Comserv (No.1877) Pty. Limited and Anor. v Wollongong City Council - [2001] NSWSC 302

CITATION: Comserv (No.1877) Pty. Limited & Anor. v. Wollongong City Council [2001] NSWSC 302

CURRENT JURISDICTION: Equity Division

FILE NUMBER(S): SC 1914/99

HEARING DATE(S): 28 and 29 March 2001

JUDGMENT DATE:
24 April 2001

PARTIES :

Comserv (No.1877) Pty. Limited - 1st plaintiff
Sovereign Motor Inns Pty. Limited - 2nd plaintiff
Wollongong City Council - defendant

JUDGMENT OF: Hodgson CJinEq at 1

COUNSEL : Mr. F. Donohoe for plaintiffs
Mr. N. Francey for defendant

SOLICITORS: Laurence & Laurence, Sydney for plaintiffs
McCabes, Sydney for defendant

CATCHWORDS: NUISANCE - What constitutes - Blocking of drainage pipe - Water leaking from pipe - REAL PROPERTY - Easements - Drainage pipe through land - Obligations of dominant and servient owners.

CASES CITED: Jones v. Pritchard (1908) 1 QB 630
Bland v. Levy (2000) NSWSC 161
Sedleigh-Denfield v. O'Callaghan (1940) AC 880
Sutherland Shire Council v. Heyman (1985) 157 CLR 424
Gartner v. Kidman (1962) 102 CLR 12
Elston v. Dore (1982) 149 CLR 480
Prospect County Council v. Cross (1990) NSWLR 601

DECISION: See end of judgment

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

CORAM: HODGSON, J.

Tuesday 24th April 2001

NO. 1914 OF 1999
COMSERV (NO.1877) PTY. LIMITED & ANOR. V. WOLLONGONG CITY COUNCIL

JUDGMENT

1 The first plaintiff Comserv is the owner of land fronting Princes Highway, Figtree, upon which is erected the Figtree Motel. The second plaintiff Sovereign is a company related to the first plaintiff, and with the consent of the first plaintiff, it operates the Motel.

2 Block B of the Motel was built in about 1972 over material brought on to the land by a prior owner to fill a natural depression in that part of the land; and a large concrete pipe was installed to carry stormwater through the land under Block B, generally along the line of that natural depression, from the front of the property at Princes Highway to a creek known as American Creek at the rear of the property.

3 The plaintiffs became respectively owner and operator of the Motel in 1989. By November 1997, parts of Block B of the Motel, generally over the line of the pipe, had subsided, causing cracks in the building. On about 3rd November 1997, the plaintiffs blocked the pipe, and this subsequently caused flooding of the highway and adjoining land during periods of rainfall.

4 To alleviate this problem, the defendant Council hired a pump and retained it on a permanent standby basis from August 1998 to February 1999, in order to pump water away when flooding occurred. On 17th December 1998, the defendant compulsorily acquired an easement to drain water 1.2 metres wide over a stratum of the land, through which the pipe runs; and the Council then removed the blockage to the pipe that had been created by the plaintiffs.

5 In these proceedings, commenced by summons filed on 7th April 1999, the plaintiffs allege that the pipe is leaking and that this has caused and is continuing to cause…

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

AGLC: Comserv (No.1877) Pty. Limited and Anor. v Wollongong City Council [2001] NSWSC 302
Case: [2001] NSWSC 302
Decision Date: 24 April 2001

CaseChat Overview and Summary

Comserv (No.1877) Pty. Limited and Anor. v Wollongong City Council involved a dispute between Comserv, a property developer, and Wollongong City Council over the blocking of a drainage pipe that ran across Comserv's land. The blockage resulted in water leaking from the pipe, causing damage to Comserv's property. The case was heard in the Land and Environment Court of New South Wales.

The legal issues in the case centred on whether the blockage of the drainage pipe constituted a nuisance and the obligations of the dominant and servient owners in relation to the easement over the land. The court had to determine whether the council's actions in blocking the pipe were reasonable and whether Comserv had a right to compensation for the damage caused by the water leak. The court also had to consider the extent of the council's obligations in maintaining the drainage pipe and whether Comserv had any responsibility in contributing to the blockage.

The court found that the blockage of the drainage pipe did constitute a nuisance and that the council's actions in blocking the pipe were unreasonable. The court held that the council had a duty to maintain the drainage pipe and that Comserv was entitled to compensation for the damage caused by the water leak. The court also found that Comserv had some responsibility in contributing to the blockage but that this did not absolve the council of its obligations. The court awarded Comserv damages for the damage caused by the water leak and ordered the council to take steps to prevent future blockages of the drainage pipe.

The court's final orders included the payment of damages to Comserv and a requirement that the council take steps to maintain the drainage pipe and prevent future blockages. The court also ordered that Comserv take steps to prevent future blockages on its own land. The case highlights the importance of maintaining easements and the obligations of both dominant and servient owners in relation to such easements.

Orders