Tellamist Pty Ltd v Port Stephens Shire Council & Anor [2003] NSWSC 234

New South Wales Supreme Court

CITATION : Tellamist Pty Ltd v Port Stephens Shire Council & Anor [2003] NSWSC 234 HEARING DATE(S) : 17, 18, 19, 20, 21, 26, 27 and 28 February 2003 JUDGMENT DATE : 3 April 2003 JURISDICTION: Equity Division JUDGMENT OF : Bergin J DECISION : See par [120].

CATCHWORDS : DAMAGES - Compensatory damages - Exemplary damages in respect of trespasses to land. Bellingham v Dhillon [1973] 1 QB 304 Broome v Cassell & Co [1972] AC 1027 XL Petroleum (NSW) Pty Ltd v Caltex Oil (Australia) Pty Ltd (1985) 155 CLR 448 CASES CITED : Evans v Balog; Evans v Progress & Securities Pty Ltd [1976] 1 NSWLR 36 Gray v Motor Accident Commission (1998) 196 CLR 1 Livingstone v Rawyards Coal Co (1880) 5 App Cas 25 Parramatta City Council v Lutz (1988) 12 NSWLR 293 Tellamist Pty Ltd (Plaintiff) PARTIES : Port Stephens Shire Council (First Defendant) Daracon Engineering Pty Ltd (Second Defendant) FILE NUMBER(S) : SC 2067/93 COUNSEL : Mr JS Drummond (Plaintiff) Mr AA Henskens (Defendants) SOLICITORS : Hartmann & Associates (Plaintiff) Cantle Carmichael Lawyers (Defendants)

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

BERGIN J

3 APRIL 2003

2067/93 TELLAMIST PTY LTD v PORT STEPHENS SHIRE COUNCIL & ANOR

JUDGMENT 1 The plaintiff, Tellamist Pty Ltd, sues the defendants, Port Stephens Shire Council (the Council) and Daracon Engineering Pty Ltd (Daracon), in respect of trespasses that occurred in 1991 and seeks damages and exemplary damages. On the fifth day of an eight day trial, the defendants admitted liability and the Council abandoned its Cross Claim against the plaintiff in which it had claimed that the plaintiff was estopped from bringing the proceedings and sought orders that the plaintiff dedicate part of its land as a public reserve. Although liability has been admitted it is necessary to set out the facts in detail because of the nature of the claims for damages and exemplary damages. 2 The plaintiff purchased the property known as 28 George Street, Salamander Bay, being Lot 2 in DP 56140, on 15 December 1988 (the plaintiff's land). The Council owned the property immediately to the south of the plaintiff's land at 304 Soldiers Point Road, Salamander Bay, being Lot 596 in DP 27382 (the Council's land). 3 The northern boundary of the plaintiff's land was Gilchrist Road. The southern boundary of the plaintiff's land was common with the northern boundary of the Council's land. The eastern boundary of the plaintiff's land was common with a number of properties, owned by others, and the Bush Fire Brigade Station (the fire station) to the south of those properties that all had frontages on Soldiers Point Road. The western boundary of the plaintiff's land and the Council's land was along Homestead Drive which later became known as George Road which then ran south and east along the southern boundary of the Council's land. The eastern boundary of the Council's land was along a reserve on Soldier's Point Road to the south of the fire station. The location is helpfully depicted in Exhibit 26. 4 When the plaintiff purchased the land from its predecessor in title, Casmer Associates Pty Ltd (Casmer), it received copies of letters between the Council and Casmer as a consequence of requisitions on title. It is apparent from that correspondence that the Council had sought Casmer's consent to a road closure to the western side of the property. By letter dated 3 September 1984, Casmer advised the Council that it was concerned at the possible future intrusion of light industrial land use of the Council's land onto its land that was then zoned residential. Casmer sought assurances from the Council that the road closure to the west of the property and the extension of a road to the south of the property (George Road) would not adversely affect any residential development on Casmer's land. 5 By letter dated 6 September 1984, the Council advised Casmer that when the Council re-zoned and subdivided its land "for extensions of the light industrial area, provision will be made for an arboreal screen along the boundary of your property" and that a "buffer" would take the form of a public reserve not less than nine metres wide that the developers of the adjoining blocks would be required to landscape. The Council also advised that when Casmer's land was residentially developed there would be a requirement for an "open space contribution" and the provision of a "complementary buffer strip" which "would serve to further separate the light industrial and residential areas if considered necessary". Development Consent 4370/89 6 On 23 May 1989, the plaintiff lodged Development Application 4370/89 to subdivide its land into 27 residential lots. On 3 July 1989, the Council granted its consent with conditions that included a condition that all trees on the plaintiff's land were subject to a Council Tree Preservation Order and that any removal, lopping or topping was subject to Council approval. A further condition required the plaintiff to pay a contribution of $28,262 pursuant to s 94 of the Environmental Planning and Assessment Act 1979 (NSW).