Gales Holdings Pty Ltd v Tweed Shire Council

Gales Holdings Pty Ltd appealed to the Court of Appeal of New South Wales against a decision of the primary judge concerning a claim of nuisance against Tweed Shire Council. The dispute centred on stormwater runoff from land managed by the Council onto the appellant's property, which the appellant alleged constituted an unreasonable interference with its use and enjoyment of its land.

The Court of Appeal was required to determine several key legal issues. These included whether the stormwater runoff amounted to a nuisance, considering whether the appellant had tolerated the alleged nuisance and the relevance of such toleration to the commission of a nuisance. The Court also had to consider whether damages in nuisance were limited to consequences reasonably foreseeable from the alleged nuisance, specifically in relation to the advent of a protected species of frog. Furthermore, the Court was asked to determine whether any alleged nuisance fell within statutory immunities available to the Council under s 45 of the *Civil Liability Act 2002* (NSW) and whether the Council could rely on good faith defences under s 733 of the *Local Government Act 1993* (NSW) and s 43A of the *Civil Liability Act 2002* (NSW).

The Court of Appeal allowed the appeal in part and the cross-appeal in part. The reasoning involved a detailed consideration of the elements of nuisance, the foreseeability of consequences, and the application of statutory defences. The Court's decision indicates that while the Council may have had some statutory protections, the appellant's claim was not entirely defeated. The parties were directed to bring in short minutes of order to give effect to the Court's reasons and to file submissions on costs.