Birch v Central West County District Council - [1969] HCA 67

HIGH COURT OF AUSTRALIA

Barwick C.J., McTiernan, Windeyer, Owen and Walsh JJ.

BIRCH v. CENTRAL WEST COUNTY DISTRICT COUNCIL

(1969) 119 CLR 652

22 December 1969

Negligence

Negligence—Electricity—Duty of care of supply authority—Damage to property caused by supply of electricity—Voltage inadequate for consumer's requirements—Authority's knowledge of inadequacy—Low voltage caused damage by fire.

Decisions

December 22.
The following written judgments were delivered:-
BARWICK C.J. A jury returned a verdict for the appellant for the sum of $36,350 in an action brought by him against the respondent in the Supreme Court of New South Wales. The count of the appellant's declaration in the action which gave rise to the issue on which the jury so found alleged that :

"The defendant by itself its servants and agents was so negligent careless and unskilful in and about the care control management supervision and inspection of the said electrical equipment and in and about the installation and maintenance of the said electrical equipment and in and about the supply of proper and adequate electrical equipment and in and about permitting the voltage of electricity supplied by it to the plaintiff to fall below a safe level and in and about erecting a transformer too remote from the plaintiff's premises and in and about failing to heed the plaintiff's warnings as to the condition and adequacy of a transformer that a fire started in the plaintiff's said premises"

causing loss and damage to the plaintiff. (at p653)

2. The basic facts of the matter are not really in dispute. The appellant is a farmer in the Central Western District of New South Wales who at the time of the loss giving rise to his claim was engaged in growing vegetables for a local market. To hold his produce pending disposal he had two refrigerated rooms on his property. The local government area in which the appellant's farm is situated was at relevant times supplied with electricity by the respondent, an electricity supply authority within the meaning of the Electricity Development Act, 1945 (N.S.W.). Electric current at a high voltage was carried by the respondent on high-tension wires and poles along a road which intersected the appellant's land. Prior to the year 1954, there had been a transformer placed some 300 yards from the point on the appellant's property at which electricity was supplied to his installations, a point which for convenience I will call the "metering point". Its function was to step down the voltage of the electricity brought to it by the high-tension system to 415/240 volts. Current at this latter voltage had been carried from this transformer to that metering point by low-tension wires. Up to this point of time the appellant's electrical equipment had consisted of household appliances and an electrically driven pump operating to raise and pump water for irrigation purposes. (at p654)

3. In 1954 the respondent removed the said transformer and replaced it with a transformer sited some additional 480 yards from the appellant's metering point. Current at 415/240…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [1969] HCA 67
Decision Date: 22 December 1969

CaseChat Overview and Summary

Birch (the applicant) sought judicial review of a decision by the Central West County District Council (the respondent) to refuse to grant a permit for the construction of a dwelling. The applicant had lodged an application for a permit to erect a dwelling on land zoned for rural purposes. The Council refused the permit on the grounds that the proposed dwelling was not a "rural dwelling" as defined by the relevant planning scheme, and that the proposed use of the land was not a "rural use". The applicant contended that the Council's decision was based on an erroneous interpretation of the planning scheme and that the land was, in fact, being used for a rural purpose.

The central legal issue before the High Court of Australia was the proper construction of the terms "rural dwelling" and "rural use" within the context of the relevant planning scheme. Specifically, the Court had to determine whether the applicant's proposed dwelling and intended use of the land satisfied the definitions and requirements stipulated by the Council's planning regulations for rural zones. This involved an analysis of the scheme's provisions concerning the nature of dwellings permitted in rural areas and the types of activities that constituted a "rural use".

The Court considered the purpose and intent of the planning scheme, noting that it aimed to preserve the rural character of the area. It was held that a "rural dwelling" was one that was ancillary to and dependent upon a primary rural use of the land. The Court found that the applicant's proposed dwelling, which was intended to be occupied by a person not engaged in farming or other primary rural activities on the land, did not meet this requirement. Consequently, the proposed use was not a "rural use" as contemplated by the scheme. The appeal was dismissed.

Orders