Comserv (No.1877) Pty. Limited & Anor. v. Wollongong City Council [2001] NSWSC 302

New South Wales Supreme Court

CITATION : Comserv (No.1877) Pty. Limited & Anor. v. Wollongong City Council [2001] NSWSC 302 CURRENT JURISDICTION: Equity Division FILE NUMBER(S) : SC 1914/99 HEARING DATE(S) : 28 and 29 March 2001 JUDGMENT DATE : 24 April 2001

Comserv (No.1877) Pty. Limited - 1st plaintiff PARTIES : Sovereign Motor Inns Pty. Limited - 2nd plaintiff Wollongong City Council - defendant JUDGMENT OF : Hodgson CJinEq at 1

COUNSEL : Mr. F. Donohoe for plaintiffs Mr. N. Francey for defendant SOLICITORS : Laurence & Laurence, Sydney for plaintiffs McCabes, Sydney for defendant CATCHWORDS : NUISANCE - What constitutes - Blocking of drainage pipe - Water leaking from pipe - REAL PROPERTY - Easements - Drainage pipe through land - Obligations of dominant and servient owners. Jones v. Pritchard (1908) 1 QB 630 Bland v. Levy (2000) NSWSC 161 Sedleigh-Denfield v. O'Callaghan (1940) AC 880 CASES CITED : Sutherland Shire Council v. Heyman (1985) 157 CLR 424 Gartner v. Kidman (1962) 102 CLR 12 Elston v. Dore (1982) 149 CLR 480 Prospect County Council v. Cross (1990) NSWLR 601 DECISION : See end of judgment

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

CORAM: HODGSON, J.

Tuesday 24th April 2001

NO. 1914 OF 1999 COMSERV (NO.1877) PTY. LIMITED & ANOR. V. WOLLONGONG CITY COUNCIL

JUDGMENT

1 The first plaintiff Comserv is the owner of land fronting Princes Highway, Figtree, upon which is erected the Figtree Motel. The second plaintiff Sovereign is a company related to the first plaintiff, and with the consent of the first plaintiff, it operates the Motel. 2 Block B of the Motel was built in about 1972 over material brought on to the land by a prior owner to fill a natural depression in that part of the land; and a large concrete pipe was installed to carry stormwater through the land under Block B, generally along the line of that natural depression, from the front of the property at Princes Highway to a creek known as American Creek at the rear of the property. 3 The plaintiffs became respectively owner and operator of the Motel in 1989. By November 1997, parts of Block B of the Motel, generally over the line of the pipe, had subsided, causing cracks in the building. On about 3rd November 1997, the plaintiffs blocked the pipe, and this subsequently caused flooding of the highway and adjoining land during periods of rainfall. 4 To alleviate this problem, the defendant Council hired a pump and retained it on a permanent standby basis from August 1998 to February 1999, in order to pump water away when flooding occurred. On 17th December 1998, the defendant compulsorily acquired an easement to drain water 1.2 metres wide over a stratum of the land, through which the pipe runs; and the Council then removed the blockage to the pipe that had been created by the plaintiffs. 5 In these proceedings, commenced by summons filed on 7th April 1999, the plaintiffs allege that the pipe is leaking and that this has caused and is continuing to cause damage to the Motel, and they seek orders that the defendant Council carry out certain remedial and restorative work, and also that there be an enquiry as to damages suffered by the plaintiffs. The basis of the plaintiffs' claim is set out in a Statement of Claim filed on 26th April 1999. 6 The defendant Council has put on a cross-claim, seeking damages in respect of costs incurred in removing the blockage to the pipe, and in making provision for dealing with the flooding caused by this blockage.