SUTHERLAND SHIRE COUNCIL v BECKER [2006] NSWCA 344

Reported Decision : 150 LGERA 184

New South Wales Court of Appeal

CITATION: SUTHERLAND SHIRE COUNCIL v BECKER [2006] NSWCA 344

HEARING DATE(S): 30-31/03/2006

JUDGMENT DATE: 12 December 2006

JUDGMENT OF: Mason P at 1; Giles JA at 2; Bryson JA at 27

DECISION: (1) The appeal is allowed with costs; (2) The orders of the District Court of 9 March 2005 are set aside, and in lieu thereof order: Give judgment for the defendant with costs; (3) The Cross-appeal is dismissed with costs; (4) The Court grants to the respondent an indemnity certificate under s.6 of the Suitors' Fund Act 1951.

CATCHWORDS: NEGLIGENCE – public authority exercising statutory regulatory powers – subdivision control. LOCAL GOVERNMENT – subdivision control – liability of local government authority for negligence in exercise of statutory powers – Sutherland S.C. approved subdivision in 1977 on conditions which required construction of drainage system between new road and bay and creation of easement in gross in favour of SSC – subdivided land sold by developer and houses erected – in heavy rain in 1998 large quantity of water escaped from drainpipes which by then were defective and caused slippage in a large deposit of fill in the rear yard of Lot 8, the lot subject to the easement – slippage of fill removed support from a large deposit of fill in the rear yard of Lot 7 owned by the respondent Mrs Becker – overflow was caused by combination of exceptionally heavy rain, lodgement of plywood board inside drain and defective joints in pipeline which allowed escape of water – Mrs Becker sued SSC for damages related to slump of fill in her rear yard – consideration whether SSC had duty of care to Mrs Becker in approving subdivision and specification of pipeline – concept of control – whether property damage or economic loss – entitlement to lateral support – vulnerability – reliance – general reliance – operational and policy activities – Ultramares – held, no duty of care NUISANCE – dominant owner of easement in gross over drainage pipeline – nuisance alleged in failure to inspect repair or maintain pipeline – fault as an element in liability for nuisance – awareness of nuisance – whether SSC knew or should have known of defects in pipeline – consideration of facts alleged to show knowledge – held that SSC was not negligent and was not liable in nuisance.