Ross v Town of Victoria Park
[2000] WASCA 299
•18 OCTOBER 2000
ROSS & ANOR -v- TOWN OF VICTORIA PARK [2000] WASCA 299
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2000] WASCA 299 | |
| THE FULL COURT (WA) | |||
| Case No: | FUL:107/1999 | 14 APRIL 2000 | |
| Coram: | MALCOLM CJ KENNEDY J MURRAY J | 18/10/00 | |
| 22 | Judgment Part: | 1 of 1 | |
| Result: | Appeal dismissed | ||
| PDF Version |
| Parties: | CLIVE MICHAEL ROSS JENNIFER ANN ROSS TOWN OF VICTORIA PARK |
Catchwords: | Local Government Powers functions and duties of councils Construction of stormwater drain on private residential land Whether entry to construct and repair drain constituted a trespass Notice given by predecessor of respondent council under Health Act 1911 (WA) s 83 and drain constructed under power in s 62(e) Whether exercise of power valid Notice under s 83 given pursuant to resolution of council following approval of proposed route by council resolution Delegation of power by council to committee during holiday period Decision of committee to vary route of drain Decision to vary route did not involve rescission or alteration of council resolution Further notice under s 83 in respect of alteration within delegated power of committee Subsequent receipt of committee report by council without query or dissent implied ratification of actions of committee Delegation to committee authorised by Health Act s 26 Limitation of actions Contracts torts and personal actions Acts done in execution or intended execution of any Act Entry to subject land duly authorised Appellants' action statute barred by Limitation Act s 47A as not commenced within one year from accrual of cause of action No continuing act or default Practice and procedure Appeal against dismissal of appellants' application for summary judgment Right of appeal not excluded by Supreme Court Act 1935 s 60(1)(b) Order appealed from not merely an order giving leave to defend but granting respondent summary judgment |
Legislation: | Health Act 1911 (WA) s 26, s 62(e), s 83 Interpretation Act 1984 (WA) s 5, s 10(c) Limitation Act 1935 (WA) s 47A Local Government Act 1960 (WA) s 175, s 177, s 315(a), s 365 Local Government Act 1995 (WA) s 3.33, s 3.53 Supreme Court Act 1935 (WA) s 60(1)(b) |
Case References: | Hammond v Minister for Works (1992) 8 WAR 505 Goodson v Richardson [1874] LR 9 Ch 221 Konskier v B Goodman Ltd [1928] 1 KB 421 Lawlor v Johnston [1905] VLR 714 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE FULL COURT (WA) CITATION : ROSS & ANOR -v- TOWN OF VICTORIA PARK [2000] WASCA 299 CORAM : MALCOLM CJ
- KENNEDY J
MURRAY J
- JENNIFER ANN ROSS
Appellants
AND
TOWN OF VICTORIA PARK
Respondent
Catchwords:
Local Government - Powers functions and duties of councils - Construction of stormwater drain on private residential land - Whether entry to construct and repair drain constituted a trespass - Notice given by predecessor of respondent council under Health Act 1911 (WA) s 83 and drain constructed under power in s 62(e) - Whether exercise of power valid - Notice under s 83 given pursuant to resolution of council following approval of proposed route by council resolution - Delegation of power by council to committee during holiday period - Decision of committee to vary route of drain - Decision to vary route did not involve rescission or alteration of council resolution - Further notice under s 83 in respect of alteration within delegated power of committee - Subsequent receipt
(Page 2)
of committee report by council without query or dissent implied ratification of actions of committee - Delegation to committee authorised by Health Act s 26
Limitation of actions - Contracts torts and personal actions - Acts done in execution or intended execution of any Act - Entry to subject land duly authorised - Appellants' action statute barred by Limitation Act s 47A as not commenced within one year from accrual of cause of action - No continuing act or default
Practice and procedure - Appeal against dismissal of appellants' application for summary judgment - Right of appeal not excluded by Supreme Court Act 1935 s 60(1)(b) - Order appealed from not merely an order giving leave to defend but granting respondent summary judgment
Legislation:
Health Act 1911 (WA) s 26, s 62(e), s 83
Interpretation Act 1984 (WA) s 5, s 10(c)
Limitation Act 1935 (WA) s 47A
Local Government Act 1960 (WA) s 175, s 177, s 315(a), s 365
Local Government Act 1995 (WA) s 3.33, s 3.53
Supreme Court Act 1935 (WA) s 60(1)(b)
Result:
Appeal dismissed
Representation:
Counsel:
Appellants : In person
Respondent : Mr J C W Skinner
Solicitors:
Appellants : In person
Respondent : Corrs Chambers Westgarth
Case(s) referred to in judgment(s):
Hammond v Minister for Works (1992) 8 WAR 505
(Page 3)
Case(s) also cited:
Goodson v Richardson [1874] LR 9 Ch 221
Konskier v B Goodman Ltd [1928] 1 KB 421
Lawlor v Johnston [1905] VLR 714
(Page 4)
1 MALCOLM CJ: This is an appeal by the appellants against orders made by Master Bredmeyer dated 13 April 1999 in an action by the appellants against the respondent regarding a stormwater drainpipe which was constructed on the appellants' property in 1994. The appellants were not represented. Their case was presented by the first appellant in person.
2 The appellants are the owners of a property at 31 Harvey Street, Burswood, being more particularly Lots 52 and 53 on Swan Location 36, Diagram 463 and being the whole of the land contained in Certificate of Title Volume 36 Folio 194A. They purchased this property in 1990 from a Mr Silfo when it had an old house on it. They demolished the house and in recent times had built four residential units on the land which, as at July 1999, were nearing completion and which they planned to sell.
3 It was common ground that in early 1984 the City of Perth placed a stormwater drainpipe on the subject land. The drainpipe commences at the side of Harvey Street and runs along the southern boundary of Lot 53 about two metres in from the boundary. Towards the rear of the property it takes a right turn and runs for about 10 metres along the rear of the property, briefly goes into Lot 52 and, after taking another turn, exits the property. The pipe is about 375 mm in diameter and is buried about one metre under the ground. There is a manhole at the commencement of the pipe at the roadside and there are two other manholes where the pipe runs along the rear boundary.
4 The appellants' property is now located within the Town of Victoria Park which has replaced the City of Perth as the local authority as a result of changes made to local government boundaries.
5 The appellants allege in their statement of claim that the drainpipe was unlawfully constructed on the property and that its presence constitutes a continuing trespass. It is alleged that the installation of the pipe has damaged the property because a building cannot be constructed over it. It is also alleged that damage to the property has been caused by leakage from the pipe and the manholes associated with it causing flooding and subsidence of the soil of the property and that the reduction of the area of the property available for permanent use has reduced its value. It is also alleged that, as a result of the presence of the stormwater drainpipe on the property, the respondent has entered the property to carry out repairs and so unreasonably interfered with the appellants' right to use and enjoy the property as to constitute a nuisance, as a result of which they have suffered loss and damage.
(Page 5)
6 The material damage to the property was said to amount to $23,715 being the decrease in the value of the property as a result of the continuing nuisance. While it was not specifically claimed in the prayer for relief, the learned Master considered that it was fair to infer that the appellants sought this sum as damages. They also sought an order that the pipe be removed at the respondent's expense and that the respondent be restrained permanently from entering into the appellants' property without their express written permission.
7 The respondent did not dispute that its predecessor, the City of Perth, put the pipe on the property. It was common cause that the pipe took rainwater off Harvey Street and the nearby Teague Street. The respondent pleaded that its predecessor, the City of Perth, had authority to install the pipe on the land and it had, and, as its successor the respondent has had authority to enter the land and repair the pipe if and when necessary.
8 In April 1994 a dispute arose between the appellants and the City of Perth when the appellants' surveyor discovered the stormwater pipe on the property. The appellants asked the City of Perth to relocate the pipe as it interfered with their plans to build four units on the land. The pipe ran along the inside of the rear boundary, but parallel to it and some 2.4 metres from it. The City of Perth was prepared to relocate the pipe to within one metre of the rear boundary and was prepared to relocate the two manholes. The City, however, proposed to charge the appellants $8,000 to do the work. The appellants objected to making the payment and contended that, prior to purchasing the property in 1990, they had made an enquiry of the City regarding outstanding rates and "details of orders and requisitions", but were not told of the stormwater pipe.
9 The appellants took their dispute to the Ombudsman. That dispute was eventually settled in 1996 by the City relocating the pipe to within one metre of the rear boundary at its own cost.
10 In its defence the respondent admits that it is the current local government body for the area in which the property is located but says that:
(a) the respondent was first constituted as a municipality, then known as the Town of Shepparton on 1 July 1944, pursuant to the City of Perth Restructuring Act 1993 and Part III of the Local Government Act 1960;
(b) the respondent became a Local Government established under the Local Government Act 1995 on 1 July 1996; and
(Page 6)
- (c) prior to 1 July 1994 the municipality for the area in which the appellants' property is located was the City of Perth.
11 In par 7 of the statement of claim it was alleged by the appellants that the respondent accepted responsibility for the stormwater drainpipe and claimed ownership of it where it passed through their property. As to that, the respondent admitted that pursuant to s 3.53 of the Local Government Act 1995 it is responsible for the control and management of the stormwater drain which passed through the property as an "otherwise unvested facility", but otherwise denied each and every allegation in par 7. In par 8 the respondent admits the current location of "the stormwater drain", but pleads the facts that, when the appellants became aware of the existence and location of the drain, they requested the City of Perth to relocate it in or about 1994 and that in or about April 1996 the City of Perth relocated the drain to its current position, as agreed between the parties at the cost of the City of Perth.
12 It is pleaded in par 10(b) of the defence that the City of Perth was at all material times authorised to construct the stormwater drainpipe on or through the property pursuant to s 315 and/or s 365 of the Local Government Act 1960. It is further pleaded in par 10(c) that, in any event, in or about April 1996 the City of Perth was authorised to relocate the stormwater drainpipe to its current position on the property pursuant to a private agreement with the appellants. The allegations of trespass or continuing trespass are denied.
13 It is alleged in par 17 of the statement of claim that because of the presence of the stormwater drainpipe on the property the respondent has entered upon the property to repair it. As to that, the respondent admits that on or about 15 January 1999 it entered upon the property pursuant to s 3.33 of the Local Government Act 1995 to repair the stormwater drainpipe. The respondent denies "any interference" with the appellants' right to use and enjoy the property which constitutes a nuisance and says that if it did, those things were authorised by statute and/or private agreement, were reasonably necessary, carried out without negligence and were appropriate in the circumstances.
14 By summons dated 3 March 1999 the appellants made an application for summary judgment pursuant to O 14. The respondent then made an application by summons dated 13 April 1999 for summary judgment pursuant to O 16. In the result, the learned Master ordered that the appellants' application for summary judgment be dismissed with costs and ordered that the respondent have leave to make its application for summary judgment and that judgment be entered for the respondent
(Page 7)
- pursuant to O 16. An order was made that the appellants pay the respondent's costs of the application and of the action to be taxed, if not agreed. There was a direction that, for the purposes of taxation, the two applications be considered as one application.
15 In the appeal the appellants seek orders that the appeal be allowed; the respondent's application for summary judgment be dismissed; there be summary judgment for the appellants; the respondent remove the drainpipe from the appellants' land and pay all costs for such removal including compensation to the appellants for any damage or interference with their land and thereafter be restrained from entering the land; and the respondent pay the sum of $23,715 by way of damages together with the costs of the application and of the action.
16 While the respondent conceded that the appellants had a right of appeal against the order for summary judgment in favour of the respondent on its application, they had no right of appeal from the dismissal of their own application for summary judgment, such right having been excluded by s 60(1)(b) of the Supreme Court Act 1935 which relevantly provides that:
"No appeal shall lie to the Full Court -
…
(b) from an order of a Judge or Master giving unconditional leave to defend an action."
17 In the present case, the order went further than giving the respondent unconditional leave to defend the action as the learned Master considered that the respondent had a good defence on the merits with the result that judgment should be entered for the respondent.
18 I propose to deal first with the appeal against the dismissal of the appellants' application for summary judgment under O 14.
19 The history of the matter was that, at a meeting of the Perth City Council on 15 August 1983, it was resolved to serve notices on various persons under s 83 of the Health Act 1911 (WA) of the Council's intention to construct a new stormwater drain through certain properties. One of them was Lot 55 Harvey Street, which was then owned by Carmina and Michelle Arcaro. Pursuant to that resolution, a notice was sent to Mr and Mrs Arcaro informing them of the resolution. The notice told them that the Council was taking action in accordance with s 83 of the Health Act.
(Page 8)
- The notice was given in the form of a letter and also in the form of a formal notice under s 83 of the Health Act. Section 83 relevantly provides that:
"Without affecting the provisions of this Act relating to the powers of the local government in the carrying out of any …drainage works, …whenever in the opinion of the local government it is necessary for the proper drainage of any land or premises to construct a … drain through or under private land, the following provisions shall apply:
…"
21 The power of a local government to carry out drainage works is conferred by s 62 of the Act. Section 62 appears under the heading "Powers of local government in carrying out works" and, at the material time, relevantly provided that:
"For the purposes of the construction, extension, maintenance, repair, alteration, or improvement of any such works, the local government, and all persons acting with its authority may enter upon any lands and -
…
(d) make, maintain, alter or discontinue drains and culverts upon any lands authorised to be taken;
(e) construct, alter, and maintain under any street and through, across, or under any land any sewer pipes or drains;
(f) open and break up the soil of any streets or of any land, and excavate and sink trenches for the purpose of laying
(Page 9)
- down, making and constructing sewers, pipes, and drains therein;
- (g) cause any sewers to discharge upon any such land as may be required by the local authority for that purpose, or to communicate with the sea, or any arm thereof, or with any river or watercourse, either within or without the limits of the district of the local government;
(h) open, cleanse, and repair such sewers, pipes, and drains, or alter the position and construction thereof;
(i) make any sewers or drains from any main sewer laid in any street into any dwelling-house, public or private building or other premises for the purpose of cleansing and draining any such house, building, or premises by means of such sewers or drains;
(j) do all such other acts, matters and things as the local authority may deem proper for making, repairing, completing or improving any such works;
…
Provided further, that the local authority shall make to every person, or to any other local government aggrieved, compensation for any actionable damage actually sustained by any such person or local government through the exercise of the powers conferred by this Act, but any dispute as to the right of such person or local government to receive compensation or the amount thereof shall be heard and determined by a compensation court duly constituted under the provisions of the Public Works Act 1902."
22 In s 3 of the Act the word "sewer" includes:
"sewers and drains of every description except drains to which the word 'drain' as above defined applies, also water channels constructed of stone, brick, concrete, or any other material the property of a local authority."
23 As defined in the same section "drain":
"means any drain for the drainage of one building only, or of premises within the same curtilage, and made merely for the
(Page 10)
- purposes of communicating therefrom with a receptacle for drainage, or with a sewer into which the drainage of 2 or more buildings or premises occupied by different persons is conveyed, and includes the whole length of any combined system of drainage from several premises up to the point at which it enters the public sewer."
24 As to these provisions the learned Master said:
"15 Clearly the stormwater drainpipe in this case does not come within the restricted definitions given in s 3 of 'drain'. It is not a drain for the drainage of one building only or of (several) premises within the same curtilage etc. This drain thus comes within the description of 'sewer' given in s 3 to include 'drains of every description except drains to which the word "drain" as above applies'. I consider that this pipe comes within the ambit of s 62(e). It is, by the extended definition of sewer just mentioned, a sewer pipe constructed through or under the plaintiffs' land. By s 62(e) and s 62(f) the council has power to maintain it, open it, cleanse and repair it. By the proviso at the end of the section if the owner of the land sustains any actionable damage by the local government council exercising its powers, he is entitled to compensation. I note that Jackson J in Geneff v Shire of Perth [1967] WAR 124 at 127 came to a similar interpretation on the meaning of sewer within s 62. In that case a 21-inch diameter stormwater pipe took stormwater off the road and onto the plaintiff's land. It was buried under the plaintiff's land for about 116 feet and then surfaced and discharged water onto the land at its open end. Jackson J considered that the pipe came within s 62(g). He said that s 62(g) conferred on the defendant the right to discharge stormwater through its drains onto the plaintiff's land subject only to a proviso for compensation. By similar reasoning I conclude in the case before me that s 62(e) enables the council to run a stormwater pipe through the plaintiff's land subject to payment of compensation for any damage caused.
16 Section 83 of the Health Act 1911 (WA) is headed 'Making sewers and drains under private land'. It provides that, whenever in the opinion of the local
(Page 11)
- government it is necessary for the proper drainage of any land or premises to construct a sewer or drain through or under the land, the local government may by notice in writing to the owner require him to permit such sewers or drains to be made through or under such private land. After one month from the service of such notice the authority may enter upon the land to make such sewers or drains and the owner is to be paid compensation for any damages occasioned thereby, and, in the case of any dispute, the compensation is to be assessed under the provisions of the Public Works Act 1902 (WA). Given the wide definition of sewer previously mentioned, I consider that this section also empowers a council to construct a sewer or drain on private land provided, of course, that it has given the requisite notice and paid compensation."
25 The learned Master considered that this power was sufficient to have enabled the City of Perth to have lawfully installed the pipe on the subject land and to enter the land to clean and repair the pipe.
26 It was also contended that the City of Perth had authority to install the pipe on the land and authority to enter the land to repair the pipe if and when necessary under s 315 of the Local Government Act 1960 (WA) which, as it was in force in 1983 and 1984, provided that:
"Unless precluded from doing so because by the provisions of an Act the power to do so is conferred upon another authority or because of other provisions of an Act, a council -
(a) may make and open in and through land such ditches, gutters, tunnels, drains, and water courses, as the council considers necessary, for the drainage of a street or other land under the care, control or management of the municipality, or of private land as the council thinks fit, and scour, cleanse, and keep them open, and for any of those purposes enter upon the land; but the council shall make to the owners and occupiers of the land for damage, if any, which they sustain through the exercise of a power conferred by this paragraph, compensation as agreed between the parties, or if there is no agreement, only as determined on a reference to arbitration;
(Page 12)
- (b) shall not exercise a power conferred by this section in connection with or for the purposes of the drainage of private land, unless with the approval of the Governor;
(c) may drain water falling or flowing upon a street into land adjacent to the street, upon paying compensation so agreed or determined, except where the drainage follows the natural flow of the water, to the owner and occupier of the land; and
(d) may for those purposes, by its agents and servants and workmen lawfully enter upon land."
27 In the context of this provision the learned Master noted that the subject pipe took water "in and through" the subject land. The purpose of it was to drain water off two streets and s 315(a) referred specifically to "the drainage of a street …". By s 10 of the Interpretation Act 1984 (WA), in any law, words in the singular include the plural so that s 315(1)(a) applies to a single street or more than one street. The streets concerned were within the "control and management" of the Council and the Council was empowered to make and open in and through land "ditches, gutters, tunnels, drains and water courses". As to this, the learned Master said:
"Do those words apply to the pipe buried under the plaintiffs' land? The nearest word I think is 'drain'. Is this closed pipe a drain within the meaning of that section? The Oxford English Dictionary defines 'drain' as a noun to include:
- a channel carrying off liquid;
- artificial conduit for water, sewage etc;
- tube for draining off discharge from an abscess.
I note that a tube is a pipe. I consider it a reasonable interpretation to say that a drain can include a closed pipe. I therefore conclude that the City of Perth was empowered by s 315(a) of the Local Government Act 1960 (WA) to lay the pipe under the land, as it did, and the council is empowered to scour, clean it and keep it open - this includes repairing it - subject to the payment of compensation for any damage incurred."
(Page 13)
28 The reference to a "tube for draining off discharge from an abscess" is a particular usage of the term "drain" which might not necessarily be relevant in the present context. However, there could be no doubt that a pipe such as the pipe in this case constitutes an "artificial conduit for water" in accordance with the second dictionary meaning.
29 Before the learned Master, the respondent also relied upon s 365 of the Local Government Act which provided that:
"(1) A council may cause to be made under the streets or ways in the district such surplus water drains as are necessary.
(2) Where in order to complete surplus water drains it is necessary to carry them into or through land other than streets or ways in the district, or land outside the district of the municipality, whether streets, or ways, or not, the council may carry them into or through that land.
(3) The council may cause surplus water drains to communicate with and empty themselves into the sea, or may cause the effluent from such drains to be conveyed by a channel to the most convenient site for its collection and disposal.
(4) Where in order to exercise a power conferred by this section, acquisition of land under the Public Works Act 1902, is necessary, this section does not authorise the exercise of the power without the acquisition of the land."
30 As to this provision the learned Master said:
"This is clearly an alternative power available to the council. If it is purported to rely on it for the drainwater pipe in this case I consider it was probably necessary for the council to have acquired an easement over the land under the provisions of the Public Works Act 1902 (WA)."
- That was not done, and s 365 of the Local Government Act may be put to one side.
31 Having referred to the provisions of both the Local Government Act and the Health Act, the learned Master concluded that the powers mentioned were:
(Page 14)
- "… sufficient to have enabled the City of Perth to have installed lawfully the pipe on what is now the plaintiff's land. Those provisions quoted allowed for compensation for any damage suffered but that compensation fell due to the then owner of the land and the present plaintiffs can have no complaint in regard to that. I also consider that the defendant has adequate statutory power to enter the plaintiffs' land to clean and repair the pipe."
32 Ground 1 of the grounds of appeal contended that the learned Master erred in fact and in law in finding that the City of Perth had exercised the power under s 315(a) of the Local Government Act 1960 to lawfully install the drainpipe on what is now the appellants' land as being against the evidence in that the City of Perth had purported to exercise the power under s 83 of the Health Act 1911 to install the drain but not any other power.
33 It is accepted that the specific power invoked by the City was the latter power. The question whether the powers in the Local Government Act could be invoked when the Council purported to exercise the power under s 83 of the Health Act raises an issue that it would not be necessary to deal with if the installation of the drainpipe in the first place was a valid exercise of the power under s 83 of the Health Act.
34 Ground 2 of the grounds of appeal contended that the learned Master erred in fact and in law in finding that the City of Perth had exercised the power under s 83 to install the drainpipe was against the evidence or against the weight of evidence in that:
"(i) the evidence admitted by the [respondent] showed that the Council of the City of Perth had resolved on 15 August 1983 to construct the stormwater drain on the neighbouring property not on the [appellants'] land; [and]
(ii) the evidence admitted by the [respondent] showed that the decision to relocate the pipe onto what is now the [appellants'] land was not made in accordance with the provisions of [s]177 of the Local Government Act 1960 which is the statutory power governing the rescission of a resolution thus making the purported exercise of the power to relocate the pipe invalid."
35 Grounds 3 and 4 contended relevantly that under s175 of the Local Government Act 1960 the City of Perth was required to hold ordinary meetings to transact the ordinary business of the Council, including the
(Page 15)
- exercise of any power conferred upon the Council by any other Act, and that these provisions applied, among other things, to the exercise of the power under s83 of the Health Act 1911.
36 Section 175(1) provides that:
"A council shall hold ordinary meetings for transacting the ordinary business of the council."
- By s 175(2) "ordinary business" includes:
"…
(d) generally giving such directions from time to time as are necessary … for exercising a power conferred … upon the council by this or another Act …"
38 It appears that at a meeting of the Perth City Council on 15 August 1983 the Council resolved to serve notices on various persons under s 83 of the Health Act of the Council's intention to construct a new stormwater drain through their properties. One of these was Lot 55 Harvey Street, which was owned by Mr and Mrs Arcaro. Pursuant to that resolution a notice was sent to Mr and Mrs Arcaro informing them of the Council's resolution to construct the new stormwater drain through their property. The notice stated that the Council was taking action in accordance with s 83 of the Health Act. Notice was given in the form of a letter and a formal notice under s 83. There was no mention in the letter or the formal notice of the owner's right to compensation.
39 Mr and Mrs Arcaro objected to the stormwater drain going through their property and engaged Keall Brinsden & Co, Solicitors, to make representations on their behalf. These appear to have been successful. In a letter dated 30 November 1983 the solicitors recorded that one of the City's engineers had telephoned the solicitor dealing with the matter and informed him that the City was considering re-routing the stormwater drain through the next door property, Lot 53. The solicitor understood that the matter would go back before the Council for approval of the alternate route. At that stage no definite decision had been made by the City.
(Page 16)
40 At a meeting of the Council on 12 December 1983 the Town Clerk said that in accordance with normal practice the Council would be in recess from 12 December 1983 until 20 February 1984. A resolution was passed that the Town Clerk and the Lord Mayor, together with the Chairman and ward members where appropriate, in accordance with the powers delegated by the Council, be authorised to deal with any matters arising during the 1983 Christmas recess. One of the matters dealt with during the recess was the re-routing of the stormwater pipe from Lot 55 to the adjacent Lot 53, which, together with Lot 52, was owned by Mr and Mrs Silfo and later purchased by the appellants.
41 The minutes of the meeting of Council on 20 February 1984 list in a schedule the matters that the Lord Mayor, the Chairman of the Works Committee and the Town Clerk (and the Committee ward member where appropriate) dealt with during the Christmas recess. One of those matters was the re-routing of the proposed new stormwater drain from Lot 55 to Lot 53. Mr and Mrs Arcaro and their solicitors were informed of the relocation of the proposed drain.
42 Mr and Mrs Silfo were notified of the proposal to construct the new stormwater drain through Lot 53 by letter dated 29 December 1983 and a formal notice of the same date under s 83 of the Health Act. The letter stated that the Council had resolved to construct a new stormwater drain through Lot 53 and that the Council was taking this action in accordance with s 83 of the Health Act. Their co-operation was requested. They were informed that the work would be carried out in a workmanlike manner and the property would be reinstated on completion. Neither the notice nor the letter informed them of any right to compensation under s 83 of the Health Act.
43 When the matter was before the Master, it was submitted that the decision of the delegated committee during the Christmas recess to relocate the proposed pipe was not valid for a number of reasons. The learned Master concluded it was not necessary for him to consider the grounds upon which it was contended that the decision to relocate the pipe and construct it on the land of which the appellants became the owners because they were, and each of them was, time-barred by s 47A of the Limitation Act 1935 (WA). As to this, the learned Master said:
"That imposes a limitation period of one year on anyone bringing an action against a local government council with a provision that that may be extended in certain circumstances to six years. The council's actions in relation to this drain occurred
(Page 17)
- in 1983 and 1984. The [appellants'] claim is clearly time-barred and it is a pointless exercise to discuss the legal merits of these arguments.
I am satisfied, to the requisite standard applicable to an application for summary judgment, that the [respondent's] predecessor, the City of Perth, had authority to construct and maintain the stormwater pipe running under the [appellants'] land and that the [respondent] has adequate statutory authority to enter the [appellants'] land to repair it."
44 Section 47A of the Limitation Act 1935 provides that:
"… no action shall be brought against any person (excluding the Crown) for any act done in pursuance or execution or intended execution of any Act, or of any public duty or authority, or in respect of any neglect or default in the execution of the Act, duty or authority, unless -
(a) the prospective plaintiff gives to the prospective defendant, as soon as practicable after the cause of action accrues, notice in writing …; and
(b) the action is commenced before the expiration of one year from the date upon which the cause of action accrued,
and for the purposes of this section, where the act, neglect or default is a continuing one, no cause of action in respect of the act, neglect or default accrues until the act, neglect or default ceases …"
45 The proviso to the limitation period in the section requires a continuing "act, neglect or default": Hammond v Minister for Works (1992) 8 WAR 505.
46 As I understand the appellants' argument, it was that the decision of the delegated committee during the Christmas recess was not validly made. This was said to have the consequence that the installation of the pipe on what is now the appellants' land was invalid, with the further consequence that the entry upon the land and installation of the pipe was an unlawful trespass, which continued so long as the pipe remained on the land. The starting point is that the decision to locate the pipe on Lot 55 had been made in the context of a resolution adopted by the Council at its meeting on 15 August 1983. The contention was that the decision to
(Page 18)
- change the route was invalid as beyond the scope of any power of delegation.
47 The relevant evidence is contained in an affidavit of Garry George Hunt, Chief Executive Officer of the City of Perth, which establishes that, following a report by the Works Committee meeting on 4 August 1983, the Council resolved that a recommendation of the Works Committee be adopted, namely that, in accordance with the provisions of s 83 of the Health Act, notices be served on the property owners of Lot 80 Rushton Road and Lot 55 Harvey Street and the occupier of Lot 65 Rushton Street advising them of the Council's intentions to construct a new stormwater drain through the properties as shown on City of Perth Drawing No A1-5267/3 laid on the table and that the work may commence one month after the serving of the notice. The relevant letters were dated 29 August 1983 and stated, inter alia, that the Council was taking the action in accordance with s 83 of the Health Act and enclosed the formal notice which required the owner to permit such drain to be made through the land and that pursuant to s 83(b) the City may, after one month from the date of service of the notice, make such drain through the land.
48 Subsequently on 12 December 1983 the Council resolved that the Town Clerk and the Lord Mayor, together with the Chairman and ward members where appropriate, in accordance with the powers delegated by the Council, be authorised to deal with any matters arising during the 1983 Christmas recess. The Council met after the recess on 20 February 1984. The minutes of the meeting of the Council on that date record under the heading "DELEGATED AUTHORITY":
"The Committee reports that the Lord Mayor, Chairman of the Works Committee and the Town Clerk (and the Committee Ward Member where appropriate) in accordance with the various powers delegated by the Council, dealt with the items listed in Schedule No. 4/8 attached during the Christmas recess."
49 One of the items is headed "STORMWATER DRAIN - LOT 9 RUSHTON ROAD AND LOT 53 HARVEY STREET". The following resolution is recorded, namely that:
"(i) In accordance with the provisions of Section 83 of the Health Act, notices be served on the property owners of Lot 9 Rushton Road and Lot 53 Harvey Street advising them of the Council's intention to construct a new
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- stormwater drain through the properties as shown on City of Perth Drawing No. A1-5267/3 (as amended) laid on the table, and the work may commence one month after the serving of the notice.
- (ii) M & C Arcaro, Mr P Pilkardis and Keall Brinsden & Co be advised of the relocation of the proposed drain."
50 The following appears under the heading "REMARKS":
"It was found necessary to advise the property owners of the Council's intentions as the work is programmed for this financial year and due to an alternative route for alignment being selected."
51 The schedule includes the following under the heading "DETAILS":
"Laying of drainage pipes through private properties, Lot 9 Rushton Street and Lot 53 Harvey Street, Victoria Park."
52 The following appears under "DECISION":
"Action in accordance with Section 83 Health Act".
53 Mr Hunt's affidavit also exhibited City of Perth Drawing A1-5276/3 Sheet 3A dated 23 March 1981 with Amendment A dated 6 December 1983 described as "Drain relocated east of Rushton St". This shows the amended route of the drain the subject of resolutions by the two committees mentioned passing through Lot 53 Harvey Street. Letters dated 29 December 1983 were duly sent to the owners of the properties affected by the change including, in relation to Lot 53, Mr and Mrs Silfo in substantially the same terms as the form of notice originally sent.
54 It was contended by the appellants that the decisions taken by the Committee during the Christmas recess constituted an alteration of the resolution originally adopted on 15 August 1983 otherwise than in conformity with s 177 of the Local Government Act 1960 which provides that:
"(1) A council may, at the same meeting at which it is passed, rescind or alter a resolution if all the members of the council who were present in the council chamber at the time the resolution was passed are also present in the council chamber at the time the rescission or alteration is proposed.
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- (2) A council may at a meeting after that at which it was passed, rescind or alter a resolution -
(a) where notice of the motion to rescind or alter is not given, if a motion to that effect is carried by an absolute majority of the members of the council; or
(b) where the member intending to propose the rescission or alteration has, through the clerk given written notice of his intention to each of the other members of the council at least seven days before the meeting, if a motion to that effect is carried by a majority of the members voting on the proposal at the meeting;
but not otherwise."
56 Furthermore, s 26 of the Health Act provided that:
"Every local government is hereby authorized and directed to carry out within its district the provisions of this Act and the regulations, by-laws, and orders made thereunder:
Provided that a local government may appoint and authorize any person to be its deputy, and in that capacity to exercise and discharge all or any of the powers and functions of the local government for such time and subject to such conditions and limitations (if any) as the local government shall see fit from
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- time to time to prescribe, but so that such appointment shall not affect the exercise or discharge by the local government itself of any power or function."
57 By s 5 of the Interpretation Act 1984 (WA) the word "power" "includes any privilege, authority, or discretion". By s 10(c) of that Act words in the singular number include words in the plural. In my opinion, the power of delegation in s 26 of the Health Act, without more was sufficient to clothe the Committee with sufficient authority to act as they did.
58 In my view, this is a case in which the presumption of regularity, the subject of the maxim, omnia praesumuntur rite esse acta, namely, everything is presumed to have been correctly done, applies. There is nothing in the materials put before the Court by the appellants which would displace the presumption.
59 It follows from the above that the decision of the learned Master that the stormwater drainpipe was installed pursuant to a valid exercise of the power conferred on the local authority under s 62(e) and s 83 of the Health Act was correct. Once that conclusion is reached, it is apparent that the appellants' action is doomed to fail whether or not the respondent's actions could also have been carried out by the exercise of powers under s 315(a) or s 365 of the Local Government Act.
60 It also follows from the above that the decision of the learned Master that the action was time-barred under s 47A of the Limitation Act was correct. In some supplementary reasons delivered on 14 July 1999, the learned Master commented that:
"The [appellants] plead in par 15 of the amended statement of claim that further material damage to the property has been caused by the leakage of stormwater from the drainpipe and the manholes associated with it, causing flooding and subsidence of the soil of the property. No particulars of that are given although I know from an affidavit that that occurred in January 1999. The blocked and damaged pipe was repaired by the [respondent]. No particular claim for loss [or] damage in relation to that flooding and subsidence is given. As stated above the prayers for relief concern more major matters namely, that the drainpipe be removed from the property or that the [respondent] be restrained from damaging or entering the property without the [appellants'] written permission. The
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- [appellants] have no arguable cause of action which would secure this relief and summary judgment should be entered for the [respondent]. If the [appellants] wish to claim compensation for flooding of the land and subsidence which occurred in January 1999 they may do so in a separate action. It does not produce the relief claimed in this action."
61 It was submitted by the appellants that these comments confirmed that in respect of the action for nuisance brought by the appellants the Master was of the view that there was a "real question to be tried" and, consequently, the power to order summary judgment should not have been exercised. In my view, there is no substance whatever in that submission.
62 It necessarily follows from the conclusions I have reached that the appellants' appeal against the order dismissing their own application for summary judgment must also fail.
63 For these reasons the appeal should be dismissed.
64 KENNEDY J: I have had the benefit of reading in draft the reasons published by the Chief Justice, with which I entirely agree.
65 MURRAY J: In my opinion also the appeal should be dismissed for the reasons given by Malcolm CJ, to which I have nothing to add.
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