Muckle v Anderson - [2002] NSWCA 283

Reported Decision:
131 LGERA 350

New South Wales

Court of Appeal

CITATION: MUCKLE v ANDERSON & ANOR [2002] NSWCA 283

FILE NUMBER(S): CA 41018/01

HEARING DATE(S): 21 August 2002, 22 August 2002

JUDGMENT DATE:
9 September 2002

PARTIES :

Lester John Muckle - Appellant
Donald Anderson and Frances Anderson - Respondents

JUDGMENT OF: Sheller JA at 1; Giles JA at 41; Davies AJA at 42

LOWER COURT JURISDICTION : Land & Environment Court

LOWER COURT
FILE NUMBER(S) : 40069/00

LOWER COURT
JUDICIAL OFFICER : Cowdroy J

COUNSEL: J E Sexton SC/T G Howard - Appellant
M Fraser - Respondents

SOLICITORS: Harris Wheeler - Appellant
P J Donnellan & Co - Respondents

CATCHWORDS: LAND & ENVIRONMENT - development application - interpretation of condition in consent - meaning of "water drainage system" - flow of surface water obstructed by land fill - distinction between watercourse and surface water - application of Gartner v Kidman - whether order entered by trial Judge served any purpose

LEGISLATION CITED: Land and Environment Court Act 1979
Environmental Planning and Assessment Act 1979

CASES CITED:
Gartner v Kidman (1962) 108 CLR 12
Nield v London & N W Railway (1874) LR 10 Ex

DECISION: 1. Appeal allowed; 2. Set aside orders 1 and 2 made by Cowdroy J on 30 November 2001; 3. In lieu thereof order that the proceedings be dismissed with costs; 4. The respondents to pay the appellant's costs of this appeal but to have a certificate under the Suitors' Fund Act 1951 if so qualified.

CA 41018/01
L & E 40069/00

SHELLER JA
GILES JA
DAVIES AJA

MUCKLE v ANDERSON & ANOR

The appellant (defendant at first instance) appealed from the decisions given in the Land and Environment Court by Cowdroy J on 25 October and 30 November 2001. The appellant was the neighbour of the respondents, the appellant's land lying on the east of the respondents' boundary. The land was naturally flat and prone to flooding.

The appellant made a development application to his local council to fill his block of land so as to raise the level by approximately one metre. The council gave consent subject to conditions specified in the notice. The condition at issue (condition 3) stipulated that earthworks shall not "obstruct any water drainage system".

The respondents complained to the council that the appellant had failed to comply with the terms of condition 3 because surface water which had a flow path generally in an easterly direction from the respondents' to the appellant's land had been obstructed by the placement of the fill. As a consequence of this complaint the appellant approached the council to modify the development consent by constructing a boundary drain along the appellant's land on its boundary with the respondent's land. The construction of this drain did not adequately resolve the surface water problems.

The expert evidence presented at first instance was conflicting in terms of the direction of the flow of the surface water. Independent lay witnesses also presented differing observations about…

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.

Continue reading Muckle v Anderson

Details

AGLC: Muckle v Anderson [2002] NSWCA 283
Case: [2002] NSWCA 283
Decision Date: 9 September 2002

CaseChat Overview and Summary

The appeal in *Muckle v Anderson* concerned the interpretation of a condition in a development consent relating to a "water drainage system". The dispute arose from the obstruction of surface water flow by land fill, and the central question was whether this obstruction constituted a breach of the consent condition. The matter was heard in the Court of Appeal of New South Wales.

The court was required to determine the meaning of "water drainage system" within the context of the development consent, and specifically, whether the obstruction of surface water by land fill fell within the scope of this condition. A further issue was whether the distinction between a watercourse and surface water was relevant to the interpretation of the condition, and whether the principles established in *Gartner v Kidman* applied. The court also considered the utility of an order made by the trial judge.

The Court of Appeal allowed the appeal, setting aside the orders made by the trial judge. The court reasoned that the condition in the development consent did not extend to the obstruction of surface water by land fill, distinguishing this from the management of a defined watercourse. The principles from *Gartner v Kidman* were considered, but the court found they did not support the interpretation that led to the trial judge's orders. Consequently, the proceedings were dismissed. The respondents were ordered to pay the appellant's costs of the appeal, with a provision for a certificate under the Suitors' Fund Act 1951.

Orders

Orders of the court

1. Appeal allowed; 2. Set aside orders 1 and 2 made by Cowdroy J on 30 November 2001; 3. In lieu thereof order that the proceedings be dismissed with costs; 4. The respondents to pay the appellant's costs of this appeal but to have a certificate under the Suitors' Fund Act 1951 if so qualified.

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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CITATION:	MUCKLE v ANDERSON & ANOR [2002] NSWCA 283
FILE NUMBER(S):	CA 41018/01
HEARING DATE(S):	21 August 2002, 22 August 2002
JUDGMENT DATE:	9 September 2002
PARTIES :	Lester John Muckle - Appellant Donald Anderson and Frances Anderson - Respondents
JUDGMENT OF:	Sheller JA at 1; Giles JA at 41; Davies AJA at 42

LOWER COURT JURISDICTION :	Land & Environment Court
LOWER COURT FILE NUMBER(S) :	40069/00
LOWER COURT JUDICIAL OFFICER :	Cowdroy J

COUNSEL:	J E Sexton SC/T G Howard - Appellant M Fraser - Respondents
SOLICITORS:	Harris Wheeler - Appellant P J Donnellan & Co - Respondents
CATCHWORDS:	LAND & ENVIRONMENT - development application - interpretation of condition in consent - meaning of "water drainage system" - flow of surface water obstructed by land fill - distinction between watercourse and surface water - application of Gartner v Kidman - whether order entered by trial Judge served any purpose
LEGISLATION CITED:	Land and Environment Court Act 1979 Environmental Planning and Assessment Act 1979
CASES CITED:	Gartner v Kidman (1962) 108 CLR 12 Nield v London & N W Railway (1874) LR 10 Ex
DECISION:	1. Appeal allowed; 2. Set aside orders 1 and 2 made by Cowdroy J on 30 November 2001; 3. In lieu thereof order that the proceedings be dismissed with costs; 4. The respondents to pay the appellant's costs of this appeal but to have a certificate under the Suitors' Fund Act 1951 if so qualified.