Melaleuca Estate Pty Ltd v Port Stephens Council [2006] NSWCA 31

Reported Decision : 143 LGERA 319

New South Wales Court of Appeal

CITATION: Melaleuca Estate Pty Ltd v Port Stephens Council [2006] NSWCA 31

HEARING DATE(S): 9 & 10 June 2005

JUDGMENT DATE: 1 March 2006

JUDGMENT OF: Giles JA at 1; McColl JA at 93; Hunt AJA at 94

DECISION: (1) Appeal allowed; (2) Set aside the orders of Cripps AJ made on 19 May 2004; (3) Make orders - (a) granting an injunction restraining the respondent from continuing to discharge upon the appellant's land stormwater in excess of the natural flow that would flow upon the land; (b) that the respondent take such measures as may be necessary to preclude the coming onto the land of stormwater containing high levels of nutrients and waster materials; and (c) that the injunction set out in paragraphs (a) and (b) be stayed for eighteen months pending the implementation of a drainage system by the respondent for the Seabreeze Estate which enables the stormwater to be controlled within the catchment or disposed of by a thrust bore drainage line or gravity drainage line, to the next catchment in Port Stephens; (4) Order that the respondent pay the appellant's costs of the trial and the appeal; (5) Order that the respondent have a certificate under the Suitors Fund Act if otherwise qualified.

CATCHWORDS: Nuisance - claim for injunction to restrain - approval of development and drainage works in 1970s and 1990s - pipes discharged onto and at boundary of plaintiff's land - whether a nuisance - whether defendant liable for nuisance - in particular whether works without regard for landowner's interests - consideration of liability for works carried out under statutory power - whether defence by virtue of s 241 Local Government Act 1919 - whether "good faith" defence under s 733 Local Government Act 1993.