Clifffall Pty Ltd v Wollongong City Council

1. [1]

   Clifffall Pty Ltd (the plaintiff) owns undeveloped land known as 339 Lawrence Hargrave Drive, Clifton, NSW being Lot 10 of section 1 of Deposited Plan 2281 (Land).

2. [2]

   The Land abuts the road reserve which forms part of Lawrence Hargrave Drive, Clifton. Lawrence Hargrave Drive is a designated “main road” and therefore a “classified road” under the Roads Act 1993 (NSW) (Roads Act).

3. [3]

   The Grand Pacific Walk is intended to be a 60 kilometre footpath/cycleway stretching along the coastline of the Wollongong Local Government Area (Wollongong LGA). Sections of the Grand Pacific Walk have been constructed, and others are intended to be carried out in the future. Stage 2 of the Grand Pacific Walk was constructed between October 2022 and October 2023.

4. [4]

   Part of Stage 2 is constructed in the road reserve adjacent to the Land. The plaintiff contends that the structure constructed as part of Stage 2 prevents any access to the Land from the adjacent Lawrence Hargrave Drive.

5. [5]

   By amended statement of claim filed 24 June 2025, the plaintiff seeks various relief including an order in the nature of mandamus requiring the first and/or second defendants to grant the plaintiff access (whether on foot, in a vehicle or otherwise) to the boundary between the Land and Lawrence Hargrave Drive, in accordance with s 6 of the Roads Act, within 28 days of the making of the order.

6. [6]

   In the alternative, the plaintiff advances a claim in nuisance against the defendants, and seeks a mandatory injunction requiring them to provide such access. The plaintiff also seeks declaratory relief.

7. [7]

   The proceedings were heard on 2 to 4 February 2026. Brian Rayment KC and Marcel Sahade appeared for the plaintiff. David O’Connor appeared for the first defendant and Alan Shearer SC for the second defendant.

8. [8]

   For the reasons set out below the plaintiff’s claim fails. The amended statement of claim should be dismissed with costs.

Site visit

1. [9]

   On the morning of 2 February 2026, I conducted a view pursuant to s 53 of the Evidence Act 1995 (NSW) of the Land and adjacent areas in the presence of representatives of the parties, the parties’ legal representatives and Kevin Pritchard, the second defendant’s surveyor expert.

2. [10]

   The view commenced at the southern end of the Land where I observed the peg marking the south-western boundary of the Land and the Council owned land adjacent to it to the south. Mr Shearer SC for the second defendant also accessed the Land on foot from the road reserve to the south of the Land.

3. [11]

   The view then proceeded north along the walkway to the northern boundary of the Land. I observed that the Land is undeveloped and presently has knee to waist high vegetation on it. The walkway is raised above the road reserve adjacent to the Land and is made of a steel structure. The Land slopes relatively steeply from where it abuts the road reserve to its eastern boundary.

4. [12]

   The view then proceeded further north walking past the privately owned vacant land adjoining the Land, the adjacent Council owned land and the two developed blocks which adjoin the Imperial Hotel. I observed that each of those developed lots have driveway vehicular access across the walkway.

5. [13]

   The view was completed in the lower carpark of the Imperial Hotel where I was able to observe the lower (eastern) area of the Land which appears to be relatively steeply sloping from top to bottom and covered in knee to waist high vegetation. At the eastern end of the Land is a cliff.

Lawrence Hargrave Drive and its status

1. [14]

   Pursuant to s 7 of the Roads Act, the first defendant, Wollongong City Council (the Council), is the roads authority for public roads within the City of Wollongong LGA, which includes the section of Lawrence Hargrave Drive immediately adjacent to the Land.

2. [15]

   The second defendant, Transport for New South Wales (TfNSW), is a New South Wales Government agency responsible for enabling the effective planning and delivery of transport infrastructure.

3. [16]

   On 28 March 2011, the Roads and Traffic Authority (as it then was) and the Council entered into an administrative agreement entitled “Limits of Maintenance Responsibilities” pursuant to s 62 of the Roads Act. Under this agreement and the provisions of the Roads Act, TfNSW has some functions in respect of Lawrence Hargrave Drive, including a concurrence role in respect of any proposal to carry out works in, on or over a classified road – see s 138 Roads Act.

Ownership of the Land

1. [17]

   The plaintiff is controlled by Peter Khouri and his wife. Mr Khouri’s father and two uncles bought the Land in the early 1980’s. In the past they have accessed the Land for family picnics and to grow and pick wild vegetables. While there were previous development applications lodged for the land, none of them progressed. The Land was eventually sold to the plaintiff in December 2020, for consideration said to be $500,000.

Stage 2 of the Grand Pacific Walk and consultation with the plaintiff

1. [18]

   On 10 December 2013, Council published a report on its visions for the Grand Pacific Walk, being a project intended to create a safe route for pedestrians and cyclists across the 60 kilometre coastline of the Wollongong LGA.

2. [19]

   Stage 1 of the Grand Pacific Walk was constructed between Coalcliff and Stanwell Park over a few years between 2014 and 2020.

3. [20]

   The Stage 2 design, undertaken around 2019, proposed to connect the southern side of Seacliff Bridge, Clifton with the existing shared path network at Mountain Road, Austinmer by constructing a 2.5 metre wide footpath on the eastern side of Lawrence Hargrave Drive between Moronga Park and 347 Lawrence Hargrave Drive, together with a viewing platform, car parking and associated landscaping.

4. [21]

   On 13 February 2020, the Council provided updated concept design drawings to TfNSW seeking their in-principle acceptance of the proposed works.

5. [22]

   On 27 February 2020, TfNSW provided a letter to Council providing its in principle acceptance (subject to conditions) of the then works proposed for Stage 2. The letter attached the concept design drawings which show that at that stage it was proposed that the relevant section of the walkway adjacent to the Land would be constructed of concrete. The plans also show two shaded rectangles from the walkway across the road reserve where it abuts the Land. Mr Rayment KC for the plaintiff suggested to Jeremy Morgan of the Council in cross-examination that this indicated that it was proposed at this time to construct a driveway across the road reserve to the Land. Mr Morgan, who was not involved in the planning at this stage, was unable to agree with this suggestion. I am unable to make any positive finding in this regard.

6. [23]

   The letter from TfNSW also attached several photographs of the area at the time:

7. [24]

   Community consultation for Stage 2 took place between July and August 2020. Plans were published on Council’s website on 16 July 2020.

8. [25]

   On 15 July 2020, Council sent a letter to the previous owners of the Land (Mr Khouri’s father and uncles) which stated, relevantly:

9. [26]

   In November 2020, Council issued plans for approval, an environmental impact statement and an engagement report with respect to the community consultation undertaken.

10. [27]

    On 1 December 2020, Council lodged a Development Application (DA) with respect to the proposed construction of part of Stage 2. The first part of the Stage 2 works is referred to in the TfNSW documents as stage 1. This first stage of Stage 2 included the area adjacent to the Land and was to be assessed under Part 5 of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act).

11. [28]

    The second stage of Stage 2 – which essentially covered each of the end sections of Stage 2 - was to be assessed under Part 4 of the EPA Act.

12. [29]

    Notice was given to Roads and Maritime Services on 8 January 2021. Revised civil and structural drawings were sent by Council to TfNSW on 5 February 2021. These drawings now appear to show that what was proposed in the area adjacent to the Land was no longer a concrete pathway but steel decking which I assume was similar to what has actually been constructed. The decking was underpinned by concrete piers.

13. [30]

    On 25 February 2021, TfNSW (formerly Roads and Maritime Services) confirmed its in principle acceptance (subject to certain requirements) of the first stage of the proposed works.

14. [31]

    A construction certificate for the first stage of Stage 2 was issued by Council on 24 December 2021.

15. [32]

    On 4 June 2022, TfNSW and the Council entered into a Works Authorisation Deed in relation to the proposed works. This was one of the requirements stated by TfNSW in its in principle acceptance. The “Background” is stated in the following terms:

16. [33]

    Clause 2.2 of the WAD set out TfNSW’s role in the following terms:

17. [34]

    On 17 June 2022, TfNSW provided its concurrence under s 138(2) of the Roads Act in respect of the detailed design plan for the works.

18. [35]

    Construction work was carried out between 31 October 2022 and 19 October 2023.

19. [36]

    I extract below a photograph taken during construction of the walkway from a point south of the Land looking north towards the Land.

20. [37]

    Another photograph, taken from the Land looking south, appears below:

21. [38]

    Extracted below are two more recent photographs depicting the structure:

22. [39]

    I have extracted immediately below part of the survey plan prepared by Mr Pritchard, TfNSW’s surveyor depicting the various lots, Lawrence Hargrave Drive and the road reserve between them.

23. [40]

    The power pole shown on the survey plan in the road reserve above the Land is the power pole visible in the second photograph above.

Complaint by the plaintiff

1. [41]

   On 19 September 2023, legal representatives for the plaintiff wrote to the Council demanding that Council remove the footpath that was said to be obstructing the plaintiff’s access to the Land. The letter stated:

2. [42]

   The proceedings were commenced on 16 April 2024 and adjourned for an extended period last year to enable the plaintiff to consider lodging a DA to develop the Land. No application has since been submitted.

The undertakings provided by the Council

1. [43]

   By letter dated 28 October 2025 from its solicitors to the solicitors for the plaintiff and TfNSW, the Council made the following two offers with respect to the construction of a driveway and separately the construction of a footpath:

2. [44]

   Counsel for the Council confirmed at the hearing that those two offers were appropriately described as undertakings and remained open in the sense that Council continued to offer them.

3. [45]

   The letter also contained an open offer to settle the proceedings on certain terms.

4. [46]

   The plaintiff’s solicitors responded by letter dated 4 November 2025. The offer to settle the proceedings was, obviously enough, not accepted by the plaintiff.

5. [47]

   The response relevantly stated that the right afforded by s 6 of the Roads Act is not dependant on any development or planning controls. It was also said that the offer of pedestrian steps to allow pedestrian access is not sufficient because “steps would not allow access by the use of a vehicle, a horse or a wheelchair”.

Use of the Land with and without development consent

1. [48]

   The parties were in dispute as to whether the Land was likely able to be developed.

2. [49]

   The issue is said to be relevant to the nuisance claim and whether there has been a substantial and unreasonable interference with the plaintiff’s Land.

3. [50]

   In its defence, the Council contended that the size of the Land is 411 square metres and unable to be developed as it does not meet the minimum lot size requirements under the Wollongong local Environment Plan 2009 (the LEP). In response to the nuisance claim the Council again relied on the allegation that the Land could not be developed.

4. [51]

   In its reply, the plaintiff admitted the approximate size of the Land but denied that the Land cannot be developed. Further, it was alleged that:

5. [52]

   The relevant provisions of the LEP were not in dispute.

6. [53]

   The Land is zoned C3 – Environmental Management under the LEP. The minimum lot size requirement under the LEP is 999 square metres.

7. [54]

   In respect of Zone C3, the LEP states:

8. [55]

   Clause 4.2A of the LEP provides:

9. [56]

   It was not in dispute that the size of the Land was smaller than the minimum lot requirement size, but the plaintiff was reliant on Council’s discretion to depart from the terms of the LEP.

10. [57]

    Peter Khouri stated that he thought, based on what he had been told, that the Land could be developed. The source of his belief, and the basis for it, was not disclosed. No expert planning evidence was called as to the likelihood of approval being granted. Indeed, no plans were put forward setting out, even in rough terms, how it was proposed that the Land would be developed.

11. [58]

    Council led evidence from Jeremy Morgan, the current Manager of Project Delivery for the Council. Mr Morgan stated at [65] of his affidavit:

12. [59]

    It emerged in cross-examination that this was Mr Mogan’s opinion having been an applicant for development approval. He is not a planner and is not involved in the Council considering whether or not to grant development consent. It is difficult in these circumstances to place any great weight on the statement made by Mr Morgan.

13. [60]

    Council’s position is also complicated by the fact that, as set out above, nothing has really been put forward, by or on behalf of the plaintiff, as to how it would seek to develop the Land.

14. [61]

    In the circumstances, I am not really in any position to make an assessment as to whether the plaintiff is likely to obtain development approval to develop the Land in some way.

Proper construction of s 6 of the Roads Act

1. [62]

   The parties were at odds as to the proper construction of s 6 of the Roads Act.

2. [63]

   Section 6 provides:

3. [64]

   The plaintiff contended that the words “those rights” in s 6(2) of the Roads Act refer to any rights of access conferred by the common law. Further, it was said that s 6(2) is apparently designed to make it clear that the purpose of s 6 is not to derogate from any common law rights.

4. [65]

   The defendants contended that the words “those rights” in s 6(2) of the Roads Act is intended to pick up not only rights conferred by the common law but also the right referred to in s 6(1).

5. [66]

   The construction propounded by the defendants is supported by first instance authority: Thomas v Symons [2013] NSWSC 490 at [43] where Windeyer AJ stated:

6. [67]

   Further, in Tanner v The Minister for Education and Training (2002) 119 LGERA 321; [2002] NSWLEC 40 Bignold J stated at [100]-[101]:

7. [68]

   In addition to contending for its construction of s 6, the plaintiff also argued that even if the construction propounded by the defendants is accepted, it has not been suggested that either the statutory or the common law rights were derogated from by some other Act or law.

8. [69]

   In these circumstances, I pressed Mr Rayment KC for the plaintiff as to whether he contended that the decisions of Windeyer AJ and Bignold J were plainly wrong, such that I should not follow them, or whether he advanced that submission formally, accepting that I was bound to follow those decisions and that any challenge would be pursued on appeal.

9. [70]

   Mr Rayment KC’s original response was that I only needed to consider the correctness of what Windeyer AJ and Bignold J said if I was against the plaintiff on the second issue – namely whether it has been demonstrated that the statutory or common law rights were derogated from in the present case. I understood the position ultimately reached was that I was not being invited to find that Windeyer AJ or Bignold J’s decisions should not be followed and no detailed submissions were addressed by Mr Rayment KC by reference to either judgment.

10. [71]

    In case I be wrong in this understanding, I consider whether I should follow Windeyer AJ and Bignold J.

11. [72]

    I proceed on the basis that I should follow Windeyer AJ and Bignold J’s decision unless I am convinced that the decisions are plainly wrong: see P Herzfeld and T Prince, Interpretation (3rd ed, 2024, Lawbook Co) at [33.430] and [33.440].

12. [73]

    I am far from convinced that the decisions are plainly wrong. I agree with them. The text of s 6(2) strongly supports the construction reached by each of Windeyer AJ and Bignold J.

13. [74]

    Before the comma in s 6(2), the section speaks of a “right referred by this section” and “any right of access that is conferred by the common law” – in each case the singular “right” is referred to. The first reference is obviously a reference to the “right” conferred by s 6(1). There is no other right conferred by the section.

14. [75]

    The section then refers, after the comma, to “those rights” – expressed in the plural – which is obviously, having regard to the ordinary meaning of the words used, a reference to each of the two categories of rights: a statutory right of access conferred by s 6(1) and a common law right of access. If “those rights” were confined to common law rights, the statutory right in s 6(1) would be left unqualified and effectively absolute. That would mean an adjoining owner could exercise access without regard to other provisions of the Roads Act, including requirements for consent to carry out works on a public road. Such a construction would undermine the regulatory scheme of the Act and create inconsistency within it.

15. [76]

    The construction propounded by the plaintiff finds no support in the plain meaning of the words used. Nothing was otherwise really said in support of the construction propounded by the plaintiff.

16. [77]

    The view which I take along with Windeyer AJ and Bignold J also finds some support in words which are used in relation to a right of passage along a public road. The right under s 5(1) includes a right “to drive stock or other animals along the public road”. By analogy with the argument advanced by the plaintiff in relation to s 6, that right – including for a member of the public to pass along a public road on foot – would not be able to be derogated from. Many traffic laws, for example would be inconsistent with this right.

17. [78]

    I do not accept the plaintiff’s construction of s 6. Neither the statutory right conferred by s 6(1) or the common law right are unqualified or absolute.

18. [79]

    In the present case, the work which it is alleged obstructs the right of access was carried out by the relevant roads authority (the Council) in accordance with all relevant laws, including development consent granted by the Council and concurrence from TfNSW in accordance with s 138 of the Roads Act.

19. [80]

    In the present case, the restrictions relevant to the Land also include cl 2.119 of the State Environmental Planning Policy Transport and Infrastructure 2021 (NSW) (SEPP T&I). Lawrence Hargrave Drive is a “main road” being a type of “classified road”. The clause provides:

20. [81]

    The provisions of that clause contain a number of separate and cumulative matters as to which satisfaction must be reached in respect of vehicular access to the land, otherwise consent must not be granted: Modern Motels Pty Ltd v Fairfield City Council [2013] NSWLEC 138 at [27] per Preston CJ.

The claim against TfNSW

1. [82]

   As is apparent from the chronology set out above insofar as it concerns TfNSW, the role of TfNSW was confined to expressing its concurrence with the works being carried out in the exercise of its statutory function under s 138 of the Roads Act.

2. [83]

   Mr Shearer SC for TfNSW referred to these matters in his opening address on the morning of the first day of the hearing. Mr Shearer SC also referred to [11] of the amended statement of claim which alleged, relevantly, that:

3. [84]

   Mr Rayment KC for the plaintiff then accepted that on the evidence he could not maintain that allegation as against TfNSW. He later accepted that the words “and or second” and the “(s)” after “defendant” in [11] and also in [16] were not pressed.

4. [85]

   I then pressed Mr Rayment KC for the plaintiff as to what, if any, relief was maintained against TfNSW. In response it was indicated that the declaratory relief in 1A of the relief claimed in the amended statement of claim was maintained although no cause of action was identified against TfNSW.

5. [86]

   I understood from the response on behalf of the plaintiff that the declaration was said to have some utility to either quell the dispute as to the proper construction of s 6 of the Roads Act and/or with one eye to the future in circumstances where it is likely that TfNSW’s concurrence may be sought in order to remove the works that are said to have created the nuisance.

6. [87]

   I am not satisfied that there is any cause of action maintained against TfNSW and the proceedings as against it should be dismissed.

7. [88]

   As dealt with above, I reject the plaintiff’s proposed construction of s 6 of the Roads Act. In these circumstances the proposed formulation of the declaration is problematic. There are other problems with it as well which I also set out later in these reasons.

The case in nuisance against the Council

1. [89]

   The claim in nuisance was pleaded in very short form in the amended statement of claim. As set out elsewhere in these reasons, the claim was originally pleaded against both defendants, but the facts alleged against TfNSW as constituting nuisance were not pressed during the hearing.

2. [90]

   The relevant allegations in the amended statement of claim may be summarised as follows:

3. [91]

   No particulars were provided of [17] of the amended statement of claim and none were sought. The Council’s defence to [17] includes an allegation that the plaintiff has not made use and enjoyment of its land.

4. [92]

   A reply was filed on 14 August 2024.

5. [93]

   Nothing contained in the reply appears to bear on the use of the Land and the nuisance claim more generally.

6. [94]

   The affidavit evidence on behalf of the plaintiff was quite general and brief.

7. [95]

   Peter Khouri’s affidavit of 14 August 2024 exhibited several historical photographs of the Land which included one occasion on which a vehicle belonging to Mr Khouri’s father parked on the road reserve above the Land. This is evidenced in the photograph below.

8. [96]

   George Khouri’s affidavit refers to his and his brothers’ families and friends often driving onto the Land to have picnics, as well as stating that “there was a vegetable patch and we would grow and collect watercress, and we would also pick wild spinach, which grew on the land”.

9. [97]

   Peter Khouri’s affidavit of 5 June 2025 contained various paragraphs as to why the plaintiff wanted access to the Land, including to comply with ongoing legal obligations concerning the removal of noxious weeds. Objection was taken to each of these paragraphs by the Council and the parties agreed that the paragraphs were to be treated as a submission and not as evidence of the truth of the matters asserted.

10. [98]

    Affidavits were also made by Peter Khouri and George Khouri shortly prior to the hearing on 28 January 2026 and 27 January 2026 respectively. Each was admitted without objection.

11. [99]

    Paragraph 7 of Peter Khouri’s affidavit relevantly stated:

12. [100]

    George Khouri’s affidavit expanded on the evidence he gave in his earlier affidavit concerning family picnics. He recalled visiting the land at least once every three to four months to have a barbeque on the Land using a portable charcoal or gas barbeque. This continued up until the commencement of COVID. In relation to the vegetable patch, he recalled that “our family had watercress, onions, garlic, wild spinach and tomatoes growing on the Land which we would pick and eat fresh when visiting the [Land] for barbeques”.

13. [101]

    Both Peter Khouri and George Khouri were cross-examined.

14. [102]

    The relevant aspects of Peter Khouri’s evidence may be summarised as follows:

15. [103]

    At the commencement of the oral evidence of George Khouri, Mr Rayment KC sought to lead evidence from George Khouri as to whether there was ever an occasion when he caused a tractor to enter the Land and whether notices were received from the Council about weeds. The evidence was objected to on the basis that the evidence was new, the Council was taken by surprise and could not deal with it. Mr Rayment KC ultimately did not press the questions.

16. [104]

    In cross-examination, Mr George Khouri admitted that the proceedings were adjourned last year for a period to enable the plaintiff to determine the lawfulness and feasibility of development of the Land and conceptuals and design sketches were prepared. A new geotechnical report was required to lodge a new DA and a truck machine was required in order to bore holes which cannot occur.

17. [105]

    With this factual background I turn now to determine the claim in nuisance.

18. [106]

    No detailed submissions were made as to the test for a private nuisance.

19. [107]

    In Hunt Leather Pty Ltd & Anor v Transport for NSW [2025] HCA 53 (Hunt Leather), Gageler CJ relevantly stated at [12]-[13]:

20. [108]

    To similar effect, Gordon and Edelman JJ stated in Hunt Leather at [94]-[95]:

21. [109]

    In the context of an alleged nuisance by loss of access to a public road, Campbell J stated in Roberts v Rodier (2006) 12 BPR 23.453; [2006] NSWSC 282 at [107]-[108]:

22. [110]

    At [19.80] (p 570), the learned authors of Fleming’s The Law of Torts (Sappideen and Vines, 11th ed, 2024, Thomson Reuters) state:

23. [111]

    There are, in my view, a number of difficulties with the claim in nuisance.

24. [112]

    First, having regard to the pleaded allegation in [17] of the amended statement of claim, the claim appears to be predicated on the basis that the plaintiff has an unqualified and absolute right to access the Land by vehicle under s 6 of the Roads Act, which has been denied. This is in turn predicated on the construction of s 6 advanced by the plaintiff.

25. [113]

    For the reasons set out above, I do not accept this construction of s 6. Both the statutory and common law rights are subject to such restrictions as are imposed by or under the Roads Act or any other Act or law.

26. [114]

    Further, at a factual level, it has not been demonstrated that the existence of the structure on the road reserve near to where it abuts the Land constitutes a substantial and unreasonable interference with the plaintiff’s enjoyment of the Land for purposes that are ordinary.

27. [115]

    The evidence on behalf of the plaintiff – which I have summarised above - suggests that the Land has primarily been left as a vacant block, used for the occasional picnic and barbeques where a small portable gas barbeque was used. There is also some evidence of the picking of wild spinach and some growing of crops. However, there is no probative evidence that such activities could not be undertaken now. The position is the same in relation to the exempt development activities. As the plaintiff’s practical use of the land remains essentially unchanged, the alleged interference does not rise above a mere inconvenience or dissatisfaction.

28. [116]

    Insofar as it is contended that there has been historical vehicular access, I am not satisfied on the evidence that there has been any. The two photographs put into evidence show a car parked on the road reserve. Any suggestion of vehicular access onto the Land encounters the fact that the Land is relatively steeply sloping, covered in vegetation and bounded to the east (ocean side) by a vertical cliff.

29. [117]

    Such access as there has been, has been by foot. That foot access to the Land is still possible from the area to the south of the Land in the manner demonstrated by Mr Shearer SC for TfNSW during the site visit. Foot access would also be assisted by the existing open undertaking of Council to install a gate on the side of the walkway and construct steps down to the road reserve where it abuts the Land.

30. [118]

    Any foot access to the Land, both historically and now, needs to deal with the fact that, again, the road reserve to the Land and the Land itself is sloping, making access difficult.

31. [119]

    I am not satisfied that it has been demonstrated by the plaintiff that there has been any substantial and unreasonable interference insofar as the walkway structure is said to interfere with the future development of the Land. I have set out earlier in these reasons the position, insofar as I am able to determine it, in relation to whether the Land can be developed.

32. [120]

    Any future development of the Land would require development consent. Whether development consent would be granted is a matter of conjecture and would require Council to exercise its discretion to depart from existing planning controls.

33. [121]

    More importantly, Council has undertaken that in the event that development consent is granted for the construction of a driveway, Council will make all reasonable accommodations to the footpath to enable construction of a driveway to the Land. No submissions were advanced on behalf of the plaintiff as to why this undertaking did not adequately deal with vehicular access in the event development consent is granted.

34. [122]

    I am also not satisfied that there has been any substantial and unreasonable interference insofar as vehicular access is required to enable further geotechnical testing to be carried out. The matter was briefly referred to by George Khouri. He is not a current owner of the Land. Peter Khouri – one of the directors of the plaintiff - made no mention of it. There is no suggestion that Mr George Khouri has any particular qualifications in this regard. No detail was given as to what testing was required to be carried out and what access was required.

35. [123]

    Insofar as any future vehicular access was concerned, it was not in dispute that consent would be required, including TfNSW’s concurrence under s 138 of the Roads Act as work would likely be required on a public road (s 138(1)(a)) and/or a structure on a public road being removed or interfered with (s 138(1)(c)). It is likely that this would form part of any application by the plaintiff to develop the Land. In the event that consent was obtained, Council has undertaken to install a driveway across the walkway to the Land.

36. [124]

    In all of the circumstances, I am not satisfied that the claim in nuisance has been made out.

Appropriate relief

1. [125]

   I turn now to consider whether, had any cause of action been established, any relief would be appropriate.

2. [126]

   The first relief sought was a declaration in the following terms:

3. [127]

   The declaration is predicated on the plaintiff’s construction of s 6 which I do not accept.

4. [128]

   Further, it is not clear to me that there would be any utility in making a declaration in the present case. The concern of the plaintiff was to have vehicular access to the Land. Had I been satisfied that the plaintiff was entitled to such access, the appropriate relief would be moulded injunctive relief to seek to bring about that outcome.

5. [129]

   The form of the declaration is also problematic at least insofar as it seeks to cut across TfNSW’s statutory powers, including its powers under s 138 of the Roads Act concerning concurrence in respect of works.

6. [130]

   Second, relief in the nature of mandamus was sought in the following terms:

7. [131]

   In R v Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust) Ltd (1949) 78 CLR 389; [1949] HCA 33, the High Court (Latham CJ, Rich, Dixon, McTiernan and Webb JJ) stated at 398-399:

8. [132]

   Apart from the fact that the claimed relief is predicated on the plaintiff’s construction of s 6 (which I do not accept), the relief is misconceived. No public duty is identified in the amended statement of claim. This is attributable to s 6 of the Roads Act not giving rise to a public duty nor any failure on behalf of the Council to discharge their legal obligations.

9. [133]

   The third form of relief sought was a restorative mandatory injunction. As originally sought, paragraph 2 of the relief claimed in the amended statement of claim provided:

10. [134]

    The written submissions of the defendants raised issues with this form of relief. During closing submissions the injunctive relief was reformulated by Mr Rayment KC as follows:

11. [135]

    A vice with this revised formulation, as was pointed out in closing address was that it would expose the Council to breach of the order and therefore contempt of court if TfNSW refused to provide its concurrence. This is because, as drafted, the injunction required the Council to do “all such things as are necessary” to bring about a specific result – namely removing the obstruction constituted by the work. The obligation is expressed in outcome-based terms. Accordingly, if the obstruction were not removed, the Council would be in breach of the order, even if failure resulted from matters beyond its control, such as refusal of concurrence by TfNSW. Furthermore, disobedience of an injunction carries serious consequences, an injunction must be framed in clear, precise and unambiguous terms. A person bound by the order must be able to ascertain with sufficient certainty what is required of them. An order that imposes strict liability for achieving a result, without regard to matters outside the party’s control, lacks the necessary clarity and certainty.

12. [136]

    I pressed Mr Rayment KC on whether he wished to present any revised formulation of injunctive relief. Mr Rayment KC requested some time to provide a reformulation, either doing it in writing or with the benefit of an overnight adjournment. I subsequently gave Mr Rayment KC an adjournment of approximately 30 minutes to seek to reformulate the relief sought.

13. [137]

    The revised formulation was “an injunction requiring the first defendant to take all lawful steps to abate the ongoing nuisance constituted, both the construction works so as to grant the plaintiff access, both pedestrian and vehicular to Lawrence Hargrave Drive, Clifton”.

14. [138]

    Mr Rayment KC made it clear at the time, however, that he had no possibility of drawing the more complicated provision that he wished to draw in the time that I permitted (approximately 30 minutes). He requested that rather than make final orders I give the parties a period to agree appropriate orders after the publication of my judgment.

15. [139]

    Given my conclusions on liability, the formulation of any injunctive relief obviously does not arise. In taking the approach that I did at the hearing in pressing the plaintiff on any reformulated relief sought I was seeking to deal with all the issues at the one time and thus avoid the additional time and cost in the parties seeking to agree orders after judgment. This is in circumstances where, prior to the hearing, the defendants had raised their concerns with the relief sought and those concerns could and should be dealt with by the plaintiff.

16. [140]

    Notwithstanding this history, had I been satisfied that the claim in nuisance succeeded, I would not have dismissed the plaintiff’s claim because of deficiencies in the forms of relief propounded. I would have been concerned to mould appropriate injunctive relief. Such relief would need to account for the fact that development consent would likely be required for the removal or modification of the existing structures where they abut the Land and also TfNSW’s concurrence role under s 138 of the Roads Act.

Conclusion and orders

1. [141]

   All of the plaintiff’s claims fail. The amended statement of claim should be dismissed with costs. If any party seeks a different costs order they should notify my Associate within 7 days whereupon I will, to the extent necessary, vacate the costs order and make directions for the determination of any special costs orders on the papers.

2. [142]

   The Court orders that:

   1. (1)

      Amended statement of claim dismissed.

   2. (2)

      Plaintiff pay the defendants’ costs of the proceedings.

   3. (3)

      Any party seeking a different costs order to order 2 above should notify my Associate within seven (7) days whereupon I will, to the extent necessary, vacate or vary order 2 above and make directions for the determination of any special costs orders on the papers.