Hunt Leather Pty Ltd ACN 000745960 & Anor v Transport for NSW; Hunt Leather Pty Ltd ABN 46000745960 & Ors v Transport for NSW ABN 18804239602

[2025] HCATrans 37

[2025] HCATrans 037

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S20 of 2025

B e t w e e n -

HUNT LEATHER PTY LTD ACN 000745960

First Appellant

ANCIO INVESTMENTS PTY LTD ACN 136917041

Second Appellant

and

TRANSPORT FOR NSW

Respondent

Office of the Registry
  Sydney  No S21 of 2025

B e t w e e n -

HUNT LEATHER PTY LTD ABN 46000745960

First Appellant

SOPHIE IRENE HUNT

Second Appellant

ANCIO INVESTMENTS PTY LTD ABN 50319048217

Third Appellant

NICHOLAS ZISTI

Fourth Appellant

and

TRANSPORT FOR NSW ABN 18804239602

Respondent

GAGELER CJ
GORDON J
EDELMAN J
JAGOT J
BEECH‑JONES J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 15 MAY 2025, AT 10.00 AM

Copyright in the High Court of Australia

MR A.J.L. BANNON, SC:   May it please the Court, I appear for the appellants in each matter with my learned friends MR L.D. SHIPWAY, MR A.M. HOCHROTH and MS C.M.R. ERNST.  (instructed by Banton Group)

MR J.T. GLEESON, SC:   May it please the Court, I appear with MR L.G. MORETTI and MS B. LAMBOURNE for the respondent in each matter.  (instructed by Lander & Rogers)

GAGELER CJ:   Thank you, Mr Gleeson.  Mr Bannon.

MR BANNON:   Thank you, your Honour.  Your Honours, could I begin by identifying the findings of the primary judges to substantial interference.  Not in issue, but it is appropriate for the Court to orient itself, with respect, in relation to the nature of the interference. 

In the primary judge’s reasons, dealing firstly with Hunt Leather, paragraph 27 identifies the nature of the Hunt Leather business, which is a boutique leather goods store at the western end of the Strand Arcade opening onto George Street.  Down at paragraph 30, there is a description of the store.  Then, in relation to the substantial interference, firstly at paragraph 587, which is PDF 168, his Honour identifies types of interference with land which may constitute a nuisance, the last one being:

unduly interfering with a neighbour in the comfortable and convenient enjoyment of his or her land.”

His Honour goes on to identify it is the third kind of interference which is the subject matter of the case.

GAGELER CJ:   Though it is not really a neighbour.

MR BANNON:   No, correct.  Yes, the “neighbour” is unnecessary, but, as I will expand on in a moment, key to it is a use of land – there is no question about that – in terms of the plaintiff’s entitlement to any action on nuisance of this type, at least.  Then, at 835, his Honour identifies that the interference must be:

actionable . . . must be substantial.

Down to 837, it:

is not capable of precise definition.

But it cannot be “minor”.  Then, in relation to dealing specifically with the Hunt Leather appellant, then, at 839, his Honour refers to the fact that:

The defendant accepts that the interference . . . was substantial –

eventually; they initially pleaded it was not.  Then, through to 841, by way of example, there was:

documentary, photographic and expert evidence –

At 842:

machines, jackhammers, generators and dirt removal –

At 843:

an incredible amount of . . . noise . . . so loud that staff –

could not be heard, “dust and dirt” were created.  Jumping to 864, his Honour says:  I do not need an expert to understand the significance of noise and dust, but there were.  Over the page, on 865:

staff were required to continually clean dust off their shelves.

Then, at 868, I also refer to:

the presence of hoardings –

Then 875:

I am satisfied that there was a substantial interference –

This is not dealing with the period of interference which his Honour ultimately allowed, this is the total period of substantial interference.

GORDON J:   This is the entire claim period.

MR BANNON:   That is right.

GORDON J:   Thank you.

MR BANNON:   This is what our case says in our primary ground of appeal.

GORDON J:   So, where do we go after 865 and 868?

MR BANNON:   Paragraph 868, yes, and then 875.  So, the total period of substantial interference is 25 months:

particularly so because of the nature of the business –

And the balance of that paragraph speaks for itself.  Could I just identify, there is an error in our written submissions, the appellant’s submissions, at paragraph 8.  The third sentence says the primary judge awarded damages to the appellants for the lesser periods.  Now, that says “1 November 2015” that is the actual period.  It should be 2016; it is 13 months which was awarded, and that is accurately set out at paragraph 37 of the same submissions.

In other words, for Hunt Leather, there was 25 months of actual substantial interference, 13 months awarded by the primary judge.  Coming then – they are the same figures, but for Ancio, it was 33 months of entire interference, 25 months allowed by the primary judge.  Then, dealing with the Ancio position, they are at the company or by trust‑operated restaurants, we can see that at paragraph 40 of the primary judge’s reasons, PDF 21.

GAGELER CJ:   Mr Bannon, just sticking with Hunt Leather for a moment, all the interferences that you have taken us to are physical interferences, but the heading is:

interference with the plaintiffs’ businesses –

MR BANNON:   Yes.

GAGELER CJ:   So, are we concerned about that kind of noise, dust – the sort of thing that I experience in my house when my neighbour does a renovation – or are we concerned about the impact on the conduct of a business on the land?

MR BANNON:   Yes, that is right.  There was dust, but it was not put as a case of physical damage.  There have been cases which refer to nuisances which actually cause physical damage.  I think the St Helens Case, which we will go to briefly, was one where the plaintiff’s trees were damaged.  Although there was some – ultimately, the case of dust on the shelves or goods was not relied upon as a physical damage to the goods, but it was the dust and noise which interfered with the operation of the business.  When your neighbours are building next door to your Honour, you probably do not have dust coming into the house, but perhaps ‑ ‑ ‑

GAGELER CJ:   It has not been my experience.

MR BANNON:   That is all right, I will not speak about something I know even less about.  Then, in relation to Ancio, the nature of the business, as I have said, is paragraph 40, and Mr Zisti gave evidence in this regard.  Then, in relation to interference, paragraph 888 deals with the nature of the interference found.  There were barricades outside the restaurant, heavy machinery, pouring.  Paragraph 891:

noise and dust.  His shopfront window was often coated in dust.

There were hoardings, as well, preventing sight lines to the restaurant, and his Honour’s conclusion as to – without going into further detail, that is enough to indicate the nature – at Paragraph 909, that the interference continued for that period of time, which was 33 months.  As I say, his Honour the primary judge allowed 25 months.

Just pausing there and coming back to a matter which your Honour the Chief Justice perhaps adverted to, namely this:  there is no issue in a case of this type of private nuisance, that the plaintiff’s right is in relation to protecting the use and enjoyment – sometimes described as the amenity – of his, her or its land.  Now, immediately, that is referring to a particular piece of land in a particular locality.  The substantial interference which must be satisfied inevitably – and a number of the cases discuss this – depends, in part, on the locality.  There is discussion as to whether or not it is a substantial interference to have the noise of a commercial shop next to you if you are in a street of commercial shops, or, indeed, you are a shop yourself.

So, the point I am seeking to direct attention to is that, on the plaintiff’s side, the claim is rooted in a particular piece of land in a particular territory, and that is part of the context in which one then considers what we say is the key and determinative test for this sort of interference.  Once you have that, if it is caused by the use of an adjoining piece of land, as here, the action depends inherently on the way in which that adjoining piece of land, in the same sense of is it a common and ordinary use which had been undertaken, which is interfering, in effect, with the ordinary amenity one might expect for the plaintiff’s land in that particular locality.

EDELMAN J:   And the locality takes into account planning permission, statutory regulation concerning use, and so on.

MR BANNON:   Over time it will, over time, and a locality and the nature of a locality will change.  Obviously, to take Sydney as an example, Farm Cove became Sydney, but we reject a proposition which says as soon as you have a change in planning, that changes the locality and the test is different, but inevitably, as your Honour says, it will have an effect over time and, incrementally, that will occur.

GAGELER CJ:   The development that is occurring around railway stations in Sydney is not incremental.  I mean, it is happening, really, quite quickly.  There are changes in planning controls which allow high‑rise developments next to suburban houses that were not available years ago.

MR BANNON:   True.

GAGELER CJ:   You say you have to leave it 10 years before you can say that the ordinary use has changed?

MR BANNON:   Well, there are many questions of fact which the courts have addressed, including this Court.  It is not an imponderable, it is quite identifiable, and it depends.  But to take your Honour’s example in relation to high‑rise flats in a residential area, that is something which is part and parcel of – either, historically, one can point to the existence of high‑rise flats and their prospect over a period of time, so that the mere fact that, finally, someone throws one up next to you does not mean that is not a common and ordinary use of the land.

GAGELER CJ:   Or, to put it another way, there is a change in the planning controls which allow the high‑rise development to occur, but the developer then runs a risk of then being a private nuisance.

MR BANNON:   Conceivably, but if it is the sort of change in planning control in a sense which is simply allowing higher buildings in an area where you already have buildings which are high – and you may have to look into it.  But there is no doubt – and this is not one of those cases – that a number of cases – Andreae v Selfridge is an example, and, indeed, in Fearn itself – they talk about the “right to build”, which is a slight overstatement by Lord Leggatt, perhaps, and he qualifies it a bit later by reference to a New Zealand decision, where it says there can be buildings which are out of the ordinary.

But in terms of your neighbour building, that is an ordinary use of land and that can be assessed, but the factual debate on our appeal, we arrive with findings of fact made that this is not a common and ordinary use, and that is the basis on which we proceed.

EDELMAN J:   Those findings of fact do appear, though, to be at quite a high level of generality without descending to the nature of the particular use.  For example, one might say that in almost any area, construction work is a common and ordinary use, but one might then say, well, what type of construction work are you talking about, what is the duration of the construction work and so on.

MR BANNON:   Yes.  Quite, but the – and, of course, we have the finding – the facts themselves do rely upon that it is not a common and ordinary use to turn a main street into a railway station line out of your front door, and that is – well, we defend that and we say that is clearly correct, and that results in the sort of construction work which took so long.

But a key point on which we rely in all of this is that a lot of that sort of focus, if I may say so, relates to a potential concern about the exercise of statutory powers by statutory corporations, but there is an undisputed defence of inevitable consequence, which is not challenged by any party in this Court and indeed, our learned friends seek to rely upon it, which is a control mechanism to ensure things such as public interest and large developments of this type are protected.

I want to say, all somebody has to do is – it is not all they have to do, but they do have to do something to say – call some evidence, which they did not do in this case, and say:  well, listen, yes, it was a permissive statutory power, but this was the inevitable consequence, there was no other way of doing this within the scope.  All that had been authorised was a light rail, without any particular light rail; the route was organised; there is no evidence to say that it would have to have over‑wires, under‑wires, these particular types of platforms; was there other ways of doing – zero evidence on that.

But, in the ordinary case, one would expect a statutory corporation to be well‑armed to do that and to defend the conduct.  The conduct may be defended partially or completely.  Indeed, and I may come, perhaps, to take it a bit further – and I may be going a little bit off‑piste here, but any suggestion that that would be something you could stop halfway through, by interlocutory injunction, the simple answer to that is, on an interlocutory level, the defendant will tender:  no, we are exercising a statutory power, we will ultimately prove this is the inevitable consequence, you cannot decide that now, and the matter would lay.

It may be, at the end of the day, they have not been able to satisfy inevitable consequence for the whole of the substantial interference, but there is no way in the world there would be an injunction granted until the completion of that and one could examine the matter in full consequence.  Could I then identify a finding which is not ‑ ‑ ‑

BEECH-JONES J:   So, Mr Bannon, where we get to on that is you say they are all very interesting questions about common and ordinary use, where you were doing more of the same, like building buildings, but you say, well, that is great but here I have a train instead of a road.  Is that where we get to?

MR BANNON:   That is right.

GORDON J:   Just to complete that analysis, you say that is not common or ordinary use?

MR BANNON:   Yes.

GORDON J:   You say the common law is subject to statutory authorisation.  That is, the law of nuisance is able to be met by statutory authority.

MR BANNON:   Yes.

GORDON J:   Here, they had authorities, but those authorities did not authorise the extension of the works, to the extent of the harm it caused your clients.

MR BANNON:   The authority – there is no dispute that the statutory authority did not direct the specific activity.  There are cases, and this is not one of them ‑ ‑ ‑ 

GORDON J:   For the moment, just to work out what the overlay here is.

MR BANNON:   I am sorry, yes

GORDON J:   So, it is for what I call the entire period.

MR BANNON:   Yes.

GORDON J:   You say it did not authorise that activity.

MR BANNON:   No.

GORDON J:   And then your fallback case is it did not authorise that specific activity about which you complain, for the extension period.  That is what I will call the partial claim.

MR BANNON:   Yes.  Perhaps I have put it – that is, in a sense, correct, your Honour, but perhaps to put it the way we see it, there is a defence – if it is not a common, ordinary use, it is a substantial interference prima facie, we get a claim for the entire period, but they have a defence available to them under statutory authorisation where the onus clearly falls on them to prove that – they have two opportunities, depending on the nature of the statute.  If the statute is, it directs the specific activity, right down to the particular train and the particular line, et cetera, et cetera, then they do not have to prove more, which would, in effect, as your Honour put, in your Honour’s language, to say:  authorise the specific, entire length of the project.

That is not this case.  It is a permissive authority that they were given the authority to build a light rail along the route, but there was, beyond that, a wide discretion as to precisely how it would be done.  In those circumstances, in order to justify and defend the nuisance – what is prima facie nuisance – they have to prove that either the entire period, or some lesser period, was the inevitable consequence of doing the best they can, acting reasonably.  We can come to the cases on the test.

EDELMAN J:   I am sure you will come to this, the word “inevitable” is commonly used, but I am not sure that they mean inevitable.

MR BANNON:   That is the word that is used, but one may accept, your Honour, that it is couched in language that one can take into account, for example, a question of what is reasonable, in the sense that they may not require the construction of – if it was available – a cone of silence all the way along the route.  In other words, one can call evidence about that and say there are perhaps other ways of doing it, but that would be a crazy budget item.

So, even in this case, they could have called evidence and say:  we have a limited budget, we can only do this; yes, you could have put more men on the job, more people on the job, done it in different ways.  They are all the things which would feed into an analysis of inevitable consequence.  But as I say, although they use the word “inevitable”, one accepts that there is a scope.

So, it is not put at an extreme level, but it is an absolutely important piece of the puzzle to understand why our claim (a) is perfectly fine and acceptable and orthodox – and there is a forensic choice made by the transport that, as your Honours will have seen in the primary judge’s reasons and in the Court of Appeal’s reasons, they chose – I would not say “refuse” – the primary judge said:  you are the authority, you built this, tell us what went wrong.  They said, categorically:  we are not going to tell you, we do not have to tell you, and we will not.

Although they called expert evidence, the expert evidence did not attempt to say what did go wrong or why it went wrong, it was just pot‑shotting at our expert, Mr Griffith, it was a – in other parlance, you would call it a rope‑a‑dope defence.  But they did not attack – they did not put any positive evidence on to say:  we had to do it this way or this was inevitable, in the wider sense of the word.

Then, could I identify – this as our proposition 2.  Again, it is something not controversial, but perhaps it is important to understand in terms of context.  At paragraph 939 of the primary judge’s judgment – this is the finding that although Transport for New South Wales did not actually undertake the work – they did it by contractor – they are responsible in the sense identified out in accordance with various authorities at 939:  if you create the state of affairs which results in the nuisance, and that conclusion runs through to 946.

So, perhaps to explain this, they created that state of affairs, they engaged the contractors, the contractors did the work.  After they did all of the contracting work, the light rail was declared, which made it a relevant light rail under the Transport Administration Act.  So, as his Honour said, one of the reasons why 43A does not apply is because the relevant special power was not actually activated until after they had finished doing it.

But that did not mean that the party for whose work they were responsible was not acting under a statutory authority, because once that power was activated, it had the effect of authorising and enabling the government or its agents to go on – or its contractors, perhaps more accurately – into the area and there – I can take your Honours to this perhaps later in response to my learned friend – was all sorts of rather extraordinary easements granted so that they can do all sorts of things to do it, which is part of the uncommon and unordinary use equation.

So, there is not an inconsistency in the proposition that they were responsible but not exercising a special power, and the contractor operating under a statutory authority for which the government was responsible.  The Court of Appeal referred to that responsibility finding at paragraph 49 of its reasons, and identifies in paragraph 50 of his Honour’s conclusion that that they were responsible.  Paragraph 53, their Honours observes it was not an issue on the appeal.  Nevertheless, they had something to say about it, for reasons which are not clear to anyone, but nevertheless that simply just confirms that is not an issue before your Honours – it was an issue before the Court of Appeal.

So, can I then identify – this is our proposition 3 in our outline – where we addressed case A, which is firstly at paragraph 90 of the primary judge’s reasons, and 90(a) – this is PDF 35 – and (b) refers to the substantial interference; (c), the non‑common or ordinary use; (d), that it was therefore actionable; (e) related to public nuisance, which was no longer in issue; (f), responsibility; 43A did not apply; (h):

there is no statutory authority defence –

That was the point I had been talking about a bit, and then (j): 

the defendant is liable in damages –

His Honour says at 91: 

The plaintiffs’ primary case does not involve any consideration of . . . reasonable –

Well, the way we express it – the name of the say – that is, whether it is reasonable or unreasonable is the outcome of applying the correct factors.  You do not start with it reasonable with this unprincipled approach.  Then, at 648 of his Honour’s reasons, again his Honour records that that was our case A.

His Honour found, as your Honours may have seen and we have been discussing, at 656, that it was not a common and ordinary use.  Paragraph 657 identifies a matter where we said that effectively had the significance which we suggested, his Honour did not agree with that.  In that regard, his Honour, having looked at authorities, looked, at paragraph 638 of his reasons ‑ ‑ ‑ 

GORDON J:   Sorry, 638?

MR BANNON:   Paragraph 638, which is at PDF 178.  This is in the course of looking at some cases.  His Honour refers to Southern Properties and President Justice McLure in Southern Properties, and quotes paragraph 118.  Paragraph 118 is the clearest, and we would suggest perhaps the only statement apart from the primary judge, the Court of Appeal and Lord Sales where anyone has said it is a multifactorial exercise.

Her Honour, and I will come to this, did not cite – I can see it there, but wonder for the reason – any authority for that proposition.  And a later Full Court, which is Marsh v Baxter, which her Honour sat on, her Honour again referred to her Honour’s judgment.  The other two members of the Court applied what we say is the correct test, did not refer to Southern Properties ‑ ‑ ‑

EDELMAN J:   She was in dissent in Marsh v Baxter, was she not?

MR BANNON:   I am sorry?

EDELMAN J:   Her Honour was in dissent in Marsh v Baxter.

MR BANNON:   That is right, and her Honour relied on her own judgment for the test.  That was about escaping canola pollution, I think it was, in relation to agricultural treatment.  The other two members of the court did not refer to Southern Properties for the test, and applied what we say is the correct test and found that it was a common and ordinary use.  I will refer your Honours to that in a moment.  Her Honour found it was a common and ordinary use but, nevertheless, there was a nuisance.

So, that is actually a real-life example of two different outcomes applying the different test.  Interestingly enough, when you apply the multifactorial test in that case, there was a nuisance, which is odd, we would respectfully submit – well, from our point of view.  In any event, that was his Honour’s reference at 638.  Then, 640, his Honour said it is a multifactorial test.

At the Court of Appeal, if I could go to their reasons, paragraph 28 says – sorry, I have that wrong – at paragraph 125, they confirm the non‑common and ordinary use finding at 125 and 126, but they agreed with the primary judge at 118 and 119 taken together, that the Lord Sales‑stroke‑multifactorial approach was the correct approach.

BEECH-JONES J:   What paragraph was that?

MR BANNON:   That is 118 and 119.  There is a reference to our case A in the Court of Appeal reasons, but I cannot presently find it.         If I could then take your Honours to what we set out in our submissions at paragraph 11 – that is, our appeal submissions – and where we state, relevantly for the purposes of this case, the principles we say should apply.

Firstly, substantial interference, not common or ordinary, gives rise to an actionable nuisance.  There is no separate onus to demonstrate the use is unreasonable.  Secondly, where the substantial interference is in the exercise of a permissive statutory authority, it is a partial or complete defence to the extent that it can prove the whole or part was the inevitable consequence of the exercise, consistently with those cases which are identified there, which pick up some of those principles which I was discussing with your Honour Justice Edelman before.

Then, third, a common and ordinary use causing a substantial interference will also be actionable unless the defendant can show that it was “conveniently done”.  That picks up Bamford v Turnley, and other cases.  Now, I have said what I want to say already about the significance of the inevitable consequence defence and its failure in this case.

Could I then move to our proposition 5 and indicate why we say, in round, a multifactorial balancing approach under the general rubric of reasonableness does not represent the law and is not supported by authority – I am going to go through a few cases, but a lot of them will be fairly short references – and it renders superfluous the defence of inevitable consequence ‑ ‑ ‑

EDELMAN J:   There is still a role for reasonableness, is there not?  I mean, the role for reasonableness, even accepting a common or ordinary criterion, would be that a common or ordinary use of the land in an unreasonable way would be a nuisance.

MR BANNON:   That is right; that is our point 3 in paragraph 11.

EDELMAN J:   The difference between the appellant and the respondent is not really one about whether reasonableness can have any role at all, it is just you say that we have an uncommon or unordinary use of the land, that is prima facie sufficient, subject to defences.

MR BANNON:   Yes.

EDELMAN J:   And, the respondent says that even an uncommon or unordinary use of the land, if that uncommon use is reasonable – but the difficulty is that “reasonableness” is not used in the same way as it would be used in the law of torts.

MR BANNON:   Correct.  Absolutely – I should not say “correct”.  I agree, that is our submission.  In particular, when one – and our point to say that it renders superfluous inevitable consequence, as I say, that is an established defence, no one is challenging its existence, but that is all directed to what might be regarded as public interest works by a statutory authority for the public good, concede all of that, et cetera, et cetera.

But under this reasonable – if it a general reasonable test, and there are some allusions to it by my learned friends, in other cases, to say well, look, this is for the good of people, to have an inexorably slow train from Circular Quay to Randwick Racecourse.  That is a reason – that is my commentary, that is the start and finish, that people want to get to the races faster than that ‑ ‑ ‑

BEECH-JONES J:   It goes via the SCG, Mr Bannon, so do not underestimate that.

MR BANNON:   You can walk faster from the city to the SCG, and I hereby give firsthand evidence thereof.  But in that balancing exercise, one can pray in aid that this is a public interest factor, this is reasonable, they have done a terrific job here, look at all these people they engaged, a welter of evidence et cetera, et cetera.  Why do you need a statutory authority defence?  You do not, it just gets pushed off into the wilderness – which is a more stringent defence, but appropriately more stringent, and that is something which is not grappled with, we respectfully submit, by those who might say otherwise.

BEECH‑JONES J:   When you were discussing earlier inevitable consequence, was the effect of what you were saying, in answer to Justice Edelman, that in effect that is to be equated with an onus of proof on them to show what they did was reasonable, for a reasonable period, and to the extent it was not, then it is a nuisance?

MR BANNON:   Yes.  That is right, it is ‑ ‑ ‑ 

BEECH‑JONES J:   Is that the – is that how you treat inevitable consequence defence?

MR BANNON:   Yes.  That will be the outcome of it, yes.

EDELMAN J:   It does come very close to the primary judge’s finding on the partial case, though, does it not, putting aside the categories in which the primary judge put everything?

MR BANNON:   No, and I accept that that could have happened; it did not.  I am careful with the words I choose, but our friends refer to some equivocal – said to be equivocal submissions I made in the Court of Appeal.  In the Court of Appeal, it is fair to say, on the running, it did not seem to be overly favourable to us, if I can say that, between lawyers, but there was a particular focus on the quality of Mr Griffith’s evidence, and I said they want to run inevitable consequence, they have no evidence of inevitable consequence, if you say Griffith’s is worth nothing, then you are up for the high jump, they should be careful what they wish for.

Now, we would say – because I accept, Justice Edelman, what you said – that there may be a proximity between the Griffith’s‑type evidence and inevitable consequence.  We would respectfully submit it is illusory for this reason, that inevitable consequence requires more, because there may be multiple – it does not take into account different ways of doing it.  So, Mr Griffith’s evidence was dealing with the way they actually did it, and it should have, been in the sense, at least, building that particular railway down that particular line, which did require whatever the digging was.

Inevitable consequence, as we will see, has a wider application – you actually have to prove, in the case of a permissive way, that there was not another way of doing it, you had to go underground, you had to remove the utilities, you could not have had – I do not know – raised platforms, that would have been unreasonable, a whole host of reasons.  So, I accept that there is a proximity ‑ ‑ ‑ 

EDELMAN J:   But at the level of generality where you are talking about lots of dust and interference with people accessing the shops and so on, there is not really any other way you can construct a railway down a main street that does not have those consequences, is there?

MR BANNON:   In all likelihood ‑ ‑ ‑ 

EDELMAN J:   I mean, what evidence would you give about the construction of a railway down a street that would avoid those consequences?

MR BANNON:   There are two potential answers to that.  One is you could give evidence that you had to do it this way and, hence, it was always going to take this length of time – so, there is a period issue.  As to the answer, well, whatever the period issue you did, you would always have some dust or whatever.  One may suppose that, and one may – you still need evidence, but even if one did suppose it, that does not get them to where they needed to go, but you have still got to put some evidence on about it.

GORDON J:   Mr Bannon, I did not understand – I had always thought it was an extension of time issue.  That is, that this complaint about the interference ‑ ‑ ‑ 

MR BANNON:   Yes.

GORDON J:   So, there are three questions.  Have I got common law ordinary use?  Is there substantial interference?  You say the answers to those questions are straightforward.

MR BANNON:   Yes.

GORDON J:   Then one says, well, is it an inevitable consequence of that which was authorised?  Putting it in neutral terms.

MR BANNON:   Yes.

GORDON J:   And I thought your complaint was that the relevant documents did not give authorisation for the extended period.  What other limbs are there of it?

MR BANNON:   The relevant documents did not authorise any specific work at all.

GORDON J:   Correct.

MR BANNON:   But we approached the litigation on the basis we would have expected them to deal with inevitable consequence for precisely the reason that Justice Edelman raises – well, you are always going to get a bit of dust for certain, and we could not avoid it this way, and just attack and have a fight about the interim period.  But the curiosity about this case was that they did not do that, and they have lost on inevitable consequence twice.  So, they put nothing there.  So, while this Court may have sympathy for the view that you could have brought an inevitable consequence defence for a partial period, the forensic choice made by the defendant was not to even do that, and to the extent ‑ ‑ ‑

GORDON J:   So, your short point is that the inevitable consequence defence is open for the entire period, and because they adduced no evidence in respect of any part of the period, you win on the whole period.

MR BANNON:   Correct, and the inevitable consequence was – it was exactly as – yes, I think I am just saying again what your Honour said.  That is right.  The inevitable consequence was pleaded against the whole of the substantial interference, and they could have – they may have been able to prove, if they had evidence, that that it answered the whole period, or they may have only been able to prove that it answered a part of the period.  But they did not do it at all, and so they do not get second prize by now relying on Mr Griffith’s evidence, which was there on the assumption – which is not an assumption of inevitable consequence – that this was the only reasonable way of doing it.

So, the first proposition, I think, not supported by authority – renders superfluous – I have dealt with.  The third bullet point in item 5 is this multifactorial approach gives no guidance as to what factor gets weighed and how the balancing exercise operates, and we say it is apt to produce unprincipled and incoherent results.  The Court of Appeal decision is a prime example of that because – let us look at what happened here – one, we succeeded, it was not challenged, there was a substantial interference; two, we succeeded that there was not a common and ordinary use; three, we succeeded on the point that they did not prove inevitable consequence.

So, they are said to be three goals we have kicked there – how is that we lose?  And they said, you did not prove it was unreasonable.  But if it is a multifactorial process which is desired to determine unreasonableness, and they at least are matters to take into the equation, how do we lose?  They seem to have taken – they have sent us a multifactorial and just focused on a point, which is contrary to any version of authority, that you have to prove unreasonableness in this case by saying you had to prove by Mr Griffith that something else would have been done in a particular way.  We say that their approach to Mr Griffith was wrong anyway, so we say that is an incoherent and unprincipled outcome.

Could I then start on my traipse through the cases.  Our learned friends submit that Fearn is new.  Could I just say this:  we did not, as might be inferred from looking at the judgments, jump on any bandwagon.  Our closing submissions, we have taken the opportunity of just handing up the very first part of them – these were dated 6 December 2022.  We set out case A, and case A, as we have seen, paragraph 3 – we have sent it up electronically as well – in terms of common and ordinary use ‑ ‑ ‑

BEECH-JONES J:   Mr Bannon, are you addressing a principle as to whether your reliance on Fearn was jumping on a bandwagon, or the decision in Fearn was new?  Was some ‑ ‑ ‑ 

MR BANNON:   Yes ‑ our learned friends say Fearn is new law.

BEECH‑JONES J:   All right.

MR BANNON:   We say it was not new law, it was – and, perhaps, as real‑time evidence to this, our principles, if you look at this and compare this to Fearn, you might think that – we did not send this to Lord Sales, but it is ‑ ‑ ‑ 

BEECH-JONES J:   But otherwise, what is wrong with jumping on a bandwagon?

MR BANNON:   I think that if it was – this is demonstrative.  If I could put it this way:  the fact that it was new and old, precisely the way we put it, is demonstrated by the fact that somebody like us were aware of it and knew it.

GORDON J:   Is not the short point that Fearn was handed down after the Court of Appeal reserved, and you made supplementary submissions about it?

MR BANNON:   His Honour invited some more submissions.  We said, we have Fearn, it agrees with everything we have already said.  Anyway, so that is – for what it is worth.

GAGELER CJ:   None of this matters, Mr Bannon.

MR BANNON:   I am not looking for an award, but it was just something I was made ‑ ‑ ‑

EDELMAN J:   We have the Supreme Court in Fearn looking at the history of all of the old authorities; we have lots of High Court authorities that have looked at the progression of all of the old authorities, as well.

MR BANNON:   Yes.  So, I am going to go through these cases.  I am going to be as quick as I can.  I will pause a bit on Fearn, and I appreciate your Honours will have read it.  Could I deal first with Bamford v Turnley 122 ER 25, that is volume 4, page 987, physical or PDF 54. The question was – it was found that the burning of bricks in brick kilns on land adjacent to the plaintiff’s land was found to be a nuisance by reason of the unwholesome vapours and fumes it generated to which the plaintiff was subjected.

It was so found, although the jury had found, in accordance with the direction below, that the defendant’s conduct was reasonable, and that the trial outcome was the result of a direction given by the trial judge to the jury, they were directed to find for the defendant if it was found the defendant’s use of his land was reasonable.  The whole court rejected that approach.

Our learned friends have prayed in aid the plurality reasons.  If we look at those at page 31 of the English reprints, 58 of the PDF, and at the top of the page it says:

If it be good law, that the fitness of the locality prevents the carrying on of an offensive trade . . . it appears necessarily to follow that this must be a reasonable use of the land.  But if it is not good law, and if the true doctrine is, that whenever, taking all the circumstances into consideration, including the nature and extent of the plaintiff’s enjoyment before . . . the annoyance is sufficiently great to amount to a nuisance according to the ordinary rule of law, an action will lie –

Now, our learned friends say, well, that is an example of the general test.  The problem with that analysis is one has to ask what “the ordinary rule of law” is they are referring to.  And one goes back to page 30 of English reprint, 990 of the book, PDF 57, there is, about the middle of the page, towards the end of the first complete paragraph:

It should seem, therefore, that just as the use of an offensive trade will be indictable as a public nuisance . . . a place where it greatly incommodes . . . will be actionable as a private nuisance –

The next sentence:

the doctrine contained in it amounts to no more than what has long been settled law, viz., that a man may, without being liable to an action, exercise a lawful trade –

et cetera.  There is actually – the two parts are circular.  They say in accordance with law, and they come back and refer – this was their law referring to.  You get no guidance out of the majority, that is our short point.

Our friends’ reliance on the passage in their submissions at 31, at the top of the earlier page, fails to point out that “the ordinary rule of law” to which they are referring to is the one referred to on the previous page, which provides no guidance at all, which no doubt explains why everybody relies on the Baron rather than the reality.

In the Baron’s reasons – Baron Bramwell, that is – the reasons start at page 32 of the English reprint, and he sets out the passage which is being quoted in many cases, but we refer again to it just to identify it, at page 33, PDF 60, at about point 2 on the page:

There must be, then, some principle –

down to the end of that paragraph.  Then his Lordship also refers, about halfway down the page, to the question of public interest.  In the first couple of sentences, their effects on each member – on individuals as a member of the public, you cannot use public interest as an answer.  And then, at page 34 of the reprint, PDF 61, in the last paragraph he addresses, in effect, an approach which effectively talks about the convenience generally and says it is unworkable, but in the last couple of lines there is a reference to Gale on Easements:

“Convenient, reasonable and proper” . . . These words are perfectly intelligible when applied to such nuisances as would form the common and ordinary use of land –

So, that takes up, I think, a matter your Honour Justice Edelman referred to.  Namely, that if it is a common and ordinary use of land, it still has to be reasonably done, and it is understandable there, but if you have some wide‑ranging test, that does not help.  Then could I just jump to St Helen’s Smelting (1865) 11 HLC 642, volume 6 of the ‑ ‑ ‑

EDELMAN J:   What is the underlying principle you are dealing with when you are looking at all of these cases?  Is it anything more than an attempt to work out a balancing between the liberty of one party and the liberty of a so‑called neighbour?

MR BANNON:   It is no more than that, but it is a principal way of doing it.

EDELMAN J:   And that is what Lord Leggatt described as the “reciprocity” idea.

MR BANNON:   Yes.

GORDON J:   Or “give and take”. 

MR BANNON:   The “give and take”, yes.

BEECH-JONES J:   Is your point:  if it is just reasonableness, it is a community mediation approach, effectively?

MR BANNON:   That is right.  It gives you no guidance.

BEECH‑JONES J:   Yes.

MR BANNON:   And when one – the point I started with – understands that the cause of action itself is rooted in enjoyment of land, which is rooted, itself, in locality, it is completely logical that the principle governs the use of, if it be a neighbour – it is likely to be a neighbour because it is their use of land, but it does not have to be – is their use of land consistent with “the ordinary usages of mankind” in that area?  Provided it is not unreasonably done, then that is okay; but if you step outside that boundary, then it is actionable.

St Helen’s is at volume 6, page 2181, and PDF 306.  In that case, vapours from smelting works caused material injury to trees on the plaintiff’s adjacent property.  Again, the House of Lords’ question in this case was whether the trial judge’s direction was accurate.  One sees that from 1484, of PDF 307, at the middle of the page where there is identification of the direction which was given.  It was not dissimilar – the complaint was not dissimilar.

The suggestion was that it had to be a direction that if the defendants’ use of land was reasonable, then that was good enough, and House of Lords said no, and we see that on page 1486, the Lord Chancellor’s speech.  It starts with the [650] in your old, original report number.  It talks about a difference between material, physical injury in that case – in this case, trees being damaged – and “personal discomfort”.  It depends on the circumstances.  The next sentence:

where the thing complained of . . . If a man lives in a town –

et cetera.  So, the next sentence:

If a man lives in a street where there are numerous shops, and a shop is opened next door to him, which is carried on in a fair and reasonable way, he has no ground for complaint, because to himself individually there may arise much discomfort from the trade carried on in that shop.

Now, it does not quote Baron Bramwell’s test, but it is the same message.  Although our learned friends rely on it, we say it does not assist.  Our learned friends at their submissions at paragraph 28 rely on what is said by Lord Cranworth at page 1487, PDF 310, and the sentence, at about point 6 on the page, just before the – toward the end of his first paragraph of the judgment, his words:

constitutes an injury, because it is always a question of compound facts, which must be looked at to see whether or not the mode of carrying on a business did or did not occasion so serious an injury –

Now, our learned friends again say that shows a broad test, but what that is talking about is the injury, that is, whether there is substantial interference or not.  It is not proposing any other wider test.  I then go to Ball v Ray, which is at volume 4, PDF 48.  This is Ball v Ray (1773) LR 8 Ch App 467.

This case has this significance:  Clarey in this Court relied on this judgment; Lord Leggatt regards it as an application of the Bramwell principle, that is at paragraph 24.  The facts were:  an adjoining house was turned into stables with horses, or perhaps elevated to stables, and the horses were fixed by chains to a buckle on the party wall, so there were more horses than previous.

To the extent there had been one or two, they were somewhere else, and now they are hard up against the party wall and they were pulling and nagging on the chain to the extreme discomfort of the next‑door neighbour.  The passage starts at 469 of the original report, page 50 of the PDF, about two‑thirds of the way down the page:

It is shewn that at present they do create a nuisance . . . of a most injurious effect –

et cetera, it raises a:

question of law . . . questions of fact . . . In making out a case of nuisance . . . there are always two things . . . the right of the Plaintiff and the right of the Defendant.  If the houses . . . are so built that from the commencement of their existence it is manifest that each adjoining inhabitant was intended to enjoy his own property for the ordinary purposes for which it and all the different parts of it were constructed, then so long as the house is so used there is nothing that can be regarded in law as a nuisance . . . on the other hand, if either party turns his house . . . to unusual purposes . . . such . . . as to produce a substantial injury . . . it appears to me that that is not according to principle or authority a reasonable use of his own property –

So, the conclusion may be unreasonable – so, you get the conclusion that it is it is not a reasonable use, but the steps as we have said.  And so, Sir George Mellish has the same opinion, and at 471, similar sentiments, at about point 8:

In my opinion . . . hardly seriously denied –

et cetera, the rest of that passage talks about it is okay – it is one thing to have to put up with the noise of a child playing the piano and missing every second note, but that is different to having a horse being up against your party wall.

In Andreae v Selfridge [1938] 1 Ch 1 – it is at volume 4, page 969, PDF page 36 – this is a case where there was building works next to a hotel, which included demolition work resulting the loss of custom. The primary judge found, in accordance with the Bramwell principle – if I can call it that – that the whole of the works were a non‑common and ordinary use of land because of the type of building operation which was done.

The Court of Appeal said no, that is not right, it was ordinary construction; the mere fact that you may use some new types of machinery or new methods does not make it not common and ordinary, but, nevertheless, you still have to do it reasonably.  And in relation to a couple of the operations:  one, it was late hours, and that was not reasonable, so that was actionable; in relation to another one, they did not do anything to properly prevent dust.

The point of going to it is to say, while it accepts, as we accept, in the ordinary construction, that is okay, you still have to do it reasonably, but it is an application of the principle.  The application of the principle is – or perhaps the point I was making about the different operations, page 3 of the report identifies the different operations – there is a first operation and a second operation, they are the main two.

The first was carried on at late hours, and then that stopped after complaint.  The second involved large quantities of dust.  Then, at page 5 of the report, Sir Wilfrid Greene says the trial judge went too far, it is common and ordinary work, but it is not reasonably done in the particular circumstances in a couple of aspects.  But, at page 6, at about point 7, one sees a reference to a sentence:

It seems to me that, when the rule speaks of the common or ordinary use of land, it does not mean the methods –

In other words, my learned friend says this has not been consistently applied.  I can see through every one of these English cases, we respectfully submit, the same principle consistently applied.  They go on to say, as I have said – I will leave your Honours to the detail of it – that to the extent – so, it was common and ordinary, but it was not reasonably done.

But the rule is “common and ordinary”, but it has to be understood as to what that means, and in that case, ordinary building work was fine, you still have to do it reasonably, so you could not do the jackhammering after hours, and you did not take enough measures to stop dust going into the hotel.

BEECH-JONES J:   Is there any discussion in this case, Mr Bannon, of who the onus of reasonableness was on?

MR BANNON:   Yes, there is.  Page 9, the bottom of the page, there is a sense – the paragraph beginning about two-thirds of the way down:

I desire here to make one or two general observations . . . Those who say that their interference with the comfort of their neighbours is justified because their operations are normal and usual . . . are under a specific duty, if they wish to make good that defence, to use that reasonable and proper care –

So, it goes on to say it is their onus, which is consistent with what Baron Bramwell said.

EDELMAN J:   What was the precise level of generality at which the work was characterised in Andreae?  Was it the building of a hotel, was it the construction work or was it, more generally, general works?

MR BANNON:   It was construction work, in particular, the demolition work for the purposes of building, and it was next to a hotel, so the plaintiff ran a hotel – or had run a hotel, I think they had sold it by the time of the case, but had run a hotel – and the sound of the demolition was upsetting guests, and the dust was upsetting guests.  But the trial judge had said it was not a common or ordinary use of land because the type of work, the methods you were doing were not usual, the Court of Appeal said no, that is ‑ ‑ ‑

EDELMAN J:   Demolition itself, at that higher level of generality ‑ ‑ ‑ 

MR BANNON:   Was fine.

EDELMAN J:   ‑ ‑ ‑ is a common and ordinary use.

MR BANNON:   Yes.

EDELMAN J:   One could say the same here, if one went to a very high level of generality, that it is a common or ordinary use to do development and construction work.

MR BANNON:   I think, perhaps, if I wind back my high level of generality, it was demolition work to build a house next door.

EDELMAN J:   Right – so, that is why I was asking.  Where is the finding of that precise characterisation?

GORDON J:   I think it is where you took us to at 6, is it not?

MR BANNON:   Yes.

GORDON J:   Where it sets out the rules, he is:

unable to take the view that any of these operations was of such an abnormal character –

And then:

That applies both to the first and to the second operations.

And so, one is tied back to what you took us to, back on page 3, as to what the operations were.

MR BANNON:   Yes, that is absolutely right, your Honour.  At the bottom of page 5, about halfway through the paragraph, it says that:

when one is dealing with temporary operations, such as demolition and re-building, everybody has to put up with a certain amount of discomfort, because operations of that kind cannot be carried on –

et cetera:

Therefore, the rule with regard to interference must be read subject to this qualification . . . in respect of operations of this character, such as demolition and building –

Now, although we are saying “of this character” is “demolition and building”, one has to see the type of building that was going on.  They were not building a railway outside the front door.

BEECH-JONES J:   Were they rebuilding houses?

GORDON J:   They were pulling down existing houses.

MR BANNON:   Yes, they were pulling down existing houses and rebuilding, yes.  To build Selfridges, that is right, yes.

GORDON J:   But they were not rebuilding here – the two operations complained about, were they not, were pulling down and demolition work.

MR BANNON:   Yes, for the purpose of rebuilding.

GORDON J:   Correct.

MR BANNON:   Yes.

GORDON J:   So we are just dealing with the first aspect of the ‑ ‑ ‑

MR BANNON:   Yes.

GAGELER CJ:   You are just relying on this as an example of the principle, are you not?

MR BANNON:   Yes, we – yes.

GAGELER CJ:   I mean, it is an ex tempore decision given at the conclusion of four days of argument, without citation of any authority, it seems.

MR BANNON:   No, but my reliance is solely for the proposition that, contrary to what has been said elsewhere, the consistent might of English authority has applied the principle which we say is correct, and one has to sometimes find a specific reference to Bamford.  Other times, one looks for language, and here is an example of language.  Ball v Ray is an example of language as well.

BEECH‑JONES J:   You rely on that – you say, they were so familiar with the principles, they could ex temp it without having to cite a case.

MR BANNON:   That is true.  They often refer to just “the rule” – everyone knows what “the rule” is.  It is fair to say there were a lot of nuisance cases ‑ ‑ ‑

GAGELER CJ:   In the United Kingdom.

MR BANNON:   ‑ ‑ ‑ in this sort of time period.

GAGELER CJ:   Yes.

MR BANNON:   I think some of textbooks described the history of it because it was a developing society et cetera, et cetera – and not very good ‑ ‑ ‑

GAGELER CJ:   But none of them seem to relate to the sort of things you would expect to cause problems in a developing society – new technologies, or new forms of transport – they seem to be sort of backyard dispute.

MR BANNON:   Yes – well, kilns.  Kilns are pretty solid.

GAGELER CJ:   Yes, I suppose so.

MR BANNON:   Then, a couple of these other cases, much briefer.  Sedleigh‑Denfield [1940] AC 880, which is volume 6 of the authorities at PDF 68. The issue in that case was not so much whether there was a nuisance but whether or not there was a responsibility of a landowner for a nuisance created by a prior owner. But the relevant part for our purposes is page 903 at Lord Wright’s speech where, at the middle of the page, after reference to Colls v Home and Colonial Stores:

A balance has to be maintained between the right of the occupier to do what he likes with his own. and the right of his neighbour not to be interfered with.  It is impossible to give any precise or universal formula, but it may broadly be said that a useful test is perhaps what is reasonable according to the ordinary usages of mankind living in society, or more correctly in a particular society.

Again, it does not cite Bamford, but it is the same principle:  “ordinary”– he used the word “ordinary usages” in a society, but “in a particular society”, which picks up locality.  The significance of this is these words get picked up in this Court in Elston, so that is one reason to refer to it.

Then, in Cambridge Water v Eastern Counties Leather [1994] 2 AC 264, volume 4 of the book, PDF 141. This gets picked up in a couple of cases, which I will just perhaps give orally a cross‑reference: Fearn, Lord Leggatt refers to it at paragraph 29 of his judgment; Southwark, a later House of Lords decision, refers to it; as does Woodhouse in the Court of Appeal.

The question for the House of Lords in this case was whether the defendant was liable on a Rylands v Fletcher claim for loss suffered by the plaintiff as a result of spillages of a chemical solvent used by the defendant in its tannery which entered the plaintiff’s waterhole – which was about 1.3 miles away – via an aquifer 50 metres below the ground.  The House of Lords held, analogously with nuisance, that the defendant was only liable for reasonably foreseeable damage – that was a point of the case.

Their claims in negligence and nuisance were rejected in lower courts and not pursued on appeal, so the discussion in relation to the nuisance was not part of the precise matter in issue, but the discussion, which one can see – firstly, the context of it is at 295, PDF 172, at point D:

In the present case, there does not appear to have been any reliance by E.C.L. –

that was the tannery:

in its pleaded case or in argument, on the principle of reasonable user.  I therefore infer that the basis upon which the judge rejected C.W.C.’s claim –

must have been that it was not foreseeable damage, so the issue of whether or not it satisfied the test of nuisance was not an issue.  But, nevertheless, at 299 one sees, at point D – this is 1994, this decision:

although liability for nuisance has generally been regarded as strict, at least in the case of a defendant who has been responsible . . . even so that liability has been kept under control by the principle of reasonable user . . . give and take . . . under which “those acts necessary for the common and ordinary use and occupation of land and houses may be done, if conveniently done –

et cetera, from:

Bamford v. Turnley . . . Bramwell B.  The effect is that, if the user is reasonable, the defendant will not be liable for consequent harm to his neighbour’s enjoyment . . . but if the user is not reasonable, the defendant will be liable –

that is being used there in the context in which it is stated – namely, the Bamford v Turnley test – and then the rest of the judgment just goes to deal on with reasonable foreseeability.  Then, in Southwark London Borough [2001] 1 AC 1 ‑ ‑ ‑

EDELMAN J:   What do you say about the point that Lord Goff is bringing out here, that there is a very close symmetry between the principle in Rylands v Fletcher and this “common and ordinary use” principle in nuisance?  But in Australia, obviously, we have abolished the principle or subsumed the principle of Rylands v Fletcher. 

MR BANNON:   Yes.  There is proximity, in one sense, and, indeed, in Gartner v Kidman, as I will come to, which your Honours will have seen, we will emphasise a couple of parts of it.  His Honour says, after referring to “common and ordinary”, parlance has now become “natural use”, and he deals with the natural use of that land.

Our learned friends pose a suggestion that this Court has got rid of Rylands v Fletcher because one of the reasons was the difficulty in identifying what is the natural use of land.  That difficulty does not apply in relation to common and ordinary use – it is a different question.  Natural use of land has the complexity, and I will refer your Honours to a passage of Gartner v Kidman, but natural use of land can – the topography of the land can change as a result of normal agricultural activity over time, or erosion, and that is part of the complication in relation to it, and so what was the original state of the land, or the natural use of land.

But this one, “common and ordinary”, it may be similar, but it would be inappropriate – I am not sure if our learned friends are inviting your Honours to do it, I do not think they are – to abolish the law of nuisance and say it is all part of negligence, but it is inappropriate because, for the reasons these cases have emphasised, there is no element of negligence about it; there is no duty of care.

There is a requirement that if you are doing something which is a common and ordinary use, you take full – they use the word “reasonable”, but full and reasonable regard for your neighbour, but, again, that is not a duty of care in that sense.  So, there is perhaps a proximity for the two, and sometimes – in a lot, or some of these cases – we see both actions pleaded, but you do not need negligence for a nuisance case.

To the extent our learned friends suggest there is a problem with “common and ordinary use” because there was a problem with the “natural use” of Rylands v Fletcher, that problem does not arise and, indeed, the fact that there has been – I will not say a gazillion, but a very large number of cases where the proposition of common and ordinary use has been addressed and tackled comfortably by many courts over many years is evidence which supports that.

EDELMAN J:   Mr Bannon, just before the Chief Justice raised a point with you, I had not seen in your submissions – and maybe, if it is convenient to do so, just at some point today or tomorrow – any reference to the Restatement in the United States.  I mean, we have a long history of the English law and English development ‑ ‑ ‑ 

MR BANNON:   Yes.

EDELMAN J:   ‑ ‑ ‑ which, to some extent, I think is paralleled in the United States, and there is a Restatement – third Restatement, I think, now – of the law of torts in the Restatement, and I would be very interested to see how that deals with the issue.

MR BANNON:   Can I push that off until tomorrow?

EDELMAN J:   Yes.

GAGELER CJ:   We will take the morning adjournment.

AT 11.18 AM SHORT ADJOURNMENT

UPON RESUMING AT 11.30 AM:

MR BANNON:   Could I move on to Southwark London Borough Council v Tanner [2001] 1 AC 1, in volume 6 of the authorities, PDF 212. In that case, the claim for nuisance by a tenant due to noise emanating from an adjoining residence was rejected on the basis it was no more than noise resulting from the ordinary of the premises. It has a useful statement of principle, consistent at page 15. Lord Hoffmann at D:

Nuisance involves doing something on adjoining or nearby land which constitutes an unreasonable interference –

Point F:

What is the nuisance –

complained about?  In the middle of that paragraph:

But I do not think that the normal use of a residential flat can possibly be a nuisance . . . If it were, we would have the absurd position that each, behaving normally and reasonably, was a nuisance to the other.

Then there is a reference to the reasonable user principle by reference to Bamford v Turnley.  Then, over the page, a reference to burning of bricks, but now we are perhaps in a more modern age:

it may be reasonable to have appliances such as a television or washing machine in one’s flat but unreasonable to put them hard up against a party wall so that noise and vibrations are unnecessarily transmitted to the neighbour’s premises.

The mere living in flats is not unreasonable, and then Lord Millett at page 20 ‑ ‑ ‑

BEECH‑JONES J:   Do you say the word “reasonable” there being used is synonymous with “common and ordinary”?

MR BANNON:   Common and ordinary, provided it is done reasonably.

BEECH‑JONES J:   Yes.

MR BANNON:   It is common and ordinary to have your TV on, it is not reasonable to jam it up against the party wall and turn it up really loud.

BEECH‑JONES J:   Yes.

MR BANNON:   For no purpose other than to annoy your neighbour.

GAGELER CJ:   And you say it is not an available explanation of this line of authority to say that the ultimate criterion is reasonableness, and commonness and ordinariness is a factor in determining reasonableness.

MR BANNON:   That is right.  That is why we respectfully submit a lot of the cases or authorities and textbooks talk about – it is all about what is reasonable, it is not an at large test based on “reasonable”.  Reasonableness is effectively the product – a conclusion of reasonableness or unreasonableness is a product of applying well established factors, one of which is common and ordinary use, and the other one of which is – even if it was a common and ordinary use – was that engaged with reasonable regard for one’s neighbour?

GAGELER CJ:   But you say foundational in every case is the absence of common or ordinary use.

MR BANNON:   Yes, or – perhaps the converse – it is a defence to if there is common or ordinary use and it is done reasonably.

EDELMAN J:   Ultimately, the rationale must be that a neighbour’s – to use that expression in the broad sense – reasonable use of their own land is not to be subject to unreasonable interferences, provided that it is not common or ordinary use.  In other words, one is expected to put up with common and ordinary uses that are reasonable, but one is never expected to put up with substantial interferences that are uncommon or unordinary. 

MR BANNON:   That is right, that is what it boils down to.  Sorry, still on Lord Hoffman on page 16, let us refer to C to D, which picks up “conveniently done”, and perhaps a further exposition as to the point I was just making as from C to D.  Still in the same authority on page 20, now with Lord Millet, this is – if I may say so – a nice exposition, that partly the point that your Honour the Chief Justice was raising with me, namely at about point D:

The use of the word “reasonable” in this context is apt to be misunderstood.

In effect, it is the outcome of the process which starts with an application of the principle which is, again, identified by reference to Baron Bramwell.  So, that is to the bottom of that page and over the top of the next page.

GORDON J:   If you take what Justice Edelman just put to you, which had no reference to the word “reasonable” at all, then many of these confusions that appear, at least, in some of the authorities and elsewhere would fall away.  It is the word that creates the difficulty. 

MR BANNON:   Yes.  That is right.  That is exactly right.  Then, Lawrence v Fen [2014] AC 822, volume 5 of the books, PDF 270. This was a successful complaint of nuisance from noise from an adjacent stadium and motocross track, and that was notwithstanding a planning approval. Again, just focusing on statements of principle, at paragraph 3, Lord Neuberger’s reasons, starting at native 830, PDF 278, Lord Neuberger, with whom Lords Sumption at 154, Mance at 162 and Clarke at 169 agree.

At paragraph 3, there is a reference to the Sedleigh‑Denfield test.  There is also a reference to Sturges v Bridgman, which our learned friends pray in aid, but not – when one looks at the case – to their advantage, we submit.  There was apparently an oft‑cited comment by Lord Justice Thesiger that:

“what would be a nuisance in Belgrave Square may not necessarily be so in Bermondsey”.

At least he knew where Bermondsey was, and:

Accordingly, whether a particular activity causes a nuisance often depends on an assessment of the locality –

Then there is picked up the statement we just looked at, Lord Goff in Cambridge v Eastern Counties.

GAGELER CJ:   Sorry, just going to back to Lord Wright in Sedleigh, at the end of paragraph 3.  What do you say?  Is that wrong?

MR BANNON:   Well, if it is understood:

the ordinary usages of mankind . . . in a particular society.

That, again, we say is shorthand for what we have been saying.

GAGELER CJ:   All right.

MR BANNON:   Because “a particular society” picks up locality and “ordinary usages of mankind”, that is the usage of mankind in the particular society which is translated; when it is a use of a land by a defendant, that is how it is understood.  It is at your Honours’ discretion, obviously.  It is of some significance anyway, but it is significant because it gets picked up in Elston v Dore without much examination.

Then, at paragraph 59 on page 842, the defendant in that case tried to rely on the fact that they had been running motocrosses for quite some time and that changed, effectively, the locality.  So, there is a bit of a discussion of the point which was raised early on:  can you have a change of locality and how do you?  Then, at 64, there is a reference to that passage in Lord Westbury of St Helens Smelting, which we have looked at before.  Paragraph 74, his Lordship concludes:

that a defendant, faced with a contention that his activities give rise to a nuisance, can rely on those activities as constituting part of the character . . . but only to the extent that those –

themselves do not carry on a nuisance.  Then, paragraph 76, again the reference is to Bamford v Turnley in the way we have described.  Paragraph 92, there is a clear statement that Lord Justice Carnwath, with approval in Barr v Biffa:

“The common law of nuisance has co-existed with statutory controls, albeit less sophisticated, since the 19th century.  There is no principle that the common law should ‘march with’ a statutory scheme covering similar subject matter.  Short of express or implied statutory authority to commit a nuisance –

And we say that is important.  Paragraph 95, there is a discussion there about planning authorities, effectively saying planning authorities do what they do for their own reasons, but they are not concerned about the law of nuisance.

Then Fearn, in volume 4.  I will just point to various matters and not pause very often, but obviously it is very important for our argument that a lot of the cases Lord Leggatt refers to I have already gone to in part.  So, the report starts PDF 389, at paragraph 18:

“Unreasonable” interference –

on page 14 of the native copy of the report, then it refers to Sedleigh‑Denfield:

It is evident that, if such a balance is to be maintained –

after reference to Sedleigh‑Denfield:

not every interference . . . can be actionable . . . sometimes said, as if it were a governing principle, that to give rise to liability the interference must be “unreasonable”.  However, the term “unreasonable” in this statement has no explanatory power . . . (“It is presented as an explanation of the operation of the law, but it does not, cannot, explain anything”).  The requirement that the interference must be “unreasonable” is just another way of saying –

it is:

“unlawful” –

Paragraph 19 refers to Winfield and Jolowicz and:

“signifies what is legally right –

Paragraph 20 – perhaps, just by way of background, your Honours – I should, perhaps, set the background, your Honours may appreciate it, but Tate Gallery had built a viewing gallery which was designed for people to look out and to look straight into the rather large glass walls of neighbouring units.

The primary judge said it was no nuisance because of a wide‑ranging assessment of factors, and also it was their own fault for living in units which have so many glass walls.  The Court of Appeal said:  no, the test is wrong, it is a not wide‑ranging multifactorial test, but the right not to be looked at was not something to be protected by the law of nuisance.  Get to the House of Lords:  by majority, they reject the multifactorial approach, they said the people living in the glass houses were properly living in glass houses, it was an ordinary use themselves of their own land, and the Court of Appeal was wrong in saying viewing, overlooking or appearing straight into your living room is something which can be protected against.

BEECH‑JONES J:   Did anyone ever look at whether land used as a gallery that has a public viewing platform is a common and ordinary use?

MR BANNON:   Yes, sorry, that was in issue, and the House of Lords, at least, found it was not, and the primary judge, according to the majority of the House of Lords, said he found it – the primary judge found it was not.

BEECH‑JONES J:   Not a common and ordinary use.

MR BANNON:   Not a common and ordinary use, because it was specifically built – which invited people to look straight out.

BEECH‑JONES J:   Not to look at the artwork but to look at the neighbours.

MR BANNON:   When you got sick of the artwork or you were the added extra who was dragged along, et cetera.

BEECH‑JONES J:   So, what?  The Court of Appeal or the House of Lords agreed with that, did they?

MR BANNON:   Everybody agreed that it was not a common and ordinary use.  The Court of Appeal said:  but nuisance does not protect being looked in on.  The House of Lords said that is wrong, and Lord Sales said that is wrong as well.

EDELMAN J:   That may be a very big issue in Australia, but that does not arise in this case.

MR BANNON:   Yes, it does not arise in this case.  Lord Sales, although he fights against the Bamford test, the difference is hard to see, and ultimately he seems to challenge, potentially, the proposition that the viewing gallery was not a common and ordinary use, but he also agrees with the primary judge that, effectively, it is their own fault, and he talks about a balance – well, I will take your Honours to it briefly, but it is a balancing interest, that they could have put up shutters and that sort of thing.

GAGELER CJ:   Mr Bannon, the reference at paragraph 18 to Beever is interesting.

MR BANNON:   Yes.  Do we have it?  No.

GAGELER CJ:   Somebody has given it to us, I think, in the materials.  Tab 74 – I am not sure what book it is – volume 7.

MR BANNON:   Yes.  I have that, yes.

GAGELER CJ:   Anyway, what the author there seems to be saying, at page 28, is that there is a conventional view that:

the concept of reasonableness is the key to understanding the law.

In this field.

MR BANNON:   Yes.

GAGELER CJ:   If you turn to page 13, after the sort of development of the thesis, the conclusion stated in terms:

The conventional view of the law of nuisance is a failure.  Its fundamental premises are false.

And then it goes on.  I just wonder if it is possible, really, to reconcile what is being said by Lord Leggatt in quite the same continuous way as you have been attempting to link it up with all of the law that had gone before.  If he is adopting the Beever thesis, it does seem to be treating itself as a reconceptualisation of the law in the field.  I will just leave that thought with you. 

MR BANNON:   That Lord Leggatt is reconceptualising?

GAGELER CJ:   He is certainly relying on this order. 

MR BANNON:   Yes.  To the extent that is right, Beever is wrong.  I am sorry, your Honour, I may have just misunderstood. 

GAGELER CJ:   No, no, I think I understand what you are saying. 

EDELMAN J:   Professor Beever’s views on the law of nuisance have to also be aligned with the approach that he takes to the law of negligence, as well, which is that that needs to be entirely reconceptualised. 

MR BANNON:   Yes.  I cannot comment on that, but I accept that, your Honour.  I probably have not read what your Honour has just referred to me properly ‑ ‑ ‑

GAGELER CJ:   No.  That is all right. 

MR BANNON:   ‑ ‑ ‑ but if I have anything more to say about that, perhaps I will take the opportunity in reply.

GAGELER CJ:   Of course.

MR BANNON:   Thank you, your Honour.  Sorry.  Paragraph 20, we emphasise, which is effectively agreeing with the Court of Appeal that a test which simply says:  “unreasonable” simply does not work.  Then, the next couple of paragraphs talk about what is substantial, and then:

ordinary use of land –

The discussion commences at 24, and much of what follows is akin to what I have done specifically to indicate that this is consistent.  Perhaps I am just jumping ahead, 24 to 27, the first instance where Bamford v Turnley is picked up.  Then 28 – I think I have been over that.  Then 29:

“Reasonable user”

endorses the proposition that “reasonable user” is an encapsulation of the Bamford principle.  Then in 31:

The point that it is no answer to a claim for nuisance to say that the defendant is using its land reasonably has been reiterated in many later cases –

And then at 33, again, they endorse the Court of Appeal’s rejection wide‑ranging test, endorsing that well established principle of Bramwell in Bamford.  “Reciprocity” is picked up in paragraph 34. 

GAGELER CJ:   So, how does reciprocity work in this case?  In the present case, what has reciprocity got to do with it?

MR BANNON:   Paragraphs 34 and 35 is dealing in part with, well, if you are a plaintiff who undertakes a special use of your land and expose yourself to an issue, then that might be a different case.  It does not apply here.

BEECH-JONES J:   Is it about whether, because of the plaintiff’s special use, there is a substantial interference? 

MR BANNON:   Yes, that is right.

BEECH-JONES J:   So, it is that limb.

MR BANNON:   That is pretty much where Lord Sales differed. 

EDELMAN J:   It is the special paper manufacturer in Robinson v Kilvert, and cases like that. 

MR BANNON:   Yes, exactly.  Then, at paragraph 38, they again refer to Sturges v Bridgman and Belgrave Square in Bermondsey.  Perhaps I could just refer, at paragraph 40 over the page, they pick up the balance of what Lord Justice Thesiger said in that case, only because our learned friends rely on part of what Lord Justice Thesiger said; this is in their submissions at paragraph 33.  The rest of the sentence, which includes what appears at D on page 22, in paragraph 40:

“where a locality is devoted to a particular trade or manufacturer . . . carried on by the traders of manufacturers in a particular and established manner not constituting a public nuisance, judges and juries would be justified in finding, and may be trusted to find, that the trade or manufacturer so carried on . . . is not a private or actionable wrong.”

In other words, Lord Justice Thesiger was tying his statement to the same principle.  Then, at paragraph 50, there is perhaps an identification
that the divergence between the primary judge’s views and the majority’s views here, supporting the fact that the viewing gallery was not a normal use, in particular at point B on page 25:

The Tate did not make, and could not credibly have made . . . Inviting members of the public to look out from a viewing gallery is manifestly a very particular and exceptional use of land.

Then, at 54 and 55, where they discuss the difference between whether or not – as I say, a flat which had a lot of glass doors was effectively met.  That was their problem, the primary judge found, and I will not go through it, but can I just refer your Honours to this question of:

Sensitivity to abnormal use –

His Lordship deals with it.  Paragraph 65 through to 71, I am going to pause in relation to that.  Can I then refer to Lord Sales’ reasons at, firstly, 158.  There, his Lordship endorses pretty much everything that the majority is endorsing, and that really goes through to 162, and there seems to be no divergence, then ‑ ‑ ‑

GAGELER CJ:   Is there no divergence?  Does he not treat ‑ ‑ ‑

MR BANNON:   I am sorry, your Honour?

GAGELER CJ:   

Reasonable user –

he says, is the:

controlling principle –

MR BANNON:   But I think it is all in the context of – or perhaps I have overstated it.  The only, perhaps, significance I wanted to really address in Lord Sales is paragraph 166, where, really, in answer to response from Lord Leggatt, effectively, to say, well, you have to have some objective standard.  At 166 and 167 Lord Sales:  well, I take the example of Southwark, that is an objective standard.  Namely if you have to do something, you have to make sure you are doing it reasonably.

So, even Lord Sales – and that is the onus is on the defendant, so even Lord Sales seems to advocate even under a more generalised approach, an approach where there is a requirement for an objective standard related to the way in which the defendant uses their property.

EDELMAN J:   But the big difference comes at 167, where Lord Sales says even a common and ordinary use, or an uncommon or unordinary use, might be reasonable.

MR BANNON:   That is right.

EDELMAN J:   And that might not be a nuisance, then.

MR BANNON:   Yes.  In any event, no doubt our learned friend will take your Honours ‑ ‑ ‑

BEECH-JONES J:   Is it implicit in Lord Sales at 167 – which, I think, you say is your case – that the onus is on the defendant?

MR BANNON:   Yes

BEECH-JONES J:   Yes, all right.

MR BANNON:   In our outline, we have referred to other paragraphs but I think I will not go to them now for time reasons.  Just very briefly, Jalla [2024] AC 595, volume 5, at 595, PDF 244, paragraph 2 – it is at page 607 – and this is all of the Law Lords, including Lord Sales. So, if he jumped the ship, he got back on board, because paragraph 2 just follows the Fearn majority.  Similarly, paragraph 18, when one comes to it.  Can I then turn to cases in Australia.  Firstly, in this Court ‑ ‑ ‑

GORDON J:   Sorry, just before you leave, is there anything that you say that is in 18 that you do not accept?

MR BANNON:   No, 18 is fine.  We agree with 18, and 18 reflects Fearn.

GORDON J:   Thank you.

MR BANNON:   I am just pointing out Lord Sales joined in.

GAGELER CJ:   Following precedent.

MR BANNON:   Yes, or realising the error of his ways or ‑ ‑ ‑

GAGELER CJ:   Following precedent.

MR BANNON:   I have not trawled through, obviously, Lord Sales, but if one goes through it, it is a bit hard to find precisely in Fearn where he draws the line in the application of the test, so I will invite your Honours to do that in due course.  In any event – which might explain his approach in Jalla.  Then, Clarey 90 CLR ‑ ‑ ‑

GORDON J:   These are the Australian cases you are now taking us to?

MR BANNON:   Yes.  Page 170, lessor of premises, lease them to the principal and council of the women’s college who put students in them – they are adjoining premises – sought to justify notice to quit on the basis that the lessee had permitted or caused a nuisance which was related to the noise of students in the premises.  The short point was – we can see that at page 170 after the headnote, the second paragraph at the bottom of that page, the notice to quit was based on claim for nuisance.  At 174, the Magistrate made an:

order for recovery of possession –

about a third of the way down.  Page 175 refers to the evidence accepted by the Magistrate that there was considerable noise made by the students.  This is in the first complete paragraph:

But the noises made . . . were only noises of the kind that are incidental to the occupation of premises –

et cetera:

A landlord who lets a portion of a building for the accommodation of university students can only reasonably expect that such students will keep late hours and in the course of doing so –

And then over the page, at 176, they pray in a Ball v Ray – so, starting with:

The discomfort . . . proceeds from the circumstances . . . live under the same roof –

and they cite the passage in Ball v Ray which we rely upon.  So, it does not refer to Bamford, but it refers to the same concept of ordinary use.  Then, Gartner v Kidman 108 CLR 12. In this case, the defendant owner of a lower parcel of land blocked an artificial drain on his property, which extended from the plaintiff’s upper parcel of adjoining land, thereby restoring the defendant’s land to its original natural state.

The effect was that, in the wet season, surface water on the plaintiff’s land – it was retained on the plaintiff’s land as it had done before the artificial drain was created, and the plaintiff’s claim for nuisance due to water retention failed.  We will see – because, applying what we say is Bamford – the High Court found that this was a normal use by the defendant of their own land, and he had not acted unreasonably. Firstly, at page 22 – this is Justice Windeyer’s judgment, with whom Justice Dixon agreed – the first complete paragraph refers to the statement of claim:

the respondent here, by his statement of claim alleged that the banks erected . . . “constituted a nuisance”.  Now a private nuisance may be described as an “unlawful interference –

And then page 30, at the end of the long paragraph, just before the beginning of the new paragraph, about point 6:

the appellant’s case was simple:  It is my land; I am not obliged to provide a drain and a sump on it; I can put in banks on my own land to protect my sand pit from the waters of the swamp.

The swamp was a reference to land.  There is no swamp on the plaintiff’s land which filled up during the wet season.  Then at page 38, at the bottom of the page, his Honour says in the paragraph there:

In whatever way the case be put it depends upon the law of nuisance.  The complaint is of an alleged private nuisance . . . in considering whether there has been an actionable interference with the beneficial enjoyment of land.  it is necessary, in every case –

what:

particular right . . . is said to have been invaded –

And then at page 44, towards about two‑thirds of the way down the page, or a bit further, this is referring to nuisance: 

The concept involved is a difficult one; and in formulations of the law of nuisance it may be better to start with what Bramwell B. said in Bamford v. Turnley, that “acts necessary for the common and ordinary use and occupation of land and houses may be done, if conveniently done, without subjecting those who do them to an action”.  By “conveniently done” the learned Baron meant, no doubt, done in a reasonable and proper manner.  He contrasted such user with a use “not unnatural nor unusual, but not the common and ordinary use of land”.  However, the expression “natural use” has come to be much used in discussions of this topic, and I have adopted it later in this judgment.

Just pausing there.  Thereafter, we submit Justice Windeyer has provided an internal definition that a natural user equals Baron Bramwell’s common and ordinary use, and “conveniently done”, he has translated that to use it in a reasonable manner.

GAGELER CJ:   Which is all part of the cause of action; that is part of the definition of the cause of action.

MR BANNON:   That is right.

BEECH-JONES J:   But “reasonable” is only relevant where you are talking about a common or natural use.

MR BANNON:   That is right.  Yes.  I am sorry, Chief Justice, I may have ‑ ‑ ‑

BEECH-JONES J:   That is what you mean, though.

MR BANNON:   Yes.  “Reasonable” is relevant to be conveniently done in that sense.  Yes. 

GAGELER CJ:   Yes, I follow.

GORDON J:   Only in common and ordinary use.

MR BANNON:   Correct, yes.

GORDON J:   Not in the exception, which is the next sentence, the carve‑out. 

MR BANNON:   No, exactly.

BEECH‑JONES J:   Just on that – and your case is, even on that limb, if it is a substantial interference from a common and ordinary use, onus on defendant to show reasonable.

MR BANNON:   And they did not prove it, yes.  That is our ground 2, or part of our ground 2.

BEECH‑JONES J:   Right.

MR BANNON:   Then, page 46, his Honour here addresses a view which was expressed by Chief Justice Madden in Vinnicombe v MacGregor, at about the middle of the page, that:

the lower owner cannot obstruct the natural flow of surface water unless he can and does so in a manner which will not injure the upper land.  On the contrary –

This is now Justice Windeyer:

I think, that he may block it by any works on his own land, so far as they are reasonably necessary to protect his land for his reasonable use and enjoyment; but that in doing so he must not act recklessly –

We say that is his Honour’s translation of what we have seen before.  Namely, that it is a natural or common use and he is doing it reasonably.  Then, over the page, at 47 – this is a part of the judgment which the Court of Appeal fastened on, we say out of context, opposite the name of Justice Windeyer in the margin:

The idea of reasonableness, that is basic to so much of the common law, is firmly embedded in the law of nuisance to‑day.

That has to be understood by reference to his Honour’s translation, conveniently done back on pages 44 and 45, and then it says:

Pronouncements concerning the scope of nuisance as a tort avoid stating rights . . . as absolute.  In respect of both what a man may do and what his neighbour must put up with, its criteria are related to the reasonable use of the lands in question.

Again, that has to be understood in the way his Honour explained it before.  It becomes clearer, too, when we look at the outcome of the case.  So, if we go to page 48 – and his Honour is making this clear, this is all being professed as a nuisance case – in the third paragraph:

With the above limitations in mind, the rights and obligations of the proprietors . . . one on a higher level than the other . . .

The higher proprietor:  He is not liable merely because surface water flows naturally from his land on to lower land.

So, that is just a natural use of his land, and we say ordinary:

He may be liable if such water is caused to flow in a more concentrated form than it naturally would.

It would then become non‑ordinary.  Missing a paragraph:

If a more concentrated flow occurs simply as the result of the “natural” use of his land . . . he is, generally speaking, not liable.  What is a natural use is a question to be determined reasonably having regard to all the circumstances, including the purposes for which the land is being used and the manner in which the flow of water was increased:  as for example whether it is agricultural land drained in the ordinary course of agriculture, whether it is timbered land cleared . . . mining tenement, or is used for building and so forth.

So, again, that is a concentration on ordinary use.  Over the page:

The lower proprietor –

The second paragraph:

Although he has no action against the higher proprietor because of the natural unconcentrated flow of water from his land, he is not bound to receive it.  He may put up barriers and pen it back, notwithstanding that doing so damages the upper proprietor’s land, at all events if he uses reasonable skill and care and does no more than is reasonably necessary to protect his enjoyment –

And that is in the context of saying what he is doing is just restoring the land to its natural state; that is an ordinary use.  I did promise a reference to a comment in the judgment about some difficulties which can be attended with a natural user, and that is at the top of page 38, that is in the context of a Rylands v Fletcher natural user.  I think I mentioned that earlier.  It is the top half of 38.

So, we submit – and contrary to the Court of Appeal, and contrary to what our learned friends submit – Gartner v Kidman is an application of the general principle which we espouse.  Elston v Dore, which is a 1982 decision, it is volume 2 of the book, at 594.  This was a defendant who filled in an artificial drain which prevented the escape of water from the plaintiff’s adjacent land, was not guilty of nuisance because the action did not cause the plaintiffs any loss.

So, in a sense, it fell over at the first hurdle, but there are a couple of statements in here to which I should draw your Honours’ attention.  At the bottom of 486:

They assert a cause of action against the respondent on three bases –

One of them was nuisance.  At the bottom of the page, the nuisance involved filling in the drain, relying on Sedleigh-Denfield, and then Sedleigh‑Denfield is referred to in the middle of the page.  At the bottom of the page, they pick up the statement to which reference has already been made by Lord Wright:

“A balance has to be maintained –

BEECH‑JONES J:   Sorry, what page are you on?

MR BANNON:   I am sorry, your Honours, I was racing a bit.  Page 487, at the bottom of 487, they pick up the passage in Denfield, and at the top of the next page, which we have looked at before:

ordinary usages of mankind –

Now, in the result, there was no actual further exposition in this decision because, as they said, it did not cause any damage anyway, but we say “ordinary usages of mankind” reflects what I have said already, and I will not go back to it.  Then they refer to Justice Windeyer’s decision, that is at 489, indicating it is consistent with what they are saying about this, and at the bottom of 490 and 491.

That is so far as the High Court appeared to – sorry, a passage in your Honour Justice Gordon’s judgment in Brown v Tasmania which refers generally to the law of nuisance, but the issue was not alive in that case, and I think your Honour’s general statement – there was nothing in that general statement with which we cavil, in the sense we say it is properly to be interpreted, consistently with authorities we have referred to.  So, that is why we have not invited your Honours to look at it further.

Then, Gales Holdings 85 NSWLR 514, in the Court of Appeal, volume 5 of the book, tab 47. The council was found liable for nuisance for constructing drains, or the construction of drains and stormwater outlets which concentrated water flow onto the plaintiff’s land. One of the issues was whether there was a foreseeable loss, that the loss in value of the land as a result of the pooling of water – a colony of Wallum frogs existed, and they had to preserve the Wallum frog population, and hence, under planning laws – but, nevertheless, it was found to be nuisance; that part of damage was not accepted.

Paragraph 131 is Justice Emmett’s judgment, with whom Justice Sackville agreed.  Paragraph 131 refers to Hargrave.  I have not taken your Honours to that, but there is really nothing in there; it was not dealing with this issue.  Paragraph 132 refers to Elston v Dore, but we rely – in 137 – on his Honour’s encapsulation of Gartner v Kidman:

Acts necessary for the ordinary use and occupation of land do not constitute nuisance.

In other words, there, the Court of Appeal was applying what we say the principle was.  Then there is a reference there that our learned friends rely on, Don Brass.  There is nothing in Don Brass which alters it, but it is perhaps worth mentioning that Don Brass – Chief Justice Jordan’s decision, this is referred to in paragraph 138 – it picks up “at 487”.

The 487 reference is actually a picking‑up of the relevant part of Bamford, when one goes to it – the Bamford principle, Baron Bramwell’s principle.  His Honour takes the time to make the remark in the last two sentences of paragraph 138, which only his Honour could make.  Then, 165 is – sorry, paragraph 279, I think, the Court of Appeal relied on, which was Justice Leeming’s decision.

Paragraph 276 – perhaps I should stop – firstly, Justice Leeming agrees with Justice Emmett.  There is a reference in paragraph 279 to “reasonableness”, but there is nothing in there, we respectfully submit, which alters the reasons with which he agreed with Justice Emmett.  Then The State of Queensland v Michael Vincent.  This is just part of demonstrating that ‑ ‑ ‑

GAGELER CJ:   Mr Bannon, can I just mention the time.

MR BANNON:   Yes.  All right, yes.  Can I invite your Honours to refer to State of Queensland, those parts we have looked at, but I also refer to Woodhouse in particular.  It is a clear adoption – perhaps, can I just go to Woodhouse.  Paragraph 48 of Woodhouse.  Your Honour, just in relation to time, I think the division of time involves me – if I can go a bit longer than the time, and I will take it out of my reply.

GAGELER CJ:   Yes.  All right.

MR BANNON:   Yes, I have two important further – one particularly important issue to deal with.  Obviously, funding commission, although we rely on cases which your Honours are well familiar with, and it is a conceptual – it is a principal question.  I also want to address ground 2.  So, could I just refer to – I invite your Honours to look at the paragraphs we have referred to in State of Queensland.  The point of that is that is another Court of Appeal applying the principles which we cite.

Woodhouse v Fitzgerald, if I can invite, in particular, paragraph – I will do the relevant paragraphs.  Firstly, paragraph 31 – so, firstly, Woodhouse v Fitzgerald starts at 475, or 330 in the PDF.  Paragraph 31 refers to the principle for which we:

namely acceptance of those acts necessary for the common and ordinary use . . . of . . . land.

Then, paragraph 47, the last – it was about whether a controlled burn on a rural property was later reignited and caused damage to an adjacent property, that was the basic concept – but paragraph 47, the second‑last sentence is important:

it is not the case that private nuisance is established as a result of any harm resulting from an emanation from a person’s land.  The use of the land must be out of the ordinary –

pause – this is for nuisance – comma:

unreasonable –

Now, what we say is that is saying even if it is common and ordinary, if it is unreasonable, then it is a nuisance.  His Honour adds:

or otherwise inappropriate.

I cannot assist as to what that is referring to, but in other words, that is another basis for saying there is a nuisance, but that is a clear adoption of the principle back referred to at 31.  In paragraph 48, they go to say, in effect, what was done was a common and ordinary thing, because people do burns all the time; it is actually important; it is just a common ordinary use of land.

Now, the purpose emphasising Woodhouse is to say the Court of Appeal refers to a lot of cases.  They do not refer to Woodhouse, which is the direct contrary of it.  And there is no explanation; it was certainly given to them.  So, it is perhaps a case of perhaps‑uncharacteristic shyness of the current Court of Appeal about one of its own decisions.

Southern Properties, I have referred to sufficiently.  I have given a hand‑up in relation to Marsh v Baxter.  Just to demonstrate that, in dissent – her Honour Justice McLure was in dissent on this case – that is paragraph 248, I think I have just given – the hand‑up, it is enough to look at, on page 43 of that, where her Honour relies on Southern Properties – that paragraph of Southern Properties.  The majority, in contrast, rely – at paragraph 767 – on what we say is the correct principle, and again at 770.  Their conclusion at 779 was it was “common and ordinary”.

So, what we submit is the invitation to effect – to say that Fearn has changed the law, our learned friends are inviting a change of the law, the law has been consistently applied in England in the way we say it has been, it has consistently been applied in Australia, including at an appellate level.  The only blink on the horizon was Southern Properties, but even that is – I will not say rectified, but that has not been followed by a later Western Australia Supreme Court majority, at least.  So, when one is left with – we include the primary judge in this.  Although we are successful, he did not adopt our general test.  So, for those reasons, we submit, your Honours would uphold ground 1.

Ground 2 has, really, two aspects.  I can state the first one very briefly.  The first, I think, was encapsulated by your Honour Justice Beech‑Jones a short time ago, namely, we say, well, look, even if it is – whether it is a common and ordinary use or not – in particular, if it is a common and ordinary use, which we say it is not – the onus fell on them to say that they had done things reasonably, and they simply failed.  We have given our references:  they did not win on that below, they called no evidence in relation to it, they tried to appeal that ground, they failed on that ground.  The other aspect ‑ ‑ ‑ 

BEECH‑JONES J:   Sorry, you may come to that – why does that get – is that not all or nothing?  That does not ‑ ‑ ‑

MR BANNON:   That is still all or nothing, yes.

BEECH‑JONES J:   Right, okay.

MR BANNON:   And the other aspect of our ground 2 is we say their approach in relation to Mr Griffith’s evidence was in error, and that involves perhaps just understanding a little bit more about Mr Griffith’s evidence.  That involves, firstly, going to the primary judge’s findings.

GORDON J:   So, is this relevant to the partial claim period?

MR BANNON:   Yes, this would restore the partial claim.

GORDON J:   So, paragraph 12 is your first – 11 and 12 is the onus question?

MR BANNON:   Yes.

GORDON J:   Paragraph 13 is ‑ ‑ ‑

MR BANNON:   Sorry, 11 and 12 is ‑ ‑ ‑

GORDON J:   Of the outline.

MR BANNON:   Correct, yes.

GORDON J:   And then 13 is dealing with the partial claim ‑ ‑ ‑

MR BANNON:   And 13 is partial, yes.  Exactly.

GORDON J:   ‑ ‑ ‑ and that is relying on Griffith’s evidence only.

MR BANNON:   So, this was to effectively say that their dismissal of the Griffith evidence, or a failure to rely on it, involved error.  We can put it fairly briefly, but I will just need to refer to some paragraphs, and then I will get on to reasonable commission – funding commission.

Firstly, if we could go to the primary judge’s judgment at paragraph 486.  Mr Griffith, as we say in the outline, gave an expert assessment that it was reasonably achievable if the respondent had done more to discover the utilities, and the difference between actual completion and the amended IDP at that time was delay caused by that failure.  Now, the findings of this primary judge in that regard are at 486.  His Honour says:

Mr Griffith was not retained initially to offer an opinion about the quality of the defendant’s utilities . . . he ended up doing so.

His views were:

Based on . . . project management experience, he . . . concluded that this assumption about the management of the utilities risk was consistent with the opinions he had formed –

Paragraph 487:

Mr Griffith considered that the delay risk associated with unknown utilities should have been known . . . He says that the defendant should have taken further steps to reduce this risk by:

(a)undertaking more utility surveys . . . and

(b)reaching concluded agreements –

And 488:

Mr Griffith’s expertise lay –

in this very topic.  Namely, project management completion.  Paragraph 489 is important:

However, in his assessments, Mr Griffith had regard to the events which actually occurred.

This is something that seemed to escape the Court of Appeal:

He considered the “as‑built” documents (the documents which recorded what was happening on the project during the period of construction).

So, what Mr Griffith did is he looked at what was the so‑called IDP, which was the planned system, he made adjustments to that, and then he considered:  if you had found the utilities beforehand, having regard to what actually happened, what was his expert assessment of where you would have ended up?  That is where he came up with the lesser periods.

Now, our learned friends, in response to that evidence, put no evidence on that.  They called Mr McIntyre to take pot shots at his evidence, but they did not succeed.  But they did not say what the alternative version of that was.  The Court of Appeal said, well, how do you really know that that is what is going to happen?  His Honour – that is, the trial judge – had Mr Griffith before him:  he was cross‑examined, he formed an assessment, he accepted his evidence, he took into account what he actually did.

But let us just say the evidence was not wildly persuasive, but it nevertheless was probative evidence, and was accepted by the trial judge.  The Court of Appeal does not actually say it is not probative or should not have been taken into account.  There was no evidence to contradict it.  And this is perhaps asked of the – the issue here is on onus.  We have, in a sense – if we had to do something on this, which we deny, we did something:  we started the game, we served the ball, and we got nothing back.  And that is all his Honour ended up with, and it was ‑ ‑ ‑

BEECH-JONES J:   Are you saying, on any view, we discharged our evidential onus?

MR BANNON:   Correct, yes.  I am sorry, I should not say “correct”, but exactly, your Honour.

GORDON J:   Is that right?  Is it not also open – I mean, is it not a position that, in a sense, Griffith was rejected?

MR BANNON:   No.  Well, his Honour did not reject him.

GORDON J:   No, I am talking about the Court of Appeal at the moment.

MR BANNON:   The Court of Appeal just said:  how can he really know that?  There were some questions there which sounded like the questions Justice Leeming was asking me, but they were kind of mathematical, theoretical questions.  But the reality was, he had an expert who was accepted.  Anyway, can I just go back to some more paragraphs.  That is our fundamental point.  If one goes to 495:

Mr Griffith prepared an amended IDP, reflecting what he says would have been reasonable allowances for the works and, in particular, the utility treatments, should the defendant have undertaken those further steps . . . There is obviously hindsight . . . but the point is to provide some indication of what might have been a reasonable timeframe for the works . . . assuming more knowledge and agreement in respect of utilities –

Then, at 522, he gave evidence for the delay in the construction.  At 556, his Honour is persuaded to accept Mr Griffith’s analysis:

I do not accept . . . no conclusion on the cause –

et cetera.  Then, at 559:

Mr McIntyre did not offer any opinion as to the cause –

At 819:

I accept Mr Griffith’s opinion that the defendant could have done more to discover unknown utilities –

At 936:

In my view, the amended IDP is an appropriate measure for determining the point at which the interference . . . became unreasonable.  Mr Griffith undertook an analysis . . . various activities . . . His amended IDP reflects what was reasonably achievable.

Then, perhaps while I am still in his Honour’s reasons, at 185, there was evidence about a lot of pre‑construction work discovery of utilities, which was done at night, and some they discovered and prepared and others were moved, some they just discovered – that is 185 and 186.

The point is that there was a lot of evidence about pre‑work utilities, but there was no evidence to suggest that any of that had caused anybody any disturbance at all.  When one looks at the Court of Appeal’s reasoning on this topic, they, at paragraph 90, first of all, they refer to:

the thousands of utilities identified prior to construction –

so, they acknowledge there are thousands found, but there is no suggestion that any of that caused any substantial interference – and there was not any evidence to suggest it.  Then, paragraph 92:

In those circumstances, the idea that a series of investigative trenches could be dug so as to identify all of these utilities –

Over the top of the page:

could not sensibly be done, however, without blocking the street for some extended period . . . there was no evidence that this could be done in any feasible timeframe, and it seems inherently problematic.

It seems inherently problematic:

It also seems unlikely that that could be done by a series of night works, with temporary resurfacing –

Well, that may or may not have seemed that way to the Court of Appeal, but there was no evidence to that effect.  And his Honour had the benefit of it – he had Mr Griffith, they could have asked him these questions:

And it would be absurd to dig up the entire road . . . to discover all the utilities, then to resurface it –

Well, that is what they did to discover “thousands and thousands” of utilities, but again, this is supposition from the Court of Appeal.  And then, paragraph 94, the last sentence: 

These considerations make all the more conspicuous the absence from the evidence adduced by the plaintiffs of any explanation of how in some rational way without causing further substantial interference with occupiers’ enjoyment –

In other words, their point, fundamentally, was:  this evidence – okay, assuming you can do this, where is the evidence that the earlier work would not have caused more interference?  That was not for us.  If we had any onus at all – and we say we did not – we had pushed the ball over the net.  They could have come back and said this is going to cause a terrible amount of disturbance.  If they had, I would have cross‑examined them to say:  hang on, there is no evidence in finding the thousands of utilities that it caused anybody a problem.  One last point in the Court of Appeal ‑ ‑ ‑

GORDON J:   Can I just ask one question, really quickly.  Were any of these matters put to Mr Griffith?

MR BANNON:   Was it put to him that it would caused a substantial interference of the same ilk, or at all?  No.

GORDON J:   Thank you.

MR BANNON:   There was a challenge as to whether or not it is sensible to do it, or whatever, or not, but no one just said they would have – no one put the questions that the Court of Appeal seem to think should have been put.  Just lastly on this point, at 107, it is worth noting their Honours addressed the finding – which was the primary judge – that a cause of the delay was the undiscovered utilities; and they challenged that in the Court of Appeal and they lost – 107 through to 114.

Paragraph 110 refers to the evidence of Mr Griffith – so, just pausing there, what they accepted, as his Honour did, that Mr Griffith had given evidence that the utilities caused the delay.  Well, you do not have a delay unless you have another time reference point.  So, at one hand, the court is accepting his delay evidence, but on the other hand saying that somehow or other, it is not meaningful.  Anyway, those reasons we identify support ground 2.

BEECH‑JONES J:   Mr Bannon, can I just ask you quickly, just following up Justice Gordon’s question, how long was the cross‑examination of Mr Griffith?

MR BANNON:   It was a joint session, I think it was two days – a joint session with Mr McIntyre.  A lot of the time, Mr McIntyre was sitting there, because he did not give evidence on a whole range of topics, and I was assiduous that the . . . . . he did not start to give evidence on things he had not . . . . . on.

Lastly, can I come back to what is obviously a very important point, and a very interesting point:  can you get funding commission?  Now, we have given a reference to cases, but what we have said in the outline really captures what we want to put.  Perhaps I should – perhaps, firstly, your Honours, it is important to look at, perhaps, the underlying evidence which we have referred to there, of each of Ms Hunt and Mr Zisti.  It appears in our additional material – I have a thin folder of additional material somewhere.

GORDON J:   Mr Bannon, those paragraphs say what they say, do they not?

MR BANNON:   I am sorry?

GORDON J:   Those paragraphs you are about to take us to say what they say.

MR BANNON:   They do, but they say it a bit more fully than the trial judge’s reasons set out.  That is at page 93.  I just invite your Honours to read page 93, paragraph 7, and over the next page:

Had it not been for . . . Agreement, I would not have been willing for Hunt Leather or myself to be appointed . . . because –

we did not have “the financial resources”, did not have “the ability to borrow” funds, et cetera.  Mr Zisti’s evidence gives similar evidence.

EDELMAN J:   How does that help you?  I mean, it shows that you have a very valuable benefit in exchange for the cost of the funding.

MR BANNON:   Yes, undoubted, but the ‑ ‑ ‑

EDELMAN J:   Where is the loss?

MR BANNON:   ‑ ‑ ‑but the question of was it a voluntary act – I will not go to the cases, your Honours are familiar with them.  Medlin is a useful exercise.  Medlin was the case of the university professor who was injured, not in a sufficient way that he could not complete his work, in fact, the evidence was the university would have kept him on, but he felt, himself, that he could not adequately do that as well as do his other administrative work.

So, there was a big argument as to whether that was a novus actus and whether it was a voluntary act, and in those references we have given there is a very useful discussion by the Court that just because it was a voluntary act does not mean it is a consequence of the circumstances – and the foreseeable circumstances – which the defendant created which made that decision causally connected, and reasonably so.  So ‑ ‑ ‑

EDELMAN J:   But even assuming all that is right, the benefit – how does the benefit that you get support a loss?  Where is the loss that has been suffered, when you got the very thing that you wanted on the very terms that you wanted?

MR BANNON:   The loss we suffered was – we suffered a loss, by a loss of earning capacity – let us say for $100.  And that should not have happened for the plaintiff.  So, the defendant should have paid us $100.  We cannot – in substitution for that, the notion where the plaintiff gets an asset in the form of a claim for that, in nuisance, for $100.  The asset is actually valueless for the plaintiff.  They cannot realise it.  The only way they can realise it is by selling it down.

And that is the loss:  they have sold that asset down to lower than its true value because of the circumstance in which the defendant – in either creating work which they themselves view, as the primary judge said – we have given the references – would likely bring a class action, which, on any view, is only ever going to be one which could not be funded by anybody individually.

BEECH-JONES J:   Mr Bannon, if you are right, what is the difference between this and recovering legal costs as damages?

MR BANNON:   Well, it is unclear.  Perhaps two answers.  One is they are not legal costs ‑ ‑ ‑

BEECH-JONES J:   Well, I know, but ‑ ‑ ‑

MR BANNON:   There are some suggestions from our learned friends they may be.  If they are legal costs, I am not sure we would be unhappy for the Court to say they are legal costs, and we go to taxation on it ‑ ‑ ‑ 

BEECH-JONES J:   No, but the justifications you have just given would appear to apply to recovering 100 per cent of legal costs as damages.

MR BANNON:   Well, all I can say is that that ship has floated, and whether ‑ ‑ ‑

GORDON J:   It has not just floated, it has sailed, I think, too.

MR BANNON:   Sailed – that one too, yes, sorry ‑ ‑ ‑ 

BEECH-JONES J:   Under steam, perhaps, but yes.

MR BANNON:   ‑ ‑ ‑ not my strength.

BEECH-JONES J:   Policy is different, you say.

MR BANNON:   There is certainly a policy issue in relation to costs, which has informed all the learning in relation to costs.

GORDON J:   And why is it not that the policy issue in the new world of these funders’ arrangements extend to that identified by the Court of Appeal?

MR BANNON:   I fully accept there is a normative consideration which is informed by a policy consideration, but we say that that normative consideration should favour, consistently with this Court’s acceptance of the importance of class actions – they do not constitute champerty and maintenance and they provide access to justice – provided that it is within a proper range.

We say, contrary to what our learned friends say, any amount of commission would be upon a break of reasonable assessment, no matter what we agreed with, because anything beyond that would not be foreseeable, but that is – we say there is a causal connection and normatively it is appropriate.  And saying that is a terrible ‑ ‑ ‑

GORDON J:   So, you have three arguments against you:  you have a voluntary act against you ‑ ‑ ‑ 

MR BANNON:   Yes.

GORDON J:   ‑ ‑ ‑ you have no causal connection probably linked, you have the policy question identified by the Court of Appeal, and then you have no actual loss – the temporal question.

MR BANNON:   It seems difficult to an ordinary person, but we say there is a causal connection, for the reasons I have indicated.  They put, à la Medlin – and there I think there was another case, Unity, I think, has something to with it, but if you look at March v Stramare, two general statements, they created a circumstance where that voluntary act of giving away part of their asset for a price was causally connected.  They would not have done it otherwise.

There is a connection, and it is a loss, because you are losing the value of the asset – you have given some away.  So, we say – that is our argument, your Honour, we have ticked the box of causal connection, and we have ticked the box of loss.  So far as the normative aspect of it, we accept there is a big issue as to a normative action, but on the other hand, if we tick those other boxes like we say we do, and in the case of these plaintiffs – obviously, it will not necessarily apply in relation to all plaintiffs and it will not necessarily apply to any class action, but this is a case where, on the facts of this case, with this class action, and we can see the amount of money which has been spent.

Bearing in mind they put everything in defence, section 43A, attacked every aspect of our case, including whether there was a substantial interference, as you might expect them to do – the prospect of that, if the Court can consistently and normatively, and in a satisfactory way, in the same process of endorsing access to justice by class actions in the way it has, take the extra step and saying we endorse full access to justice, not just partial access to justice by this step.  That is the argument, your Honour.

GAGELER CJ:   And that completes your argument, Mr Bannon?

MR BANNON:   Yes, on all points.  Thank you.

GAGELER CJ:   Thank you.  The Court will take the luncheon adjournment.

AT 12.43 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.13 PM:

GAGELER CJ:   Mr Gleeson.

MR GLEESON:   Your Honours will see from our outline that we propose to commence our substantive submissions with the statutory framework, which we submit will be important.  Just before I do that, can I address some issues of principle that have arisen this morning.  The first is that the primary argument you have heard, as per paragraph 11 of the appellant’s submissions, is this:  a plaintiff who suffers a substantial interference with the amenity of their land has a complete cause of action in nuisance, provided the defendant has used its land in a manner which is not common and ordinary.

That complete cause of action is subject to only to a defence of statutory authorisation where available.  It follows from that submission that the court cannot inquire into the reasonableness of the defendant’s conduct or any other factor at all unless the use has first been classified as common and ordinary.  The third step of the plaintiff’s approach is that if you get over the common and ordinary hurdle, then it seems a broad onus, perhaps legal, is cast on the defendant to negative any question of unreasonableness.

Now, we would invite your Honours to take these matters into account.  Firstly, the defence of statutory authority will not always be available with major construction.  To take your Honour the Chief Justice’s example, perhaps modified, if a private developer builds a 30‑storey building above a new station on the Sydney Metropolitan line, they will not have a defence of statutory immunity or inevitability.

If you were to erect “common and ordinary” as a threshold requirement, what that would mean is in each case, by a most uncertain standard, a common law court will ask:  is your 30‑storey building beyond what is common and ordinary?  If it is, you are liable without further inquiry, which I might say would be almost to turn this form of nuisance into a new Ryland v Fletcher, contrary to this Court which has brought Ryland v Fletcher under the law of negligence.

So, one cannot shy away from the consequences of Mr Bannon’s argument by saying:  there is a defence of statutory immunity, and you ran it and lost.  It will not answer the underlying question whether to erect “common and ordinary” use as a threshold requirement is a principled and a workable test.

Further, as one of your Honour Justice Edelman’s questions raised, there has not been a great deal of clarity this morning on how “common and ordinary” is to be defined, if it is to be given the central threshold role the appellants want.  Much may depend on the level of generality at which one identifies the use.  So, it quickly becomes a slippery test with the same problems of non‑natural user which bedevilled Rylands v Fletcher.  So, that is our first matter that we would put to the Court to consider against the appellants’ approach.

The second matter, coming back to major development, is, of course, in the modern day, inevitably there will be a complex scheme of statutory approvals to which the Court of Appeal referred at paragraph 124.  Most of the cases you have been cited this morning pre‑dated the modern era of planning law, and few of them engaged squarely with the issue of how planning approvals are to intersect with the “common and ordinary” threshold test.

If the developer has obtained every necessary approval for the 30‑storey building above the new metropolitan station, having gone through every process that we know that involves, which does include consideration of community impact, noise, vibration, hoardings and the like, but has obtained that necessary approval and commences lawful work, how is a common law court to decide whether that work is on the right side or the wrong side of the “common and ordinary” line such that an equity court could injunct the development?

It is not just a question of an interlocutory injunction and a balance of convenience; the consequence of the appellants’ argument is if that development, although statutorily authorised, is on the wrong side of “common and ordinary”, at a final hearing, an injunction could be obtained to defeat it.  Now, our submission would be that the modern planning laws of New South Wales – and every State – and the statutory approval process must come into the inquiry at the primary stage of actionability.  It must be given due weight.

EDELMAN J:   Why would they not come into the inquiry of what is common and ordinary?

MR GLEESON:   Exactly.  And in the simplest world ‑ ‑ ‑ 

EDELMAN J:   But your submission is that “common and ordinary” does not come into it at all, other than just as one factor in an overall reasonableness inquiry.

MR GLEESON:   That is our primary submission.  It is one factor in an overall reasonableness inquiry, and as a factor, it will be informed by:  have you got your appropriate approvals which have balanced the interests of the community?    If, however, you were tempted to adopt the appellants’ approach, where “common and ordinary” becomes a drop‑dead test, becomes a threshold element of the inquiry, it is even more important that the statutory approval process be brought to account.

It becomes, then, even more essential, because otherwise incoherence is risked between the Parliament having authorised a development and the common law saying:  we do not think it is common and ordinary and, therefore, it can be injuncted.

JAGOT J:   “Common and ordinary” seems to relate to the end use, or the end structure, whatever it is.  Construction seems to be – I am not sure what “common and ordinary” has to do with construction.

MR GLEESON:   I agree with your Honour.  It is difficult.  The end use ought to be the primary driver of the inquiry, and so, when I come ‑ ‑ ‑ 

JAGOT J:   The end use is not what is causing the nuisance or said to cause the nuisance here; it is the construction process.

MR GLEESON:   So, you have construction directed towards an end use.  As an element of it, the end use ought to be something which, of itself, is lawful and proper – and I will show you shortly why the light rail is – but if the construction is directed to an end, then one looks at, on our test:  is there something about that construction which puts it in the territory where it is something which a neighbour should not have to put up with?  That question will be informed by all of the circumstances, including the statutory approvals.  So, in a typical case, a noise and vibration case, what ‑ ‑ ‑ 

JAGOT J:   You mean, from construction?

MR GLEESON:   From construction.

JAGOT J:   Because there are other kinds of noise and vibration – yes.

MR GLEESON:   There are other kinds, yes.  So, in a construction context, which is where we are grappling with it, if a plaintiff is to say that the extent of your noise and vibration is such as to render your whole operation a common law nuisance, then I would agree with your Honour.  It is difficult to see what “common and ordinary” has about it, save if the plaintiff wishes to say there is something about your techniques or your methods which have taken you beyond what I should be expected to put up with.

The classic example is, are you using blasting – dynamite – as opposed to less invasive but still noisy and vibrative methods?  So, what the case would actually be about, with construction, what it should be about is the plaintiff saying:  here is what it is about your behaviour which has taken you beyond that which the law requires me to put up with, and then that would join the evidentiary issue upon which one would say, has a prima facie case been established, is the defendant required to answer that case with evidence, if they have not done so, then inferences might be drawn against them.  So, our submission would be that, particularly with construction, to erect common and ordinary use as the threshold inquiry is inapt.  That is the point I was trying to get to.

Which leads me to my next point, that while you have been cited many cases today, very few of them are construction cases.  In the books, the three cases you have before you which are construction cases are, firstly, Harrison, which I will come to, the case in the late 19th century where a tunnel was constructed under the River Thames and the injunction was refused, and there was no attempt to classify whether tunnelling under the Thames was common and ordinary.

The second case I will come to is Fisher, which might also be known as Codelfa.  It is, in fact, the first instance nuisance injunction which led to Codelfa in this Court, where the project was, one might think, major, like the present.  It was the tunnelling of the Eastern Suburbs Railway, and there was no inquiry, as per the appellants’ approach, as to whether the construction as a whole was common and ordinary.  Rather, the inquiry descended into:  was there something about the methods of construction – which, in that case, was blasting – which went beyond what the neighbours should be required to bear, and that, we submit again, is inconsistent with the appellants’ approach.

The final case you have been taken to is Selfridge, which was the major demolition and then the building of the Selfridge store in London.  Again, we would submit that case was approached not through common and ordinary as a threshold test, but through an examination of what it is about the manner of development which you say has taken it beyond what we should be permitted to put up with.

GORDON J:   To stop there, that last inquiry, what is it about the manner of the development that took it beyond the ordinary?

MR GLEESON:   Beyond what you are required to put up with under the law.

GORDON J:   If I just substitute “ordinary” for that last bit, then here, as I understand it, it is put against you that building a railway down a road is not, itself, a common and ordinary use.  We have construction, so you might substitute the subject matter here with the methods in that example.

MR GLEESON:   Your Honour, that is why I am coming to the statutes in almost a second, because ‑ ‑ ‑

GORDON J:   I do not seek to take up – that seems to be ‑ ‑ ‑

MR GLEESON:   That is why – and that is the way it is put – you do not normally put a train down a street.

JAGOT J:   Well, you put trams down a street.

MR GLEESON:   You put trams down a street.  What is missing from that analysis is that once the Court opens the Roads Act, which is one of the three streams of authority for this activity – which I might ask your Honours to do immediately, it is in volume 1, at tab 8, page 93, at the following page, section 5.

EDELMAN J:   Just while we are getting that, your test, like the test posed by the appellant, you accept, I think, it is about reciprocity.  It is about trying to balance the interests of two parties.

MR GLEESON:   In the sense that each comes to the equation with a prima facie right to use their land in the manner they regard most productive.

EDELMAN J:   Do you accept that, from a plaintiff’s perspective, the plaintiff will not have an action for nuisance if their proposed use is a non‑ordinary or non‑common use, like Robinson v Kilvert?

MR GLEESON:   No, we do not accept that at all – that is part of the problem of Fearn.  Fearn says, if you are a plaintiff, the moment you do something which falls beyond “common and ordinary”, however that be detected, you have no protection from the law of nuisance.

The wisdom of Lord Sales’ dissent is to say that you do not allow common and ordinary to wholly define the inquiry on either the plaintiff’s side or the defendant’s side, because there could be cases where what the plaintiff wishes to do is a little novel, but where reciprocity can reasonably require the defendant, by a modest adaptation of its activities, to permit the plaintiff to do that which it wishes to do.  That is what the dissenting approach allows, once one does not treat “common and ordinary” as threshold on either side of the equation.

EDELMAN J:   When you do come to it, if you could point to any cases where a plaintiff has succeeded despite the plaintiff’s proposed use being non‑ordinary, that would be useful.

MR GLEESON:   It may be difficult to find particular ones – we will look – but in principle, what Lord Sales has said is:  that may be an unusual case, but you should not rule out that case, because if someone sought to open a doctor’s surgery in the Strand, as this construction was going by, you might have an intense debate whether a doctor’s surgery is so different to all of the usual forms of commerce that had been conducted in the Strand Arcade – difficult debate, which shows the test is difficult as one which is a threshold test.

But if the doctor’s surgery falls on the wrong side of that, it is inconsistent with the other 390 shops.  Does the surgery lose the case?  We would say not necessarily.  Could I come back to Justice Jagot’s question.  If you have section 5 of the Roads Act, section 5(1) says that a member of the public has the:

right, to pass along a public road (whether on foot, in a vehicle or otherwise) –

Section (1A) says:

The right conferred by this section extends to the right of passage of members of the public in a light rail or other railway vehicle.

So, the erection and operation of a tram network on George Street, Sydney, is not just something that happened in the past that has now come back; it is not just something that happens a lot in Melbourne.  Part of the right of the public is the right to pass in the tram once it has been constructed.  So, that is one aspect of the legal construct.  But the second is subsection (2):

The right conferred by this section does not derogate from any right of passage that is conferred by the common law, but those rights are subject to such restrictions as are imposed by or under this or any other Act or law.

In the present case, if you go to section 138, that, prima facie, would have prevented the defendant or anyone else constructing the tram network on George Street subject to the relevant consent being given under section 139.  And that consent was given, subject to terms which I will come in a moment.

So, in asking whether either the operation of a tram on George Street, Sydney, or the construction with that end in view is common and ordinary, we would say the starting point would be the Roads Act, which would tell you that the public’s right of passage on the footpath outside the appellant’s store was subject to the approved right of construction and operation of the tramway.

What that means is that a large part of the alleged nuisance consisted of the hoardings, and that was the theory that, by erecting hoardings around the work – which you obviously have to do for safety, if you did not erect hoardings you would risk the public falling into the trenches – that that use of the footpath somehow took this outside common and ordinary, if that is the test.

We would say that that work was done pursuant to the approvals under section 139, and the public’s right to pass on the footpath yielded to that higher right of the constructing body, and therefore, in that respect, the alleged nuisance can be seen to not take us into the territory of anything that is not common and ordinary – it is the very thing provided for under the statute, that in some cases, the public’s right to freely move on the road – which includes the footpath, under the definition, outside the Strand store – is to yield to higher rights such as the right of development.

GORDON J:   Does that mean, then, that in a sense – this is in ground 2, that this is putting aside – that one is focusing on a statutory characterisation of what is a “common and ordinary use”?  Is that, in a sense, the essence of your submission?

MR GLEESON:   One must ‑ ‑ ‑ 

GORDON J:   You keep talking about the starting point, but the starting point is seeking to identify what is the activity.

MR GLEESON:   Yes, yes, that is what we are putting, that the activity ‑ ‑ ‑ 

GORDON J:   And that activity is, you would say – as I understand the argument – really nothing more than a common and ordinary use as prescribed by statute.

MR GLEESON:   As prescribed by three streams of statutory authority.  This is the first stream, without which the hoardings would have been unlawful; that is the first stream.  The second stream is that, as Justice Isaacs said in Fullarton 21 CLR 181, in 1904 the erection of a tramway on a public road is not something you can do at common law. To carry out that activity, you need a statutory permission, and that permission came through the Transport Administration Act.

You have that Act at tab 10.  Critically, the objects in section 2A are transparent.  Section 3C constitutes the defendant as a corporation, as a government agency.  Section 3E gives the defendant the functions in Schedule 1.  These are the general functions.  If you go to Schedule 1 on page 132, relevant functions include ‑ ‑ ‑ 

GORDON J:   Sorry, the objectives are in 3D, is that right?

MR GLEESON:   Yes.  They are the objectives:  to plan for the system, to promote efficiency, promote delivery.  So, the promotion of:

safe and reliable delivery of public transport –

That object is one that was being carried out here.  Then, the functions in 3E take you to page 132.  Under the general functions in clause 1, relevant functions are (a), (c), (d) and (k), and then if you go to clause 3, on page 133, you have:

Transport infrastructure development –

functions, which more specifically deal with the present case; subclause (1)(a) and (c) and subclause (2).  They include:

carrying out development for purposes of or incidental to transport infrastructure –

Subclase (2)(b):

facilitating, managing, financing . . . development –

Subclause (c), any ancillary functions.  Then, under (3), “development” takes the broad meaning from the EPA, and then finally in that section, you have clause (9), which is the power to:

enter into contracts . . . in connection with the exercise of TfNSW’s functions.

So, the critical conduct that the defendant was sued upon was the entry of the project deed on 17 December 2014, and that entry of that contract is what is said to create the alleged nuisance which commenced at a later point in time, and that conduct was an exercise of the powers particularly under clause (9), but also under clause (3).  Then finally, the conduct was an exercise of the yet more specific power in section 104O.  For the purpose of 104O, there is a power to:

develop light rail systems, or facilitate their development by –

others.  The “light rail system” is defined in 104N(1), and that definition gives us some content around the authorised activity that a light rail system includes, relevantly:

tracks . . . supports for tracks . . . stops, access to stops, signalling and other control facilities . . . and other facilities and equipment associated –

And “develop” is defined in 104L, which is to:

carry out development –

“finance” development, “maintain” development, using the EPA meaning:

for the purposes of a light rail system –

Then, finally, 104N(2) says:

The regulations may declare a route along a road . . .

(a)whether or not a light rail service is operating along the route –

So, what that gives you – this is what I call the second stream of authority, the first was the Roads Act, which regulates one set of authorities, the second is the direct authority to develop and facilitate the development of the system.

Now, the primary judge thought – and the Court of Appeal did not expressly adopt this view – that the power in 104O does not spring up until you actually have a declaration of the route.  That, we submit, would be far too narrow a view of 104O, because development of a light rail system, which includes financing it and maintaining it and so on, must include taking the steps incidental to the finalisation of the route which will then ultimately be declared.

So, from the entry of the project deed on 17 December 2014, which is the critical conduct, the power in 104O was being exercised as well as the more general powers.  This will be important when I come back to section 43A, but for present purposes, as your Honour Justice Gordon put to me, the characterisation of the use is the development and the facilitation of the development by others of the light rail through the entry of the project deed as authorised by the New South Wales Parliament.

Your Honours, can I just mention the third stream, to complete it.  If you go over to 104P, effectively that disapplies Part 4 of the EPA Act, but brings the development within Part 5 of the EPA Act, and so requires a further set of approvals.  You see in 104P(4):

Development . . . includes anything that is incidental to the carrying out of any such development.

That includes, necessarily, the steps preparatory to the entry of the relevant contracts, as well as the administration of contracts.  So, if you go to the EPA Act, which is tab 5, on page 34 you have the broad definition of “development” that is picked up in the other Act, which includes “use”, “erection of a building”, carrying on of the work, “demolition of a building”.  Part 5 commences on page 43.  For our purposes, the relevant part is on page 63, Part 5.1, which is:

State significant infrastructure –

Under 115U, State significant infrastructure is that which is declared to be such, and I will show you the declaration in a moment.  Under 115V, you then have an elevated form of State significant infrastructure, which is that which is critical.

The effect of it being critical can be seen in the provisions that follow:  115W, you cannot carry out State significant infrastructure without the Minister’s approval, and you must comply with the conditions; 115X, you must apply for it; 115Y, the Director‑General must prepare an EIS in accordance with the provision; 115Z, there must be public consultation; 115ZA, the Director‑General of the Department must give a report.  It is only under 115ZB, after all those steps have been taken, that:

the Minister may approve or disapprove of the carrying out of the State significant infrastructure.

And the Minister must consider those matters.  Then, at 115ZH, there are certain provisions which indicate you must get:

a consent under . . .the Roads Act –

which I have also said was obtained.  So, in terms of the assessment of whether what is at the very major level of infrastructure in New South Wales is to proceed and how it is to proceed, you have a statutory process which will lead to proper examination of the issues and will lead to an approval and will lead to conditions.  All of that, we submit goes to the characterisation of the use.

GORDON J:   Can I ask two questions.  The first is that it was never put – sorry, is no longer pressed or was never put – I do not know which one it is, but I think it is at least the former – that you failed to get any necessary approval.  In other words, these are all of them, and you had them.

MR GLEESON:   We had them, yes.  The only case that was pressed of a breach of any approval was in respect to the Roads Act approval, and the findings were not obtained – so, that case failed.  So, your Honours proceeded on the basis that every necessary approval was not only obtained, but was not shown in any way to have been breached in the process.

BEECH-JONES J:   Mr Gleeson, is part of the significance of this legislation that you say that, to the extent one is looking at a common or ordinary use of a road, that such a use extends to uses of light rail, at least where the approvals are in place?

MR GLEESON:   Yes. 

BEECH-JONES J:   You are not – I did not understand you to submit earlier that “use” can be described as construction per se, no matter what you are building?

MR GLEESON:   No, that would be too ‑ ‑ ‑ 

BEECH-JONES J:   You would regard it as too loose; I understand.

MR GLEESON:   Yes.

BEECH‑JONES J:   Now, am I to find the only significance of this is to this part of the debate, or that this otherwise feeds into the multifactorial approach as well?

MR GLEESON:   No.  If you were tempted to adopt the appellants’ approach, at its highest, the Baron Bramwell approach – which we would regard as only a guide, not as a statute – is directing attention to two different conceptual questions.  The first question is, is there something about your use and your activity which, irrespective of the care that you may take looking after your neighbour in carrying out, is such that your neighbour should not be required to put up with it?

And so, at its highest, what “common and ordinary” was trying to do was to say, were you to take complete care, is then nevertheless something about this which should not be permitted?  The example given by the Court of Appeal is an airfield in a residential area, no matter how carefully conducted, would – leaving aside zoning requirements – be likely to be restrained as a nuisance.

The second step of Baron Bramwell’s approach was to say:  is there something about the manner in which you have carried out your activity which is taking you into the territory which the neighbours should not have to put up with?  These three strands of approval I am showing you indicate that we passed the first stage of that test, if that test be adopted, because we went to the three places we needed to go, we got the three approvals, and through different prisms, they said this is a lawful and authorised activity – indeed, one that the statutory corporation is bound to carry out.  It is not in the territory of a discretion of whether to build a light rail or not; its duty is to carry through this process.

EDELMAN J:   If that is right, what room would that leave for a defence of statutory authority?

MR GLEESON:   The defence of statutory authority will have particular work to do if one has a complaint about the manner in which the activity is being carried out.  So, the classic example in the railway cases is, in the United Kingdom in the 19th century, it was treated as established by evidence or judicial knowledge that conducting a railway gave rise to sparks coming off the railway.  That was part of the authorised use, so no complaints could be made about that.

If a person then went a further step and said:  I need to build a railway marshalling yard next to the railway, you might have questions about whether that is something that has been authorised by the statute.  The further you go into the detail of the manner and extent of the carrying out of the activity, what will happen at that point is either the statute will give you the answer to the question, or what the statute might do in many cases is tell you the standard which is to be applied to the nuisance inquiry.

One of the things this Court confirmed relatively recently in Bankstown City Council (2005) 223 CLR 660, which is in volume 2, tab 14, at paragraph 16, is that there is a body of authorities indicating that:

a body such as the Council is not, without negligence on its part, liable for a nuisance attributable to the exercise of, or failure to exercise, its statutory powers.

And there is a reference to Justices Gavan Duffy and Starke in Metropolitan Gas Co v Melbourne Corporation (1924) 35 CLR 186 at 179, that in a case where the claim might have been:

founded upon either trespass or nuisance or negligence, still the liability of the Corporation must depend upon whether, in the exercise of its statutory powers, it has acted negligently, so as to do unnecessary damage to the Company.

So, one of the things the statute can do – it can do many things.  It can characterise the use, as I put to your Honour Justice Gordon, and it therefore might go to deny any action in the first place.  What the statute may do is indicate that, where an area of discretion has been left open to the undertaker, fault will need to be proven in the exercise of the power before nuisance will be made out.  So, statutory authority and authorisation can come in at that next level.

That leads me to the submission your Honour Justice Beech‑Jones asked about:  onus, shifting onuses and the like.  I am going to, later on, show you that the evidence and findings are not quite as Mr Bannon presented it.  But leaving that aside, one should not speak about onus wholly in the abstract.  What one should be doing is firstly ascertaining, in the light of the statute, what is the relevant inquiry and does it require proof of negligence.

But one should then play close attention to the particular way in which the plaintiff seeks to charge the defendant statutory body with an exercise or failure to exercise its powers which generated a nuisance.  So, it is going to be highly fact‑specific.  The reason that is important is that, if you have the first volume of the core book, the primary judgment – this is one of the unusual features of this case – you will see, at paragraph 45, that:

the plaintiffs do not complain about –

any:

conduct of the defendant during the period when construction was being undertaken (as the defendant did not undertake the construction work).

So, just pausing there, unlike what you would normally expect in a construction nuisance case, the plaintiff did not identify anything that the defendant could or should have done differently during the period of construction either to reduce the level of noise, vibration and hoardings or to avoid prolongation of the period of interference.

So, when it is said there was an onus on the defendant and we did not call evidence, the defendant was not required to meet a case that there was anything that it did or did not do during the period of construction which constituted an actionable nuisance.  The sentence goes on:

The conduct of the defendant of which the plaintiffs complain is the conduct prior to construction, during the design, planning and contract negotiation phases of the project.

The case that was put in terms of our conduct was that there were things which could or should have been done in the period leading up to the project deed which, had they been done differently, would have reduced the period of time that it would have taken to complete the project.  And that, effectively, is what became case C.  It became case C because it was a case about different actions prior to and in the project deed might have avoided prolongation of the project.  Now, that is the factual element of the dispute which his Honour then summarised in the pleadings from paragraph 80 through to 84.

EDELMAN J:   It is that conduct prior to construction, is it, that involved the hoardings and the dust and so on, that is ‑ ‑ ‑

MR GLEESON:   No, no.  Sorry, your Honour, to interrupt.  This is what his Honour was trying to unpick in the case, which was a conundrum.  The only conduct that was said to be impugned at a level of reasonableness was the conduct leading up to and the entry of the project deed, which effectively came down to the following propositions.

Firstly, it was said what you should have done was investigate all of the utilities, to find out what was there before you entered a project deed.  So, you should not have entered a project deed unless you had perfect knowledge of all the utilities.  Secondly, it was said what you should have done was to enter agreements with all of the utility providers, like Ausgrid, in advance of the project deed, whereby you knew how they were going to deal with their utilities when you found them.

Thirdly, it was said there should be an early works project where, in effect, you deal with all of the utilities first, before you do the main construction.  So, you treat them as an entire separate exercise and only then do you start the main construction.  Fourthly, it was said, you should have negotiated better terms against the counterparty to put them under more onus to finish on time.  That was an essential factual case which was run – which was pleaded and which was run ‑ ‑ ‑

BEECH-JONES J:   But was that only the factual case to the extent that their case had to engage with whether your conduct was reasonable?  Were not the essential facts the actual interference?

MR GLEESON:   That was the case that ran, which said, accepting that there will inevitably be a substantial interference for a long period of time through noise, vibration and hoardings, that period of time could have been shortened from what it was, had you, in this earlier period, got this conduct right.

BEECH-JONES J:   That is case C.

MR GLEESON:   That is case C.  So, the point I am seeking to make at the moment is that the approach to nuisance and onus needs to carefully attend to the way the case was run.  On case C, what then happened was there was an entire expert debate you have not been referred to this morning, where they called one expert, and we answered it with two experts – one was a procurement man, one was a utilities man – and his Honour went through each of those four alleged failings that I have identified, and on each of them ended up either rejecting the plaintiffs’ case or being unable to accept it, at its most generous.

So, what that meant was we did engage with that factual case which had been raised, and we succeeded it.  And the reason we then won in the Court of Appeal was that the Court of Appeal said the whole of Mr Griffith’s work – and he was not a utilities expert or a procurement expert, he was just a programmer – the whole of his work made two critical assumptions:  the first being that before you enter the project deed, you have already found out every utility that exists; and the second is, you have already entered all necessary agreements with Ausgrid and the like, so you have all that stitched up in advance.

GORDON J:   That is, in effect, your first and second ‑ ‑ ‑ 

MR GLEESON:   The first and second, and so the whole of Griffith’s – you will see in the Court of Appeal’s judgment at paragraph 25, which sets out 487 and 488 from the primary judge – Griffith said the defendant should have taken the first and second steps that I have referred to.  And then, at paragraph 26, at 495:

The primary judge explained –

that:

the amended IDP –

dropping down to the end of the paragraph, assumed:

more knowledge and agreement in respect of utilities at the outset –

So, it is assuming those two matters have been addressed.  And then, at 59, your Honour Justice Gordon asked, was Griffith cross‑examined?  He was, and in the cross‑examination, he agreed, after some hesitation, that he was making an assumption that there was:

full knowledge of utilities in his amended IDP.

And then, at 61:

The principal debate between experts at trial –

who did go to those two assumptions was Mr Szmalko on the plaintiffs’ side and Mr Sampson, the expert on our side, and his Honour, in general:

preferred the evidence of Mr Sampson –

which is what the Court of Appeal then correctly go through, in a great deal of detail, all of the findings of the primary judge – these are the ones that have been glossed over this morning.  What that leads to, by the end of paragraph 69, is the Court of Appeal has reviewed the findings that the first of the two steps, namely, investigating the utilities before you enter the project deed, was not made good by the plaintiffs.

The second and the third steps they deal with at 70 and 71 together, under the case based on the so‑called “different delivery model”.  And that is rejected by the primary judge, and there is no challenge to that on appeal – paragraph 790 of the primary judge.  So, in terms of case C, once one closely attends to how the case was made, what evidence was led, what evidence we led, the findings which are undisturbed in the Court of Appeal, the net result of all that is that, as you see from paragraph 75, that the error that was found in the primary judge was that his ascertainment of the point at which the work became unreasonable was based on either:

the IDP or the amended IDP represented a reasonable estimate of the time within which the work could be done.

But, as seen between paragraphs 85 through to 96, the underlying assumption of that was defeated on the debate between the experts.

BEECH‑JONES J:   Is your proposition, though, look, for case C, onus does not matter because the nuisance was defined by reference to being that period beyond which it was unreasonable – they defined their case in that way, and the way they defined it required proof of that, and they failed on it.

MR GLEESON:   Yes.

BEECH‑JONES J:   I see.

MR GLEESON:   And on that, we – issue was joined, we did lead evidence and we got the necessarily findings.  So, where that left Griffith was that his amended IDP did not prove anything that was relevant to that prolonged period being an unreasonable period.

GORDON J:   And it did not do so because he was asking the wrong questions, as well as wrong assumptions?  Or just wrong assumptions?

MR GLEESON:   Both.  It was certainly the wrong assumptions – that was enough to remove it – but the wrong question point is what the Court of Appeal deals with at paragraph 96.  Paragraph 95 is the wrong assumptions, paragraph 96 is the wrong question.

GORDON J:   And it is the wrong question because it is looking at the wrong period?

MR GLEESON:   Not quite.  What it is doing is it is simply saying, if you were looking forward from the date of the project deed and if you were trying to work out how long the project might take, even if you had made all the right assumptions, in the end, all that is telling you is what is a reasonable estimate to make looking forward.  The point being made in 96 is that an estimate, even if ‑ ‑ ‑

GORDON J:   It is the second‑last sentence that I do not quite understand.

MR GLEESON:   Yes.

GORDON J:   Sorry, Mr Gleeson.

MR GLEESON:   No, we think what his Honour is saying is there is still a disconnect between saying an estimate at the outset looking forward to then is not the same as what is a reasonable period of time to carry out the body of work which is authorised by the statute, and ‑ ‑ ‑ 

GORDON J:   So, we are not comparing apples and apples?

MR GLEESON:   Not comparing apples and apples.

GORDON J:   They were comparing apples and oranges?

MR GLEESON:   Yes.  And what you would need to do, to do the right exercise, would be to take into account all of the realities of the project which, are briefly summarised in paragraph 96.  So, that is the second strand – 95 is the killer strand, which is that the critical assumptions were defeated on the debate between the experts.  So, your Honour Justice Beech‑Jones, we would say the onus point is not the issue, certainly on ‑ ‑ ‑ 

BEECH‑JONES J:   Case C?

MR GLEESON:   ‑ ‑ ‑ case C, because, for the reasons I have given ‑ ‑ ‑ 

EDELMAN J:   Well, all the facts are there.

MR GLEESON:   The facts are there, and at the end of it, all the findings are there as well, from the primary judge, and the error that was corrected in the Court of Appeal is simply identified as the mismatch between the assumptions that Griffith was making and where the evidence came out.  Now, the converse of that is that if they had won that evidentiary debate at trial ‑ ‑ ‑ 

GORDON J:   That is, that all of the assumptions were made good.

MR GLEESON:   If they were made good, then they would be able to say the amended IDP is, at least prima facie, a guide to how long this thing might have taken.  So, they would get over the problem in 95.  There would still then be a question in terms of whether 96 had operative work to do, namely, as soon as you exceed by one day the period identified in the reasonable estimate, have you created an actionable nuisance or does there need to be greater tolerance allowing for the authorisation of what is necessarily a very complex project?  But that issue just was never reached on the way the case fell out.

So, just to conclude this list of points, I have sought to explain that that statutory framework is going to be critical even if you were to elevate “common and ordinary” into some form of threshold inquiry, in fact, it is essential in that world.  And under that statutory framework, subject to any points of detail I am going to come to, this should have been characterised as a common and ordinary use.  It was the use of the road, as permitted by the Roads Act, in priority to the public’s right of passage, and for that reason, there is an error in the Court of Appeal at paragraph 122.

EDELMAN J:   It would have to depend on the particular statute, though, would it not?

MR GLEESON:   Yes.

EDELMAN J:   I mean, a statute that just provided a power for a government authority in very broad terms, without any particular specificity, might be very unlikely to, in every case, mean that the work that is done is common and ordinary.

MR GLEESON:   We would accept that, your Honour, but in some cases – and 122 is a good example – you will be able to see on the face of the statute that you have been authorised to put your hoardings outside the Strand store on the footpath and thereby, necessarily, unfortunately, reduce the passing traffic flow for that store.  So, the inquiry is quite a narrow one because the statute is so terribly specific about the activity.  But we would therefore say the error in 122 is that it has failed to look at the Roads Act which would have led to the opposite conclusion to the one there expressed, and ‑ ‑ ‑

GORDON J:   Where does it say that?

MR GLEESON:   Where it says:

That was not an ordinary use of the land dedicated as a road.  The essential aspect of land being a road is that there be a right of public passage.

Section 5 of the Act says it is a qualified right, and it gives way to what was authorised under the approval.

JAGOT J:   It cannot be ‑ ‑ ‑

GAGELER CJ:   One ‑ ‑ ‑

JAGOT J:   Sorry.

GAGELER CJ:   I think we were going to ask exactly the same question.  Go ahead.

JAGOT J:   I may be going to a different topic.  The whole point of State significant – well, not the whole point – a point of State significant development regimes is so that you can have development that would probably be considered uncommon and out of the ordinary use.  It is a mechanism of enabling that kind of development that would otherwise possibly be illegal or possibly be very objectionable to occur.  That is the way you do that kind of major development.  So, it cannot be that the mere fact that you have all planning approvals or other approvals brings it within ordinary and common use.

One, I am not following that, but, two, I am also, I have to say, not following how – I am still tied up on construction having nothing – the impacts of construction having nothing, necessarily, to do with the end user.  I am still struggling with how the ordinary – I can only attach ordinary, common use to end user.  Construction is construction.  It may be better or worse, but it is construction.  It does not matter whether it is for a purpose which it is of that end use.  So, how do you attach a label of “common and ordinary” to construction?

MR GLEESON:   Your Honour has two questions there.

JAGOT J:   There are.

MR GLEESON:   As to the first, we agree that is one of the purposes of the SSI regime.  It is so those decisions are made at the highest level of government, after a process that is meant to be comprehensive.

JAGOT J:   That is right – they are, basically, inherently objectionable.  That is why they are State significant development.

MR GLEESON:   But what that would tend to tell us, on our primary submission, which is you do not erect common and ordinary or non‑common and ordinary as a threshold inquiry, which is as soon as it is put into the non‑common box, the plaintiff has a complete cause of action.

JAGOT J:   So where is that in your – I did not read your notice of appeal – I understand that point, that you say common and ordinary is not really where it is at.  But you seem to be arguing to the contrary, that this was common ‑ ‑ ‑

GORDON J:   It is ground 1(a) and (c) of the notice of contention.

JAGOT J:   So, 1(a) is that it actually was common and ordinary, it is not?

MR GLEESON:   That is our notice of contention.  So, our primary argument, to be clear, is you should not be adopting “common and ordinary” as the threshold test.  And one of the reasons you should not adopt it is that it cannot sit comfortably many statutory regimes, including that one – Part 5, SSI.

Therefore, what you should do is to say that, that being put aside as a threshold test, that is a confirmation that the test is one of unreasonable interference having regard to all of the circumstances, and into that mix will go the fact that you have all of those approvals – which may not be decisive of the nuisance question, but will at least be highly weighty and important in the question.  That is the primary way we are putting it.

JAGOT J:   Excepting, though, that you could comply with all your conditions, you could be lawful in that sense, but you could still cause a nuisance.

MR GLEESON:   You could still cause a nuisance, but the nuisance is likely to be in Baron Bramwell’s second territory, which is something about the manner in which it is carried out ‑ ‑ ‑

JAGOT J:   Not conveniently done.

MR GLEESON:   Not conveniently done, which will be a subject that will be covered by all of the conditions and where we accept the conditions may not be decisive of the answer to the common law question, but they will be highly informative of that question.  So, our primary position is:  you do not erect the threshold, you allow the statutory approvals to inform the larger question, and in doing that, though, you pay close attention to what is said to be the nuisance.

So, if you are sitting under the 30‑storey building above the new metropolitan station and you say I have now lost my view, because I have a 30‑storey building there, and your objection is to the fact of a 30‑storey building next to you, and if that as what has been approved through all of the processes, it is very difficult to see how the common law of nuisance can coherently render that actionable, because you will then say I can get an injunction for the equity court, but over here, I have all my approvals.

EDELMAN J:   But that would be clearest example of statutory authority – the defence of inevitable statutory authority.

MR GLEESON:   But not just defence, your Honour.  We would submit it would go to whether nuisance can be recognised in the circumstance.  But whether it is that or a defence, the answer is clear in that sort of situation.  What that then leaves is – your Honour’s second question was about construction, and again, our primary position does not put “common and ordinary” over construction as the entry point to it.

It is a more nuanced inquiry which says:  what is it you are doing?  What is the plaintiff complaining about what you are doing?  Is that something they should have to put up with?  But it will include, in the typical case, an inquiry into alternative means.  So, in a typical case, if you are blasting when you could achieve the same result by jackhammers, that may be a factor which says the method – the technique – has gone too far.

If you are working 24 hours a day when you could slightly more slowly stagger it and allow some people to sleep at night, that choice of hours might be that which is considered under the nuisance claim.  Those matters will be partially addressed in the conditions of approval, but the common law can still look at it and say that may be too much for you to put up with.  So, that is how we would deal with the construction cases, your Honours.

What I wanted to just do then is two exercises following on from where I am.  The first is to give our submission in response to Lord Leggatt’s view that unreasonableness lacks any explanatory work, and we adopt what Lord Sales has said, but we would express it this way.  What unreasonableness does is say that you must give attention to all circumstances of a case which can bear upon the ultimate question of unreasonable interference, having regard to the prima facie right of each party to enjoy the use of its land lawfully and productively.  So, that is one thing it does – it says:  look at all the circumstances, do not blinker the inquiry.

The second thing it does through the cases, through the common law method of precedent, is that it identifies a series of factors that may be relevant circumstances.  If I could just summarise the ones you will see in the cases:  one factor is the object of the activity, and even Baron Bramwell said, with a purposive notion, there are some things – if you are doing them solely to cause spite, they will be a nuisance, without more.  Whereas if they are directed to some lawful and proper purpose, they may not be a nuisance.  That is the first factor.

The second factor is duration.  One of the reasons that building cases have been said often not to constitute nuisance is that is a temporary activity directed to an end – it will come to an end, it is painful while it is happening, but its temporary nature is something that may help to qualify it as reasonable.  In that frame, we would refer to even Lord Leggatt, who, at paragraphs 37 to 38, which were not read this morning, expressly made that point about building ordinarily being something that can be expected to be put up with.

The third factor – and we agree with the appellants – is locality.  That comes through very critically in the 19th century cases, as has been discussed by the academics, that in the 19th century cases, as the Industrial Revolution proceeded in England, the law of nuisance operated as a de facto form of town planning at common law, making the choices as to when new uses would be allowed into localities which otherwise may have disturbed their pre‑existing character, whether that would be allowed or not.  That is why you see cases like brick kilns, copper smelters, brass factories, and the like.  That is the third factor we say can be relevant.

The fourth factor is the availability of alternative measures or means on either side of the record.  We would agree with Lord Sales that, contrary to the majority in Fearn, that there can be cases where a small adjustment by the plaintiff to its activity might be sufficient to allow an activity of the defendant which otherwise has overwhelming merit, under reciprocity, to be permissible.  Equally, in many cases – and construction cases are the typical ones – the key inquiry is into what alternative measures are available on the defendant’s side to mitigate the interferences of which the plaintiffs complain.  Again, to erect “common and ordinary” as the threshold prevents that aspect of the inquiry occurring.

The next factor is the nature and extent of the plaintiff’s own use of its land.  The next factor is the impact of any relevant statutes.  The next factor is public benefit of the impugned activity.  In respect to that, the primary judge, when he rejected the entire period claim, brought, to our credit, what he described as the “public benefit” of the Sydney light rail in paragraph 916.  In that paragraph, he correctly tied the public benefit to the statutory authority exercising its powers.  So, public benefit is not some simply open‑ended inquiry for the common law judge; if there is a statutory basis for it, that would be critical.

Finally, although the list is not exhaustive, there is a general evaluative factor of generally‑accepted societal conditions in the day.  That is the language that is expressed in Sedleigh that is picked up in this Court in Elston v Dore.  It is language which exposes the evaluative nature of the judgement, but opens up the relationship between the plaintiff and the defendant to broader societal conditions at the time of the inquiry.  Your Honours, that list is not exhaustive, but we would submit it indicates that when the common law method builds from case to case and identifies relevant circumstances, the ultimate test of unreasonable interference – it does have explanatory work to do in the same way as it does in the tort of negligence.

Indeed, we would suggest that to collapse the broader nature of the inquiry, as it has always been done, into “common and ordinary” as a threshold test risks the type of error that occurred when this Court adopted proximity in negligence.  Experience shows that the cases, in fact, require attention to a range of factors, and the attempt to collapse them into a single box, label or classification and thereby constrain the balance of the inquiry can be counterproductive. 

On this list of points, the last one I wish to go to – I have shown you the Roads Act statute, I just wanted to show you briefly how the approvals were obtained under the TAA Act and under the EPA Act, and what they tell us about the lawfully authorised activity. The approval under the TAA Act is found in volume 1, at page 139. It is common ground that, by reason of that approval, the route was determined.

BEECH‑JONES J:   Mr Gleeson, volume 1 of what?

MR GLEESON:   The joint book of authorities, page 139.

GORDON J:   What tab is it, Mr Gleeson?

MR GLEESON:   Tab 11.

GORDON J:   This is the regulation.

MR GLEESON:   Yes.  So, that lawfully fixes the route for the purpose of 104N, as per the map, and it says in (3)(a) that it is:

the full width of any road that the route follows –

and the road:

includes a footpath –

and:

the stratum above and below –

and that builds off the definition of “light rail” that I showed you in the earlier section.  But then, if the Court has the respondents’ book of further materials, the process under the EPA Act commenced in the document at tab 1, which was the application by the proponent required by section 115X.  On page 11 ‑ ‑ ‑ 

GORDON J:   This is under the EPA Act?

MR GLEESON:   This is the EPA strand, yes.  The proponent starts the process, on page 11 they identify a range of issues, including “noise and vibration” and “business and economic impacts”.  On page 12, it is identified from the outset that it is going to take:

five to six years to build –

the whole project:

Construction would be staged –

in an attempt:

to minimise disruption –

Page 13 identified the construction impacts which were going to be inevitable, and that includes noise, vibration and hoardings.  Noise and vibration is particularly taken up at page 16.

GORDON J:   What are we to make of this document?  I am just not quite clear where it gets you.

MR GLEESON:   What we are seeking to show is that when we got the final approval under the EPA Act, it was as the product of a detailed process required by the statute where relevant impacts, including negative ones, would be identified and would be appropriately mitigated, but would never be eliminated.

Your Honour Justice Edelman may have said something this morning to the effect of:  a project of this scale, inevitably there is going to be noise, vibration and the like.  Through the EPA process, the result of the law was that those impacts were to be managed and they were to be mitigated, but it was always inevitable, when you authorise a light rail construction of this character, that there is going to be noise, vibration and hoardings for a substantial period of time.

In terms of, if one comes to it, the statutory inevitably defence which is in the notice of contention – and we think we have made this clear in writing – we do not rely upon that defence in answer to the partial period claim.  We did below; that failed.  That is gone.  The Court of Appeal said, one can see the reasons in it, you can get a lot out of this statutory framework, but what you cannot get is Parliament authorising that the length of time of the SLR will be the time you took, because the process just ‑ ‑ ‑ 

GORDON J:   That is where I am lost.

MR GLEESON:   What it does go to is ‑ ‑ ‑ 

GORDON J:   And that is the difficulty ‑ ‑ ‑ 

MR GLEESON:   It goes, your Honour, to the entire period claim, because what – the entire period claim says:  from the first day that, outside the Strand store, there was non‑trivial noise, vibration and hoardings, there was an actionable nuisance, and you could get an injunction that day, and you could also get it – it says – for every day thereafter, but the way to test it is you could get the injunction on day 1.

In answer to that, the EPA strand of the process showed it was inevitable that there would be noise, vibration and hoardings from day 1, and that they would continue for a substantial period of time.  It did not make it inevitable that they would continue for the exact time they continued for, but from day 1, this project could not have been done without noise, vibration and hoardings.  So, that provides a complete defence – if it were needed – to the entire period claim.  That is our notice of contention.

BEECH‑JONES J:   Sorry, is the entire period claim one you say is all or nothing?

MR GLEESON:   The entire period claim says – yes, the entire period claim says, from the first day ‑ ‑ ‑ 

BEECH‑JONES J:   I understand that, but that does not mean if your defence defeats it for one day, it is gone, though, does it?

MR GLEESON:   What it showed – your Honour is correct, logically, I accept that.

BEECH‑JONES J:   That is all I was asking, yes.

MR GLEESON:   Yes.

GORDON J:   That is, you have to make the inquiry at some point, as a temporal ‑ ‑ ‑ 

MR GLEESON:   And this is where it comes back to my point about how the case was run.  Their primary case is:  we can get it, all or nothing, for the whole period.  Their only alternative case is:  we can get it from the period that the amended IDP tells us the work should have been finished.  They were the cases that we had to meet.  So, I am simply saying, through this process, this is as good as we got to show that there was always going to be noise, vibration and hoardings for a substantial period of time.

GORDON J:   The difficulty I have with this kind of analysis, though – and with no disrespect, Mr Gleeson – is it is sort of circular in its nature.  Circular in this sense:  it is that one starts with the statutory framework to identify whether or not we have a common – in a sense, to avoid the question of common or ordinary use, and then we have justification by reference to the same provisions and what flows from it.

MR GLEESON:   We would put that it is not circular, your Honour.  What it is indicating is ‑ ‑ ‑ 

GORDON J:   I do not mean any disrespect, but that is just the way it seems.

MR GLEESON:   No, I will take disrespect – if it is coming from your Honour rather than Mr Bannon, I am happy.  The statute can inform the inquiry, we would say, at various stages.  If we are right in our primary argument, we do not get to this level of detail.  In our primary argument we say it has provided the character of the use, and so we would ask you to feed into the overall assessment a lawful construction of important public infrastructure in accordance with all appropriate approvals, which inevitably is going to cause noise, vibration and hoardings as part of the exercise.  That is all we ask you to feed into the inquiry.

BEECH‑JONES J:   Now, to that inquiry, that is your principal case.  What is determinative in this case as to why they lose?  On your primary way of looking at it, which is not the “common and ordinary use” – what is it about this that gets you home?

MR GLEESON:   So, can I answer that at two ‑ ‑ ‑ 

BEECH‑JONES J:   At whatever point suits you.

MR GLEESON:   No, no, now, but at two levels.  The way the appellants’ case was run at trial, the whole of their entire period claim on ground 1 was hinged upon Baron Bramwell and Fearn.  They said, provided we get the finding on non‑common and ordinary, we win.  They ran no alternative case at trial or in the Court of Appeal to say that, if we are right and it is a broader inquiry into all the circumstances, nevertheless, they win for the entire period.

This is not just a pleading point, this is explaining.  That is why you do not see, in the Court of Appeal’s judgment, any analysis of that type of case.  The Court of Appeal dealt with what was there alive before them.

BEECH‑JONES J:   So, that is a straight question of law.

MR GLEESON:   That is a straight question of law.  If they win on the question of law then, subject to an available defence, they have won.  That is the way they ran their case.

GORDON J:   And do you accept – just to finish that off – that the available defences on that straight question of law are, for you, inevitable, no negligence, and statutory authorisation?

MR GLEESON:   Yes, they are – firstly, is it common and ordinary after all?  But then, secondly, statutory authorisation, inevitability; thirdly, section 43A.  I will come to that separately.

BEECH‑JONES J:   And on the second one, where is a finding that is sufficient to be able to defeat their whole period?

EDELMAN J:   You do not rely on them for the whole period; the second one – the statutory authority – you only rely upon it to defeat the partial claim, is that right?

MR GLEESON:   I just misunderstood your Honour Justice Beech‑Jones’ question.

BEECH‑JONES J:   I am sorry.

MR GLEESON:   If I can just take them in turn.  When you say “the second one” ‑ ‑ ‑ 

BEECH‑JONES J:   The second of those defences.  You said:  I have three defences to Mr Bannon’s primary claim.  My question was – so, as I understand it, you do say to his primary claim, that the law is accepted as it is, and if it is said to be it is not a common or ordinary use, you still have statutory inevitability.

MR GLEESON:   Yes.

BEECH‑JONES J:   If that is right, my query is, you do not have a finding as to any period of time beyond the first substantial interference, as I understand it.

MR GLEESON:   Your Honour is correct, and that is because of the way ‑ ‑ ‑ 

BEECH‑JONES J:   The case went and unfolded.

MR GLEESON:   ‑ ‑ ‑ the case went.  So, that was – that is on the assumption their schema is correct.

BEECH‑JONES J:   Of course.

GORDON J:   Yes.

MR GLEESON:   If our schema is correct and this is, at most, part of something you put into the inquiry, that is not the case they sought to run, and that is why you do not see the Court of Appeal ‑ ‑ ‑ 

BEECH‑JONES J:   Addressing it.

MR GLEESON:   ‑ ‑ ‑ doing the multifactorial assessment for the entire period claimed.  So, as we would see the order of issues on the entire period claimed, the first question is:  do you accept the Fearn majority?  If you do not accept the Fearn majority, that is the end of the entire period claim.  If you accept the Fearn majority, should you find that the use, properly characterised in the statutory context, was in fact common and ordinary?  If you accept that, that is the end of the entire period claim.  If we have failed at those two stages, you then are at the stage of:  do we have a true statutory defence to it, including 43A?

BEECH‑JONES J:   But there is nothing else.

MR GLEESON:   At that point, yes.

BEECH‑JONES J:   Yes.  All right – at that point.

MR GLEESON:   At that point.

BEECH‑JONES J:   And at some point – I do not want to take you off your argument – Mr Bannon, I think in paragraphs 11 and 12, has a whole period claim based on Lord Sales, but I do not want to put you off.

MR GLEESON:   Can I just deal with that.  That claim you should reject, because that claim was not run at either level below.  I will show you that it was not run at either level below.  In the primary judge at paragraph 90 and following ‑ ‑ ‑

GORDON J:   Sorry, Mr Gleeson, can you just give me those paragraphs again, please.

MR GLEESON:   Paragraph 90 and following.  So, case A, which was read out this morning, is the case you have heard that once it is non‑common and ordinary, they win subject to a defence.  That is the only entire period claim.  Then case C, at paragraph 98.  It was premised on the use of the land being common and ordinary, and then it was a case based on the partial period.

If your Honours have volume 3 of the respondent’s book of materials, where it was confirmed in closing.  In tab 12, page 1007, paragraphs 1 and following are the entire period claim based on non‑common and ordinary use.

GORDON J:   This is before the primary judge?

MR GLEESON:   Yes, and over the page, paragraph 48, the alternative claim is the partial period claim.

BEECH-JONES J:   That is 46 to 48, is it?  Headed:

Reasonable Period –

MR GLEESON:   Yes.

BEECH-JONES J:   I see.  That is case C?

MR GLEESON:   Yes.

BEECH-JONES J:   But you say there is no variant on case A based on Lord Sales?

MR GLEESON:   There is no variant.

BEECH-JONES J:   Yes, I understand.

MR GLEESON:   Can I give your Honour another answer which takes it further.  If you have the appellant’s outline ‑ ‑ ‑

GORDON J:   In this Court?

MR GLEESON:   In this Court.  Firstly, we would say as to paragraph 11, that is not the correct test once you reject the Fearn majority.  It is not a question of an:

objective standard of reasonable conduct in the undertaking of the work which cause the substantial interference.

The question is whether it is an unreasonable interference with the use of their land, having regard to all circumstances, including the nature of your conduct in carrying out the work.  So, 11 is too compressed.  But 12 says, you have:

failed to satisfy that standard.

And it gives reference to some paragraphs, and then says:

Actionable nuisance for the entire period is established.

Those paragraphs, when you look at them, are not about the entire period, they are about the partial period claim.  So, if I could just go through them now so that is done.  Paragraph 820 of the primary judge – you really need to pick it up at 812, and this is the one where the Court of Appeal said they could not quite understand why we were seeking a negative finding in a case where we did not have a positive case being made against us, and therefore they would not spend much more time on it.  One can understand that approach.  In 812 his Honour says, this is why it is:

difficult . . . to answer –

In 813, it “is not essential”.  Paragraph 814, as we press the issue – perhaps foolishly:

I will consider it.

Paragraph 815:

I have also found the question a difficult one to answer because the failures identified by the plaintiffs . . . are particularised in the context of the delay, rather than a breach of any duty of care.

So, this comes back to what I said about the partial period claim.  These are the four failures that they alleged.  His Honour says:

I can only look at the evidence and make a determination based on the expert evidence as well as the planning documents.

Here, his Honour is looking at those experts I mentioned this morning that were dealing with the alleged failure in the period leading up to the project deed.  He then makes an observation about the “alternative delivery model”.  That was the third of the four matters:

The suggestion that the defendant should have adopted an alternative delivery model rather ignores the reasons that it moved away from that alternative model in the first place.

Mr Bannon mentioned that briefly this morning.  That was the idea that they chose six intersections in Sydney and they did some work at night to send people scurrying down manholes to try and find utilities, and for reasons his Honour explained at length, that approach was abandoned.

The idea that you could find all the utilities beforehand, particularly by doing the work at night, was abandoned, for reasons he has explained, and he gives another reason why that model failed in the last sentence of 816, and he makes that point in 817:

It is also difficult to accept that the defendant should have adopted a more extensive Early Works program followed by a less extensive Civil Works contract, when even the limited Early Works contract was unsuccessful (for reasons which were barely touched upon –

He then makes a point about knowledge, in 818.  He says, in 819, in a paragraph the Court of Appeal overturned because Griffith’s opinion was not supported by evidence.  Then, in 820, says:

I am unable to be satisfied that the defendant exercised reasonable care to protect the interests of the business owners . . . It engaged on terms that offered little by way of deterrence . . . It did so due to market demands –

et cetera.  So, the finding in 820, that is a finding that we did not prove we exercised reasonable care in respect to at least this aspect of the four challenges.  Namely, whether we did enough to deter the contractor from delay.  That has nothing to do with an entire period claim, that is to do with a partial period claim.

So, to the extent this whole issue, which turned out to be a complete distraction, was addressed by the primary judge, it was not in any way which could lead to the conclusion in paragraph 12 of the appellants’ outline that actionable nuisance for the entire period is established.  If you then look at paragraphs in the Court of Appeal which are referenced, they fall into the same category.  So, 105 is referenced, but you really need to pick it up back from 98, where the Court of Appeal is going through these paragraphs.  In 103, the court said this:

was not how this litigation was conducted . . . the primary judge was not asked to find, and did not . . . find, how any failure to take reasonable care caused damage –

At 104 and 105:

Litigants are of course free to make –

their choices.  The defendant:

cannot . . . choose to leave unexplained why the construction activities took so long, and on the other hand complain when –

you do not get a negative finding out of the judge.  Now, all of that is in the context, as I said earlier, from the primary judge at paragraph 45, that there was no complaint about the conduct of the defendant during the entire construction period.  So, it is a little hard to see that any of that sideshow, which was how the Court of Appeal viewed it, translates into the plaintiff, on a principal basis, succeeding on the entire period claim.

BEECH-JONES J:   It does seem to come back to, really, you saying:  we made our forensic choices based on how we say they ran their case.  We say they did not run the case in paragraph 11, and whatever we did ask for, we were not seeking to respond to that sort of case.  Is that what it comes to?

MR GLEESON:   Yes.  That is what we are saying.

BEECH-JONES J:   I am sorry, I started this – took you off your track, Mr Gleeson.  I think you are at the application for the State significant development.

MR GLEESON:   I am not detecting a lot of love for your Honours to read the application for State significant development at length – perhaps briefly.  Can I just highlight these points, which I think will take about seven minutes.

GORDON J:   So, we are going back to the application ‑ ‑ ‑ 

MR GLEESON:   Yes.

GORDON J:   ‑ ‑ ‑ and these are directed – I keep asking the same question, I know, but these are directed to establish what?

MR GLEESON:   To establish that a construction of this character inevitably was going to produce significant noise, vibration, and hoardings for a substantial period of time, which could be managed and mitigated, but could not be reduced below a level of substantial interference by any suggested means.

EDELMAN J:   So, this is your notice of contention ground 1(b), which is inevitable consequence only to the entire period claim.

MR GLEESON:   Yes.

EDELMAN J:   And it is put on the basis of either the majority or the minority approach in Fearn.

MR GLEESON:   Yes.  So, the original proposal – I have taken you to that.  The second step is that an EIS is prepared, which commences at page 23.  At pages 33 to 34 it identifies noise and vibration amongst the impacts, as well as hoardings.  And then it has an entire chapter, chapter 12, commencing at page 87, which analyses in detail the impacts in fee zone 5, which is one of the appellants’ stores.

Then, at page 223, there is a similar, detailed chapter on the second of the appellants’ premises, and in each of those cases, I will just give you one example, page 156 to 161, the “noise and vibration impacts” are identified, and it is discussed how they are going to be managed.  The third step is the Director‑General gives the report, which is at tab 3, commencing at 314.  At 317, the Director‑General says that noise vibration can be mitigated but will remain as an issue.

GORDON J:   Where do we see that?

MR GLEESON:   Page 317, second and third full paragraphs.

GORDON J:   Thank you.

MR GLEESON:   Page 332, under the heading “Consideration”; 343, from the middle of the page to the bottom.  Then all that leads to the approval at tab 4, which is page 349, so this is the approval for the State significant infrastructure.  As to the conditions, going directly to page 358, firstly, there are a set of conditions around “Construction Hours” – that is B2 to B4; secondly, there are “Construction Noise and Vibration Impact Statements” – that is B5; B6 to B10 specifically control how construction noise is to be managed, including as to B7, it is recognised that: 

rock breaking, rock hammering, sheet piling, pile driving –

are likely to:

result in impulsive or tonal noise generation –

and they are limited to certain hours of the day; B8 requires that, where practicable, bored piles or vibrated piles be used in exchange for more noisy method; and B9 says:

No blasting –

ever.  So, the extent of the authorisation and control over the activity and the method was intense.  And coming back to your Honour Justice Jagot’s question, as we would put it, in a construction case, if you were complaining about an excess of noise or vibration, these types of conditions would be relevant but not decisive in terms of ascertaining whether a nuisance had been proven, but what you would expect to see in the case is the plaintiff identifying precisely how it was seeking to make out the nuisance.

Paragraph B20 on page 361, that required, effectively, hoardings, because you had to maintain safety for pedestrians and cyclists.  Similarly, B24 on page 362, B89 on page 378 – detailed plans and so on.  So, that is the end result of that approval.

GORDON J:   Are there any – I should not ask this question, but subject to amendment throughout and consistent with the building contract or building construction, on the bottom, does that affect any of this analysis?

MR GLEESON:   No, because these are the conditions that govern the project.

GORDON J:   Well, they are subject to amendment and change, as we can see by the colours, by reference to the amendments below.  Does that matter?

MR GLEESON:   No, I think your Honours can assume it does not matter, because that was not a level of detail that was fought over.  So that is one approval.  Just to conclude this topic, I wanted to show you the approval under the – what you have in volume 2A, I will not go to the detail of them, that is the detailed plan to manage noise and vibration.  Again, a high degree of descriptiveness as to how these issued are to be mitigated. 

Then in volume 2B at tab 7, page 681 you have the roads approval.  At clause 35, page 698, subclauses (c) and (e), hoardings were required; they are described there as “barricades”.  The relevant approval attached its own set of conditions, including, at page 708, clause 9(a) through to (h).  Those were the conditions which the plaintiffs failed to prove there was any breach of.  Your Honours, next, I mentioned there were three cases that have dealt with construction.  Can I go to them in turn.  The first is ‑ ‑ ‑

GAGELER CJ:   Mr Gleeson, as you do that, I appreciate that construction is an appropriate category of cases to look at.  Another category of cases – that may or may not exist, but I would be interested in exploring – is what I might call public authority cases.

MR GLEESON:   Yes.

GAGELER CJ:   This language of “common and ordinary use” perhaps makes sense in a context of private landowners using their own land; I find it almost impossible to apply to a public authority doing extraordinary things on public land.

MR GLEESON:   Your Honours, can I go to those cases and then come to the construction cases.  In volume 2 of the joint book of authorities, can I start with Fullarton (1916) 21 CLR 608, which is at tab 22. This was a tramway case. So, it was a personal injuries case where the plaintiff had come into contact with an uninsulated live wire used as part of the tramway network, and the defence was a general denial.

The result of the case was that the majority sent the matter back for a new trial, because they considered the facts had not been fully found.  They did so for slightly different reasons.  Justice Isaacs – and we commend this in principle – at CLR page 198, at about point 4, says:

The defendants’ undertaking is not carried on at common law.  If it were, the defendants’ liability would . . . be undeniable . . . There would be a nuisance causing damage . . .

The business is carried on under statutory permission, and the terms of that permission are all important –

That, we submit, is the correct entry point for a case like ours:  the defendant cannot conduct this light rail at common law, the entry point is the statute.  His Honour then goes through Tramways Act 1890, which leads down, at the foot of the page, to an Order in Council that all reasonable precautions must be taken to ensure the safety of passengers.  Then, at page 199, further analysing the statutory structure, says at about point 4, citing Lord Dunedin in Sharpness New Docks:

“authorization by Statute to do a particular thing makes that thing, when done, a legal act and imposes no liability.”

His Honour then analyses:

the Order in Council, electricity was declared to be the motive power . . . the mere fact that electricity issued from the post and wires, placed where they were . . . imposed no liability.  If that was the necessary result of the normal use of the post and wires and electricity, the damage sustained must be borne, because –

and he gives the reason:

it ensued from the normal use of the very thing authorized, and was not the consequence of an “act or default” of the Company within the meaning of reg. 21 –

At the foot of the page and over the page, his Honour contemplates two ways in which the plaintiff’s action might be brought.  The first is in negligence, a failure:

in the fulfilment of the common law duty of taking proper care –

The second is there explained, and then his Honour says:

I venture to think . . . by losing sight of the full technical sense of the word “negligence” . . . confusion has arisen . . . However the matter is looked at, the question is whether the defendants neglected a duty.

Then he went on to identify what is the relevant duty, and there is a discussion of that, and the analysis continues – I will not read it – over on page 201 through to 202.  Page 202, point 4, his Honour leaves the burden of proof alone.  So, very much through the – where one is dealing with an exercise or non‑exercise of statutory powers, that provides the prism and the question becomes one, even in nuisance, have you neglected a duty?  The approach of the other Justices in ‑ ‑ ‑ 

EDELMAN J:   Was it – I think you have said it was a duty in this case, but was it a duty or a power?  Was there actually an obligation to build the light rail on the authority?

MR GLEESON:   It works like this:  there is a function of developing and facilitating the development of a light rail, which becomes this light rail.  There is then every power necessary to carry out that activity.  As a statutory corporation, sitting there, saying:  what am I to do?  That is the thing that Parliament has required me to do – requested me to do, required me to do – if I sit there and do nothing, I will not be carrying out my statutory mandate.

BEECH-JONES J:   Was the statutory mandate to build the light rail, or to ‑ ‑ ‑

MR GLEESON:   To develop, or facilitate the development of, and then the operation of a light rail. That is why 104O of the TAA is the critical power.

EDELMAN J:   But you say it is more than a mandate to do it, it is a duty to do it.

MR GLEESON:   Well, it is at least a mandate, your Honour.

EDELMAN J:   A mandate is a power – or can be a power.

MR GLEESON:   It can be a power.  But when you have said to a statutory body, this is a specific, identified function we have given you and we have given you all necessary powers to do it, that looks perilously close to saying that is what Parliament is requiring you to do.

I just was going to identify that Chief Justice Griffith and Justice Barton proceeded on a route slightly different, perhaps at the foot of 187 over to 188.  The end point of their reasoning – although the Order in Council was relevant, see the foot of 188 – was that the matter needed to go back for a new trial to ascertain whether, factually, uninsulated wires were a necessary step of conducting a tramway.  So, that is the first case on authorities.

The second one is Metropolitan Gas (1924) 35 CLR 186, which is volume 3, tab 27. In that case, there were, in fact, two statutory corporations, and it was a conflict between them, because one of them had conducted a drainage operation and the other one had conducted a gas operation. The passage at the foot of 191, in Justice Isaacs as Acting Chief Justice, indicates that a pleading was in nuisance, negligence and trespass, and the wrong alleged was:

the improper way in which the Corporation made its drain –

He said:

The two first‑mentioned grounds of action have been asserted for a purpose, namely, to fix the onus of justification on the Corporation.  I am unable to accept either nuisance or trespass as a starting‑point.  At the threshold of this inquiry I find the matter . . . to be one of conflict of powers under statute and the application of those powers to the facts.

The Company’s right is not a common law right which has been prima facie invaded and calls for a statutory defence.  It is a statutory right . . . Nor is the Corporation’s defence a common law defence.  It depends upon the extent of its powers notwithstanding the existing Act incorporating the Company.

So, at that point, his Honour proceeds to analyse the statutes governing both the plaintiff and the defendant.

GORDON J:   It is the sort or kind of analysis which is in a different field but not that different to when we looked at public authorities in the context of Western Power.

MR GLEESON:   Yes, your Honour, and it is indicating that ‑ ‑ ‑

GORDON J:   That is the same kind of analysis.

MR GLEESON:   It is that kind of analysis, and it is saying, whether you are in nuisance, trespass or negligence, this is the prism which will tell you what it is a plaintiff needs to establish to win.  Through the analysis of this statute, at 194, the conclusion in the first full paragraph was that the plaintiff would have to show “actionable negligence”, such as:

some reasonable precaution omitted which would have prevented the injury to the pipe –

even in nuisance.  So, it is that critical attention to the statute which is not just about a statutory defence of inevitability, it is about that which the common law of nuisance requires.

GORDON J:   The logic is, though, that if one goes through this prism on your analysis, and one can identify:  I have all these approvals; then, the way it would be pleaded and proved, as I understand it, is that the plaintiff would have to identify breaches and it would then have to identify actionable breach, and then damage flowing from that actionable breach and there would then be alternate pleas.  Is that where it got to? 

MR GLEESON:   Yes.

GORDON J:   So, one has, in effect, aligned.

MR GLEESON:   Because of the statute providing the prism – and, in fact, the pleading that I showed you of the plaintiff is consistent with that because they said:  these are the things you did wrong, even up to the project deed, which is what has rendered you liable for the interferences we have suffered.  So, it is the exact approach saying:  you exercised your powers, ultimately under 104O, to enter a project deed on a certain date, on certain terms which were such as to create and make you liable for the interferences I later suffered.

GORDON J:   So, what does nuisance give you over breach of statutory duty giving rise to in the way we have described it in Western Power?

MR GLEESON:   It does not in this case. 

GORDON J:   Does it ever?

MR GLEESON:   This will depend upon whether the statutory regime operates in this fashion.  In this type of case – the point Justice Isaacs is making – it would not matter whether you plead nuisance, trespass or negligence.  This statute and this regime requires the plaintiff to prove negligence.

BEECH‑JONES J:   But if you had someone who just had a licence to run a fruit stand who did not have a relevant interest in property, they would not get to base 1 on negligence, so then there would be – then they would have to rely on the statute for a statutory cause of action.

MR GLEESON:   Yes.

BEECH‑JONES J:   So, does this come to – in this case, it was element of any cause of action, you could not just complain that you developed the light rail system, you had to show you did a bad job, or a negligent job of developing the light rail system.

MR GLEESON:   Yes, and taking up your Honour’s question, it illustrates where nuisance could give you something more than the others, because the interest it is protecting is your interest in the use of your land and your amenity therefore, and so that might give you an entry point in negligence; you would need to establish a duty of care, foreseeability, undertaking and so on.  Trespass, you would need to establish something extra.  Namely, some physical interference with you or with your land.  So, there are subtleties between what the three ‑ ‑ ‑ 

EDELMAN J:   Which aspect of the grounds of appeal or the notice of contention does this argument relate to?  I mean, it was not run in these terms in the Court of Appeal, was it?

MR GLEESON:   It was not run in these terms in the Court of Appeal.  So, what does it relate to?  It relates to – to take them in turn, you should not adopt Fearn as a one size fits all case for all nuisances.  One of the reasons being it does not accommodate these well-established principles which apply, e.g., where it is a statutory corporation that is being sued for the exercise of its powers.  So, you should not adopt Fearn.

Under the notice of contention, if you are adopting Fearn, these are reasons why it is not common and ordinary, et cetera, but to the extent – and it really comes out, perhaps, of ground 2.  As ground 2 is being developed, going back to 11 and 12 of Mr Bannon’s outline, this idea that ‑ ‑ ‑ 

GORDON J:   But what is being put here is broader than ground 2.

MR GLEESON:   But it shows ground 2 cannot be right in principle, because ground 2 simply says whenever you have a nuisance count, you cast an onus on the defendant to prove an objective standard of reasonable conduct.  This line of cases, which we feel bound to draw to your attention, show that, under many statutes governing public authorities, it is in fact the exact opposite, which is the statutory construct requires the plaintiff to prove negligence if they are to succeed in nuisance.

BEECH‑JONES J:   I am not sure how this point would interact with Lord Sales’ approach, either.  It does seem to be a new point specific to statutory permissions and authorities – to me, anyway.  The view that Lord Sales – this appears to say it is, as I understand the submission, it is if you have a statutory permission or mandate to develop light rail, then in whatever way you sue – but if it is nuisance, you have to show that the statutory mandate was performed negligently.  That is not a multifactual approach, that is a knockout point, as I understand it.

MR GLEESON:   Yes.  It would be a knockout point, but can I frame it in this way.  This statutory regime is imperative and prescriptive in some respects; you must follow this route, you have no choice to inflict the noise and vibration on someone else.  In other respects, this regime does confer an important statutory discretion on the defendant, and critical part of that discretion under 104O is:  what is the best way to develop or facilitate the light rail?

In the exercise of that discretion, one of the critical questions that the defendant faced was:  at what point, and at what cost, do we keep going more investigations to try to get better knowledge before we contract, and at what point do we determine we have the best possible contract we can get, having regard to all the interests we are managing to, as opposed to further negotiations?  At the heart of this case, which is what the primary judge referred to at 943, the factual case that was being made was that:

the defendant entered into the Project Deed at a time when it did not know the extent of the utilities risk and on terms which offered little deterrence to the D&C contractor from overstaying . . . The risk . . . eventuated.  Because of the terms on which it had engaged and the incompleteness of its knowledge about the utilities risk, there was significant prolongation of construction activities –

So, at the heart of this part of the case being made was this exercise of statutory power is what his Honour said created the problem and, therefore, rendered us liable in nuisance.

GORDON J:   And is your complaint that that finding did not rise to a sufficient level to constitute a basis for liability?

MR GLEESON:   Yes, because ‑ ‑ ‑ 

GORDON J:   That is because it was not either negligent, breach of statutory duty or some other label attached to it.

MR GLEESON:   Or any other label that could have fault attached to it.

GORDON J:   Sorry, I meant to add:  any other label that could have fault attached to it.

MR GLEESON:   Fault attached to it – why?  Because the reasoning does not identify – and the evidence turned out to be the opposite – anything that could have been done to prevent this occurring.  That is why, when your Honours look at – paragraph 940 is an important paragraph in the primary judge’s reasons because, apart from its problems with the IDP, what his Honour seems to have done, as a matter of law, is to say – this is why I say this is the ghost of Rylands v Fletcher arising – if you sign a project deed and thereby authorise construction activities, and if you foresee a risk, and it is a significant risk, and if you are unable to effectively contract against that risk, and you cannot, because no one will give you better terms, and the risk comes home, you are liable in nuisance.

So, that is the critical strand of his Honour’s reasoning, apart from its reliance on the IDP.  So, to the extent that that is being embraced in any way by the appellant – I am not sure it is, if it is, I draw attention to these authorities which suggest that if the scheme is properly construed, the law does not work this way; it works in a different way.

GORDON J:   I had thought – I will find it overnight – if there was substantial interference, you accepted that you were personally liable.  Is that a different point?

MR GLEESON:   That is a different point.

GORDON J:   Could you just explain to me, before we rise, what the difference is?

MR GLEESON:   What was accepted was that if there was substantial interference which rose to the level of an actionable nuisance, then we could not deny that our entry of the project deed had created or procured that event.  That is what was accepted.  What was not accepted was that the chain of reasoning that you see at 940 is appropriate reasons to render us liable.

EDELMAN J:   It is a very large proposition to say that a statutory authority, under any particular statute, that is empowered to engage in an action is effectively to be treated differently from any other person that has a power to engage in that action not under statute, because the person would be potentially liable for nuisance, but the statutory authority would only ever be liable for negligence or for a negligent requirement in tort of nuisance.

MR GLEESON:   Your Honours, I am not putting it that high.  I am drawing attention to the authorities because they are in this Court.  I think that the authorities really need to be understood as saying, on an analysis of this statutory scheme, either so‑and‑so activities have been authorised, and therefore immune from liability, and so‑and‑so field of activities are such where, by conferring the discretion upon you, we are intending that you exercise that discretion as you consider best, but always within the limits placed around you of negligence.

What is at the heart of it is an idea that by conferring the field of discretion, it has created a genuine discretion but placed parameters around it, a little bit similar to, in public law, this Court saying that legal unreasonableness will create parameters around statutory discretions.  So, we do not ask your Honours to say it is a rule for all statutes – and there will, of course be other statutes.

The classic case that is illustrated at the opposite end of the scale is Metropolitan v Hill, which was the case about the building of the asylum in the 19th century in England, and on the basis of that statute, properly construed, the question was:  they were given the function and power to build an asylum, but because they had such a range of places where they could put it, the statute gave them no immunity from the ordinary law of nuisance, and so there was no question of negligence in that case, it was no immunity.

So, your Honours, just in terms of where I am going tomorrow, I have to conclude these points, but the issue that I am dealing with on these cases is also the bridge into section 43A, because our argument is that this proceeding, in the way I have explained, was based upon the exercise of a statutory power in 104O, plus the general provisions, to enter the project deed as and when it was entered, which in turn is the critical step in our liability for nuisance.

We then have to show that is a special statutory power – and it is, because no one else has the ability to do these things – and then, once that is done, there is only one question of construction left, which is whether 43A is limited to actions brought under the tort of negligence, as opposed to its opening language, which is that it applies generally to the Part.  And so, the essential reason which underlies 43A is where you have a discretion conferred upon you and where ordinarily you would be subject to an approach under the common law, if it is a statutory power of a special character, you should have a Wednesbury standard applied to you.  And that is what we say is a further answer to the case, particularly on the partial period claim.

GAGELER CJ:   Mr Gleeson, is one way of conceiving of the interaction of the statutory authority with the tort of private nuisance to think of the two levels which, I think, Baron Bramwell stated the law, as you previously put to us, drawing a distinction between what is done on land and how it is done?

A possible way through it would be to say that the statutory authority is an answer to a claim in nuisance based on what is done on the land, if there is authority to do that on the land, but perhaps not an answer to how it is done, if it is done in a way that it unreasonably interferes with the rights

of or in the enjoyment of land by others?  That is, is it really necessary to say it is the whole of the law of nuisance that is excluded, and it is only negligence, or could it be only nuisance in respect of that latitude of choice that is left within the statutory discretion of the statutory authority?

MR GLEESON:   We think it is the latter, and that is why, when these passages in Metropolitan Gas are taken up by this Court in Bankstown that I went to, it is speaking of a nuisance attributable to an exercise or a failure to exercise statutory power.  It appears to be speaking of the area where the law has conferred upon you a relevant discretion where, on the one hand, the Parliament is entrusting you as the statutory body to make decisions – difficult decisions, which will be balancing incommensurable interests – and thereby, to that extent, taking you out of the ordinary law of nuisance, which appears to have close to a strict liability aspect to it, but has then attached, stood around your power, the constraint that you must not do so in a manner that is negligent, unreasonable, does not sufficiently take into account the interests of others.

GAGELER CJ:   This might be answer to case A.  It would not necessarily be an answer to case C.

MR GLEESON:   It would not be a complete answer to case C, because what it would say with case C is we are now looking more closely at the decisions you made prior to and leading up to the project deed, those decisions which were calculated to have consequences on the ground one, two, three, four, five years later.

In making those decisions, the Parliament did entrust you with a discretion – very difficult decisions you were entrusted with – and it is then a question of whether, by entrusting those discretions to you, the Parliament has said the standard by which your conduct will be judged will be the negligence standard, or will it be a nuisance standard, which appears to have more strict liability to it, and then section 43A has come on top of that and said, if that is the situation you are in and it is a special statutory power, you have the elevated Wednesbury standard.

May it please the Court.

GAGELER CJ:   Thank you.  The Court will adjourn until 10.00 am tomorrow.

AT 4.20 PM THE MATTERS WERE ADJOURNED
UNTIL FRIDAY, 16 MAY 2025