings, on 9 November 2011, denied that the plaintiff had complied with Order 8, and asserted that her obligation to pay the plaintiff under Order 9, was conditional upon the plaintiff's compliance with Order 8, and that any obligation to pay the plaintiff under Order 9, lapsed under Order 10. The defence admitted being served (but not personally) with the letter of 21 January, but asserted that the notice was ineffective, because of the plaintiff's failure to comply with Order 8. She also denied any obligation to pay the additional costs particularised in the Statement of Claim. 37On 15 October 2010, Anthony Portelli, director of A J Portelli Real Estate, sent, by registered mail to Hayman, a letter purporting to be notification of compliance with Orders 1 and 2. It stated that the demolition had been completed on 13 October 2010, and it enclosed a demolition completion certificate signed by building contractor Jason Bell (Annexure 'D'). 38Hayman replied to that letter on 5 November 2010, notifying Portelli that the root ball was cut on 2 November 2010 (Annexure 'E'). 39On 16 November 2010, Portelli asked Hayman to provide evidence of compliance with Order 17. He also notified her that the rebuilding works had commenced "late last week" (Annexure 'F'). 40On 21 January 2011, Portelli formally notified Hayman that Urquhart had completed the reconstruction works. He enclosed a construction completion certificate from Jason Bell, certifying completion of the works on 16 December 2010. He also enclosed a receipted account from the contractor for $23,335, and reminded Hayman that she had 180 days from the service of the account to make the payment (Annexure 'G'). The receipted account notes an $1,800 reduction on account of "decreased scope of works", which explains the disparity between $25,135 and $23,335 (see [27] above), but the "decreased scope" is not explained in the material before the Court. 41Fabiano also attached (as Annexure 'H') a letter from Tinslay bearing the date "January 27, 2011", to which I will return. She also attached three Affidavits of Service sworn on 3 and 8 February 2011, regarding: (1) Andrew Ng-Saad's service on Hayman on 1 February 2011, of the Portelli letter of 21 January, the construction completion certification of 17 December 2010, and the final receipted account dated 5 January 2011, by placing them in the letterbox at no 154, following several unsuccessful attempts to find anyone at home (Annexure 'I'); (2) Attempted service by Stephen Goodwin of those documents on 26 January 2011, at 22 Alice Street, Macquarie Fields (Annexure 'J'); and (3) Service of those documents on a "male person" at that latter address, on 5 February 2011 (Annexure 'K'). Kapetangiannis identified himself as the male resident of 22 Alice Street, Macquarie Fields, but denied that Hayman lives at that address.

The applicant's expert 42Tinslay deposes that he is the sole trader conducting "Tinslay Consulting Engineers", and has 30 years experience as a structural engineer. He signified his agreement to be bound by the Expert Witness Code of Conduct. On or about February 2004, he was engaged by Urquhart to prepare two engineering drawings for renovation works at 152 Hereford Street (drawings S1A/2 and S2A/2). Copies are annexed to his affidavit. 43On or about 8 May 2009, and again in about February or March 2010, Tinslay attended the property to "assess the distress" to the boundary wall (par 4). He annexed to his affidavit (as 'C') a report he sent to Urquhart, care of Portelli, dated 11 March 2010. He gave particulars of cracking and movement, and expressed the expert opinion, based on "the location, type and orientation of the movement and cracking", that "the growth of the trees" was responsible, that "for their size, these trees are situated too close to the fence, and that further growth of the trees would continue to cause movement and cracking in the wall, and likely lead to collapse of the walls". He recommended removal of the trees and rebuilding of the walls (which plural term includes a garden bed wall). 44On 25 May 2011, he received an email from Urquhart requesting that he inspect the rebuilt section of the wall, and that he (par 5) "certify that it is built in accordance with the drawings". Urquhart attached photographs taken of the wall during reconstruction. 45On or about 15 June 2011, Tinslay attended No.152 to inspect the reconstruction, and he confirmed (par 6) that "the engaged piers were constructed on the eastern side of the wall", that "the reconstructed part of the wall generally complies with the drawing sA/2 and the wall is structurally sound". 46In his affidavit, he explains (at par 7) his use of the word "generally", on the basis that he was not on site during construction, but was in a position to confirm the structural adequacy of the reconstructed wall in accordance with loading code AS1170 part 2 and the Masonry Construction Code AS3700. He also attaches the letter to which I have already referred ([41] above) bearing the date "27 January 2011", and deposes that he sent that letter to Urquhart following his inspection during June 2011. That letter (Annexure 'E' to Tinslay's affidavit, and Annexure 'H' to Fabiano's affidavit) says as follows: This is to confirm that an engineer from Tinslay Consulting Engineers has inspected the completed brick masonry fence at the above address. In addition we have viewed photographs of the construction of the fence. As a result of our inspection we can confirm that the fence has generally been constructed in accordance with structural drawings 1470-0204/S1 & S2. The fence will be structurally adequate to resist normal imposed design loads in accordance with the relevant Australian Standards. However it should be noted that the risk of footing and wall failure is higher if extreme site conditions are permitted to occur. Such extreme site conditions include Planting of trees to close (sic) to a footing. Excessive watering of gardens adjacent to the footings Lack of maintenance of site drainage and Failure to repair plumbing leaks. Damage has previously occurred as a result of the presence of a tree adjacent to the footing. We note that this tree had been cut back to so (sic) that the trunk growth does not bear on the wall. It will be necessary to ensure that the tree does not bear against the wall. If you should require any further information regarding this matter please do not hesitate to contact us. 47Tinslay was cross-examined about his affidavit evidence (T pp13-33). He could not explain the January date on the letter I have just quoted. Nor could he verify the date it should have borne, other than to say that it was prepared, and sent, after his inspection on 15 June 2011. 48He was closely questioned on the various plans, photographs etc he had annexed, largely materials provided to him by the applicant, and the Court found that evidence helpful in understanding the case being argued. He agreed that he was provided with a copy of Ball's statutory declaration, to which I will shortly return, and which "does raise some issues about whether the dividing wall complies with [Tinslay's] drawings" (T p23, LL4-5). However, he said that he was not asked to reply to, or comment upon, it. He was asked in his oral testimony before me to do so, and he acknowledged that there had been some departures from what he had drawn. He opined (T p29, LL2-3) that "most structures are not done exactly in accordance with the specifications", and he declined to respond to questions that could be properly answered only by a surveyor. He adhered to his affidavit evidence, and responded (at T p27, LL7-22): A. I still believe the wall is structurally sound and that it generally complies. There may be some differences to the wall but I was called in obviously at the end of the job once the thing had been done and buildings or all those things do not comply but if you're saying strictly with the drawing, I agree it doesn't. Q. Just to be fair, Mr Ball in the issues that he addressed and we've just been talking about was dealing with issues relating to the piers, that's correct, isn't it? A. Yes. 49He conceded that the positioning of some piers differed from his "indicative" drawings, and opined that a difference of about 400mm "makes no difference to the structure" (T p28, L1), and that the rods and ties employed in the reconstruction of the piered wall are adequate, even if not precisely as he had envisaged (eg round, and not threaded, "bars" may have been used - T pp30-3).

The respondent's evidence 50The respondent relied upon a statutory declaration from Ball, verifying a written report, an affidavit and the cross-examination of Kapetangiannis, and various drawings (Exhibit R1), "video footage" (on DVDs in Exhibit R2), and a survey (Exhibit R3).

Ball 51Ball has acted as a consultant on structural and civil engineering works, etc, since 1973. He is the founding partner and managing director of Vision Structures (NSW) Pty Ltd, Consulting Civil and Structural Engineers. He acknowledged the Witness Code of Conduct, and the Court's Class 2 Practice Note. 52Hayman's instructions to Ball's company originated on or about 26 March 2012 (par 2.0 of his report). He attended the site, inspected the new wall, and reviewed plans and photographs, with a view to providing an expert opinion regarding compliance of the construction of the original and replacement walls with the specification. 53He made his inspection on 4 April 2012, with Hayman and Kapetangiannis (par 3.0). The replacement wall appeared to be completed, but did not include any roof structure shown on the original plans. He also saw the video footage taken by Kapetangiannis, but sought to "emphasise" that he did not see or inspect the original wall during its demolition, nor the replacement wall during its construction. 54He concluded (pars 4.1 and 4.2) that the original and replacement walls did not comply with the Tinslay specification. He complained about the lack of evidence to confirm various details, eg that the "starter bars" are appropriately part of the construction of the concrete piers. 55He also concluded, in respect of both the original and replacement walls (pars 5.1 and 5.2) that "the departures ... are of significance so as to adversely diminish the structural integrity of the concrete footing and pier, and also the masonry pier and wall as specified on the plan". 56His report further concluded (in par 5.3): Although it is not contained within my instructions, it is my considered opinion that I have a duty of care to advise the Court that during the course of my assessment of the structural integrity of the 'original wall' and the 'second wall' for comparison with the Specification prepared by Tinslay Consulting Engineers and noted in 1.4 above, I have formed the view that the Specification prepared by Tinslay Consulting Engineers is structurally inadequate for the purpose intended and does not comply with: Building Code of Australia, Australian Standard AS3700 - Masonry Structures Code. Australian Standard 1170 - Structural Design Actions - Part 0 - General Principles Part 1 - Permanent Imposed and Other Actions, and Part 2 - Wind Actions. 57I note here that Mr Docker objected to par 5.3 on the grounds of relevance, and I admitted it on the basis that Mr Van Ede had to make good why the Court should give it weight (T p33). I also note that Ball's conclusion was not put to Tinslay.

Kapetangiannis 58Kapetangiannis deposed that he has known Hayman for about 30 years: they are friends, and she works for him, on a casual basis, from time to time. 59He holds a Bachelor of Science in Architecture, and has worked in the building and construction industry for approximately 30 years. He is now a senior property development officer (or "Project Manager") with Anglican Retirement Villages, and a director of Captain Development Pty Ltd. His work involves identification of opportunities, the supervision and the preparation of projects, and the management of large to very large construction projects. He also teaches project management and other topics for the National Diploma and National Advanced Diploma under the auspices of the Master Builders Association. At no point in the affidavit or in his oral evidence, did Mr Kapetangiannis acknowledge any responsibility as an expert witness. 60Kapetangiannis deposes (pars 18ff) that he attended Hayman's property on all days while the fence was being demolished and reconstructed. He took photographs and some video footage. He formed the view that the walls and piers, as originally built, were not in accordance with the engineer's drawing (he provides particulars in par 19), and that the builder did not reconstruct the wall or the piers in accordance with the drawing (again, particulars are provided - par 22). 61He complains that the walls as originally constructed were 90mm thick, rather than 110mm; the brick piers were to be bonded to the wall with a "through course" at every fourth course, and they were not; the brick piers were to be reinforced with four R10 rods, and at least some of the reinforcing rods did not comply with that specification; the amount of reinforcement also appeared to him to be less than specified; the brick pier which formed part of the wall to the constructed garden beds was also not properly constructed, and did not have the steel reinforcing specified in the Engineer's Drawings; "tying down rods for the car-port roof" were not included; and the drawings required the top of the piers to have "soldier courses" spanning the pier and the wall, and these were not constructed. 62In respect of the reconstruction, he especially complains (par 22(g)) that: According to the Engineer's Drawings, the pier footings are to be totally contained within the applicants' property boundaries. On inspection, I found that these footings were constructed 300mm to 400mm within Julie's property. This was done without Julie's permission. The pier footings have not been restored to the Engineers' detail and continue to encroach on Julie's property. 63He also complains (par 22), in particular, of (b) the absence of weep holes; (c) the incorrect positioning of what he calls "the middle pier of the proposed car-port"; and (e) that the specified R10 rods were replaced by "booker rods", which are used to hang internal ceiling grids. He asserts (par 23), "12 major non-compliances with the Engineer's Drawings", including (par 24) that the "piers are effectively not finished in accordance with" them. 64He deposes (par 25) that, after the construction work was completed, Hayman commissioned a survey of the new fence in relation to the boundary (see now Exhibit R3). 65In his oral evidence and cross-examination, Kapetangiannis adhered to the evidence in his affidavit, and also explained it with the assistance of the video (in Exhibit R2). He also helpfully explained some of the markings on the engineering drawings (Exhibit R1), how to relate them to each other, and the confusing use of the term "middle pier". 66He complained that the rods were not of the required type and length (T pp45-6), and that (T p46, L33 - p47, L16) "the wall had no allowance for a brick tie every fourth course to tie the pier to the brick wall ... [T]he very last brick is meant to cap the pier and the wall so that it's joined at the top. There needs to be a brick - a soldier course we call it, ... but there's none showing ... in the photograph ..." (see also T p49).

Submissions for the Applicant 67In his written submissions, Mr Docker says (at par 10) that the respondent's evidence raises the following issues, all of which require the construction of Order 8: (a) whether the new wall complies with the drawings by Tinslay Consulting Engineers which are referred to in order 8; (b) whether the drawings by Tinslay Consulting Engineers comply with Australian Standards; and (c) whether the pier footings to the wall and the wall itself are in the correct place. 68Mr Docker submits that the role which the order envisages for the Tinslay drawings is limited to the identification of the location of the engaged piers, and that any questions about other compliance of the new wall with the drawings is irrelevant. If unsuccessful with that submission, Mr Docker relies upon the evidence of Mr Tinslay that the new wall (1) "generally" complies with his drawings, and (2) is "structurally adequate". Mr Docker also relies upon the builder's construction completion certificate (Fabiano's Annexure G), to the effect that the wall complies with both the drawings and Order 8. 69The argument regarding (b), compliance with Australian Standards, Mr Docker submits, does not arise on any of the available constructions of Order 8, and is, therefore, irrelevant. It is not open for Hayman to go behind the order and require the wall to be built to a different standard than is contemplated by the order. Mr Docker contends that the proper construction of Order 8 requires that the Tinslay drawings identify the location of engaged piers, and whether or not that complies with the standard does not arise. 70In respect of (c), the placement of the footings and the wall itself, the survey (Exhibit R3) shows the face of the wall at between 90 and 120mm east of the boundary between the properties, c.f. the requirement 100mm, so the location of the wall, on average, complies, and, to the extent that it does not, the variance is de minimis. 71Mr Docker relies on Tinslay's evidence that the engaged piers are located to the east of the wall, as required by Order 8. Any encroachment by the footings, as asserted by implication in Kapetangiannis's evidence, should not be accepted in the light of Tinslay's evidence. 72Mr Docker submits (T p59, LL45-8) that "the whole context of [the] orders is to make the wall wholly (sic) the applicant's problem and it only becomes the respondent's problem if the respondent allows the roots to grow back and interfere with it". The orders do not give the respondent the right to question the structural integrity of the whole wall, e.g. by accepting that the replacement wall complies with the orders, but that the footing (which the orders do not mention) is not in the right place. 73The Commissioners mention (in [2]), that the footing was constructed to the boundary, but that the wall was located, apart from some "engaged piers", 100mm or so within the applicant's property, and their orders refer specifically to "engaged piers", but not to "footings" (T p60, LL43-50), and also to specific drawings, not simply "drawings" (T p61, LL1-11). 74Mr Docker notes that Tinslay says that the wall is structurally adequate for its purpose, anyway, and that Ball does not say that it is not, merely that it was not as good a wall as he would like. Mr Docker submits that, in any event, the Court should accept Tinslay's evidence, as he is "in the best position to know" (T p62, LL18-19) and, compared with Kapetangiannis, he is an expert. 75As Mr Urquhart has complied with his obligations under the relevant orders the Court should so declare, and order Ms Hayman to pay $23,335, together with Mr Urquhart's costs (par 16).

Submissions for the respondent 76Mr Van Ede points out that the structural integrity of the wall was raised before the Commissioners, and was dealt with in their judgment, on the question of how the wall was damaged. They designed their orders, in his submission, not merely to deal with the issue of the tree root, but to bring the dispute about damage to an end (T pp62-3). 77Simplistic findings that there is compliance with some markings on the plans should not be "the end of the matter" (T p63, L49) - neither Tinslay nor Kapetangiannis says that it is not enough to "just look at [a] diagram"; you need to "get a sense of what is indicated", by interrogating diagrams in reference to others to find their significance (T p64). 78The survey (Exhibit R3) indicates that the wall does not comply at all points with the 100mm requirement. "Some of the places where it doesn't comply are relatively small but others are more significant", putting in question whether it is possible to "get into that space and prune the root ..." (T p64, LL9-19). 79There is also non-compliance in respect of "structural issues particularly surrounding the piers". Tinslay had certified the wall as "okay", on the basis of his 2004 plans and his 2011 inspection, but, having seen Ball's report, he conceded that "there were some valid issues raised" about the integrity of the engaged piers (T p64, LL19-39). "It's not good enough to say things are generally okay, she'll be right mate ... [A]ll of these things needed to be sorted out" (LL45-8). 80The orders are very specific about how the applicant gets the chance to be paid, but the work did not comply with those specifics; "that's the end of the matter", and the NOM should be dismissed (T p64, L50 - p65, L7).

The applicant's reply 81In response to Mr Van Ede's reliance on the survey to indicate non-compliances in respect of the wall, Mr Docker urges the Court to recall that the ambit of the orders is the partial reconstruction of the wall, and not the wall as a whole. The only possible non-compliance is 9mm at one point, and that is de minimis. 82Mr Docker also drew attention to the photographic evidence, which indicated that the required length of rods was in some instances achieved by overlapping, which "no one suggested was inadequate" (T p66, L17).

Consideration 83The parties agreed, and have satisfied the Court, that I have jurisdiction to entertain the applicant's NOM, on the basis of the principles regarding the "working out" of orders, and that a remedy is available, despite the fact that the Commissioners in their orders did not grant to either party any "liberty to apply". 84In Phillips v Walsh (1990) 20 NSWLR 206, McLelland J was dealing with a NOM brought by the defendant to strike out a NOM brought by the plaintiff seeking a series of orders further to an earlier series upon which the parties had agreed. His Honour held that "setting aside" the plaintiff's NOM was not appropriate, but that it should be dismissed, as the remedy sought should be the subject of fresh proceedings. His Honour reasoned as follows (at 209-210): The question whether any particular application can properly be made in existing proceedings is a matter to be determined according to general law principles as modified by any relevant statutory provision. One such principle of the general law is that when proceedings have been disposed of by a final order which has been entered, the proceedings are at an end and cannot be revived: see generally Bailey v Marinoff (1971) 125 CLR 529; Gamser v Nominal Defendant (1977) 136 CLR 145; and FAI General Insurance Co Ltd v Southern Cross Exploration NL (1988) 165 CLR 268. There are a number of exceptions and qualifications to this principle but none that has any relevance to the present application, unless it be that subsequent to a final order application may be made for the purpose of dealing with a matter involved in, or arising in the course of, working out that order; for example, by making more specific provision for its implementation or by modifying its operation to take account of some subsequent change of circumstance or by enforcing it. This exception or qualification does not, however, extend to an application made for the purpose of giving substantive relief not sought in the statement of claim or which is substantially different to that given by the final order ... In a final order, liberty to apply is often expressly reserved as authority to make a subsequent application for the purpose of dealing with a matter involved in or arising in the course of working out the order; but the absence of an express reservation of liberty to apply does not preclude such an application ... ... [A]lthough there is some arguable support for the proposition (although it is far from clear) that the Court might on motion in the present proceedings enforce a particular term of the agreement between the parties noted in the order of 16 June 1989 which came within the ambit of the proceedings as originally constituted, it would not be proper to do so where substantial matters are involved beyond the ambit of the proceedings as originally constituted, or where, in the interests of justice, disposition of the matter on summary application is inappropriate.

85It will be noted, however, that, in the present case, prayer 1 of the NOM before me seeks what is sometimes referred to as a "bare declaration", in the sense that the only consequential relief order sought, if the Court finds that the relevant orders have, indeed, been complied with, is an order for payment to be made, in accordance with the terms of another of the Commissioners' orders. 86The principles which dictate that the Courts will make declarations only in circumstances where they will serve some proper and practical purpose, are well summarised in Great Lakes Council v Lani [2007] NSWLEC 681; 158 LGERA 1 ('Lani'), (at pars [16]-[25]). 87In the present case, the "breach" alleged is a failure by one party to comply with an order of the Court, as it is construed by the other party. 88In Lani, the Council submitted that the Court should make declarations in terms of Preston ChJ's findings of fact regarding breaches by the respondents of various statutes. The respondents contested the appropriateness of the Court's making such declarations, and the Council advanced both procedural and substantive reasons for making them. 89In Lani, Preston ChJ declined to make declarations, as a matter of discretion, in the circumstances of the case, and said (at pars [20]-[25]): 20 First, the making of a declaration by itself would not have any practical effect in the circumstances of this case. A declaration that a breach of a statute has occurred does not have any constitutive effect - it does not bring about any change in the rights or duties of the parties. 21 Secondly, declarations of breach of the statutes are not necessary in order for the Court to have jurisdiction to make other orders including the injunctive orders to remedy or restrain breaches of the statute. The Court can make the injunctive orders agreed to by the parties and found by the Court to be appropriate without first making declarations that the respondents have breached the statutes. The situation in this case is to be contrasted to the regime under the Corporations Act 2001 (Cth), considered in Australian Securities and Investments Commission v Rich (2004) 50 ACSR 500, where the Court can only make consequential orders of a pecuniary penalty order or a disqualification order once a declaration of breach of the statute has been made under s 1317E of the Corporations Act. 22 Thirdly, a declaration of breach of a statute by itself neither remedies past breaches of the statute nor restrains any future breaches of the statute. Only the injunctive orders, agreed to by the parties and found by the Court to be appropriate to be made, will achieve the consequences of remedying the past breaches and restraining future breaches of the statutes. 23 Fourthly, care must be taken not to use a declaration of breach of a statute in civil enforcement proceedings as a substitute for a criminal prosecution. It is not appropriate for the Court in the exercising of its civil enforcement jurisdiction to punish wrong-doers under the guise of remedying a breach: Liverpool City Council v Roads and Traffic Authority (No 1) (1991) 74 LGRA 265 at 280. A declaration of breach of a statute in civil enforcement proceedings is not to be equated with the entry of a conviction upon a finding of guilt in a criminal prosecution. The latter does have an effect on the person, including by creating a criminal record for the person, which may have external consequences for that person. A declaration of breach of a statute in civil enforcement proceedings does not have such consequences. 24 The Council could have brought criminal prosecutions in respect of each breach of the statutes but elected not to do so. The reasons why the Council undertook this course are perfectly understandable and related to the greater range of remedial relief available in civil enforcement proceedings compared to that available in criminal prosecutions and to the lower standard of proof in civil enforcement proceedings compared to criminal prosecutions. Nevertheless, that election to bring civil enforcement proceedings having been made, the civil enforcement proceedings should not be now used as a substitute for criminal prosecutions. 25 I accept that a legitimate purpose of civil enforcement proceedings is for there to be a finding by the Court and through its judgment a public pronouncement that a breach of the law has occurred by the respondents. However, this effect can be achieved by the Court making findings in the judgment of the Court, which, of course, is a public document. The Court's judgment will suffice to publicly expose and denounce on behalf of the community the unlawful behaviour in which the respondents have engaged. I have set out above in full each of the findings of the Court, including those that have been admitted in the points of claim, together with the consequences that flow from those findings as to the breaches of each of the statutes. This public pronouncement in the judgment suffices to achieve the purpose of public exposure and denouncement of the unlawful conduct of the respondents. 90It seems to me that the appropriate course, in a class 2 enforcement matter such as this, as distinct from a class 4 matter, is for the Court to make findings of fact, rather than a declaration. See discussion by Craig J in Csillag v Woollahra Council (No 2) [2012] NSWLEC 135. 91If those findings of fact favour the applicant, the respondent clearly remains under her duty, pursuant to the orders of the Commissioners, to make the disputed payment. 92I accept the evidence and submissions of the applicant that he has complied with the orders, and I so find. 93That being so, the reimbursement order must take effect, without the need for any fresh order to be made. 94That order is enforceable by taking action for recovery of the amount, as a judgment debt, in the civil claims jurisdiction of the Local Court. 95As the applicant has been entirely successful in the proceedings, it is just and reasonable that the respondent should be ordered to pay his costs, pursuant to s 98 of the Civil Procedure Act 2005, and r 3.7 of the Land and Environment Court Rules 2007.

Findings and Orders (1) The Court finds that the applicant has complied with Orders 1, 2, 4, 8, and 11, made in these proceedings on 7 September 2010, and that those orders stand. (2) The respondent is ordered to pay the applicant's costs incurred on the Notice of Motion filed on 24 February 2012 on a party-party basis, as agreed or assessed. (3) The Applicant's Notice of Motion is otherwise dismissed. (4) The exhibits may be returned. 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: 14 December 2012

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