Court of Appeal
Supreme Court
New South Wales
Medium Neutral Citation: Mailey v Sutherland Shire Council [2017] NSWCA 343 Hearing dates: 1 December 2017 Date of orders: 20 December 2017 Decision date: 20 December 2017 Before: Macfarlan JA at [1];
Meagher JA at [2];
Preston CJ of LEC at [3]Decision: 1. The appeal is dismissed.
2. The appellants are to pay the respondent’s costs of the appeal.Catchwords: BUILDING CONTROL – order to do work to place land in safe condition – retaining wall at imminent risk of collapse – retaining wall straddling common boundary – power to issue order – whether lower land not in safe condition – whether order can require work on upper land owned by another person – if any part of order invalid, whether severable – whether order uncertain – whether order issued for improper purpose – order not invalid in ways challenged – claim for compensation if order invalid – source of power to award compensation Legislation Cited: Access to Neighbouring Land Act 2000
Conveyancing Act 1919 s 177
Environmental Planning and Assessment Act 1979 s 121B
Environmental Planning and Assessment Regulation 2000 cl 98E
Interpretation Act 1987 ss 3, 32
Local Government Act 1993 ss 124, 129, 136, 137, 138A, 180, 181, 676Cases Cited: Bank of New South Wales v Commonwealth (1948) 76 CLR 1; [1948] HCA 7
Barclay v Wollongong City Council (2005) 139 LGERA 167; [2005] NSWLEC 160
Bobolas v Waverley Council (2012) 187 LGERA 63; [2012] NSWCA
Cann’s Pty Ltd v Commonwealth (1946) 71 CLR 210; [1946] HCA 5
Cugg Pty Ltd v Gibo Pty Ltd (2001) 10 BPR 18,641; [2001] NSWSC 297
D’Anastasi v Environment, Climate Change and Water NSW (2011) 81 NSWLR 82; [2011] NSWCA 374
Daly v Thiering (2013) 249 CLR 381; [2013] HCA 45
Dehimi Pty Ltd v Barob Pty Ltd (1987) 4 BPR 97,277
Foster v Sutherland Shire Council (2001) 115 LGERA 130; [2001] NSWLEC 89
Genkem Pty Ltd v Environment Protection Authority (1994) 35 NSWLR 33
J & J O’Brien Pty Ltd v South Sydney City Council (2002) 121 LGERA 223; [2002] NSWCA 259
Jukes v Larter [2012] NSWSC 369
King Gee Clothing Co Pty Ltd v Commonwealth (1945) 71 CLR 184; [1945] HCA 23
Lake Macquarie City Council v Gordon [2016] NSWLEC 49
Maitland City Council v Anambah Homes Pty Ltd (2005) 64 NSWLR 695; [2005] NSWCA 455
Manly Council v Leech [2015] NSWLEC 149
McElwaine v The Owners – Strata Plan 75975 [2017] NSWCA 239
Piling Contractors (Qld) Pty Ltd v Prynew Pty Ltd [2008] NSWSC 118
Proprietors of Strata Plan 159 v Parramatta City Council (1977) 37 LGRA 74
R & R Fazzolari Pty Ltd v Parramatta City Council (2009) 237 CLR 603; [2009] HCA 12
Ranjon International Holdings Pty Ltd v Rockdale Council (1994) 83 LGERA 10
Tweed Shire Council v Gennacker Pty Ltd [2015] NSWLEC 3
Von Arnim v The Health Insurance Commission [2004] FCAFC 33
Williams…
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- AGLC
- Mailey v Sutherland Shire Council [2017] NSWCA 343
- Case
- [2017] NSWCA 343
- Decision Date
CaseChat Overview and Summary
The Land and Environment Court of New South Wales heard an appeal in *Mailey v Sutherland Shire Council*. The appellants sought to challenge an order issued by the respondent council requiring them to undertake work to place their land in a safe condition. The dispute centred on a retaining wall that was at imminent risk of collapse and straddled the common boundary between the appellants' land and that of another owner.
The Court was required to determine several legal issues. These included whether the council had the power to issue the order under the relevant legislation, specifically whether the lower land was not in a safe condition. A key question was whether an order could validly require work to be carried out on upper land owned by a person other than the recipient of the order. The Court also considered whether any part of the order was invalid and, if so, whether it was severable, and whether the order was uncertain or issued for an improper purpose. Finally, the Court addressed the appellants' claim for compensation, should the order be found invalid, and the source of power to award such compensation.
The Court reasoned that the council possessed the necessary statutory power to issue the order, finding that the condition of the retaining wall meant the lower land was not in a safe condition. It was held that the order was not invalid simply because it required work on land not owned by the appellants, as the legislation permitted such requirements to address the unsafe condition. The Court found that the order was not uncertain and had not been issued for an improper purpose. Consequently, the challenges to the validity of the order were dismissed.
The appeal was dismissed, and the appellants were ordered to pay the respondent's costs of the appeal.
The Court was required to determine several legal issues. These included whether the council had the power to issue the order under the relevant legislation, specifically whether the lower land was not in a safe condition. A key question was whether an order could validly require work to be carried out on upper land owned by a person other than the recipient of the order. The Court also considered whether any part of the order was invalid and, if so, whether it was severable, and whether the order was uncertain or issued for an improper purpose. Finally, the Court addressed the appellants' claim for compensation, should the order be found invalid, and the source of power to award such compensation.
The Court reasoned that the council possessed the necessary statutory power to issue the order, finding that the condition of the retaining wall meant the lower land was not in a safe condition. It was held that the order was not invalid simply because it required work on land not owned by the appellants, as the legislation permitted such requirements to address the unsafe condition. The Court found that the order was not uncertain and had not been issued for an improper purpose. Consequently, the challenges to the validity of the order were dismissed.
The appeal was dismissed, and the appellants were ordered to pay the respondent's costs of the appeal.
Orders
Orders of the court
1. The appeal is dismissed.
2. The appellants are to pay the respondent’s costs of the appeal.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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