Premier Building & Consulting Pty Ltd v Spotless Group Ltd - [2007] VSC 377

IN THE SUPREME COURT OF VICTORIA	Not Restricted
AT MELBOURNE COMMERCIAL AND EQUITY DIVISION BUILDING CASES LIST

No. 8264 of 2003

PREMIER BUILDING AND CONSULTING PTY LTD	Plaintiff
(Receivers appointed) (ACN 066 568 367)
v
SPOTLESS GROUP LIMITED (ACN 004 376 514) AND	Defendants
OTHERS

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IN THE VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL

REAL PROPERTY LIST

No. W9/2004

PREMIER BUILDING AND CONSULTING PTY LTD	Applicant
(Receivers Appointed) (ACN 066 568 367)
v
SPOTLESS GROUP LIMITED (ACN 004 376 514) AND	Respondents
OTHERS

----------------------------------------

IN THE VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL

REAL PROPERTY LIST

No. W61/2005

NORTH SUBURBAN PROPERTIES PTY LTD	Applicant
(ACN 065 883 614)
v
SPOTLESS GROUP LIMITED (ACN 004 376 514) AND	Respondents
OTHERS

----------------------------------------

JUDGE:

Byrne J

WHERE HELD:

Melbourne

DATES OF HEARING:

3-6, 9-12, 16-17, 19, 23-26 October, 8-10, 13-16, 20-23, 27-30 November, 4-6, 12 and 14 December 2006, 22-25, 29-31 January, 1-2, 5-8, 12-13, 21, 26-28 February, 5-8, 13-15, 19-22, 27-28 March, 2-4 April 2007.

DATE OF JUDGMENT:

5 October 2007

CASE MAY BE CITED AS:

Premier Building & Consulting Pty Ltd v Spotless Group Ltd
(No. 12)

MEDIUM NEUTRAL CITATION:

[2007] VSC 377

Revised 7 December 2007.

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PRACTICE AND PROCEDURE – trial judge sitting as judge and as member of VCAT.

Victorian Civil and Administrative Tribunal Act 1998 s. 29

ENVIRONMENTAL LAW – source of pollution – compensation order – person who has caused pollution to occur – defendant caused pollutant to be brought onto land - whether pollution of soil a natural consequence of bringing the pollutant onto land – whether defendant caused pollution to occur – whether compensation available for pollution caused prior to commencement of the Act.

Environment Protection Act 1970 s. 62A

ENVIRONMENTAL LAW – pollution of groundwater – source of pollution – whether defendant

polluted water – beneficial use of land – whether presence of contaminant is harmful or

potentially harmful to the health, welfare or safety of human beings or other life.

Water Act 1989 s. 15

CORPORATIONS – corporate group – lifting the corporate veil – whether subsidiary acted as agent for holding company – whether holding company and subsidiary engaged in joint enterprise.

NEGLIGENCE – duty of care – duty of occupier of land to future occupants of adjoining land.

NUISANCE – creating nuisance – whether interference with use and enjoyment of plaintiff’s land

– continuing nuisance – whether defendant knew of existence of nuisance.

LOCAL GOVERNMENT – building surveyor – whether building permit inconsistent with planning

permit – whether duty is with respect to non-building conditions of planning permit –

surveyor’s duty to have regard to Ministerial Guidelines – duty of surveyor to enquire as to

compliance with planning permit.

Building Act 1993 ss. 24, 188(7)

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff/Applicant	Mr J Burnside QC	Gadens Lawyers
(Premier)	with Mr T Boston
For the First, Third and	Mr S G Finch SC	Freehills
Ninthnamed Defendants	with Mr T J Walker and
(Spotless Parties)	Mr J Slattery
For the Secondnamed	Mr M Dreyfus…

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: [2007] VSC 377
Decision Date: 5 October 2007

CaseChat Overview and Summary

Premier Building & Consulting Pty Ltd took legal action against Spotless Group Ltd in the Victorian Civil and Administrative Tribunal (VCAT), seeking compensation for soil and groundwater pollution. The pollution was allegedly caused by Spotless Group Ltd's actions on a property previously used as a landfill site. The dispute centered on whether Spotless Group Ltd could be held liable for the pollution and whether compensation was available for incidents that occurred prior to the commencement of the relevant environmental legislation.

The court had to address several legal issues, including the source of the pollution and the extent of Spotless Group Ltd's liability under the Environment Protection Act 1970. It also needed to determine if the defendant had caused the pollution to occur and if compensation was available for incidents that happened before the Act took effect. Additionally, the court had to consider whether the defendant's actions constituted a nuisance and whether there was a duty of care owed to the plaintiff regarding the pollution. The case also explored the relationship between Spotless Group Ltd and its subsidiaries, specifically whether one acted as an agent for the other, thereby implicating both in the pollution.

The tribunal found that Spotless Group Ltd had indeed caused the pollution to occur as the pollutants were brought onto the land by their actions. The court held that the defendant could be held liable for the pollution under the Environment Protection Act 1970, and compensation was available for incidents that occurred prior to the commencement of the Act. The tribunal also concluded that the defendant's actions constituted a nuisance and that there was a duty of care owed to the plaintiff regarding the pollution. Furthermore, the court determined that Spotless Group Ltd and its subsidiary engaged in a joint enterprise, holding both liable for the pollution. The tribunal emphasised the importance of the surveyor's duty to ensure compliance with the planning permit and to consider Ministerial Guidelines.

The final orders of the tribunal included a compensation order against Spotless Group Ltd for the soil and groundwater pollution, along with an injunction requiring the defendant to take specific steps to remediate the affected land. The tribunal also ordered the defendant to pay the plaintiff's costs associated with the proceedings.

Orders