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

PARTIES:

APPLICANT
Anderson

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

LEGAL REPRESENTATIVES:

APPLICANT
Mr M Fraser (Barrister)

SOLICITORS
P J Donnellan & Co

RESPONDENT
Mr T Howard (Barrister)

SOLICITORS
Harris Wheeler

JUDGMENT:

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

Anderson

v

Muckle

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.

3. The applicant maintains that a substantial portion of the fill should be removed as recommended by Mr Robert Neil Staniland. If implemented, his recommendation would result in a small portion of fill remaining on lot 8 which would occupy less than one third of the site in the northern portion of such lot.

4. The respondent submits that no order should be made requiring the removal of any fill from lot 8. The respondent relies upon the fact that lot 9 was always flood prone and subject to periodic inundation. The respondent claims that the placement of fill has only had the effect of delaying the drainage of water from lot 9 rather than creating a flood condition upon the site.

5. Dr Joliffe did not consider it necessary to remove most of the fill from lot 8. He believed that the flooding experienced on lot 9 would be alleviated if, as stated in para [50] of the Court’s judgment delivered on 25 October 2001, the existing drain between lots 8 and 9 were deepened by 200m and widened by 5 m, and extended along the northern and southern boundaries of lot 8. Dr Joliffe marked his proposal on a plan of the site which was tendered in evidence as Exhibit ‘G’.

6. The Court considers that Dr Joliffe’s proposal should be implemented. In this way the exacerbation of inundation affecting lot 9 caused by the fill will be alleviated and the development on lot 8 rendered compliant with condition 3 of Development Consent D14/96 issued by the council.

7. The Port Stephens Council is not a party to these proceedings and accordingly the Court can make no orders affecting it. However, the Court observes that the site, being low-lying and flood prone, is sensitive to water drainage. The problems experienced by the parties would be alleviated if the existing drainage system comprising of culverts and drains in the vicinity of Salt Ash Avenue and Richardson Road is maintained in a viable state or improved.

Costs

8. The Court has heard each of the parties submissions on costs. The Court considers that the usual principle should apply, namely that the successful party be compensated for the costs it has incurred in the proceedings (see Oshlack v Richmond River Council (1998) 193 CLR 72 at 87 per Gaudron and Gummow JJ; at 120-122 per Kirby J). There are no reasons for the Court to exercise its discretion otherwise than in accordance with such principle, except for the costs of the motion to join the Port Stephens Council and any costs incurred by the applicant in its claim against the Port Stephens Council which was abandoned during the hearing. Such costs are to be borne by the applicant.

Orders

9. The Court orders:-

1) That within 3 months from the date of this judgment the respondent cause the drain between lot 8 and lot 9 to be deepened by a further 200 mm and widened as shown in Exhibit G and extended along the northern and southern boundaries of lot 8 as shown in Exhibit G.

2) The respondent pay the costs of the applicant of the proceedings excluding any costs relating to the Notice of Motion joining the Port Stephens Council as a party and excluding any costs of the applicant relating to its claims against the Port Stephens Council.

3) Exhibits to be returned, except Exhibit G.