Anderson v Muckle [No 2] [2001] NSWLEC 273

Set aside by Appeal : [2002] NSWCA 283 - appeal allowed

Land and Environment Court of New South Wales

CITATION : Anderson v Muckle [No 2] [2001] NSWLEC 273 APPLICANT Anderson PARTIES : RESPONDENT Muckle FILE NUMBER(S) : 40069 of 2000 CORAM: Cowdroy J KEY ISSUES: Injunctions and Declarations :- LEGISLATION CITED: CASES CITED: Anderson v Muckle and Anor [2001] NSWLEC 236; Oshlack v Richmond River Council [1998] 193 CLR 72 at 87 DATES OF HEARING: 14/11/01 DATE OF JUDGMENT: 11/30/2001

APPLICANT Mr M Fraser (Barrister)

SOLICITORS P J Donnellan & Co LEGAL REPRESENTATIVES: RESPONDENT Mr T Howard (Barrister)

SOLICITORS Harris Wheeler

JUDGMENT:

IN THE LAND AND MATTER No. 40069 of 2000 ENVIRONMENT COURT CORAM: Cowdroy J OF NEW SOUTH WALES DECISION DATE: 30/11/01

Anderson Applicant v Muckle Respondent JUDGMENT [No 2]

1. On 25 October 2001 judgment was delivered in these proceedings (see Anderson v Muckle and Anor [2001] NSWLEC 236). The Court reserved its decision in respect of relief and costs pending a view of lot 8 and of lot 9 in DP 240103 ("the site"). Such view was held on 15 November 2001.

Relief

2. The Court was assisted by the view. Fill had been introduced onto lot 9 to establish the house and a substantial shed on lot 9, and small piles existed near the boundary. Despite the introduction of such areas of fill on lot 9 there appeared to be a general slope from the southern portions of that lot which would cause overland flow towards the north and north east as was observed by Mr Staniland and confirmed by Dr Joliffe. The view also explained the evidence that fill on lot 8 ("the fill") would act as a dam and cause overland water flow draining to the north east from lot 9 towards lot 8 to bank up against such fill and cause a greater level of inundation on lot 9 than hitherto existed.