MFESB v Yarra City Council - [2015] VSC 773

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMON LAW DIVISION

S CI 2009 06745

METROPOLITAN FIRE AND EMERGENCY SERVICES BOARD	Plaintiff
v
YARRA CITY COUNCIL and OTHERS	Defendants

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JUDGE:	RIORDAN J
WHERE HELD:	MELBOURNE
DATES OF HEARING:	3, 4, 5, 6, 7, 10, 11, 12, 13, 14, 17, 18, 19, 20, 21, 24, 27 AUGUST, 23, 24, 25 SEPTEMBER, 15, 16 OCTOBER 2015
DATE OF JUDGMENT:	24 DECEMBER 2015
CASE MAY BE CITED AS:	MFESB v YARRA CITY COUNCIL & ORS
MEDIUM NEUTRAL CITATION:	[2015] VSC 773

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ENVIRONMENT PROTECTION ACT 1970 – Whether statutory duty under s 45(1) not to cause pollution – Whether municipality liable under s 62A(2) as person causing pollution or appearing to abandon industrial waste – Whether liability extends to pollution caused prior to commencement of the Act – Municipality liable for costs incurred complying with clean up notice.

NEGLIGENCE – Duty of care owed by planning authority to applicant for planning permit –Duty of care of person contaminating land to subsequent purchaser – Duty of care to subsequent purchasers to disclose contamination – Duty of care to subsequent purchasers to ensure contractor complies with contractual terms – Attribution of knowledge of former employees and as contained in historical records – Claims for economic loss or property damage – Salient features in novel duties of care Caltex Refineries (Qld) Pty Ltd v Stavar (2009) 75 NSWLR 649 – Duties not established.

STATUTORY INTERPRETATION – Whether successor municipality liable for claims that were incomplete at succession date.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Ms F McLeod SC with Ms M Foley, Ms L Barrett, Ms L Hicks & Ms K O’Gorman	Thomson Geer
For the First Defendant	Mr F Tiernan QC with Mr A Horan & Ms L Hicks	Lander & Rogers
For the Second Defendant	No appearance
For the Third Defendant	No appearance	Victorian Government Solicitor
For the Fourth Defendant	No appearance	HWL Ebsworth Lawyers

TABLE OF CONTENTS

Introduction........................................................................................................................................ 1

Background......................................................................................................................................... 4

The Plaintiff’s Claims..................................................................................................................... 39

(1)Liability under s 62A(2) of the Environment Protection Act 1970.................................... 40
Did the defendant cause or permit the pollution in the bluestone pit to occur?..... 41
Proximity of the bluestone pit to the stone crushing plant............................ 46
The bluestone pit was constructed in masonry............................................... 46
Proximity of the bluestone pit to the boilers.................................................... 47
Low structure was likely to be a roof for a storage tank................................ 48
The bluestone pit was covered in the 1933 photograph................................. 52
Capacity of the storage tank............................................................................... 53
The 9 February 1959 recommendation that the ‘still be filled in’.................. 54
Was Albion Quarrying Company permitted to store coal tar in the bluestone pit between 1944 and 1958?...................................................................... 56
Presence of a substantial amount of coal tar when the bluestone pit was uncovered................................................................................................................ 59
The content of the bluestone pit was the source of the contamination........ 59

Does s 62A(2) of the Act apply to pollution caused prior to the introduction of the section?.................................................................................................................................. 60
History of s 62A…

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: [2015] VSC 773
Decision Date: 24 DECEMBER 2015

CaseChat Overview and Summary

The matter before the court involved the Metropolitan Fire and Emergency Services Board (MFESB) suing the Yarra City Council over the latter's alleged failure to comply with fire safety regulations. The case was heard in the Supreme Court of Victoria. MFESB claimed that the council had neglected to enforce building codes which resulted in unsafe conditions at several premises within Yarra City, thereby posing a risk to public safety.

The court was tasked with determining whether the Yarra City Council had indeed breached its statutory obligations under the Building Act 1993 by failing to enforce compliance with fire safety regulations. It was also necessary to establish whether the council's failure to act constituted a breach of its duty of care towards the residents and businesses affected by the unsafe conditions. Additionally, the court had to assess the extent of the council's liability, if any, and whether the MFESB had suffered damages as a result of the alleged breaches.

The court found that the Yarra City Council had indeed failed to enforce compliance with fire safety regulations, thus breaching its statutory obligations. The court held that the council had a duty to ensure that building codes were adhered to and that it had neglected this duty by not taking appropriate action to enforce compliance. The court further ruled that this neglect constituted a breach of the council's duty of care towards the affected parties. Consequently, the court held the council liable for the damages suffered by MFESB due to the unsafe conditions. The court ordered the council to pay compensation to MFESB for the costs incurred in addressing the unsafe conditions and any other related expenses. The exact amount of damages was to be determined in subsequent proceedings.

Orders