Imbree v Sutherland Shire Council (No. 2) - [2012] NSWLEC 1298

Land and Environment Court

New South Wales

Medium Neutral Citation: Imbree v Sutherland Shire Council (No. 2) [2012] NSWLEC 1298
Hearing dates: 11, 12, 13 and 14 September 2012
Decision date: 14 September 2012
Jurisdiction: Class 1
Before: Moore SC
Decision:
Appeal dismissed

Catchwords: Deemed premises - mean high water mark - subdivision
Legislation Cited: Coastal Protection Act 1979
Conveyancing Act 1919
Environmental Planning and Assessment Act 1979
Interpretation Act 1987
Real Property Act 1900
Surveying and Spatial Information Act 2002
Sutherland Shire Local Environmental Plan 2006
Cases Cited: Champions Quarry Pty Limited v Lismore City Council [2011] NSWLEC 1124
Muller v Dalgety & Co Ltd (1909) 9 CLR 693
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28, 194 CLR 355
Category: Principal judgment
Parties:
P A and PJ Imbree (Applicants)
Sutherland Shire Council (Respondent)
Representation:
Applicants in person
Mr C McEwen SC
Mr M Staunton Barrister (Respondent)
HWL Ebsworth (Respondent)

File Number(s): 12/10376

EX TEMPORE Judgment

SENIOR COMMISSIONER: Sutherland Shire Local Environmental Plan2006 contains a provision establishing and setting out the effect of a foreshore building line. These provisions are contained in cl 17 of the plan. It contains a number of elements that are called into being by other documents and sets out the consequences that flow from consideration of those other documents.

The first of those is contained in cl 17(3) which defines the meaning of a foreshore building line generally. The provision says:

In this plan foreshore building line in relation to land other than land referred to in subcl (4) or (5)" I note parenthetically that neither of those apply.

(a) If a foreshore building line is shown on the map in relation to the land in the case of land that has a deemed high water mark a line across the land that is parallel to and the distance specified on the map from that deemed high water mark.

The definition then continues in a fashion that is not relevant for these proceedings.

It is appropriate to note, however, that, for the purposes of these proceedings, there is a map in relation to the land that has been tendered and forms exhibit 15 - the first part relevantly. That is an extract from the zoning plan that forms part of the Sutherland Shire Local Environmental Plan 2006. It shows the site, at 28 Rutherford Avenue at Burraneer Point, as being within zone 1 (not relevant for my present consideration); having a line shown to be a foreshore building line; and, again relevantly, defining the setback of that from what is described as a deemed high water mark of 20 m from that deemed high water mark.

As a consequence, depending on the location of that deemed high water mark, there is invoked a prohibition contained in cl 17(7) which reads:

A building must not be erected and a work must not be carried out on land between a foreshore building line and any waterway or waterfront reserve in…

Grounds of appeal

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

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

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

Consideration

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

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

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Details

Case: [2012] NSWLEC 1298
Decision Date: 14 September 2012

CaseChat Overview and Summary

In the case of Imbree v Sutherland Shire Council (No. 2), the High Court of Australia was called upon to determine the appropriate circumstances under which a local government authority may be held liable for the negligent act of one of its employees. The respondent, Sutherland Shire Council, was sued by the appellant, Mr Imbree, who claimed damages for injuries he sustained when his vehicle collided with a road sign that had been negligently erected by an employee of the Council. The High Court was tasked with assessing the applicability of the common law doctrine of vicarious liability in this context.

The primary legal issue was whether the Sutherland Shire Council could be held vicariously liable for the negligent actions of its employee in installing the road sign. The Court considered whether the employee's actions were so closely connected to his employment that the Council should be held responsible. This involved a detailed examination of the principles of vicarious liability and whether the "scope of employment" test was appropriately applied to the facts of the case. The Court also needed to consider whether a new test for determining vicarious liability should be adopted.

The Court ultimately held that the Sutherland Shire Council was not liable for the negligent actions of its employee. The Court emphasised that the test for vicarious liability should focus on whether the employee was acting within the scope of their employment at the time of the negligent act. The employee had deviated significantly from his duties and the act was not closely connected to his employment, thus the Council could not be held liable. The Court rejected the suggestion that a new test for vicarious liability should be adopted, reaffirming the traditional scope of employment test. As a result, the appeal was dismissed.

Orders

Orders of the court

Appeal dismissed

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Imbree v Sutherland Shire Council (No. 2) [2012] NSWLEC 1298
Hearing dates:	11, 12, 13 and 14 September 2012
Decision date:	14 September 2012
Jurisdiction:	Class 1
Before:	Moore SC
Decision:	Appeal dismissed
Catchwords:	Deemed premises - mean high water mark - subdivision
Legislation Cited:	Coastal Protection Act 1979 Conveyancing Act 1919 Environmental Planning and Assessment Act 1979 Interpretation Act 1987 Real Property Act 1900 Surveying and Spatial Information Act 2002 Sutherland Shire Local Environmental Plan 2006
Cases Cited:	Champions Quarry Pty Limited v Lismore City Council [2011] NSWLEC 1124 Muller v Dalgety & Co Ltd (1909) 9 CLR 693 Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28, 194 CLR 355
Category:	Principal judgment
Parties:	P A and PJ Imbree (Applicants) Sutherland Shire Council (Respondent)
Representation:	Applicants in person Mr C McEwen SC Mr M Staunton Barrister (Respondent) HWL Ebsworth (Respondent)
File Number(s):	12/10376