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O'Brien v Pittwater Council

O'Brien v Pittwater Council

Case [2016] NSWDC 32 16 February 2016

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District Court

New South Wales

Amendment notes

Medium Neutral Citation: O’Brien v Pittwater Council [2016] NSWDC 32
Hearing dates: 1, 2, 3, 4, 5 June; 27 July and 1 August 2015
Date of orders: 16 February 2016
Decision date: 16 February 2016
Jurisdiction: Civil
Before: P Taylor SC DCJ
Decision:
(1)   Direct the parties to bring forward orders that reflect these reasons.
(2)   In the event of disagreement, the matter will be relisted in respect of orders.
(3)   In any event, the matter will be relisted in respect of costs.

Catchwords: TORT – private nuisance – increased water flow onto residential property – debris from water flow – noise from water flow – catchment area - natural watercourse – riparian rights - statutory defences – remedies – injunction - damages
Legislation Cited: Civil Liability Act 2002, s 43A
Evidence Act 2005, s 67
Local Government Act 1919, s 582A
Local Government Act 1993, s 59A, s 634, s 733
Water Management Act 2000, s 393
Cases Cited: Anthony Lagoon Station Pty Ltd v Maurice (1986) 13 FCR 262
Arena v Nader & State of New South Wales (1997) 71 ALJR 1604; [1997] 17 Leg Rep SL1
Bankstown City Council v Alamdo Holdings Pty Ltd (2005) 223 CLR 660
Bonaccorso v Strathfield Municipal Council [2003] NSWSC 408
Clissold v Perry (Minister for Public Instruction) (1904) 1 CLR 363
Coco v The Queen (1994) 179 CLR 427
Curtis v Harden Shire Council (2014) 88 NSWLR 10
Dubois v Noarlunga District Council [1959] SASR 127
Gales Holdings Pty Limited v Tweed Shire Council [2013] NSWCA 382
Gartner v Kidman (1962) 108 CLR 12
Gray v New South Wales (unreported, NSWSC, Young J, 31 July 1997)
Jones v Dunkel (1959) 101 CLR 298
Knezovic v Shire of Swan-Guildford (1968) 118 CLR 468
Melaleuca Estate Pty Ltd v Port Stephens Council (2006) 12 BPR 23,743
Quick v Alpine Nurseries Sales Pty Ltd [2010] NSWSC 1248
Roads and Maritime Services v Grant [2015] NSWCA 138
Seidler v Luna Park Reserve Trust (unreported, NSWSC, Hodgson J, 21 September 1995)
Vincent v Peacock [1973] 1 NSWLR 466
Wherry v K B Hutcherson Pty Ltd (unreported, NSWSC, Hodgson J, 4 April 1986)
Texts Cited: J M Paterson, Kerr on Injunctions, (6th ed, 1927, Sweet & Maxwell)
Category: Principal judgment
Parties: Naomi Catherine O’Brien (plaintiff)
Pittwater Council (defendant)
Representation:
Counsel:
Mr A Fernon (plaintiff)
Mr S Glascott (defendant)
Solicitors:
Yates Beaggi Lawyers(plaintiff)
Mills Oakley Lawyers (defendant

File Number(s): 2010/258653
Publication restriction: None

Judgment

A. Introduction

The plaintiff, Naomi O’Brien, owns a property below the escarpment at Whale Beach. During rainstorms, water comes over the escarpment and onto Mrs O’Brien’s property.
Many years earlier, before the mid-1950’s, Warringah Council obtained an easement on a neighbouring block of land (15 Norma Rd) upslope of Mrs O’Brien’s property for the purpose of draining stormwater. It constructed an open drain on that block within the area of the easement. Rainwater runoff from even higher land flowed into a pit on the high side…

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 O'Brien v Pittwater Council

Details

AGLC: O'Brien v Pittwater Council [2016] NSWDC 32
Case: [2016] NSWDC 32
Decision Date: 16 February 2016

CaseChat Overview and Summary

O'Brien brought an action against Pittwater Council, alleging that changes to the water flow on a nearby natural watercourse had resulted in nuisances affecting his residential property. The Council had undertaken works that altered the water flow, causing increased water flow, debris, noise, and erosion on the O'Brien property. The dispute came before the Supreme Court of New South Wales, where the court was required to determine whether the Council's actions constituted a private nuisance and, if so, what remedies were available to O'Brien.

The court examined whether the Council's actions constituted a private nuisance. It considered whether the increased water flow and its effects were unreasonable in the circumstances, taking into account factors such as the character of the neighbourhood, the nature of the use of the land, and the extent of the interference. The court also considered the statutory defences available to the Council under the relevant legislation and whether they applied to the circumstances of the case.

The court found that the Council's actions constituted a private nuisance, as the increased water flow and its effects were unreasonable and had caused significant harm to O'Brien's property. The court held that the statutory defences available to the Council did not apply in the circumstances of the case. The court ordered the Council to take steps to mitigate the nuisance and awarded O'Brien damages for the harm caused. The court also directed the parties to bring forward orders that reflect these reasons and relisted the matter in respect of orders and costs.

Orders

Orders of the court

(1) Direct the parties to bring forward orders that reflect these reasons.

(2) In the event of disagreement, the matter will be relisted in respect of orders.

(3) In any event, the matter will be relisted in respect of costs.

Background

Background to the litigation

Full text does not contain this section.

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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Citations

AGLC Citation

O'Brien v Pittwater Council [2016] NSWDC 32

Most Recent Citation

Orion Consulting Engineers Pty Ltd v Blacktown City Council [2017] NSWLEC 1017

Cases citing this decision · 1 of 1 shown

Orion Consulting Engineers Pty Ltd v Blacktown City Council
[2017] NSWLEC 1017 Para 66

…The Council relied on O’Brien v Pittwater Council (2016) 22 DCLR (NSW) 14; [2016] NSWDC 32 which found that the Council may be liable for the concentration or alteration of the natural water flow: at [69]. In that case, the District Court did not find that the land in question satisfied the elements of a bed, bank…

View all 1 citing cases →

Cases cited in this decision · 14 of 14 shown

Roads and Maritime Services v Grant
[2015] NSWCA 138 Para 115

…ities can be “ based on ” a special statutory power: see Curtis v Harden Shire Council (2014) 88 NSWLR 10 and Roads and Maritime Services v Grant [2015] NSWCA 138. This does not affect the need for this power to be a “ special statutory power ”, including that the power is of a kind not authorised without specific…
Curtis v Harden Shire Council
[2014] NSWCA 314 Para 115

…Recent authority has broadened the circumstance where activities can be “ based on ” a special statutory power: see Curtis v Harden Shire Council (2014) 88 NSWLR 10 and Roads and Maritime Services v Grant [2015] NSWCA 138. This does not affect the need for this power to be a “ special statutory power ”, including tha…
Gales Holdings Pty Ltd v Tweed Shire Council
[2013] NSWCA 382 Para 72

…In Gales Holdings Pty Limited v Tweed Shire Council [2013] NSWCA 382 at [132]-[133], the Court of Appeal stated that:…
Quick v Alpine Nurseries Sales Pty Ltd
[2010] NSWSC 1248 Para 84

…nsider whether Council is in any way relieved by having “ come into ” the nuisance. But as Ward J noted in Quick v Alpine Nurseries Sales Pty Ltd [2010] NSWSC 1248 at [142], an occupier will be liable for continuing a nuisance if “ with actual or constructive knowledge of its existence, he or she fails, within a rea…
Melaleuca Estate Pty Ltd v Port Stephens Council
[2006] NSWCA 31 Para 68

…In Melaleuca Estate Pty Ltd v Port Stephens Council (2006) 12 BPR 23,743 at [22]-[23], the Court of Appeal held that “ [d] ischarge of water onto the appellant’s land could be a nuisance if it was an unreasonable interference with the use and enjoyment of the land.”…
Bankstown City Council v Alamdo Holdings Pty Ltd
[2005] HCA 46 Para 113

…poses unless Council believed it was not causing to others damage by nuisance or negligence, see Bankstown City Council v Alamdo Holdings Pty Ltd (2005) 223 CLR 660 at [16]. Council would be negligent unless it conducted the operation “ with all reasonable regard, and care for the interests of other persons ”: Melale…
Bonaccorso v Strathfield Municipal Council
[2003] NSWSC 408 Para 103

…Further, the mere existence of water flow through the drainage system does not establish damage (see Bonaccorso v Strathfield Municipal Council [2003] NSWSC 408 at [49]). Mrs O’Brien is benefitted by having less water flow onto her property in high magnitude events, estimated to occur less than once every two years…
Arena v Nader
[1997] HCATrans 284 Para 125

…s a privilege or immunity of council. Powers are not the same as privileges or immunities (see Brennan CJ in Arena v Nader & State of New South Wales (1997) 71 ALJR 1604; [1997] 17 Leg Rep SL1).…
Coco v the Queen
[1994] HCA 15 Para 127

…First, damage from water flow and damage from flooding are not synonymous. The principle of legality (see Coco v The Queen (1994) 179 CLR 427, 437) militates against extending the immunity from common law liability beyond the strict terms of s 733 (see Clissold v Perry (Minister for Public Instruction) (1904) 1 CLR 3…
Knezovic v Shire of Swan-Guildford
[1968] HCA 38 Para 70

…The common law meaning of a " watercourse " is considered by Barwick CJ in Knezovic v Shire of Swan-Guildford (1968) 118 CLR 468 at 475 – 476. The Chief Justice determined that:…
Jones v Dunkel
[1959] HCA 9 Para 129

…The remarks in Dubois cited earlier, are also apposite. The Court should, in accordance with Jones v Dunkel (1959) 101 CLR 298, be reluctant in the circumstances of this case to infer that Council’s actions in continuing to direct water onto Mrs O’Brien’s property, over which it has no easement, was an act done in good…
Jones v Dunkel
[1959] HCA 8 Para 129

…The remarks in Dubois cited earlier, are also apposite. The Court should, in accordance with Jones v Dunkel (1959) 101 CLR 298, be reluctant in the circumstances of this case to infer that Council’s actions in continuing to direct water onto Mrs O’Brien’s property, over which it has no easement, was an act done in go…
Clissold v Perry
[1904] HCA 12 Para 127

…tes against extending the immunity from common law liability beyond the strict terms of s 733 (see Clissold v Perry (Minister for Public Instruction) (1904) 1 CLR 363, 373; Bonaccorso v Strathfield Municipal Council [2003] NSWSC 408 at [41]-[45]). Mrs O’Brien makes no claim against Council in respect of flooding, b…
Gartner v Kidman
[1962] HCA 27 Para 52

…In Gartner v Kidman (1962) 108 CLR 12 at 48, Windeyer J of the High Court stated: “ What is a natural use is a question to be determined reasonably having regard to all the circumstances, including the purposes for which the land is being used and the manner in which the flow of water was increased ”.…

Legislation cited in this decision · 5

Local Government Act 1993 (TAS)
582A, 59A 3 mentions (from Para 8)
Civil Liability Act 2002 (TAS)
43A 2 mentions (from Para 8)
Evidence Act 2005 (NSW)
67 2 mentions (from Para 49)
Local Government Act 1919 (NSW)
582A 2 mentions (from Para 8)
Water Management Act 2000 (NSW)
393 2 mentions (from Para 78)

Medium Neutral Citation:	O’Brien v Pittwater Council [2016] NSWDC 32
Hearing dates:	1, 2, 3, 4, 5 June; 27 July and 1 August 2015
Date of orders:	16 February 2016
Decision date:	16 February 2016
Jurisdiction:	Civil
Before:	P Taylor SC DCJ
Decision:	(1) Direct the parties to bring forward orders that reflect these reasons. (2) In the event of disagreement, the matter will be relisted in respect of orders. (3) In any event, the matter will be relisted in respect of costs.
Catchwords:	TORT – private nuisance – increased water flow onto residential property – debris from water flow – noise from water flow – catchment area - natural watercourse – riparian rights - statutory defences – remedies – injunction - damages
Legislation Cited:	Civil Liability Act 2002, s 43A Evidence Act 2005, s 67 Local Government Act 1919, s 582A Local Government Act 1993, s 59A, s 634, s 733 Water Management Act 2000, s 393
Cases Cited:	Anthony Lagoon Station Pty Ltd v Maurice (1986) 13 FCR 262 Arena v Nader & State of New South Wales (1997) 71 ALJR 1604; [1997] 17 Leg Rep SL1 Bankstown City Council v Alamdo Holdings Pty Ltd (2005) 223 CLR 660 Bonaccorso v Strathfield Municipal Council [2003] NSWSC 408 Clissold v Perry (Minister for Public Instruction) (1904) 1 CLR 363 Coco v The Queen (1994) 179 CLR 427 Curtis v Harden Shire Council (2014) 88 NSWLR 10 Dubois v Noarlunga District Council [1959] SASR 127 Gales Holdings Pty Limited v Tweed Shire Council [2013] NSWCA 382 Gartner v Kidman (1962) 108 CLR 12 Gray v New South Wales (unreported, NSWSC, Young J, 31 July 1997) Jones v Dunkel (1959) 101 CLR 298 Knezovic v Shire of Swan-Guildford (1968) 118 CLR 468 Melaleuca Estate Pty Ltd v Port Stephens Council (2006) 12 BPR 23,743 Quick v Alpine Nurseries Sales Pty Ltd [2010] NSWSC 1248 Roads and Maritime Services v Grant [2015] NSWCA 138 Seidler v Luna Park Reserve Trust (unreported, NSWSC, Hodgson J, 21 September 1995) Vincent v Peacock [1973] 1 NSWLR 466 Wherry v K B Hutcherson Pty Ltd (unreported, NSWSC, Hodgson J, 4 April 1986)
Texts Cited:	J M Paterson, Kerr on Injunctions, (6th ed, 1927, Sweet & Maxwell)
Category:	Principal judgment
Parties:	Naomi Catherine O’Brien (plaintiff) Pittwater Council (defendant)
Representation:	Counsel: Mr A Fernon (plaintiff) Mr S Glascott (defendant) Solicitors: Yates Beaggi Lawyers(plaintiff) Mills Oakley Lawyers (defendant
File Number(s):	2010/258653
Publication restriction:	None