Mortimer v District Council of Streaky Bay - [2014] SADC 75

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
MORTIMER v DISTRICT COUNCIL OF STREAKY BAY
[2014] SADC 75
Judgment of His Honour Judge Barrett
10 April 2014
TORTS - NEGLIGENCE - ESSENTIALS OF ACTION FOR NEGLIGENCE - DUTY OF CARE - SPECIAL RELATIONSHIPS AND DUTIES - LOCAL AUTHORITIES
The plaintiff householder sues the defendant council for damages said to be caused by an erroneous grant of planning approval to his neighbour. The plaintiff seeks to recover under four heads:
1) a claim for misleading and deceptive conduct and misrepresentation under the Trade Practices Act and the Fair Trading Act leading to costs incurred in building a more expensive house;
2) breach of fiduciary duty;
3) breach of statutory duty;
4) negligence.
The plaintiff seeks damages under these last three heads for loss of privacy and flooding.
Held:
1) The misleading and deceptive conduct and misrepresentation claim is wholly misconceived.
2) The council does not have a fiduciary relationship with the plaintiff.
3) The council did not breach a statutory duty.
4) The council is not liable in negligence. The scheme of the Development Act and the Local Government Act is to exclude the right to sue for negligence for an erroneous planning decision. A citizen's remedies are limited to those in the legislation.
Trade Practices Act 1974 ; Fair Trading Act 1987 ; Local Government Act 1999 s 109(2), s 110(8), s 120; Development Act 1993 ; New South Wales Local Government Act 1993 , referred to.
Hospital Products Ltd v US Surgical Corporation (1984) 156 CLR 41; Pilmer v Duke Group Limited (2001) 207 CLR 165; Cubillo v Commonwealth (2001) 112 FCR 455; Alcoa of Australia Ltd v Apache Energy Ltd and Ors [2012] WASC 209; X (Minors) v Bedfordshire County Council [1995] 2AC 633; Gardener v State of Victoria [1999] 2VR 461; Newcastle City Council v Shortland Management Services and Ors (2003) 57 NSWLR 173, [2003] NSWCA 156; Graham Barclay Oysters Pty Ltd v Ryan (2002) 77 ALJR 183, (2002) 194 ALR 337; Crimmins v Stevedoring Industry Finance Committee (1999) 200 CLR 1; Makawe Pty Ltd v Randwick City Council [2009] NSWCA 412, considered.

MORTIMER v DISTRICT COUNCIL OF STREAKY BAY
[2014] SADC 75

The plaintiff sues the defendant Council for damages which he says he has suffered as a result of the Council negligently permitting a house to be built next door to his which does not comply with the relevant Development Plan.
Between August 2007 and February 2008, the plaintiff built for himself a house at Streaky Bay. In 2009 the builder, Rivergum Homes, built a house next door to the plaintiff for a Mr and Mrs Lynch. The plaintiff says that as a result of the construction of the house next door he has suffered a loss of privacy. Further he claims that rainwater from next door flows on to his own property causing damage. He sues the Council for the loss of privacy and flooding. Other claims have either not been pursued or can be briefly disposed of.
For reasons which I will explain, the plaintiff cannot succeed in his claim for damages.
The trial
At trial the plaintiff represented himself. Lawyers drafted his pleadings but he explained that his resources did not enable him to be represented at trial. He gave evidence on his own behalf and tendered exhibits. In my view he was well able to articulate his case.
The defendant’s counsel called the Council’s Development Assessment manager, Mr Fox, and a private investigator, Mr Warner. Mr Warner gave evidence touching on the privacy question.
I must say it seems a great pity that the parties were not able to resolve this matter. I allowed a short adjournment during the hearing to see if it were possible for the parties to agree on a resolution but when it appeared that they could not do so, I proceeded to hear the trial. It is unfortunate that the plaintiff seems to have expended a great deal of personal and financial capital in this litigation and that the Council’s ratepayers have been put to considerable expense.
Background
The plaintiff and his neighbours live in a new subdivision near Streaky Bay called Blanchport Rise. Abutting Blanchport Rise is another subdivision called Blanchport Estate. A distinction between the two developments which is relevant to these proceedings is that the Council required a higher standard of finish in the houses in Blanchport Rise than they did in Blanchport Estate. By way of example, the houses in the former had to be constructed of brick or brick veneer. Timber cladding was not permitted in Blanchport Rise but was permitted in Blanchport Estate.
In 2007 the plaintiff approached the Council to see if he could build a transportable house in Blanchport Rise. He was told by the Planning Manager, Mr Fox, that he could not do so. A transportable house was not permitted in Blanchport Rise although it was permitted in the neighbouring Blanchport Estate. Accordingly the plaintiff submitted plans for a brick veneer house which did comply with the Council’s Development Plan. The plaintiff built his house in accordance with those plans.
In 2009, Mr and Mrs Lynch employed Rivergum Homes to build them a house next door. Their house is a timber clad prefabricated house. The defendant acknowledges that it erroneously gave planning approval for the Rivergum house to be constructed. Mr Fox agrees that he wrongly thought that the house was going to be constructed in Blanchport Estate where such a house did comply with the Development Plan. He agrees that the Lynch’s house does not comply with the Development Plan in a number of respects.
As the Rivergum house was being erected, the plaintiff became aware that it was probably not going to comply with the Development Plan. He complained to the Council. Mr Fox acknowledged to the plaintiff that he made a mistake in giving permission for the construction of the Lynch’s house. However, he told the plaintiff that the Council could not, at that stage, stop the construction.
At the time the plaintiff complained to the Council, he was principally concerned with the height of the proposed house. It was his belief that the height of the house was going to exceed the height limit. It was the anticipated breach of the height limit that prompted his complaint.
The plaintiff was not then, and is not now, complaining about the timber cladding on the walls of the Lynch’s house. He accepts that the house, as constructed, has an attractive appearance. However, the excessive height of the building has, he believes, caused him to lose privacy. He erected on the boundary between his property and the Lynch’s a 1.8 metre fence. That was the height limit for fences in the area. When the Lynchs moved in he came to believe that they could see into his house. He says that from a window of his house, he can see Mrs Lynch’s head when she is at a window in their house. He concludes that if he can see her head, then the neighbours must be able to see into his house.
I will turn to the claim for damages for loss of privacy shortly, but I make just one observation on the topic of the privacy. The defence case is partly that the plaintiff has not, in fact, lost any privacy. The defence case is that the fence on the boundary obscures from the Lynch’s property all but the tops of the windows on the plaintiff’s house. As a consequence the Lynchs cannot see into the plaintiff’s house.
It became apparent during the trial that despite there being some efforts to resolve this matter by, amongst others, local Councillors, no one had thought to invite the plaintiff into the Lynch’s house to demonstrate to him that no one can see from their house into his house. My impression of Mr Mortimer in court was that he is not an unreasonable man. While I concluded that he has a mistaken, and somewhat wrongheaded, view about some aspects of his proceedings (to which I will shortly refer) he is nevertheless someone who is open to reason. I think that if, in fact, he is mistaken in believing that his neighbours can see into his house, he would accept that fact. If it turns out that he is not mistaken, then the defendants still have their legal defence, that is that they are not liable in law for the loss of privacy. But at least they would have saved themselves the expense of engaging Mr Warner to travel to Streaky Bay to take his pictures. It is unfortunate that there is a factual dispute on that topic.
The Trade Practices Act 1974 and Fair Trading Act 1987 claims
In his Statement of Claim the plaintiff asserts what I find is a completely misconceived cause of action. Little time in the trial was taken up with this misconceived claim because the plaintiff appeared to understand how flawed his reasoning was. Because he was self-represented I did not invite the plaintiff to abandon the claim but I explain why I dismiss it.
The gravamen of the claim under the Trade Practices Act and the Fair Trading Act is that Mr Fox, on behalf of the Council, misrepresented to the plaintiff when he first proposed building a transportable house on his block, that such a house could not be constructed in Blanchport Rise. As a result of that alleged misrepresentation, the plaintiff went to the extra expense of building a house which did comply with the Council’s Development Plan.
The basis for the assertion that Mr Fox’s representation was false is that Mr Fox then approved the Lynch application. Thus the plaintiff’s reasoning is as follows:
1.   Mr Fox represented to the plaintiff that a house such as the Lynchs could not be built in Blanchport Rise. That is because such a house did not comply with the Council’s Development Plan.
2.   Mr Fox permitted the Lynchs to build their nonconforming house in Blanchport Rise.
3.   Therefore the representations by Mr Fox to the plaintiff must be false. What Ms Fox said was a misrepresentation. It constituted misleading and deceptive conduct.
Mr Fox plainly did not misrepresent to the plaintiff that the transportable house he initially proposed to build did not comply with the Blanchport Rise Development Plan. Mr Fox was correct in what he said to the plaintiff in that regard. The fact that Mr Fox subsequently made an error in approving the non-complying Lynch plans does not make the representations to the plaintiff false. Twenty-nine paragraphs in the plaintiff’s Statement of Claim are devoted to that fallacious reasoning. A completely fallacious claim is made that the plaintiff has gone to greater expense in building a house that complies with the Blanchport Rise Development Plan.
As I say, Mr Mortimer quickly appreciated the fallacy inherent in that claim. He moved on promptly to articulate his claims based on his loss of privacy and on the flood damage. I add before leaving this topic that the plaintiff did not pursue any suggestion that he has suffered a diminution in the value of his property by reason of the construction by the Lynchs of their non-complying house. The plaintiff acknowledged that the Lynch house is an attractive house about which he has no complaints, except for its height. The height of the house causes his lack of privacy and his flooding problems.
Privacy – the facts
Before turning to the question of the defendant’s legal liability in respect of the plaintiff’s claimed lack of privacy, I determine the question of whether, in fact, the plaintiff has lost any privacy as a result of the Lynch’s house being built next door.
Mr Fox agrees that the Lynch house exceeds the height limit for the area. When the Lynch house was completed Mr Fox inspected it to take some height measurements. Early in the construction of the house Mr Mortimer complained to the Council about what he expected would be the excessive height of the completed building. At that stage Mr Fox realised his error in granting the planning approval. He had mistakenly thought that the house was going to be built in Blanchport Estate. He said that the Council’s erroneous approval was nevertheless irreversible. The building approval, as opposed to the planning approval, had been delegated to a private certifier, in effect, an outside agency. Exhibit D15 is the Building Rules consent of 17 November 2008 given by the private certifier Kym Rowland.
Nevertheless Mr Fox went to inspect the completed house to find out for himself whether the house was too high. He found that it was too high. The handwritten notes of his measurements are Exhibit D16.
The distance from the floor to the top of the roof of the Lynch’s house is 5.3 metres. The height limit of a house in that area is 5.0 metres, so the building itself is 0.3 metres over the height limit. That is of little consequence. What is of consequence is the distance between the ground and the floor of the house. That distance is 600 millimetres. That is because the house is built on posts, contrary to the development plan. Such a house could have been built in Blanchport Estate but cannot be built in Blanchport Rise. If the Lynch’s house had been built on a concrete foundation with a concrete floor, it would be 600 millimetres lower.
As it happens the maximum height for the Lynch’s house should be 18 metres above sea level. That height is arrived at by adding the permitted 5 metres height for a house in that area to 13 metres, which is described as the “average height”. The average height is the height above sea level of that block.
In fact the Lynch’s house is 19.154 metres high, ie 1.154 metres too high. To have complied with the overall height limit of 18 metres the Lynchs could have excavated their site slightly (by about 254 millimetres), built on a concrete slab (instead of building on 600 millimetre posts) and slightly lowered the top of their roof (by about 300 millimetres). Generally the height limits in the Blanchport Rise area exist to protect householders’ views of the sea. The development rises gradually from a bay. The height limits are designed so that, with the gradual rise of the land from the bay, no householder’s view of the sea will be blocked by erection of a house between their house and the sea.
That is not Mr Mortimer’s problem. The Lynch’s house is built behind his house, further up the rise. The excessive height of their house does not affect his view of the sea. In fact the allotment in front of his house is a Council reserve and the next allotment for housing beyond that is lower still. His view of the sea will never be blocked. His claimed problem is privacy at the back of his house.
I should explain what I mean by the “back” of the house. The Mortimer and Lynch houses have their living areas facing the sea. For each of them the street frontage is really the side of the house. One of the windows at the back of the plaintiff’s house looks right through to the front of his house. He says that because the Lynch’s house is too high, the Lynchs can see into his house. As I have mentioned earlier, the perceived problem is not really caused by the height of the Lynch’s house from floor to roof, but by the height of the floor above the ground. The house should at least have been built at ground level rather than raised on 600 millimetre posts.
On the plaintiff’s case the windows of the Lynch’s house are too high as a result of the floor being too high. The problem might not exist if he had built the dividing fence between the houses a little higher than he did, but he built the fence at the maximum height allowed by the Development Plan, that is 1.8 metres. He says that as a result of the undisputed excessive height of the Lynch’s house, he has lost some privacy. He says the Lynchs can see from their windows into his windows on their side. He has seen Mrs Lynch’s head from inside his house. He concludes that she, or any other person of her height, can see him in his house.
The defendant engaged Mr Peter Warner to take still photographs and a video from inside the Lynch’s house looking in the direction of the plaintiff’s house. The object of the exercise was to demonstrate the defendant’s case, that as a matter of fact, the Lynchs cannot see into the plaintiff’s house. Both the still photographs and the video would suggest that someone of Mr Warner’s height (he said he was 1.83 metres tall) would be able to see only the tops of the plaintiff’s windows, not enough of the windows to see a person there unless the top of their head reached the top of the windows.
I do not reject Mr Warner’s evidence. I am sure he took care to take the images in a professional manner. I accept he was completely honest in his evidence.
However I cannot reject Mr Mortimer’s evidence either. I do not think he has misrepresented what he sees. He said that he can see Mrs Lynch’s head when she is in her house. He said that before the Lynchs moved in, he would go to his laundry after fishing and change his clothes. He does not do that any longer because he believes that the Lynchs can see into his laundry.
The evidence of Mr Mortimer and Mr Warner may possibly be reconciled by the fact that Mr Warner said that, when he was taking the images, he did so with a camera at his chest height. I am not sure if that might mean that an adult in the Lynch house might actually see more than the camera depicted.
As I have said, I think it is a great pity that the parties were not able to arrange for Mr Mortimer to see for himself what of his house can be seen from the Lynch’s house.
On balance I accept as a fact that the plaintiff can see Mrs Lynch’s head when each is in their own house. I accept that that impinges on the plaintiff’s privacy.
It remains to determine whether the plaintiff may recover against the defendant in damages for this loss of privacy.
Liability
The plaintiff sues the defendant for his loss of privacy under three heads:
(1)Breach of fiduciary duty
(2)Breach of statutory duty under the Local Government Act
(3)Negligence
I will deal with each head of alleged liability separately.
Breach of Fiduciary duty
The plaintiff asserts that by wrongly giving planning approval for the construction of the Lynch’s house the defendant has breached a fiduciary duty it owes to him. The plaintiff claims the breach of that fiduciary duty has caused him damage, for which the defendant is liable.
Mr Besanko for the defendants submits that this claim is misconceived. A fiduciary obligation arises only when there exists a fiduciary relationship between two parties, a relationship in which one party has an obligation to act solely in the interests of the other. To illustrate that sort of relationship Mr Besanko referred to the frequently cited passage from the judgment of Mason J in Hospital Products Ltd v US Surgical Corporation (1984) 156 CLR 41 at 96-7 where his Honour said:
Because distributor-manufacturer is not an established fiduciary relationship, it is important in the first instance to ascertain the characteristics which, according to tradition, identify a fiduciary relationship. As the courts have declined to define the concept, preferring instead to develop the law in a case by case approach, we have to distil the essence or the characteristics of the relationship from the illustrations which the judicial decisions provide. In so doing we must recognize that the categories of fiduciary relationships are not closed (references omitted).
The accepted fiduciary relationships are sometimes referred to as relationships of trust and confidence or confidential relations (references omitted) viz., trustee and beneficiary, agent and principal, solicitor and client, employee and employer, director and company, and partners. The critical feature of these relationships is that the fiduciary undertakes or agrees to act for or on behalf of or in the interests of another person in the exercise of a power or discretion which will affect the interests of that other person in a legal or practical sense. The relationship between the parties is therefore one which gives the fiduciary a special opportunity to exercise the power or discretion to the detriment of that other person who is accordingly vulnerable to abuse by the fiduciary of his position. The expressions "for", "on behalf of", and "in the interests of' signify that the fiduciary acts in a "representative" character in the exercise of his responsibility, to adopt an expression used by the Court of Appeal. It is partly because the fiduciary's exercise of the power or discretion can adversely affect the interests of the person to whom the duty is owed and because the latter is at the mercy of the former that the fiduciary comes under a duty to exercise his power or discretion in the interests of the person to whom it is owed.

That principle was cited with approval by four members of a later High Court in Pilmer v Duke Group Limited (2001) 207 CLR 165 at [70].
The Council has no such relationship with the plaintiff. The Council’s function is to carry out statutory duties. In fulfilling that function it must take into account a large number of considerations. The Council does not have a fiduciary relationship with an individual ratepayer, for example, when considering applications for development under the Development Act. The Council must determine the application in accordance with the requirements of that act.
Even where a fiduciary relationship may be thought to exist, a fiduciary obligation will be subject to any inconsistent obligation imposed by statute. In Cubillo v Commonwealth (2001) 112 FCR 455 at 577 the Federal Court said:
Any fiduciary obligation must accommodate itself to the terms of statute. In particular, a fiduciary obligation cannot modify the operation or effect of statute: to hold otherwise, would be to give equity supremacy over the sovereignty of Parliament (reference omitted).
In my view Mr Besanko’s submission is sound. There did not exist a fiduciary relationship between the Council and the plaintiff, or for that matter, any other ratepayer. Thus there can be no question of a breach of such an obligation. The plaintiff’s claim insofar as it is based on the breach of a fiduciary relationship is misconceived.
Breach of statutory duty
In his Statement of Claim the plaintiff alleges that, in recommending planning approval for the Lynch’s house, Mr Fox, an employee of the defendant breached several provisions of the Local Government Act viz ss 109(2), 110(8) and 120. Those sections are all provisions in Chapter 7 Part 4 of the Act, dealing with the conduct of employees. As indicated by the second reading speak of the then Minister of Local Government given on 17 February 1999 on the occasion of introducing amendment to the Act indicates, the purpose of Chapter 7 generally is to set out the duties of Council employees, and to clarify the responsibility of the Chief Executive Officer for personnel management. The purpose of Part 4 in particular appears on its face to relate to the conduct and discipline of employees.
Section 109(2) reads:
(2) An employee of a council must at all times act with reasonable care and diligence in
the performance of official duties.
Section 110(8) reads:
(8) An employee of the council must comply with the code of conduct.
Section 120 deals with conflict of interests.
It is plain, in my view, that it cannot be said that, in making the mistake he made, Mr Fox has misconducted himself as an employee, so as to breach ss 110(8) and 120. Those sections deal with misconduct, not error.
There might be a question as to whether Mr Fox’s error amounted to a failure to exercise reasonable care and diligence in the performance of his duties within the meaning of s 109(2). However if Mr Fox did fail to use due care and diligence pursuant to s 109(2) that does not necessarily mean that the plaintiff may rely upon that failure to sue the Council for damages for breach of its statutory duty.
The Council’s liability for a breach of statutory duty depends upon the meaning and intention of the legislation. As I have already indicated, s 109 appears to deal with the discipline of Council employees.
Before a party can sue for a breach of a statutory duty it must be demonstrated that the Parliament intended to allow a private cause of action. It must also be demonstrated that the person suing falls within a limited class of persons for whose benefit the statutory provision was enacted, rather than, for example, the public at large.
Mr Besanko cites in support of his client’s case a Western Australian Supreme Court case of Alcoa of Australia Ltd v Apache Energy Ltd and Ors [2012] WASC 209 and the cases there referred to and relied upon by Le Miere J.
The court relied on the statement of principle enunciated by the Privy Council in X (Minors) v Bedfordshire County Council [1995] 2AC 633.[1] Lord Browne-Wilkinson said:
The basic proposition is that in the ordinary case a breach of statutory duty does not, by itself, give rise to any private law cause of action. However a private law cause of action will arise if it can be shown, as a matter of construction of the statute, that the statutory duty was imposed for the protection of a limited class of the public and that Parliament intended to confer on members of that class a private right of action for breach of the duty. There is no general rule by reference to which it can be decided whether a statute does create a right of action but there are a number of indicators. If the statute provides no other remedy for its breach and the parliamentary intention to protect a limited class is shown, that indicates that there may be a private right of action since otherwise there is no method of securing the protection the statute was intended to confer. If the statute does provide some other means of enforcing the duty that will normally indicate that the statutory right was intended to be enforceable by those means and not by private right of action … However, the mere existence of some other statutory remedy is not necessarily decisive. It is still possible to show that on the true construction of the statute the protected class was intended by Parliament to have a private remedy (730).
[1] At [83].
The Western Australian Supreme Court also relied on Gardener v State of Victoria [1999] 2VR 461 for the proposition that where legislation was passed primarily for the general public good, rather than for the benefit or protection of a particular class of persons, then there is “a strong indication against an intention that there should be a private right of action”.[2]
[2] At [84].
I think it is plain that s 109(2) of the Local Government Act is not a provision intended to confer upon a member of the general public, even if a ratepayer, a right to sue the Council. The section is designed to regulate the conduct and discipline of Council employees. It is not to protect a particular class of persons. I find that the plaintiff has no right to sue the Council for a breach of statutory duty.
Negligence
Finally there is the question of whether the plaintiff may recover in his claim against the Council in negligence at common law. The determination of this question is related to the sort of damages the plaintiff alleges he suffers. In this case the plaintiff asserts a loss of privacy and flood damage. While there is some overlap between the principles applying to each claim it is preferable to deal with each separately.
Negligence leading to a loss of privacy
There is no doubt that the Lynch’s house does not comply with the Development plan for Blanchport Rise. Mr Fox erroneously recommended approval of the Lynch’s planning application believing that the house was going to be constructed at Blanchport Estate. Whether that error amounts to negligence on his part, or the Council’s part, is something I do not determine for reasons I will explain. I find that, even if Mr Fox and the Council were negligent in, respectively, recommending and approving the planning application, the defendant is not liable for damages flowing from that negligence.
I digress to say that the plaintiff has not proved any monetary damages suffered from the lack of privacy such as, for example, a reduction in the value of his house. That consideration alone would mean that the claim for damages for loss of privacy would fail. However, if I had found the Council liable for any such damage, I would consider giving the plaintiff an opportunity to prove his damages. I do not, however, need to take that step, because, for reasons which I now explain, the Council is not legally liable in a civil claim for negligence.
Liability for negligence may arise from two sources, 1) breach of a statutory duty to take care of a particular person, and 2), breach of a common law duty of care to that person.
Mr Besanko for the defendant relied on the reasoning of Spigelman CJ (with whom the other members of the New South Wales Full Court agreed) in Newcastle City Council v Shortland Management Services and Ors (2003) 57 NSWLR 173 and [2003] NSWCA 156 and the cases there referred to. The facts of that case were different from this, but the reasoning in that case is both relevant and persuasive. In that case the Full Court found that a householder had no right to seek for damages in either negligence or nuisance where the Council had failed to fully appreciate the loss of a view suffered by the plaintiff when a neighbour was permitted by the Council to build an extension to his house.
The Full Court so found on two bases.
The first basis is that the relevant statute, there the Local Government Act, excluded a right to sue for negligence. The court held that the scheme of the Act was to limit disaffected ratepayers to the remedies available under the Act, namely, the right in the first instance to be notified of developments, to lodge objections, to be heard by the Council on those objections and to appeal against adverse decisions of the Council. The scheme of the Act meant that the legislature did not intend the disaffected ratepayer to have the additional remedy of suing in negligence or nuisance.
In my view, that reasoning is applicable in this case. The scheme of the South Australian Act is similar to that of the New South Wales Local Government Act. Householders have the same sorts of rights as those in New South Wales. In this case Mr Mortimer made his complaint to the Council but the Development Approval had already been given. He was not told of his rights to appeal under the Development Act, but that is a separate question. The scheme of the Development Act is to exclude a remedy in suing for the tort of negligence or nuisance.
Relying on observations made in the High Court by McHugh J in Graham Barclay Oysters Pty Ltd v Ryan (2002) 77 ALJR 183, 194 ALR 337 at [78] and Gaudren J in Crimmins v Stevedoring Industry Finance Committee (1999) 200 CLR 1 at [27] Spigelman CJ concluded:[3]
In such a context public remedies, including electoral sanctions and judicial review, albeit of limited scope, were intended to cover the field. Common law duties are, in my opinion, excluded.
[3] At [60].
His Honour went on to consider the Common law position if he was wrong in concluding that the statute excluded the right to sue.
I will not recite the reasoning of his Honour,[4] but his Honour concludes that for what are really policy reasons, the Common law has never recognised the right of a householder to a view.[5] His Honour said at [91] and [92]:
91 The common law has long recognised that protecting rights of this character would unduly interfere with the development of urban centres. The tort of nuisance has balanced these rights in a particular manner, which should not be disturbed by the tort of negligence.
92 The same kinds of concerns are apparent when courts have considered the similar issues which arise when issues of amenity are required to be taken into account pursuant to statutory planning schemes. For the same reasons as motivated the common law to reject inhibition on development, one can perceive in the case law a distinct reluctance to acknowledge a right to a view or give significant, let alone determinative, weight to interference with a view. (References excluded).
[4] See [62] to [100].
[5] See [89].
I acknowledge that that case was dealing with a loss of a view, whereas this case is dealing with a loss of privacy. However I think that the reasoning in Newcastle City Council v Shortland Management Services supra is applicable here. The Common law would be no more willing to protect a right for privacy than it would a right to a view where planning legislation has provided a remedy by its own mechanisms. Those are mechanisms of consultation, objection, a hearing and ultimately planning appeal.
Again I acknowledge that the plaintiff was denied those opportunities but I do not believe the common law is available to make up the deficiency.
I find that the defendant is not liable for any possible negligence on its part or on the part of its employee, Mr Fox, in erroneously approving or recommending the Lynch application.
Negligence leading to flooding
I deal first with the factual question. The defendant contends that the plaintiff has not proved, (1) that the erroneous granting of planning approval has caused flooding (the “causation defence”) and (2) that the plaintiff has not proved that he suffered damage (the “damages defence”).
The plaintiff says that storm water is coming down from the Lynch’s property on to his own. I accept that that is so. While the plaintiff gave no detailed evidence about exactly where the water is coming from, I accept that rainwater is coming from some part of the Lynch’s property on to his. The plaintiff produced some photographs suggesting some discolour of his artificial lawn.
What is not clear is that if the erroneous planning approval had not been given there would be no problem with runoff. The Lynch’s property is further up the slope than the plaintiff’s house. It is not clear what would have been the conditions the Council might have attached to an approval of the Lynch’s property, particularly as to the height of the house. It is clear that the Lynch’s house would not have been permitted to be built on 600 millimetre posts, but it does not follow that the Lynchs would have been required to excavate their property before building. The height limit imposed for that area might have been complied with by reducing just two components of its height, namely, reducing the distance between the floor and the roof, and reducing the distance between the ground and the floor by requiring the house to be built at ground level. In those circumstances no excavation would be required.
The plaintiff clearly thinks that the Lynchs would have been required to excavate their block to obtain planning approval but that is far from clear. The plaintiff thinks that if there had been some excavation there would have been no escape of water from the Lynch’s block to his, but that too is far from clear. No witness, expert or otherwise, was called to demonstrate either proposition.
Further, it is completely unclear what damage the water from next door is causing on the plaintiff’s property. I am willing to accept that there is some discolouration of his lawn but no other damage was proved, let alone quantified.
For these reasons I find that the defendant has made out both what I call the causation defence and the damages defence.
However, there are other reasons why the flooding claim must fail.
The first is that the Development Act precludes the existence of a right to sue in tort. Mr Besanko referred to the submissions already put in relation to the loss of privacy issue but he added to that submission the “salient features test” reiterated by the New South Wales Court of Appeal in Makawe Pty Ltd v Randwick City Council [2009] NSWCA 412. The “salient features test” is a nonexhaustive list of factual features of a case which tend for or against there being a duty of care owed to a landholder by say, a Council. Those features include the following:
(1)Does the Act appear to exclude a right to sue?
(2)Is the Council wholly in control of the decision affecting the landowner?
(3)Is the ratepayer particularly vulnerable, and therefore in particular need of the Council’s protection?
(4)Was the sort of damage suffered reasonably foreseeable?
I will not pause to detail the arguments put in respect of each of those salient features, but I accept Mr Besanko’s submission that each of those indications is against there being a right to sue. Put briefly those submissions are as follows:
(1)For reasons discussed above, the scheme of the Development Act excludes the right to sue.
(2)The Council was not wholly in control of the building decision. The delegated private building certifier also had a role.
(3)The plaintiff is not wholly vulnerable to the Council. He had appeal rights under the Development Act.
(4)The flooding damage was not foreseeable at the planning stage.
There is a further reason why the Council is not liable in negligence for the flooding problem. The Council’s planning permission approved planned stormwater management on the site.[6] The Lynch’s Building Rules consent[7] requires that roof water or stormwater not enter any other property. Thus the relevant consents were given on condition that there was no escape of water on to neighbouring properties. If there is an escape of water then the Lynchs are liable for their failure to comply with those conditions. Any default is a private dispute between the adjoining landowners, or if necessary, the builders. The Council has required adequate removal of water.
[6] Exhibit D14.
[7] Exhibit D15.
For all these reasons I find that the defendant is not liable to the plaintiff for any flood damage to his property.
Conclusion
For the reasons I have discussed I find that the defendant is not liable to the plaintiff for any loss of privacy or any flood damage.
Decision
I dismiss the plaintiff’s Statement of Claim.
Addendum
As I have indicated, I regard it as unfortunate that this matter has not been able to be resolved amicably between the parties. As to the privacy problem I hope that the parties can find a way to let the plaintiff see for himself the extent, if any, of a loss of privacy. If there is a problem, then surely some adjustment in the height of some part or parts of the fence between the properties can be made or some other screening be provided.
In respect of the flooding, I hope that parties will find a way to peaceably resolve the problem between neighbours.