Ross v Town of Victoria Park

[1999] WASC 90

ROSS & ANOR -v- TOWN OF VICTORIA PARK [1999] WASC 90

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[1999] WASC 90
Case No:	CIV:1117/1999	Heard:	19 MAY 1999
Coram:	MASTER BREDMEYER	Delivered:	6/07/99
No of pages:	14	Judgment Part:	1 of 1
Result:	Application allowedSummary judgment for the defendant
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Parties:	CLIVE MICHAEL ROSS JENNIFER ANNE ROSS TOWN OF VICTORIA PARK
Catchwords:	Summary judgment A local government authority has statutory power to construct and maintain a pipe to convey stormwater across private land
Legislation:	City of Perth Restructuring Act 1993 (WA), s 4 and s 7 Health Act (1911) WA, s 62 and s 83 Industry Training Levy (Agricultural, Horticultural & Forestry) Order 1967 Interpretation Act (WA) 1984, s 10 Limitation Act 1935 (WA), s 47A Local Government Act 1960 (WA), s 13(1), s 175, s 177, s 179, s 315 and s 365 Local Government Act 1995 (WA), s 3.27,s 3.31, s 3.32 and Sch 3.2 Public Works Act 1902 (WA), s 5(18)
Case References:	Agricultural, Horticultural & Forestry Industry Training Board v Kent [1970] 1 All ER 304 Geneff v Shire of Perth [1967] WAR 124 Cordinup Resorts Pty Ltd v Terana Holding Pty Ltd, unreported; FCt SCt of WA; Library No 970739; 23 December 1997 Cowell v Rosehill Racecourse Co Ltd (1937) 56 CLR 605 Hudson v Nicholson (1839) 5 M & W 437 Manchester City Council v Farnworth [1930] AC 171 Neilsen v Brisbane Tramways Co Ltd (1912) 14 CLR 354 Plenty v Dillon (1991) 171 CLR 635 West Cumberland Iron & Steel Co v Kenyon (1879) 11 Ch D 782 Wood v Leadbitter (1845) 13 M & W 838

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA CITATION : ROSS & ANOR -v- TOWN OF VICTORIA PARK [1999] WASC 90 CORAM : MASTER BREDMEYER HEARD : 19 MAY 1999 DELIVERED : 6 JULY 1999 FILE NO/S : CIV 1117 of 1999 BETWEEN : CLIVE MICHAEL ROSS

JENNIFER ANNE ROSS
Plaintiffs

AND

TOWN OF VICTORIA PARK
Defendant

Catchwords:

Summary judgment - A local government authority has statutory power to construct and maintain a pipe to convey stormwater across private land

Legislation:

City of Perth Restructuring Act 1993 (WA), s 4 and s 7

Health Act (1911) WA, s 62 and s 83
Industry Training Levy (Agricultural, Horticultural & Forestry) Order 1967
Interpretation Act (WA) 1984, s 10
Limitation Act 1935 (WA), s 47A
Local Government Act 1960 (WA), s 13(1), s 175, s 177, s 179, s 315 and s 365
Local Government Act 1995 (WA), s 3.27,s 3.31, s 3.32 and Sch 3.2
Public Works Act 1902 (WA), s 5(18)

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Result:

Application allowed

Summary judgment for the defendant

Representation:

Counsel:

Plaintiffs : In person
Defendant : Mr J C W Skinner

Solicitors:

Plaintiffs : In person
Defendant : Corrs Chambers Westgarth

Case(s) referred to in judgment(s):

Agricultural, Horticultural & Forestry Industry Training Board v Kent [1970] 1 All ER 304
Geneff v Shire of Perth [1967] WAR 124

Case(s) also cited:

Cordinup Resorts Pty Ltd v Terana Holding Pty Ltd, unreported; FCt SCt of WA; Library No 970739; 23 December 1997
Cowell v Rosehill Racecourse Co Ltd (1937) 56 CLR 605
Hudson v Nicholson (1839) 5 M & W 437
Manchester City Council v Farnworth [1930] AC 171
Neilsen v Brisbane Tramways Co Ltd (1912) 14 CLR 354
Plenty v Dillon (1991) 171 CLR 635
West Cumberland Iron & Steel Co v Kenyon (1879) 11 Ch D 782
Wood v Leadbitter (1845) 13 M & W 838


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1 MASTER BREDMEYER: In this case the plaintiffs have applied for summary judgment under O 14 and the defendant has applied for summary judgment under O 16. The two applications were heard together. A number of affidavits were filed on each side. It is not appropriate in this kind of application that I should resolve any conflicts of fact on the affidavits. I consider I should accept the plaintiffs' affidavits as truthful unless I consider them inherently improbable or inconsistent with undisputed contemporary documents or other testimony by the same witness. The power to order summary judgment is one which should be exercised with great care and should never be exercised unless it is clear that there is no real question to be tried.

2 At the conclusion of the hearing on 19 May 1999 I gave leave to the defendant to file and serve any affidavit in respect of Exhibit 'A' (a letter of Keall Brinsden & Co of 30 November 1983 produced at the hearing) and leave for the parties to file written submissions thereon. I have since received two affidavits of the defendant, one from Mr Skinner sworn 4 June and one from Mr Hunt sworn 8 June and written submissions from the defendant dated 8 and 25 June and from the plaintiffs dated 9 and 28 June.

3 The plaintiffs 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 have built four residential units on the land which are nearing completion and which they plan to sell.

4 It appears that in early 1984 the City of Perth placed a drainpipe on this land. The drainpipe commences at the side of the road and then 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 then takes another turn and exits the property. The pipe is about 375mm 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 others where the pipe runs along the rear boundary.

5 The property is located within the local government area of the Town of Victoria Park. That town is the successor body to the City of Perth. The statement of claim alleges that the pipe has been unlawfully placed upon the property and constitutes a continuing trespass. It states that the

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placement of the pipe has damaged the property because a building cannot be built over the pipe. Further damage to the property has been caused by the leakage from the pipe and the manholes associated with it causing flooding and subsidence of the soil of the property and the reduction of the area of the property available for permanent use reduces the value of the property. Because of the presence of the stormwater pipe on the property the defendant has entered the property to carry out repairs and this interfered with the plaintiffs' right to use and enjoy the property. That interference was unreasonable and constitutes a nuisance. The plaintiffs have suffered loss and damage. The material damage to the property is said to be $23,715 being the decrease in the value of the property. Although not claimed in the prayer for relief, I think it fair to infer that the plaintiffs seek this sum as damages. They also seek an order that the pipe be removed at the defendant's expense and that the defendant be restrained permanently from entering into the plaintiffs' property without the plaintiffs' express written permission.

6 The defendant does not dispute that its predecessor, the City of Perth, put the pipe on the property. The pipe takes rainwater off Harvey Street and the nearby Teague Street.

7 The defendant says that its predecessor council had authority to install the pipe on the land and that it has authority to enter the land to repair the pipe if and when necessary. It relies on a number of sections.

8 Section 315 of the Local Government Act 1960 (WA), which was in force in 1983 and 1984, provides:

"315 Drains and watercourses

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 watercourses, 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

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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.

(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."

9 With reference to s 365(1), this pipe takes water "in and through" the plaintiffs' land. The purpose of it is to drain water off two streets. The sub-section speaks of "for the drainage of a street …". By s 10 of the Interpretation Act (WA) 1984, in any law, words in the singular include the plural so the section applies to a street or several streets. The streets concerned are within the "control or management" of the council. The sub section refers to "ditches, gutters, tunnels, drains and watercourses". Do those words apply to the pipe buried under the plaintiff's 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.

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10 The defendant also relies on s 365 of the Local Government Act 1960 (WA) which provides:

"Surplus water and other drains

365. (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 authorize the exercise of the power without the acquisition of the land."

11 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 Act, as it was in 1983 and 1984, provided that the government or a local authority could take land for any public work. The Act provides a long list of public works, and they include s 5(18) "Drainage works in connection with any city, town or district". The Act provides for the payment of compensation. Clearly the Public Works Act 1902 (WA) was not invoked in relation to this drainpipe as no easement appears on the plaintiffs' title.

12 The defendant also seeks to rely on s 62 and s 83 of the Health Act 1911 (WA). Section 62 is headed "Powers of local government in carrying out works" and the relevant part reads:

"62. 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 -

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(a) …

(b) …

(c) …

(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 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 government 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 government may deem proper for making, repairing, completing, or improving any such works:

…

Provided further, that the local government 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

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compensation court duly constituted under the provision of the Public Works Act 1902(WA)."

13 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 government."

14 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 purpose of communication therefrom with a receptacle for drainage, or with a sewer into which the drainage of two or more buildings or premises occupied by different persons is conveyed. That includes the whole length of any combined system of drainage from several premises up to the point at which it enters the public sewer."

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 definition of "sewer" given in s 3 to include "drains of every description except drains to which the word 'drain' as above defined 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
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s 62(e) enables the council to run a stormwater pipe through the plaintiffs' 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 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.

17 In summary, I consider those powers mentioned are sufficient to have enabled the City of Perth to have installed lawfully the pipe on what is now the plaintiffs 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.

18 In April 1994 a dispute arose between the plaintiffs and the City of Perth. The plaintiffs' surveyor discovered the stormwater pipe on the property and I think that is when the plaintiffs first learnt about it. The plaintiffs asked the City of Perth to relocate it as it interfered with their plans to build four units on the land. It ran along the rear boundary, parallel to that boundary, 2.4 metres out. The City of Perth was willing to relocate it to within one metre of the rear boundary. It also meant relocating the two manholes which are found there. The city wanted to charge the plaintiffs $8000 for this work. The plaintiffs objected to those charges and pointed out that, prior to purchasing the property in 1990, they had made an enquiry of the council as to outstanding rates and also as to "details of orders and requisitions" but were not told of the stormwater pipe. The plaintiffs took their dispute to the Ombudsman and eventually it was settled in 1996 by the city relocating the pipe to within one metre of the rear boundary at its cost. The defendant in this action seeks to raise that as a defence. I fail to see how that can be a legal

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defence. If the pipe was placed on the land unlawfully then that is a continuing trespass and the fact that the plaintiffs agreed to a relocation of the pipe across their rear boundary in 1996, does not prevent them from saying that the trespass continues today, at least in relation to its position along the southern boundary.

19 In 1983 or 1984 when the pipe was placed on the land, the land was within the area of the City of Perth. On 1 July 1994 this area became part of the Town of Shepparton, a change achieved by the City of PerthRestructuring Act 1993 (WA). By s 7 of that Act, the Commission, which replaced the Perth City Council, was empowered inter alia to exercise the powers of the former council. By s 4, the Restructuring Act was to be read with the Local Government Act 1960 (WA). By s 13(1) of the latter Act, where a municipality is created out of an old one, the new municipality has all the rights and liabilities of the old one.

20 The subject land now comes within the Town of Victoria Park which was created under the provisions of the Local Government Act 1995 (WA) on 1 July 1996. By s 3.27 and Sch 3.2 of that Act the local government authority can enter on private land without the consent of the owner inter alia to "carry out works for drainage of the land". I consider it is reasonable to interpret this to include laying a stormwater pipe, and, relevantly to this case, to carry out repairs on a stormwater pipe already laid under the ground. Sections 3.31 and 3.32 provide a general procedure for entering on private property for such a purpose. Except in the case of an emergency, or where a warrant has been obtained from a Justice of the Peace, entry can only be made with the owner or occupier's consent, or on notice. The notice must specify the purpose for which entry is sought.

21 Exhibit 'A' which is the letter from Keall Brinsden & Co to Mr and Mrs M Arcaro dated 30 November 1983 and the affidavit of Mr Hunt sworn 8 June 1999 add some new factual material which has spawned some new legal submissions from the plaintiffs and the defendant. The new factual material is as follows. 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. Three properties are mentioned but I will confine my summary to Lot 55 Harvey Street, which was owned by Carmina and Michelle Arcaro. Pursuant to that resolution, a notice was sent to Mr and Mrs Arcaro advising them of the council's resolution to construct a new stormwater drain through their property at Lot 55 Harvey Street. The notice told them that the council was taking action in accordance with s 83 of the

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Health Act. 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 1911. No mention in the letter or the formal notice was made of the owner's right to compensation.

22 Mr and Mrs Arcaro objected to the stormwater drain going through their property and engaged solicitors, Keall Brinsden & Co, to make representations on their behalf. Those representations were evidently successful. In the letter from Keall Brinsden & Co mentioned, dated 30 November 1983, the solicitor's stated that one of the city's engineers telephoned the solicitor and advised him that the city was considering re-routing the stormwater drain through the next door neighbour's property. The solicitor understood that the matter would be put back before council seeking council's approval for the alternate route. The letter advised that no definite decision had been made on that by the city.

23 At a meeting of council held on 12 December 1983 the Town Clerk advised that in accordance with normal practice the council would be in recess from 12 December 1983 until 20 February 1984 and 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 the Arcaro property to the next door property, Lot 53, which together with Lot 52 was owned by a Mr and Mrs Silfo. As previously mentioned, the plaintiffs purchased this property from Mr Silfo.

24 The council minutes of 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 (the Arcaro property) to Lot 53 Harvey Street (the Silfo property). Mr and Mrs Arcaro and Keall Brinsden & Co were advised of the relocation of the proposed drain.

25 Mr and Mrs Silfo, the owners of Lot 53 Harvey Street, were advised of the proposal to construct a new stormwater drain through their property by a letter dated 29 December 1983 and a formal notice under s 83 of the Health Act 1911 also dated 29 December 1983. The letter advised that the council had resolved to construct a new stormwater drain through their property at Lot 53 Harvey Street. It advised that the council was taking action in accordance with s 83 of the Health Act and requested their

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co-operation. It advised them that the work would be carried out in a workmanlike manner and the property would be reinstated on completion of the work. Neither the letter nor the notice advised them of any right to compensation under s 83 of the Health Act.

26 The plaintiffs submissions are to the effect that the re-routing of the stormwater pipe was done improperly and indeed illegally. They argue that the decision to locate the pipe on Lot 55 had been passed by resolution of the council at its meeting on 15 August 1983. By s 175(1) and (2) of the Local Government Act 1960 (the "1960 Act") council was required to hold ordinary meetings to transact the ordinary business of the council and that included exercising a power conferred upon the council by another Act. Section 177 of the 1960 Act applied and it provided that the council could only rescind a resolution where the notice of motion to rescind was carried by an absolute majority or where written notice of the intention to rescind was given to the members of council at least seven days before the meeting, but not otherwise. The plaintiffs say that the council's resolution of 15 August 1983 was never rescinded. Hence the decision of the delegated committee over the Christmas recess to relocate the proposed pipe was not valid. The plaintiffs also argue that the purported delegation of authority to the committee over the Christmas recess made in the minutes of 12 December 1983 was not properly done. It did not nominate specifically the members to whom the authority was delegated but used the term "and ward members where appropriate". It also did not fix the quorum for transacting business, all of which was contrary to the requirements of s 179 of the 1960 Act. Furthermore, the authority delegated by council was to "be authorised to deal with any matters arising during the 1983 Christmas recess". The authority was therefore limited to matters "arising" during the Christmas recess. The decision to locate the pipe on Lot 55 was made in August 1983 and the objections by Mr and Mrs Arcaro were raised prior to November 1983. This was not a matter arising during the Christmas recess and therefore the delegated authority did not authorise any transaction of business in relation to this matter.

27 The plaintiffs argue that the letter and formal notice given to Mr and Mrs Silfo on 29 December 1983 were also invalid. The letter began:

"The council has resolved to construct a new stormwater drain through your property at Lot 53 Harvey Street Victoria Park."

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The plaintiffs say that that is wrong. The council resolution was to construct the new stormwater drain through Lot 55 and the decision to relocate it to Lot 53 was not made by a council resolution. Moreover, neither the letter nor the notice advised Mr and Mrs Silfo of their right to compensation under s 83(c) of the Health Act1911. Section 83(c) provides that, where any sewer or drain is made by local government, there shall be paid to the owner compensation for any damages occasioned by it in consequence of such works.

28 The plaintiffs say that where the council has the power to affect adversely the interests of an individual, the failure by the council to advise the affected parties of their rights can result in an injustice or prejudice to the affected party. In this case the failure of the council to advise the affected parties has resulted in council avoiding paying compensation to those parties. Consequently, they argue, s 83(c) imposes a mandatory requirement to advise the affected party of their rights to compensation. For that proposition they rely on Agricultural, Horticultural & Forestry Industry Training Board v Kent [1970] 1 All ER 304 at 307, per Lord Denning MR. In that case a training levy was imposed on farmers who employed staff and the notice of assessment advised them of their right of appeal. However, it failed to give any address for the service of a notice of appeal. The Court of Appeal held that the notice was invalid because it failed to give the notice of address for the service of a notice of appeal. That case turned on the construction of Article 4(3) of the Industry Training Levy (Agricultural, Horticultural & Forestry) Order 1967 which provided:

"An assessment notice shall state the Board's address for the service of a notice of appeal or of an application for an extension of time for appealing."

Section 83(c) Health Act 1911 has no such provision. The plaintiffs say that they have challenged the validity of the council's action and if the council has failed to follow the correct procedure prior to installing this drain on Lot 53 then their actions are invalid and the plaintiffs are entitled to the relief sought which in terms of the prayers for relief in the amended statement of claim is that the stormwater drain be removed at the defendant's expense and that the defendant be restrained permanently from damaging or entering onto the plaintiffs' property without the plaintiffs' express written permission.

29 It is not necessary for me to discuss these legal propositions one by one because all of them are clearly time-barred under s 47A of the Limitation Act 1935 (WA). That imposes a limitation period of one year
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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 in 1983 and 1984. The plaintiffs claim is clearly time-barred and it is a pointless exercise to discuss the legal merits of these arguments.

30 I am satisfied, to the requisite standard applicable to an application for summary judgment, that the defendant's predecessor, the City of Perth, had authority to construct and maintain the stormwater pipe running under the plaintiffs' land and that the defendant has adequate statutory authority to enter the plaintiffs' land to repair it.

31 On the latter point, Scott J, who did not publish reasons, must have reached the same conclusion. On 4 February 1999 in this action he dismissed the plaintiffs' application for an injunction restraining the defendant's officers from entering upon the land. I consider that there is no question of law or fact remaining which needs to go to trial.

32 It follows from what I have said that the defendant did not trespass on the land when it installed the pipe and is not guilty of continuing trespass in letting the pipe remain on the land. Because its installation of the pipe was authorised by law, the defendant is not guilty of nuisance. If the installation of the pipe in 1984 caused damage, the then owners could have claimed compensation. The current owners are well and truly time-barred from doing so. The plaintiffs are not entitled to compensation for the decrease in value of the property because the existence of the pipe reduces the area of the property available for permanent use. They are not entitled to an order that the defendant remove the pipe nor an order that the defendant be restrained permanently from damaging or entering the plaintiffs' property without their express authority.

33 As mentioned above, the defendant should normally enter the plaintiffs' land to carry out maintenance with the plaintiffs' consent. But if the defendant gives notice, or in the case of an emergency obtains a warrant from a Justice of the Peace, it can enter without consent.

34 I propose to dismiss the plaintiffs' application and enter summary judgment for the defendant.