Wirth v Will

Dr Wirth's application

1. The terms of the orders sought by Dr Wirth, pursuant to s 3(2)(c) of the Encroachment of Buildings Act, are: 1 The timber stairs leading from the rear of 14 Wonderland Avenue across, and encroaching on, the rear of 12 Wonderland Avenue Tamarama NSW 2026 be removed by the Respondent at their cost. 2 Respondents to pay the Applicant's costs in the proceedings.

The Respondents' cross-claim

1. On 4 April 2022, the Respondents filed and served a cross-claim. The orders sought in the cross-claim are in the following terms: 1 A declaration that the timber structure, including the stairs, landings and associated handrail (and all of its composite parts) leading from the rear of 14 Wonderland Avenue, Tamarama NSW 2026 being Lot A in DP 339954 (the Cross-Applicants' Property), onto the rear of 12 Wonderland Avenue, Tamarama NSW 2026 being Lot 2 in DP 1061666 (the Cross-Respondent's Property) as set out in the survey plan marked "A" accompanying this application (the Encroachment) encroach on and within the Applicant's/Cross-Respondent's land. 2 An order pursuant to section 3(2)(b) of the Encroachment of Buildings Act 1922 that the Applicant/Cross-Respondents is to be granted an "Easement to permit an encroaching structure to remain" over the area highlighted in yellow of the Cross­ Respondents Property as identified on the survey plan marked "A" accompanying this application, in accordance with the terms specified in Part 13 of Schedule 8 of the Conveyancing Act 1919 (the Easement for Encroachment). 3 An order pursuant to section 3(2)(b) of the Encroachment of Buildings Act 1922 that the Applicant/Cross-Respondents is to grant the Respondents/Cross-Applicants a "Right of access" over the area highlighted in green of the Cross-Applicant's Property as identified on the survey plan marked "B" accompanying this application, in accordance with the terms specified in Part 14 of Schedule 8 of the Conveyancing Act 1919 (the Easement for Access). 4 An order pursuant to section 3(2)(a) of the Encroachment of Buildings Act 1922 that the Respondents/Cross-Applicants are to pay compensation to the Applicant/Cross­ Respondent for the Easements and all costs reasonably incurred in the preparation and registration of the Easements, in an amount to be determined by this Court.

Introduction

1. The primary statutory provisions requiring consideration in these proceedings are contained in the Encroachment of Buildings Act 1922 (the Encroachment of Buildings Act). In addition, two provisions in the Civil Procedure Act 2005 (the Civil Procedure Act) and a single element of the Uniform Civil Procedure Rules 2005 (the UCPR) and of the Land and Environment Court Rules 2007 (the Court Rules) also require to be noted.
2. In addition, three provisions of the Land and Environment Court Act 1979 (the Court Act) were advanced on behalf of Dr Wirth as potentially providing an alternative statutory basis by which he might seek common law relief requiring the removal of the encroachment if his primary basis pursuant to the Encroachment of Buildings Act for seeking that outcome was unsuccessful.

The Encroachment of Buildings Act.

1. The Encroachment of Buildings Act is a comparatively brief statute, the substantive provisions of which take only four sheets of A4 photocopying to reproduce. The provisions requiring or potentially requiring consideration in these proceedings are ss 2 to 4. The relevant elements of these provisions are reproduced below: 2 Definitions In this Act, unless the context or subject-matter otherwise indicates or requires: Adjacent owner means the owner of land over which an encroachment extends. Boundary means the boundary line between contiguous parcels of land. Building means a substantial building of a permanent character and includes a wall. Court means the Land and Environment Court. Encroaching owner means the owner of land contiguous to the boundary beyond which an encroachment extends. Encroachment means encroachment by a building, and includes encroachment by overhang of any part as well as encroachment by intrusion of any part in or upon the soil. Owner … Subject land means that part of the land over which an encroachment extends. 3 Encroachments (1) Either an adjacent owner or an encroaching owner may apply to the Court for relief under this Act in respect of any encroachment. (2) On the application the Court may make such orders as it may deem just with respect to: (a) the payment of compensation to the adjacent owner, (b) the conveyance transfer or lease of the subject land to the encroaching owner, or the grant to the encroaching owner of any estate or interest therein or any easement right or privilege in relation thereto, (c) the removal of the encroachment. (3) The Court may grant or refuse the relief or any part thereof as it deems proper in the circumstances of the case, and in the exercise of this discretion may consider amongst other matters: (a) the fact that the application is made by the adjacent owner or by the encroaching owner, as the case may be, (b) the situation and value of the subject land, and the nature and extent of the encroachment, (c) the character of the encroaching building, and the purposes for which it may be used, (d) the loss and damage which has been or will be incurred by the adjacent owner, (e) the loss and damage which would be incurred by the encroaching owner if the encroaching owner were required to remove the encroachment, (f) the circumstances in which the encroachment was made. (4) The Court may refer any question involved in proceedings on the application to: (a) any registered land surveyor (within the meaning of the Surveying and Spatial Information Act 2002), or (b) any valuer. (5) This section applies to encroachments made either before or after the commencement of this Act. 4 Compensation (1) The minimum compensation to be paid to the adjacent owner in respect of any conveyance, transfer, lease, or grant to the encroaching owner shall, if the encroaching owner satisfies the Court that the encroachment was not intentional and did not arise from negligence, be the land value of the subject land, and in any other case three times such land value. (2) In determining whether the compensation shall exceed the minimum, and if so by what amount, the Court shall have regard to: (a) the value, whether improved or unimproved, of the subject land to the adjacent owner, (b) the loss and damage which has been or will be incurred by the adjacent owner through the encroachment and through the orders proposed to be made in favour of the encroaching owner, (c) the circumstances in which the encroachment was made.

The Court Act

1. Three provisions of the Court Act are appropriate to be noted. Relevant elements of these provisions are set out below. The first is s 16(1A), the first of the provisions that was proposed to be relied upon for Dr Wirth as a basis for his proposed common law trespass relief. This provision is in the following terms: 16 Jurisdiction of the Court generally (1) … (1A) The Court also has jurisdiction to hear and dispose of any matter not falling within its jurisdiction under any other provision of this Act or under any other Act, being a matter that is ancillary to a matter that falls within its jurisdiction under any other provision of this Act or under any other Act. (2) …
2. The second relevant provision is s 19, which defines the scope of matters falling within Class 3 of the Court's jurisdiction. The relevant elements appropriate to note in this provision are set out below: 19 Class 3-land tenure, valuation, rating and compensation matters The Court has jurisdiction (referred to in this Act as "Class 3" of its jurisdiction) to hear and dispose of the following- … (c1) proceedings under the Encroachment of Buildings Act 1922, … (h) any other appeals, references or other matters which an Act provides may be heard and disposed of by the Court, being appeals, references or other matters that are not referred to in any other section of this Part.
3. The final element of the Court Act to be noted is s 22, a provision sought to be relied upon by Dr Wirth as a further foundation for the common law trespass relief upon which he sought leave to rely. This provision is in the following terms: 22 Determination of matter completely and finally The Court shall, in every matter before the Court, grant either absolutely or on such terms and conditions as the Court thinks just, all remedies to which any of the parties appears to be entitled in respect of a legal or equitable claim properly brought forward by that party in the matter, so that, as far as possible, all matters in controversy between the parties may be completely and finally determined and all multiplicity of proceedings concerning any of those matters may be avoided.

Relevant costs provisions

1. For the purposes of addressing costs aspects of these proceedings, it is appropriate to note that, unless otherwise displaced by the Court Rules, the combined operation of s 98 of the Civil Procedure Act and r 42.1 of the UCPR together create the presumption that costs follow the event. Although r 3.7 of the Court Rules does create a special costs regime applicable to many of the elements in s 19 of the Court Act that are brought within Class 3 of the Court's jurisdiction, the terms of r 3.7 of the Court Rules are, for reasons later explained, not engaged for the purposes of costs considerations arising from proceedings brought pursuant to the Encroachment of Buildings Act.
2. It is not necessary to set out the detail of any of the above‑noted costs‑related provisions.

Introduction

1. Although the matter had originally been set down for a hearing of only two days, the time taken for the site inspection and the later described Notice of Motion filed on behalf of Dr Wirth meant that it was inevitable that additional hearing time was required to finalise the matter. As it transpired, the hearing extended over three and a half days rather than the originally allocated two days. However, for reasons of listings pressures in the judges' diary and the limited availability of future dates after the hearings on 14 and 15 June 2022, the further hearing days were not able to be allocated until 6 and 7 September 2022, thus dividing the hearing into two quite distinct phases.

The first phase

1. The first phase of the hearing commenced, on the first morning, with a site inspection (settled notes of that inspection being subsequently tendered - becoming Exhibit K). It is not necessary, for the limited purposes of this decision, to repeat them.
2. The remainder of the first phase of the hearing was conducted in the court room with all evidence being given in person, other than that given by Dr David Moor (his oral evidence being given by audio-visual link).
3. At the end of the first phase, the evidence was closed and the matter stood over to the allocated further hearing dates in early September when closing submissions from Mr Lazarus SC and Mr Robertson SC would be heard.

The second phase

1. The second phase of the hearing comprised addressing and determining an application made by Mr Robertson to reopen the evidence and tender a further document (this element being described later) and hearing closing submissions from counsel. At the conclusion of this second phase of the hearing, I reserved my decision.

The witnesses

1. Dr Wirth's witnesses were: 1. Mr Fred Balboni, former owner (and developer) of 12 Wonderland Avenue. He deposed affidavits dated 29 April and 6 June 2022. Mr Balboni was required for cross‑examination. 2. Mr Allan Harriman, a fire safety and BCA compliance expert. He provided an expert report dated 22 April 2022 which was tendered, becoming Exhibit E. He was required for cross‑examination. 3. Ms Stephanie Vatala, solicitor. She deposed five affidavits (dated 24 March, 22 and 28 April, 7 and 8 June 2022). She was not required for cross‑examination. 4. Dr Michael Wirth. He deposed affidavits dated 22 April and 3 June 2022. He was required for cross‑examination.
2. The Respondents' witnesses were: 1. Ms Amelia Adams, solicitor. She deposed affidavits dated 26 May and 3 June 2022. Material exhibited to her affidavit of 26 May 2022 was tendered, becoming Exhibit 1. She was not required for cross‑examination. 2. Mr Jason Field, a valuer employed by National Property Valuers NSW Pty Ltd. Mr Field provided an expert report dated 31 May 2022 (Exhibit 5) and a supplementary expert report dated 13 June 2022 (Exhibit 6). He was required for cross‑examination. 3. Ms Kristy Hodgkinson, a town planner. She deposed an affidavit dated 31 May 2022 attaching an expert report. This affidavit was read. A supplementary town planning report dated 8 June 2022 was rejected but a bundle of air photos which had been annexed to her supplementary report was tendered, becoming Exhibit 9. She was not required for cross‑examination. 4. Dr David Moor, osteopath and resident of 16 Wonderland Avenue. He deposed an affidavit dated 23 May 2022. He was required for cross‑examination. 5. Mr Aharon Will, the First Respondent. He deposed an affidavit dated 26 May 2022. Material exhibited to his affidavit was tendered, becoming Exhibit 10. He was required for cross‑examination.

The photograph in Exhibit 7

1. Exhibit 7 comprised a single photograph taken close up of Dr Wirth's gate, from outside that gate and looking towards his house. The stairs and path inside the gate can be seen through the pattern of perforations in that gate.

Introduction

1. Mr Robertson tendered a bundle of photographs which became Exhibit 8. An earlier single photograph of the metal gate into the main portion of Dr Wirth's property from the lower landing of what was inspected during the site inspection, had earlier separately become Exhibit 7 (but remaining stapled within the bundle of photographs which became Exhibit 8). Exhibit 7 had been tendered during the course of Dr Wirth's cross‑examination. The remaining photographs, those comprising Exhibit 8, were tendered during the course of Mr Harriman's cross‑examination by Mr Robertson.
2. It will be necessary, in the course of my discussion of relevant photographs in Exhibit 8 to reproduce the particular photograph about which Mr Harriman was questioned by Mr Robertson.

The photographs in Exhibit 9

1. Exhibit 9 comprised a series of A4 air photographs which comprised an annexure to the supplementary town planning report prepared by Ms Hodgkinson (the tender of which report had been rejected by me). The annexed air photos, however, were admitted and became this exhibit.
2. I have carefully examined those air photos (a number of which have markings on them identifying the path through the Council reserve and the rear locations of 12 and 14 Wonderland Avenue and the western end of that pathway. However, all of these images that are potentially relevant to my present enquiry are merely (whether marked by Ms Hodgkinson or not being irrelevant) A4 reproductions of images reproduced at A3 scale and included behind Tab 16 of Exhibit 1 or forming part of the 50 air photos annexed to Ms Adams' affidavit of 3 June 2022. As a result, Exhibit 9 provides no assistance to resolution of the issue of whether there is but a single structure (as is the position advanced on behalf of the Respondents) or there are two structures (as is the position advanced on behalf of Dr Wirth).

Representation

1. Dr Wirth was represented by Mr J Lazarus SC whilst the Respondents were represented by Mr T Robertson SC. Each of the advocates provided comprehensive written outlines of submissions for the commencement of the hearing and written closing submissions for the second phase.

Introduction

1. The application initiating these proceedings was filed on 18 November 2021, some seven months prior to the commencement of their substantive hearing.
2. On 7 June 2022, a Notice of Motion was filed for Dr Wirth seeking leave to amend the potential relief sought. In essence, what was sought to was to add, in the alternative, potential grounds of relief based on a common law cause of action of trespass.

The amendment application

1. On 14 June 2022, Mr Lazarus moved on this Notice of Motion after he completed his introductory opening - taking me through, in necessary detail, documents establishing, on his client's case, the chronology of events concerning access to Carlisle Street along the rear boundaries of the dwellings at 14 to 2 Wonderland Avenue.
2. During the course of the consideration of this motion, in response to a question from me as to the precise statutory basis said to found the Court's jurisdiction to entertain this potential alternative relief, Mr Lazarus sought, and was granted, leave to amend that which was sought by the Notice of Motion to add clarification by identifying both the relevant provisions of the Court Act in each of the proposed orders sought. As a consequence, the Notice of Motion as required to be determined sought leave, in the following fashion, to add the following alternative bases of relief in the substantive proceedings: 1 Leave be granted to the Applicant to amend his Application Class 3 to seek the following additional or alternative orders: (a) An order pursuant to section 16(1A) and/or section 22 of the Land and Environment Court Act 1979 that the respondents, by themselves, their servants, agents and invitees, be restrained from trespassing on or over 12 Wonderland Avenue, Tamarama NSW 2026 being Lot 2 in DP 1061666. (b) An order pursuant to section 16(1A) and/or section 22 of the Land and Environment Court Act 1979 that the timber stairs and associated handrail located at the rear of 14 Wonderland Avenue, Tamarama across, and encroaching upon the rear of and within the boundary of 12 Wonderland Avenue, Tamarama NSW 2026 be removed by the Respondents at their cost.
3. The application for leave to amend was opposed on behalf of the Respondents. Mr Robertson advanced two substantive reasons why the motion should be dismissed. The first reason was, he submitted, that the Court did not have power pursuant to either of the provisions of the Court Act now identified in its terms as providing the basis for the potential relief sought.
4. The second basis upon which he submitted that the application to add the additional contingent basis for relief should be rejected was that it had come far too late in the proceedings, the Notice of Motion only being filed seven days (including the Queen's Birthday long weekend) prior to the scheduled commencement of the substantive hearing. He submitted that, if these additional potential bases for relief were permitted to be added, it would be necessary that I require that they be properly pleaded and that, as a consequence, additional time and effort would need to be devoted on behalf of his clients to respond to matters inherent in such an expanded case (even if on a contingent basis, as I understood him) on behalf of Dr Wirth.
5. The hearing of this Notice of Motion took up, on my estimation, some 30% or so of the available in‑court time after completion of the site inspection on the first day of the hearing.
6. After hearing argument concerning the application for leave to amend, I indicated that I would give my decision on it the following morning. Mr Robertson then commenced his opening address on behalf of the Respondents.
7. The following morning, at the commencement of the hearing, I dismissed the application for leave to amend. I did so on the basis of the second reason advanced by Mr Robertson proposing that I should do so.
8. Having concluded that I should dismiss the Notice of Motion on the basis of its lateness, it was unnecessary to address the issue of whether, if leave to amend had potentially been appropriate to be granted, I would have had power to grant that relief (had resolution of the other issues potentially necessitated consideration of relief on the basis for which leave had been sought).
9. I was satisfied that the application for leave to amend had been made too late to be permitted was for the following reasons: 1. The Notice of Motion had been filed on 7 June 2022, at about 4.30 pm, only three working days prior to the commencement of the substantive court hearing; 2. The Notice of Motion was supported by an affidavit of Ms Vatala, Mr Lazarus's instructing solicitor, with this affidavit being dated 7 June 2022; 3. Although the affidavit refers, in paragraph 7, to a letter to Mr Robertson's instructors dated 6 June 2022 giving notice of the Applicant's intention to make the application for leave to amend, said to be appended, no such letter was so appended; 4. As a consequence, no explanation has been given in this affidavit for the delay in seeking leave to amend; 5. No reason was advanced for this omission in oral submissions; 6. The matter had been before the Court on four earlier occasions (including a mediation before an acting commissioner) prior to commencement of the hearing following the site inspection on 14 June 2022; 7. At the pre‑trial mention before me on Friday 10 June 2022, I had discussed with the advocates my concern that the then scheduled two‑day hearing would be insufficient to enable the issues then engaged for consideration to be addressed (a significant number of affidavits and expert material having been filed by the parties prior to that time). It was evident to me that additional time needed to be allocated to permit completion of the hearing of the proceedings on the basis as they were then founded; 8. Given the state of the Court's listing diary for judges at that time (with only limited days available before all of the judges prior to the end of the 2022 Law Term), the only way that I could potentially make myself available to provide added time for this matter was to reallocate two of my assigned judgment‑writing days (the second on a contingent basis) in early September with there being no realistic prospect of any further time being available in 2022 if granting leave to amend in the terms sought prevented the hearing of the matter being completed; and 9. Whilst s 56 of the Civil Procedure Act operates to encourage the bringing together of all matters in dispute between the parties to the proceedings so that they can be determined in an all-encompassing fashion, this position is not one without limitation, as held by the High Court in Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175; [2009] HCA 27.
10. In the circumstances here engaged, I was satisfied that the application for leave to amend came too late and in circumstances where granting leave was antipathetic, in fact, to the objectives in s 56 of the Civil Procedure Act. I therefore dismissed the Notice of Motion.
11. Although these are proceedings in Class 3 of the Court's jurisdiction, the special costs provisions of r 3.7 of the Land and Environment Court Rules do not apply and, therefore, the combination of s 98(1) of the Civil Procedure Act and r 42.1 of the UCPR apply so that "costs follow the event".
12. I therefore ordered that: 1. Leave to rely on the alternative relief sought was refused; 2. The motion was dismissed; and 3. Costs of the motion were the Respondents' costs in the cause.

The Respondents' application to reopen and tender a new document

Introduction

1. Mr Robertson's written closing submissions were filed electronically on Monday 5 September 2022, at a little after 3.00 pm, the day before the resumption of the part‑heard hearing. These submissions were due to have been filed on 30 August 2022.
2. In paragraph 11, Mr Robertson foreshadowed an application to reopen proceedings in order to tender a document which he had appended to his written submissions. That document was a Statement of Environmental Effects, a document which had been provided by Dr Wirth to the Council in support of a development application lodged with the Council.
3. At the commencement of the hearing on Tuesday 6 September 2022, Mr Robertson sought leave to reopen in order to tender this document.
4. At the conclusion of hearing these submissions from Mr Robertson and Mr Lazarus, I rejected the application to reopen and tender the document. I indicated that I would provide reasons for doing so in my substantive decisions. These are my reasons.

Submissions

1. Mr Robertson submitted that this reopening and tender should be permitted because his attention had only been drawn to the document on the Thursday of the week before the resumed hearing and that the document had not been amongst the documents provided by the Council in response to a subpoena which had been made returnable in May 2022.
2. Mr Lazarus opposed leave being granted to reopen for the purposes of tendering this document. In essence, the reasons he advanced as to why the application should be rejected were: 1. The document had not been supplied by the Council because it did not fall within the scope of the terms of the subpoena issued on 28 April 2022. On 18 May 2022, the parties were granted general access to the material produced by the Council. The terms of the documents required to be produced as defined in the subpoena were: All plans, approvals and certificates relating to the existing timber stairs, landing and handrail erected at the rear of 12 Wonderland Avenue Tamarama (Lot 2, DP 1061666) and 14 Wonderland Avenue Tamarama (Lot A DP 339954). The above information is taken from paragraphs 20 to 22 of the affidavit of Ms Amelia Adams of 26 May 2022 filed on behalf of the Respondents and read on 14 June 2022; 1. It is clear that the document now sought to be tendered did not fall within the scope of the documents sought from the Council, he submitted; 2. Although he accepted that the document had only come to Mr Robertson's attention the previous week, no explanation was available as to when it had come into the possession of the Respondents or the Respondents' solicitors. Given that the proceedings had been on foot since late 2021, the absence of such an explanation did not provide a reason for, let alone adequately explain, the delay in seeking to tender the document; 3. Nothing was put to Dr Wirth in cross‑examination concerning this document contrary to the rule in Browne v Dunn (1894) 6 R. 67; 4. If the document was permitted to be tendered, it would be necessary for him to seek further evidence from Dr Wirth to address the circumstances underlying the preparation of the document. Dr Wirth was in the United States and the delay in notification of the intention to seek to rely upon this document until the day before the resumption of the hearing rendered it impossible under the circumstances to obtain that evidence; and 5. The document was available on the Council's DA Tracker on the Council's website. The inference he proposed (and which I drew) was that it could have been accessed at any time, including before the first phase of the hearing in June 2022.

Consideration

1. In combination, I was satisfied that the reasons advanced by Mr Lazarus established a compelling case as to why it would be entirely unreasonable to permit the reopening for the purposes of tendering the document. In particular, the lack of explanation for the delay and the prejudice to Dr Wirth which would have been occasioned had the tender been permitted without affording him an opportunity to provide evidence in response would clearly have been contrary to the objective set out in s 56 of the Civil Procedure Act of facilitating the just, quick and cheap resolution of the issues genuinely in dispute between the parties.

A relevant chronology

1. Set out below is a chronology extracted and adapted from the chronology tendered on behalf of Dr Wirth (Exhibit A): October 2003 Construction of timber landing and stairs located on 12 Wonderland Avenue leading to the reserve October 2003 Construction of concrete pathway located on Council land at the rear of No 10 and 12 Between January 2007 and May 2008 The current structure(s) was/were erected 28 May 2008 Application to the Council by a potential purchaser for a building certificate relating to No. 14 (annexing survey showing stairs encroaching on No. 12) 26 September 2008 The Respondents purchased 14 Wonderland Avenue Tamarama October 2017 The Applicant purchased 12 Wonderland Avenue Tamarama

Introduction

1. A basic and fundamental difference between the parties is whether or not that which is erected and provides access from 12 and 14 Wonderland Avenue to the concrete step and footpath in the Council reserve is, as a matter of fact, to be understood as comprising two separate structures constructed at different times or whether the entirety was constructed at the same time as a single integrated structure.
2. This issue is separate from, and unrelated to, any consideration of the question of whether or not, if it is a single structure, it satisfies the definition of "building" in s 2 of the Encroachment of Buildings Act or, if it is two structures, whether the upper of those structures (being the upper stairs, the entirety of the handrail/balustrade and the upper platform immediately adjacent to the post 2003 gate from the rear yard of 14 Wonderland Avenue) can also be regarded as satisfying the definition of "building" in that Act.
3. This basic question cannot be ignored because the case advanced on behalf of Dr Wirth is that what was examined during the course of the site inspection comprises two separate and distinct elements constructed at different times, only the upper one of which, including the entirety of the handrail/balustrade, comprises a separate, later structure from the lower landing and the wooden steps from this landing to the concrete step and concrete path along the rear of 10 Wonderland Avenue and running along the Council reserve adjacent to the boundaries of the other properties until reaching the rear of 2 Wonderland Avenue at the turning head of Carlisle Street. Determining the answer to this question is fundamental to all else potentially requiring to be addressed in these proceedings.
4. If that which was observed during the course of the site inspection comprises two discrete wooden structures, only the upper elements (including the handrail/balustrade) comprise the encroachment to which Dr Wirth's application applies. This is the position advanced on behalf of Dr Wirth.
5. However, if the entirety of the wooden elements observed during the course of the site inspection are a single structure (that being the position advanced on behalf of the Respondents) the entirety of these wooden elements comprises the encroachment to which the Respondents' cross-claim relates.

The importance of the answer to this question

1. Answering this question is an early and fundamental one. This is because, if the position advanced on behalf of Dr Wirth (the two separate structure proposition) is correct, the remaining issues (other than that of Dr Wirth seeking an order for removal for the encroachment) canvassed across the four days of these proceedings are rendered irrelevant. As Mr Robertson correctly conceded, in his written closing submissions and during the course of his closing address, if only the upper elements and the handrail/balustrade comprise the encroachment, granting the relief sought in the Respondents' cross-claim would be futile as doing so would merely give a right for the upper element to remain and (at the cross-claims' most expansive and beneficial extent) create an easement that would enable lawful access only to the separate structure located entirely upon 12 Wonderland Avenue but would not permit any lawful traverse of that lower, separate structure - thus providing no right of access from the foot of the upper structure to the concrete step and path located on the Council reserve.
2. The concession as to futility of the Respondents' position if there are, as a matter of fact, two separate and distinct structures was made in paragraph 17 of Mr Robertson's written closing submissions in the following terms: 17 … If the Applicant is correct, then the stairs alone do not encroach on the whole of the land required to provide a pathway to the Council reserve and the Respondents cannot therefore succeed in their application for easements enabling the use of the structure for that access.
3. The relevant exchange I had with Mr Robertson during his closing oral submissions was in the following terms (Transcript 7 September 2022, page 228, line 36 to page 229, line 45): HIS HONOUR: I understand that. But I want you to assume, for the proposition I'm putting to you now, that I will find that the upper stairs satisfy the definition of "building" by themselves, and that the lower deck and the lower stairs, if added to the upper stairs, still satisfy that definition, Mr Lazarus's case being they are separate buildings, if you like. Who bears the burden of addressing the one building/two building dichotomy? ROBERTSON: Well, it's Mr Lazarus's case that there are two buildings, and that the upper stairs are separate to the rest of the structure. HIS HONOUR: In a fashion consistent with Denton's instructions to Mr Harriman? ROBERTSON: Wherever the legal burden is, that's an evidentiary burden that he has assumed, and seeks to discharge. But on the assumption that your Honour makes, that they're both buildings within the act, then he would succeed in persuading your Honour that the stairs are a building, and it wouldn't matter that they were part of one or two buildings, for the purpose of him discharging his onus of proving encroachment. Then he opens up the power of the Court to order the removal of the encroachment. However, in exercising the discretion in s 3, subs 2 of the act, whether it's one or two becomes important, because there are discretionary issues that hang off that. In our case, we bear the burden because we seek relief that the encroachment remain, and be supported by an easement. We bear the burden of establishing that it's one building, I think, because it would be pointless us winning on the two building argument, because the stairs then only go to 50% of the distance across the act. HIS HONOUR: I understand that. ROBERTSON: We are bound by what the High Court said in Amatek and what subsequent decisions - which I don't need to cite to your Honour, but we're both no doubt aware of them - have said, that the power of the Court is to order an easement in relation to the horizontal area, vertically to the soil at the end of the area, not beyond it. There was a case - I forget; a South Australian or Queensland case, but under the same legislation - where it was argued that the building that was encroaching had a curtilage, and therefore the Court should take the curtilage into account. This was a decision by an appellant body, so it binds your Honour because it's on effectively the same legislation; the High Court says we're bound by appellant decisions on other states dealing with the same legislation. It said no, we can't do that; it's beyond power, because of what the High Court said, and Amatek, and the clear words of the act. So for us to succeed, we have to establish the one building hypothesis. I don't think I've ever said anything different in the course of the case. HIS HONOUR: No. But if I find two buildings as a matter of fact, that's a "thank you lion's [lines] people, thank you bull [ball] people" point, is it not? ROBERTSON: For our case, yes, but not for Mr Lazarus's case. HIS HONOUR: I understand that. ROBERTSON: Before your Honour can make an order to remove the encroachment, if you accept the two building proposition and that the stairs are a substantial and permanent building, then your Honour moves then to discretion. It's open to your Honour not to make any order on discretion, even if Mr Lazarus establishes jurisdiction and we cannot.
4. For the purposes of considering this limited, fundamental and potentially proceedings-determining issue, it is unnecessary at this stage to consider whether or not, as a matter of statutory construction, whatever constitutes the encroachment satisfies the definition of "building" in s 2 of the Encroachment of Buildings Act. However, if there are two structures, there then, as Mr Robertson correctly observed, arises the necessity for me to consider whether, as a matter of discretion, I should order the removal of the upper encroaching structure. This would then require me to consider whether the upper structure constituted a "building" as defined.

Introduction

1. A deal of the documentary evidence comprised or incorporated images that are relevant to understanding matters dealt with in this decision. Two of those images which assist in a proper contextual understanding of this decision are reproduced as Annexures A and B to this decision. Others are also reproduced as necessary.

A relevant survey extract

1. I have earlier noted that Mr Field, the Respondents' valuer, had provided an expert report and a supplementary expert report. The supplementary expert report (Exhibit 6) had appended to it a copy of two pages of a recent survey (dated 10 June 2022) commissioned by the Respondents' legal representatives. I have had portion of this survey plan scanned for incorporation in this decision. The element of the survey plan reproduced below clearly shows, from top to bottom, the location of the stairs, the two landings, the handrail/balustrade and the commencement of the path along the rear boundaries of the properties to the east.
2. The upper property boundary depicted on the survey plan is that between the Respondents' property and that of Dr Wirth whilst the lower property boundary is that between Dr Wirth's property and the Council's reserve. As can be seen on the image, the surveyor has shaded all the area of these structures between the boundaries and within Dr Wirth's property as comprising the encroachment (excluding the timber steps leading perpendicularly from the lower landing to Dr Wirth's dwelling).
3. The proposition that the entirety of the structure as marked comprises the encroachment is not accepted by Dr Wirth - with the position advanced on his behalf being that only the shaded portion of the handrail/balustrade as fixed to the lower landing and the shaded portion of the steps leading from the lower landing to the upper landing located on the Wills' property as shaded comprise the encroachment. On his case, the lower landing and the steps leading from it to the concrete step does not form part of the encroachment. This issue requires to be addressed later. The portion of the survey plan here described is reproduced below:

A relevant 2003 photograph

1. I have earlier noted that affidavit and oral evidence was given by Mr Balboni on behalf of Dr Wirth. Mr Balboni and his partner had, over a period of years, owned and carried out redevelopment of the land comprising 8A, 10 and 12 Wonderland Avenue. He had taken a number of photographs from, principally, as I understood his evidence, Wolaroi Crescent on the other side of the Tamarama Gully Reserve looking north toward what are now 8A, 10 and 12 Wonderland Avenue.
2. However, two of the photographs were taken during construction of what is now Dr Wirth's property looking to the north. The photographs (annexed to Mr Balboni's affidavit of 29 April 2022), show, in their foreground, the southern portion of a concrete block wall constructed on what is now Dr Wirth's property and running to a point at its western end where the present access gate through Dr Wirth's palisade fence is located. For the purposes of the enlarged image reproduced below, it is sufficient to note that he had taken a close interest in the various construction stages that had taken place during these redevelopments. The image below also shows a balustrade to the landing and stairs Mr Balboni said he had had constructed in late 2003 to provide access from 12 Wonderland Avenue to the pathway across the Council reserve.
3. This structure was, as later discussed, raised by Mr Robertson during his cross‑examination of Mr Balboni.

Introduction

1. In order to address this issue, it is necessary to address the potential evidence under three distinct headings. These are: 1. What is known which might be of assistance but is not; 2. Matters where there is no evidence; 3. Neutral evidence; and 4. The available evidence upon which a conclusion may be drawn in answer to this question.

The burden of proof

1. As Dr Wirth commenced these proceedings and gave rise to the necessity for me to determine, as a matter of fact, whether what was inspected comprises two structures rather than one, the burden of proof falls on him to establish, on the available evidence and on the balance of probabilities that the proposition advanced by him is correct.

Introduction

1. Each of the advocates addressed the question of whether that which was observed during the course of the site inspection was a single structure, or comprised two separate structures. They did so in slightly differing fashions as can be seen from what follows below.

The submissions for Dr Wirth

1. Mr Lazarus addressed the issue in his closing written submissions, at paragraphs 43 and 44, in the following terms (footnote omitted): 43 When considered as a whole or by reference to its constituent parts, the timber structure comprising all of the stairs, landings and handrails might possibly be considered to constitute a "building" within the meaning of s 2 of the EB Act. It is a structure of substance, not temporary in character. 44 The better view is, however, to regard the upper section (ie the stairs leading up from the main landing towards No. 14, in addition to the landing on No. 14) as comprising a separate "building", in that: (a) that section is, after all, designed for the separate purpose of providing access solely from No. 14; (b) the stairs are detachable, and are only loosely fixed in place to the landing on No. 12; and (c) there are concrete footings which support the landing on which the stairs are fixed. Those elements by themselves are properly to be regarded as a substantial building of a permanent character.
2. Mr Lazarus, in response to an enquiry from me, said (Transcript 7 September 2022, page 221, line 22 to page 222, line 12), referencing the decision of Bignold J in Kotselas v Doualetas (unreported, NSWLEC, 12 October 1993): LAZARUS: My learned friend, your Honour would recall, has made extensive submissions in his opening written document, and as well in his oral opening back in June about this case, and the alleged difficulties with it. I don't think that my learned friend made submissions about the part of the [Kotselas] judgment that I want to take your Honour to, which is on p 4 of the print out. Just very quickly, your Honour, the facts of this case related to a driveway that was shared by both the encroaching owner and the adjoining owner, which gave access to the encroaching owner's garage. So, it bears some factual similarity in the sense that the subject, or what was said to be the subject, encroachment, being a portion of the driveway, involved shared access. HIS HONOUR: Yes. LAZARUS: And it's not the part that my learned friend has drawn attention to, as to whether there's an encroachment or not. It's the part of the judgment on p 14, where His Honour considers about halfway down, the first question to be determined is what is the relevant building? HIS HONOUR: Yes. LAZARUS: Is it a garage and the associated driveway, as contended by the applicants. And we might say, in this case, is it the whole of the "structure" as contended by Mr Robertson or is it only the relevant section of the driveway, similarly, to what we contend. And in my judgment, the applicant's submission that the relevant building is the garage building and associated driveways and..(not transcribable)..and then a sentence down, "I do not regard the contemporaneous construction of the driveway and garage floor as creating a single building". So, the fact that they're elements constructed at the same time is inconclusive. And obviously, the driveway and gutter crossings are adjunct to the garage building. And we might say, similarly in this case. However, this does not render them one and the same building. Now, factually distinct, in a sense. But similar in another sense. And His Honour says they are properly to be regarded as separate physical entities. Partly because of the function, the different functions that they serve. And the section of driveway in the present case is in my opinion, a separate physical entity from the garage building. I do not find that the driveway is part of the garage building, or even part of the garage floor. Driveway is an associated, yet physically separate entity. And then he goes on to consider the question of encroachment. But it's only that earlier part of the judgment that's relevant for present purposes, your Honour.

The submissions for the Respondents

1. Mr Robertson, in his written closing submissions in reply carried forward the elements of his opening written submissions. It is convenient, first, to set out the relevant elements of his opening written submissions on this point. They were in the following terms: What the case is about 1 This case is about 1.9m2 of land. That is the area of encroaching stairs, a landing and a handrail, below the occupations on 12 Wonderland (the adjacent land). 12 Wonderland has also constructed wooden steps to the landing. Both 12 and 14 rise steeply from the point of the encroachment. 2 There is no doubt that the encroachment from 14 was built before the Wills bought 14. It appears from aerial photos that 12 constructed its steps to the landing either at the same time as or after the encroachment was built. It is not clear whether 12 or 14 built it, and it may have been a joint effort.
2. In his closing written submissions, he returned to address this issue, initially under the heading "Jurisdiction", at paragraphs 14 to 16. These paragraphs were in the following terms: Jurisdiction 14 The Encroachment of Buildings Act 1992 (the EB Act) defines encroachment to mean "encroachment by a building, and includes encroachment by overhang of any part as well as encroachment by any intrusion in any part in or upon the soil". "Building" is defined to mean "a substantial building of a permanent character and includes a wall". Although the Applicant bears the onus of proving that there is an encroachment (and if it does not, the Court must dismiss the proceedings and should award the Respondents their costs), it seems to us that there is an encroachment, but it is not as described by the Applicant. Indeed, if it was, then it would not be an encroachment at all, and the Applicant must lose. 15 From the photographs and the view, it does not merely comprise several steps down from 14. If the Applicant's submission at [44] is correct, the Court has no jurisdiction to make any orders. If, however, the structure comprises the stairs, handrails, concrete footings and landing, then it does comprise a building as defined. 16 The Applicant argues that one should regard history in defining the structure. History is interesting for other reasons, but irrelevant for that purpose. An encroachment case does not result in the declaration of existing rights or liabilities. It is a discretionary power given to a Court to alter existing rights. As the Court determines whether rights should be adjusted in the future, it is evident that the position at the date of judgment, rather than some earlier time must be considered for the purpose of jurisdiction. At the present time, parts of the structure have been melded by construction to comprise steps, landing, footings, and handrail stemming from 14 and traversing the width of 12. It does not merely comprise the steps from 14, but, by dint of the handrail and footings, integrates the other parts of the structure. The stairs do not rely on gravity or loose attachment but are tied in by the handrail, nails and posts to the landing, lower stairs, and underlying ground. If, however, the stairs alone are considered as the Applicant asserts [44], and if they are detachable (which is denied), then they would not in themselves comprise a substantial building of a permanent character, and thereafter not an encroachment and the Court has no jurisdiction to order removal. For an encroachment to be present, the whole integrated structure must be considered.
3. Following the above extract, Mr Robertson's closing written submissions continued with paragraph 17 earlier reproduced at [61].
4. During the course of his oral closing submissions, Mr Robertson also addressed this fundamental issue, submitting (Transcript 6 September 2022, page 211, line 15 to page 212, line 2): ROBERTSON: But to make his Amatek point, he has to say that the intrusion stops, or the overhang and intrusion stops at some point before the whole, the width of lot 12 is breached. Because if he's right then that - and the ancillary easement of access can only be granted in relation to the encroachment, then it must only be in relation to that area. And to some extent, he's probably right, that if the only thing are the steps, then we have - we only have half an encroachment necessary to enable us to passage through to the council reserve. But I think that the view showed more clearly than anything else, but it's there in the photographs as well, the view showed that there are a number of things working at the same time in relation to that structure. It is not just the gravity - the gravitation, the steps enabling someone to go from the upper platform to the lower platform, and then to go to the wooden and then the concrete step into the reserve, there are other things happening. The platforms are supported by footings that are - that intrude into the soil. We saw them, they are concreted into the soil. Your Honour made an observation on the view, and I think it's recorded in the exhibit that was tendered this morning, but it's quite clear what your Honour did was ask Mr Harriman, I think, to go down and take what the locals all call sticky weed, which is a pretty accurate description of it, to remove the sticky weed and just to look at how that platform was constructed, and there it is. You have, you know, however many footings there were. It's clearly a - it's substantial to the extent that it intrudes into the soil, it's clearly intended to be a permanent arrangement, and it supports what we say is the encroaching structure. And it's integrated into the structure, because if you look at the handrails, they actually have sawed off part of the - I think it - I better get a photograph, but either the lower step or part of the platform has been sawn off so that the railing strut can go through and be supported. So there's things have happened to each of these moving parts to support that single structure that we say is the subject matter of the application. If, on the other hand, Mr Lazarus is correct about the structure, that it's just the steps and the steps, he says they're relatively easily removable, they're - you can unscrew them, or you can take the tacks out and lift them up, and they're not a stable structure anyway, and so on and so forth.

Matters which might be expected to assist but do not

1. In his affidavit of 29 April 2022, Mr Balboni, the former owner of 10 and 12 Wonderland Avenue who had redeveloped these properties (including building the dwelling in which Dr Wirth currently resides) said, at paragraph 8: 8 In approximately October 2003, a set of timber stairs, handrail and landing were erected, at my direction, at the rear of No. 12, wholly on No. 12, to provide direct access to the Council footpath and reserve. The structure erected at my direction at this time did not include any structure on No. 14, nor did it facilitate access from No. 14 across No. 12.
2. Two photographs taken by Mr Balboni in approximately November 2003, taken from a location across Tamarama Reserve in Wolaroi Crescent, were annexed to this affidavit. The second of those photographs is a close-up (reproduced earlier at [69]), one clearly showing the stairs, described by Mr Balboni.
3. Mr Balboni deposed a second affidavit, one dated 6 June 2022. At paragraph 8 of this second affidavit, he referred to paragraph 8 of his earlier affidavit reproduced above. The relevant paragraph of this second affidavit is in the following terms: 8 I refer to paragraph 8 of my earlier affidavit. As part of the final landscaping of No. 12, my husband and I directed the builder to construct timber stairs, located wholly on the property of No. 12 which provided direct access from No. 12 on of the concrete footpath on Council land. I refer to paragraph 8 and the nature of my earlier affidavit which contains a photograph, taken from Walaroi Crescent, which shows the structure as built. The timber landing and stairs which presently exist entirely on No. 12 (that is, not the staircase and handrail which encroach from No. 14 onto No. 12) appear to me, to the best of my recollection, to be generally the same materials and in the same location as the stairs I directed to be constructed in or about 2003. At the time of construction of the timber stairs on No. 12, I recall that there were no stairs from No. 14 to and on No. 12 which enabled access from No. 14 over No. 12 to the concrete path.
4. However, during the course of his cross‑examination by Mr Robertson, Mr Balboni was questioned on his most recent observation of the structure(s) the subject of these proceedings. His answer, contrary to what is reproduced above from his two affidavits, was that the lower element was not what he had arranged to be constructed in late 2003. The relevant passage of this evidence was recorded in the following terms (Transcript 15 June 2022, page 92, lines 27 to 41): Q. Did you construct the landing or cause to be constructed the landing that's at the rear of number 12? LAZARUS: Sorry, just to clarify. ROBERTSON Q. Outside the palisade fence to the south of number 12. LAZARUS: That is now there. Is that the question? ROBERTSON Q. That is now there, yes. A. We did not.
5. As a consequence of this response to Mr Robertson, Mr Balboni's affidavit evidence provides no assistance to me in determining whether that which we observed during the site inspection should be regarded as one structure or two.

Matters about which there is no available evidence

1. There is no specific and available evidence as to when that which was inspected was built and, when that occurred, whether it was built as one structure or two.
2. All that is clear is that, prior to the date of the photographs taken in late 2003 by Mr Balboni, none of that which was inspected was in existence at that date.
3. Neither Dr Wirth nor the Respondents owned their respective properties at the time(s) of the construction (whenever it took place). No evidence is available from any former owner of either property.
4. An air photo taken in 2002 (when that which was inspected is clearly absent) and one taken in 2009 (when the structure(s) are visible) provide no assistance. It is to be noted that these air photos are Exhibit 1, Tab 16, figures 1 and 4.

Neutral evidence

1. At paragraph 13 of Mr Will's affidavit of 26 May 2022, he said: 13 At the time of purchasing No. 14, the Structure appeared as it does currently, save for the recent works undertaken by the Applicant.
2. Dr Wirth's affidavit of 3 June 2022 responded to this paragraph in Mr Will's affidavit saying, at paragraph 7: I refer to paragraph 13 of Mr Will's affidavit. I have not carried out any recent works to the stairs and landing located on my property. When I purchased my property, I may have arranged for the timber treads on the already existing stairs located wholly on my property, which lead to the landing located wholly on my property to be replaced. Apart from that, I've not carried out any works to the stairs and landing at any stage since I purchased the property in 2017. The difference in appearance to the timber landing and stairs on my property are due to the different amount of sun exposure to the timber on either side of my black metal gate and the fact that I recently cleaned all the external timber on my property with a high-pressured hose as part of my routine household maintenance.
3. Dr Wirth was cross‑examined by Mr Robertson concerning possible changes by Dr Wirth to the structure(s) observed during the site inspection (Transcript 15 June 2022, page 73, line 37 to page 74, line 46): Q. I want to suggest to you that you raised the steps in your property, that you may changes to those steps, and you increased them in height. A. No, I did not. Q. Making it necessary for there to be to additional steps to the landing which you constructed. A. No, I did not. If you look at the side panel, the stringer of the staircase, it's clearly one continuous piece of timber, so I couldn't have done that without constructing an entirely new stringer, which would have required development consent or cooperation from the builder, and I did not do any of that. Q. I suggest that you did change the stringer. A. I - I'm telling you that I did not. Q. I suggest that the stringer is in a different position than shown in the photograph that Mr Balboni has in 2003. A. To me it looks like - to me it looks like it's in the identical position. Q. You cleaned the decking a few months ago, didn't you? A. Correct. Q. You re-stained landing to make it the same colour as your steps, didn't you? A. No, I did not. Q. You used an industrial hose. A. No. I I used what's called a..(not transcribable)..or a high pressure hose that's available at Bunnings to any civilian. It doesn't have to be - it wasn't commercial grade. Q. Was it the hose that changed the colour A. Yes, it was. Q. of the landing? A. On a site inspection with my legal team, it was noticed that one of my builders slipped, usually due to a build-up of grime on the footpath, and knowing that there would be a site inspection for the Court, I took it upon myself to clean the timber on my property. By cleaning the dirt off it alone is the sole reason for the difference in appearance of the timber. I did apply no other staining or sanding or any other treatment to it. Q. I want to suggest to you that before you did that, the landing looked exactly the same as the steps up to my client's property. A. They both looked dilapidated and old? Q. No, no, looked exactly the same as the steps up to my client's property. A. No, the Q. I'm not asking you for adjectives here. A. Sure. No. It wasn't exactly the same. Q. What was the difference? A. I would say the condition of the timber looked different, and the amount of weathering was different. Q. The nails are the same, aren't they? A. I can't comment on that. I'm not an expert in else, but any sort of metal structure that's near the coast clearly rusts out very quickly. I know this because I own a property near the coast, so trying to determine levels of rust and weathering is - is beyond anything I can comment on.

Mr Harriman's evidence

1. During the course of the site inspection, the primary focus of what was observed and discussed was the upper staircase element of the structure(s). The primary focus of Mr Harriman's report (Exhibit E) was also on this element of the structure(s) and, to the extent that he commented on deficiencies of other elements of it, that commentary addressed technical non-compliances with the Building Code of Australia relating to the spacings between the handrail and each of the balustrade wires below it; widths of the treads and the height of the risers between the treads.
2. Mr Harriman conducted his inspection on the basis that there were two structures. This was because the instructions provided by Dr Wirth's solicitors to Mr Harriman said, relevantly: 2.4 Our client's property has a rear gate that leads onto a timber landing and timber step, which provides direct access to a concrete step and concrete path, both located within the Council reserve. The landing and the stair are wholly within our client's property (although currently outside our client's rear fence). 2.5 The neighbouring property, at 14 Wonderland Avenue, also has a rear gate, timber landing, and timber stairs, which lead on to our client's timber landing. The occupants of 14 Wonderland Avenue can presently access the park using our client's timber landing and stair, through our client's property, as can be seen on the photograph below (our client's stairs are in the foreground).
3. As a result, Mr Harriman dealt, in his expert report, only with those elements comprising the upper stairs and landing, the handrail and the stainless steel cable wires below the handrail which, together with the handrail, constituted the balustrade. He also examined the attachment of the upper stairs to the lower stairs. He does not appear to have examined the attachment of the handrail to the lower landing nor did he examine any of the footings to either the upper or lower elements of the structure.
4. At 4.1.1 of his expert report, he said: During the inspection, I noted the encroaching stairs only contained 2 screws to the balustrade post located wholly on the property of 14 Wonderland. I lifted the bottom of the stairs and noted that they are not affixed to the landing of 12 Wonderland upon where they sit.
5. Mr Harriman's evidence, generally, (with the exception of the above quotation from 4.1.1 of his expert report) provides no direct assistance in determining whether that which was inspected during the course of the site inspection, constitutes two structures or one. I will however, in my later consideration, address Section 4.1.1 of his expert report further.
6. The specific criticisms which Mr Harriman made and which were pointed out during the course of the site inspection relating to the upper section of the stairs related to criticism of the present state of the northern stringer at its location on the lower landing on the structure(s) and the rotted state of the head of the southern stringer at its top on the platform immediately adjacent to the rear fence of 14 Wonderland Avenue.
7. The looseness of the treads where they fitted into their rebates on the stringers that were pointed out during the course of the site inspection were also those on the steps between the two platforms. There was no discussion, during the site inspection, of whether the entirety of the east/west structure had been constructed as a single structure or as two structures. It is to be noted that the steps from within the fenced area on Dr Wirth's property leading to, and supported by, the lower landing on the structure were recently renovated by Dr Wirth.
8. It was only during the course of the second phase of the hearing, when I was expressly taken to a series of photographs in Exhibit B, being the folder of material exhibited to Dr Wirth's affidavit of 22 April 2022, that it became obvious that the entirety of the sets of steps and two landing structures were of identical weathering appearance in a fashion potentially leading to the conclusion that the entirety of the structure had been built at the same time as part of a single construction. The photograph from Exhibit B which shows that position most clearly was one taken from below eye-height level, being the first photograph behind Tab 3 of this exhibit. A copy of this photograph is reproduced as Annexure A to this decision.

Introduction

1. There is photographic evidence which can assist in undertaking an assessment as to whether or not that which was observed during the site inspection is one structure or two. The relevant photographic evidence (and the weight to be given to the various elements of it) is later discussed. It is appropriate, first, to note the source of this photographic material. The relevant photographs are: 1. Two photographs behind Tab 3 of Exhibit B, the material exhibited to Dr Wirth's affidavit of 22 April 2022. These photographs, taken from slightly differing angles, provide two full elevation views of what was observed during the course of the site inspection. These photographs were taken from the concrete path through the Council reserve. They have been taken looking west. In the form in Exhibit B, they have been annotated by Dr Wirth. These annotations play no part in my consideration of what is shown in these photographs. There are a number of elements of what is shown which are appropriate to be extracted for the purposes of subsequent analysis. However, the second of these two photographs has also been scanned and is reproduced as Annexure B to this decision; 2. The second photographic elements requiring to be considered are photographs contained in Exhibit 8. These photographs have not been marked with any comments; and 3. Annexed to the affidavit of Ms Adams dated 3 June 2022 were 50 A3 air photographs spanning the period between 1930 and 2022. Many of the early period air photos are grainy and do not provide legible images in any detail of the southern portions of 12 and 14 Wonderland Avenue. However, given that it is known that Mr Balboni caused a structure to be built at the rear of 12 Wonderland Avenue to provide access from the dwelling he developed on that site to the concrete path which he had had installed leading across the Council reserve to the cul‑de‑sac head of Carlisle Street, the lack of clarity of any of the air photos annexed to this affidavit of Ms Adams are irrelevant for the purposes of determining whether that which was inspected during the course of the site inspection constitutes a single structure, or two separate ones.
2. It is to be observed that a number of the photographs in the following sections are reproduced as elements of the structures extracted from the photographs in Annexures A and B (these showing the entirety of the structure(s) in elevation).
3. It is also to be observed that, in the photographs from Exhibit 8, there are quite distinct colouration differences between the upper and lower elements as pictured. This colouration difference is, however, not a matter relevant to consideration of whether what was observed, is one structure ought to. The colouration difference is explained in the earlier reproduced paragraph 7 of Dr Wirth's affidavit of 3 June 2022.
4. As with the photographs in Annexures A and B, it is appropriate to extract elements for the purposes of the analysis which follows of relevant matters available to assist in forming a conclusion as to whether what was observed during the site inspection is one structure or two.

The difference between the step designs

1. I reproduce below comparative images extracted from Annexure B to enable a comparison of the tread designs, in elevation, of the upper and lower steps. These image extracts are reproduced below, the upper image being of the upper steps, and the lower image being of the lower steps:
2. As can be seen distinctly, for the upper steps, there is no enclosure of the risings between treads. These steps are entirely open.
3. With respect to the lower steps, the gaps between the treads are enclosed by narrow pine strip cladding so that there is no visible gap. Exhibit 7, the single close‑up photograph of Dr Wirth's gate, taken from outside the gate and looking towards his house, also makes it clear that each of the steps shown on it behind the gate has its riser, from tread to tread, enclosed.
4. The above images also show the nature of the treads of the upper and lower steps.
5. As can be seen, the treads of the upper steps comprise a single plank fixed into the stringers at the end of the plank into a rebated slot in each stringer.
6. As can be seen for the lower timber step, there is not a single tread but there are multiple smaller pine strips. As these elements are enclosed by both the stringers supporting the lower step and by the enclosure of the risers, it is not possible to discern what (if any) ancillary supports are incorporated to ensure structural adequacy.
7. It is sufficient to observe that, in design and in construction methodology, these lower steps can be seen to be distinctly different in the two respects described immediately above when compared to the design and construction methodology of the elements of the upper steps.

The orientation of the handrail/balustrade

1. As can be seen from the below image extracted from Annexure B, it is clear that the handrail/balustrade does not run parallel to the upper step elements. This can also be seen on the extract from the survey earlier reproduced from Exhibit 6.
2. It is appropriate to explore why this might be the case. It is clear from this survey extract that the steps from the upper landing to the lower landing are constructed square to the upper landing and arrive at the lower landing on a diagonal. The handrail/balustrade, however, needed to be attached at the south-eastern corner of the lower landing (in order not to require removal for the support at that location of the lower landing). This necessitated this element of the handrail/balustrade not being square to the upper landing or the upper steps.
3. The second relevant image extract is taken from Annexure B and shows the nature of the attachment of the support of the handrail at its eastern end where it has been attached to the southern (outer) side of the support for the lower platform.
4. Had this handrail been constructed as part of a single construction project (as is the position advanced on behalf of the Respondents), the handrail could have been directly attached to the concrete step in the same fashion that the support to the lower platform has been affixed (without the necessity to attach it to the outer face of the support of the lower platform). Had this been part of a single construction project, sound construction methodology would not have had two distinct supporting elements at this location. Indeed, had there been a single supporting element for both the lower platform and the handrail/balustrade, the handrail and its subjacent steel cables would have been closer to (if not precisely at) alignment with the upper staircase.

The lowest steel cable element of the balustrade

1. The lowest (and shortest) element of the steel cabling forming the balustrade below the handrail is shown on the below extracts from the images in Annexure A and B. The close-up images have been magnified for the purposes of this element of my analysis.
2. As can be seen, when compared to the angle of the steel cabling elements from the eastern upright of the handrail/balustrade structure, this element appears to have been constructed in a fashion which can only be regarded as consistent with the construction of the overall balustrading and the spacing of the steel cables as an element incorporated in order to accommodate the integration of the lowest steel cabling element with an already existing structure. Had this not been the position, a proper integrated design for a single structure would not have required this discordant element to be added as an afterthought.

The photographs in Exhibit 8

1. The relevant element of Mr Robertson's cross‑examination of Mr Harriman concerning photographs which became Exhibit 8, was in the following terms (Transcript 15 June 2022, page 97, line 22 to page 100, line 5): ROBERTSON: Yes. I'll come to that. Your Honour, exhibit 7, if that could be shown to the witness. Just the photographs in, or annexed to that exhibit, which I just want to show the witness. HIS HONOUR: Are you asking that I-- ROBERTSON: Provide him with exhibit-- HIS HONOUR: The whole bundle? ROBERTSON: The whole bundle. HIS HONOUR: Or merely exhibit 7? ROBERTSON: Yes. In which exhibit 7 is part. EXHIBIT #7 SHOWN TO WITNESS ROBERTSON Q. Could you have a look at page 3? They should really number these pages, but perhaps we'll do that later. And that shows the stairs from number 12 going down to the landing. Doesn't it? A. Yes. Q. Are they square headed bugles that we see there attaching the stairs from number 12 to the landing? A. On the left-hand side, yes, they are. On the right-hand side, they appear to be a nail. … ROBERTSON Q. That's the photo you're looking at? A. Yes. Q. Which is the-- A. These ones here are the bugles. Q. So, they're on the right-hand side of the stairs-- A. Stair. Q. --looking at the photo? A. Yes. Q. If you were going down the stairs, they'd be on the left. But looking at the photo, they're on the right-hand side-- A. Yes. Q. --of the photo. Aren't they? And which A. And we have nails here. Q. Which are further to the right? A. Yes. Q. Sorry. Just the left and the right confused me a bit. And the nails that you see are nails on the platform. Aren't they? It's a little difficult to get that. A. Yeah. Well, that's - that's a lower stair. The - I would call this, a landing, and I would call that, a stair. The nail-- ROBERTSON: The lower stair going down to the reserves. Okay. And I'm not sure, I've got a photocopy of the landing, which is, I think, the first photograph. See? Doesn't look like. HIS HONOUR: It looks like concrete. ROBERTSON: It does. Just a second. Yes. That's it now. I've got a photograph of the landing here. Let me count them. Sorry. This is the sixth page. Q. And you see the way the landing's been constructed there with nails. Can't you? A. Correct. Q. Yes. Okay. Thank you. And I want to suggest to you that that's the same as the landing on number 14. A. I - I - I can't recall what number 14 was. But I do know there was nails on it. Correct. … EXHIBIT #8 BUNDLE OF SIX PHOTOGRAPHS EXCLUDING THE PHOTOGRAPH AT PAGE 2 TENDERED, ADMITTED WITHOUT OBJECTION ROBERTSON: Thank you. There was one other question I wanted to ask. Could the witness be shown exhibit 8 again, please? … EXHIBIT 8 SHOWN TO WITNESS Q. Mr Harriman, I want to suggest to you that, on page 3 of exhibit 8, the stairs that have been screwed in are made of a timber that is aged differently to the timber on the landing which they connect with. Do you agree with that? A. I can't comment on the age. But I can certainly comment that they are affixed differently. Q. Yes. Thank you. Are they also pine? Is it the same-- A. It appears to be from the knots and the colouring, it appears to be a pine.
2. It is to be noted that, during the course of the above cross‑examination, the question of difference in coloration of elements of what was observed during the site inspection was raised by Mr Robertson. The explanation for the difference in coloration was explained in Dr Wirth's affidavit of 3 June 2022, in paragraph 7 earlier quoted at [90].
3. Photograph 3 in Exhibit 8 shows the elements of the steps leading from the lower landing leading to, and outside of, the metal gate depicted in Exhibit 7. This photo shows the treads being affixed by bugle-headed screws. These are the treads which Dr Wirth indicated, in paragraph 7 of his affidavit of 3 June 2022, earlier reproduced at [90], that he had arranged to be replaced since his purchase of 12 Wonderland Avenue. The right hand side of this photo also shows the tread of the timber step leading from the lower landing to the concrete step on the Council reserve. The pine strips comprising this tread are nailed into place.
4. Photograph 6 in Exhibit 8 shows the northern edge of the lower landing and shows that the horizontal pine slats forming this platform are affixed by nails.
5. Photograph 7 (the final photograph in Exhibit 8) shows the southern edge of the upper landing and demonstrates the fact that the horizontal pine slats forming this platform were also nailed to the bearers supporting this platform.
6. Mr Robertson explained the Respondents' position in the following terms (Transcript 15 June 2022, page 57, lines 22 to 27): ROBERTSON: Your Honour, our case is that the timber landing is part of the encroachment, and that it's constructed in precisely the same timber as the stairs. It has precisely the same nails as the stairs, and anything constructed by my learned friend's client is screwed down, not nailed down, and different timber. It only looked the same on the view yesterday because Dr Wirth has done work on it to make it match the stairs.
7. Although this was the position advanced by Mr Robertson, Dr Wirth's earlier set out evidence at [91] (which I accept) does not assist the case of the Respondents on this proposition. Similarly, the evidence of Mr Harriman extracted at [117] (which I also accept) also does not assist the case of the Respondents on this proposition.

Consideration and conclusion

1. Of the above factors, I am satisfied that:

• the lack of attachment of the upper steps to the lower landing;
• the enclosure of the risings of the steps from the lower landing to the concrete step and of the risings of the steps leading into Dr Wirth's residence and the lack of enclosure of the risings on the upper steps;
• the single plank element of the upper step treads compared to the several smaller pine elements of the timber step from the lower landing to the concrete step and the steps leading into Dr Wirth's residence;
• the splayed alignment of the handrail/balustrade;
• the double support connection element attaching the handrail/balustrade to the concrete step at its eastern end; and
• the unusual alignment of the lowest of the steel cables forming the balustrading element below the eastern, angled portion of the handrail. all, in my assessment, point towards a purely factual finding, on the balance of probabilities, that what was inspected during the course of the site view constitutes two structures rather than one.

1. The only potential countervailing indicator is the fact that the upper and lower platforms are nailed into place as are the steps from the lower platform to the concrete step whilst the fastening methods used for the steps leading into Dr Wirth's dwelling are a combination of Philips head and square drive slot, bugle‑headed screws.
2. However, given the evidence in Dr Wirth's affidavit earlier set out at [90], this fastening differentiation is equally consistent with that which took place during the deconstruction/reconstruction undertaken by Dr Wirth of the tread elements of the steps leading to his house.
3. The factors set out above, coupled with the absence of any alternative clear demonstration supporting the proposition that what was observed during the course of the site inspection could be seen to be a single structure, rather than two, I am satisfied, on the balance of probabilities, that the earlier set out factors lead to the conclusion that the upper platform, the upper steps and the handrail/balustrade elements are a separate structure from, and were constructed subsequent to, the lower platform and the timber step leading from it to the concrete step at the western end of the footpath through the Council reserve.
4. Therefore, on the balance of probabilities, there are two separate structures.
5. The consequence of that conclusion must be that the Respondents' cross-claim fails as, even if that which was sought in the cross-claim was granted, it would not create any rights of access over the lower, separate structure located entirely on Dr Wirth's property as that structure does not form part of an encroachment amenable to be dealt with pursuant to the Encroachment of Buildings Act.

Is it a "building"?

1. I Therefore, I next need to consider whether the encroaching structure constitutes a "building" capable of engaging my power pursuant to s 3(2)(c) of the Encroachment of Buildings Act so as to consider, as a matter of discretion, whether I ought make the first of the orders sought by Dr Wirth in his application.
2. I have earlier set out the definition of "building" in s 2 of the Encroachment of Buildings Act. There are two elements of the definition that require to be satisfied before this encroachment (the upper structure and handrail/balustrade) can engage my jurisdiction under the Encroachment of Buildings Act to consider, on discretionary grounds, whether I should order the removal of the encroachment.
3. The second of them, whether the encroaching structure is "permanent", can uncontroversially be answered in the affirmative. The first of them, whether the encroaching structure is "substantial" is not amenable to an uncontroversial response, however.
4. During the course of the hearing, I was referred to the decision of Sheahan J in Barton Securities Limited v Warringah Council & Others (2009)170 LGERA 223; [2009] NSWLEC 179 (Barton Securities), a decision in which his Honour considered, in the factual circumstances of those proceedings, the meaning of the word "substantial" arising in the context of cl 4(1)(a)(ii) of State Environmental Planning Policy No 65 - Design Quality of Residential Apartment Development.
5. More recently, I have also had to consider that same issue of construction of the word "substantial" in that same environmental planning instrument context. My decision on that question of construction was dealt with in Olivia Ross v Patrick Lane (No 2) [2021] NSWLEC 121 (Ross v Lane). An appeal against the approach I took to the meaning of "substantial" in those proceedings is the subject of appeal, with that appeal heard on 11 August 2022 and the Court of Appeal having reserved, but not yet delivered, its decision.
6. Whatever the outcome of the appeal against my decision in Ross v Lane, I am satisfied that it will have no bearing on the nature of the decision which I am required to make in these proceedings. I now explain why I have reached that conclusion.
7. For present purposes, I am satisfied that the fashion in which the word "substantial" is used in the definition of "building" in s 2 of the Encroachment of Buildings Act does not require parallel consideration for these proceedings as the use of the word "substantial" when considered in the context of the concepts of "substantial redevelopment" or "substantial refurbishment" of an apartment building (this being the context in which the construction issue arose before Sheahan J and before me, and which required a comparative assessment between the proposed development and the existing building). What is required to be assessed for the purposes of determining whether or not a structure satisfies the definition of "building" in s 2 of the Encroachment of Buildings Act requires a determination of whether the structure is "substantial" in abstract rather than in comparative terms. I have approached my consideration of whether what I have determined to be the separate upper structure of the two structures here involved is "substantial" or not, on that abstract basis rather than on any comparative basis. The decisions in Barton Securities and Ross v Lane provide no assistance in that process.
8. On balance and taking a purposive approach to the statutory provision, I have concluded that the encroaching structure should be regarded as "substantial". I have so concluded because, although the element of the structure which crosses the boundary from 14 Wonderland Avenue into 12 Wonderland Avenue is, as to its steps element, of modest dimensions, the handrail/balustrade element extends significantly beyond that point. The structure has a separate substantive function of providing access from 14 Wonderland Avenue to the lower structure located on Dr Wirth's property and has been constructed with the incorporation of a handrail/balustrade designed to facilitate use of the structure for its design purpose in a safe fashion. Viewed in this fashion, I am satisfied that there is an appropriate factual basis upon which to conclude that this second element of the definition of building is also satisfied.
9. As a consequence, my jurisdiction to consider whether, as a matter of discretion, I should order removal of the encroachment is enlivened.

Should its removal be ordered?

1. I have earlier set out the terms of s 3 of the Encroachment of Buildings Act. This provision sets out a non-exhaustive list of factors potentially requiring consideration when determining whether any order should be made with respect to the encroachment.
2. For present purposes, s 3(3)(e) (the loss and damage which would be incurred by the encroaching owner if the encroaching owner were required to remove the encroachment) is that which I am satisfied here arises to provide, potentially, a foundation for an order requiring the Respondents to remove the stairs, the diagonal portion of the handrail, and the wire cables beneath it, together with the supporting upright at the eastern end of the handrail.
3. My reasons for concluding that a removal order should be made to effect this are simple.
4. For the Respondents, the only utility to them would be to continue to facilitate them committing a trespass on Dr Wirth's land for the purposes of going to or from the footpath on the Council's reserve. Providing a temptation to, and facilitation of, such trespass is clearly an undesirable outcome giving rise to possible ongoing breaches of Dr Wirth's quiet enjoyment of his property.
5. The structures proposed to be removed have no potential utility for Dr Wirth. In addition, permitting the encroachment to remain would render it impossible for Dr Wirth to implement his desired development aspirations for this portion of his land.
6. It is also appropriate to conclude that, for reasons detailed by Mr Harriman in his expert report, the steps element of the encroaching structure is in a dilapidated state requiring extensive renovation to render it safe beyond the immediate short term. As there would be no right for the Respondents to effect such repairs (and no reasonable basis why they would wish to do so), it is appropriate as a matter of discretion that I order that the stairs and the encroaching elements of the handrail/balustrade be removed.
7. It is a matter for consideration by the Respondents as to whether they wish to retain the upper platform that is entirely on their property.

Costs

1. Although these are proceedings in Class 3, the carve out by r 3.7 of the Court Rules, permitted by s 98(1) of the Civil Procedure Act, does not apply to proceedings under the Encroachment of Buildings Act. This is because the Encroachment of Buildings Act is listed in s 19(c1) of the Court Act and is not specifically listed in r 3.7(1)(c)(i) to (vi) of the Court Rules. The Encroachment of Buildings Act is also not encompassed by the catchall in r 3.7(1)(c)(vii) - the provision in the Court Rules that acts to sweep up matters otherwise unlisted in s 19 (by operation of s 19(h) of the Court Act).
2. As consequence, the conventional position that costs "follow the event" (Latoudis v Casey (1990) 170 CLR 534; [1990] HCA 59; r 42.1 of the UCPR) applies.
3. Gleeson JA described "the event" for costs purposes in Sze Tu v Lowe (No 2) [2015] NSWCA 91. His Honour said, at [39], (citation omitted): 39 How "the event" should be defined will depend upon the nature of the litigation. Generally the "event" refers to the event of the claim and may be understood as referring to the practical result of a particular claim.
4. In these proceedings, relevantly, there are two events as their outcome. The first is the success of Dr Wirth in the primary matters requiring determination pursuant to the Encroachment of Buildings Act whilst the second is the failure of the consequent cross-claim on behalf of the Respondents. These two events give rise to the necessary costs outcome that Dr Wirth should have his costs of the entirety of the proceedings (except for the costs order made by me on 14 June 2022 when I ordered that the costs of the failing Notice of Motion on behalf of Dr Wirth should be the Respondents' costs in the cause).
5. Conventionally, such costs will be ordered to be paid as agreed or assessed. However, against the possibility that there may be circumstances here arising where some alternative costs order might be sought, the orders will provide that the Respondents are to pay Dr Wirth's costs as agreed or assessed unless my Associate is advised, within 14 days of the date of the orders, that some alternative costs outcome is sought. In that event, the party proposing the alternative costs order is to notify my Associate so that the matter can be listed for the purposes of setting a timetable for enabling the costs issue to be addressed.

Conclusions

1. For reasons earlier explained, I am satisfied that: 1. On the balance of probabilities, as a matter of fact, there are two separate structures which were observed during the site inspection with the upper steps and the eastern portion of the handrail/balustrade constituting an encroachment on Dr Wirth's property; and 2. On balance, the encroachment satisfies the definition of "building" in s 2 of the Encroachment of Buildings Act and that, therefore, I am able to consider whether, as a matter of discretion, I should order its removal. For reasons earlier explained, I am satisfied that I should do so.
2. As the Respondents' cross-claim has failed and Dr Wirth's application has succeeded in obtaining the orders sought in his application, there is no reason why costs should not follow the event on both the application and the cross-claim. The Respondents are therefore to be ordered to pay Dr Wirth's costs of the proceedings, as agreed or assessed, unless Dr Wirth's or the Respondents' legal representatives advise my Associate within 14 days that some alternative costs order is sought.
3. The order made in June 2022 that the costs of Dr Wirth's Notice of Motion were to be the Respondents' costs in the cause is preserved and provided for in the orders below.

Orders

1. The orders of the Court are: 1. The timber stairs and associated handrail/balustrade leading from the rear of 14 Wonderland Avenue, Tamarama across, and encroaching on, the rear of 12 Wonderland Avenue, Tamarama, NSW 2026 are to be removed by the Respondents at their cost within 28 days of these orders; 2. The exhibits are returned; and 3. The Respondents are to pay the Applicant's costs of the proceedings, as agreed or assessed (other than the costs of the Applicant's Notice of Motion dismissed on 14 June 2022 which costs are the Respondents' costs in the cause), unless a party advises, within 14 days of these orders, that some alternative costs order is sought.

Annexure B 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: 15 September 2022