Becker v Sutherland Shire Council

[2007] HCATrans 258

[2007] HCATrans 258

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S23 of 2007

B e t w e e n -

SUZANNE MARGARET BECKER

Applicant

and

SUTHERLAND SHIRE COUNCIL

Respondent

Application for special leave to appeal

GLEESON CJ
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 25 MAY 2007, AT 10.55 AM

Copyright in the High Court of Australia

MR D.F. JACKSON, QC:   If the Court pleases, I appear with my learned friend, MR T.A. ALEXIS, SC, for the applicant.  (instructed by Wm Walker Taylor Edwards & Smith)

MR P.R. GARLING, SC:   May it please the Court, I appear with my learned friend, MR S.P.W. GLASCOTT, for the respondent.  (instructed by DLA Phillips Fox)

GLEESON CJ:   Yes, Mr Jackson.

MR JACKSON:   Thank you, your Honours.  Your Honours, may I just say something very briefly about the facts before I move on.  The applicant’s property suffered severe damage in the circumstances which are referred to by the primary judge at pages 31 and 32 under his heading “Conclusion”.  May I take your Honours to that for just a moment.  Your Honours will see the matters that are set out in the paragraphs under the heading “Conclusion” on those two pages and may I refer particularly to the last four lines under that heading on page 32 where he notes that he preferred the opinions of the expert called on behalf of the present applicant, namely, Mr Shirley. 

Your Honours, the slump in our land occurred because in circumstances of heavy rainfall water had escaped from the Council’s drainage pipeline in very significant quantities.  The pipes which had been used in part had, if I could put it shortly, what is described as bandaged joints, that is, instead of one fitting into the other the two, in effect, had the same circumference and were simply joined or butted together with some form of bandaging around them.  The judge found that they had separated and that the method of construction which had been approved by the respondent was unsatisfactory and I will come to what I mean by that in a moment, your Honours.  You will see that at page 42 in the first part of the page down to about line 22.  Your Honours will see that:

the Defendant breached the duty it owed the Plaintiff when it approved the construction of the pipeline that used both spigot and socket joints and bandaged joints without anchor blocks, when it knew or should have known that such construction on steep ground and adjacent to fill, could and would lead to pipeline movement resulting in –

and your Honours will see the remainder of the matters there set out.  I said, your Honours, I was using the word “approved”.  That relates to the role of the respondent under the Local Government Act 1919 and in that regard the relevant provisions can be seen in the first document behind tab 1 in the bundle of materials, and, your Honours, if one goes to the page numbered 388 at the top. I am going to go to three provisions, your Honours. At page 388 your Honours will see section 327(1) which required applications to be made “for the opening of a public road” where it was involved in a subdivision.

Your Honours, the Council was required to approve subdivisions and it might do so subject to conditions and the fact that it might do so is section 331(2) at page 398 of that document.  Your Honours will see section 331(1) and also the power to “approve” in subsection (2), “or approve subject to conditions”.  Now, in doing so the Council was required by the statute to consider a number of matters which are set out in section 333(1) which is at page 403.

Your Honours will see various obvious enough matters set out there but it is said, “In respect of any application for approval of a subdivision” – although we are not involved in the opening of a road – “the council shall take into consideration” – may I refer particularly to two aspects:

(h)the drainage of the land, the drains proposed to be constructed, and the drainage reserves and drainage easements to be provided . . . 

(m)whether the land is or probably will be subject to subsidence or slip.

Your Honours, the land was being subdivided for use as residential lots and in the nature of things there would be purchasers of those lots.  The purchasers would, at best, have a knowledge of the – I say “at best” your Honours – have a knowledge of the location of the stormwater drainage but would be dependent upon the proper performance by the respondent of its functions to ensure or to require that adequate and proper drainage was provided.

May we, in that regard, your Honours, refer to our written submission at page 137, paragraph 21 and in particular the last sentence of that paragraph and going through to what is set out in paragraph 26.  The Court of Appeal, in our submission, erred in the views which it adopted in a number of respects.  May I go first to Justice Giles at page 62.  Your Honours will see that in paragraph 18 – and he repeats this in a summary that I will come to in just a moment – his Honour said that:

The construction of a pipeline and vesting in the appellant of a drainage easement was for the benefit of the public generally, not for the benefit of the immediate and subsequent owners of the subdivided land . . . There had to be provision for removal of stormwater from the road.  The pipeline performed that function, for the benefit of road users.

His Honour there draws a distinction, in our submission, which is not one that is, with respect, quite valid.  It is certainly right to say that it was for the public in one sense, but the public most likely to be affected were those in the immediate vicinity.  That view or the distinction between the two classes appears to have affected his Honour’s views in the summary you will see at page 65.  In paragraph 23, the first and second points to which he there refers, in our submission, suffer from that difficulty.  The third, fourth and fifth points to which he refers on page 65, your Honours, seem to rather leave out of account that the pipeline itself was to be constructed, partly at least, in fill and that that is so appears at page 38 about line 38.  Your Honours will recall that Mr Shirley’s evidence had been accepted and he refers to the fact there that:

The pipeline was to be located in steep terrain and within/underneath a deep fill.

Also, of course, the situation and topography was such that it was highly likely that the subdivided land would be used for residential purposes which involved filling because of the sandstone building platform and not much else.

Your Honours, Justice Bryson appears to have taken the view – and I am referring to page 92, about paragraph 74 – that it could not have been reasonably foreseeable that the fill on the next door land would itself subside.  You will see that in paragraph 74 going right through the paragraph, your Honours.  May we say these things about his Honour’s view.  It is hardly unreasonable to say that if in relation to steep land already with some considerable fill on the land, if the escape of water turns the fill on the land into mud and slide down the hill the effect is unlikely to stop itself at the property boundary.  It would be a pleasing but unlikely coincidence if it did.

Now, your Honours, both Justice Giles and Justice Bryson recognised that this case raised questions not entirely determined by that court’s existing course of decision.  Your Honours will see that referred to at page 63, paragraph 19 and also Justice Bryson at page 98, paragraphs 82 and 83 and your Honours will see the first four or five lines of paragraph 82 and the last lines few lines of paragraph 99.  Your Honours, what we would submit in this regard is that the observations which Justice Bryson makes at paragraphs 83 and 84 where he takes the view that there should not be, in effect, curial intervention in the decisions of the Council, that really shows only one side of a coin.  The other, your Honours, is in our submission, that

powers of the kind presently in question are given in relation to works which are intended to have a long‑term effect.

The subdivision of land is so that people can live in the subdivided land and decisions made have to take into account that fact and that they will continue to do so and, your Honours, that of course is especially so where the subdivision is into residential land and the land will be used in the ordinary ways in which people do so and that the pipe should have been designed for 100 years.  Your Honours, the approach which Justice Bryson adopted is that at paragraph 85 at page 100.  He adopted what was said by Justices Gummow and Hayne in the Graham Barclay Oysters Case.  Your Honours will see in the last four or five lines of the quoted paragraph 145, it is said:

the common law should be particularly hesitant to recognise such a duty where the relevant authority is empowered to regulate conduct relating to or impacting on a risk‑laden field of endeavour which is populated by self‑interested commercial actors who themselves possess some power to avert those risks.

But, your Honours, one is talking about circumstances where there is a requirement to consider these matters, a requirement particularly for reasons, one might think, of health and safety in relation to people who simply do not have the “power to”, if I could use those words, “avert those risks”.  In our submission, the case does raise issues which merit the attention of the Court.  It may be right to say, as our learned friends do, in page 143, paragraph 3, that the particular provisions have now been repealed but the issue involved, in our submission, is one of more general application and there have been many subdivisions, in any event, approved under the Act in question.

GLEESON CJ:   Thank you, Mr Jackson.  We do not need to hear you, Mr Garling.

We think there are insufficient prospects of success of an appeal to warrant a grant of special leave and the application is dismissed with costs.

MR GARLING:   May it please the Court.

AT 11.09 AM THE MATTER WAS CONCLUDED