JUDGE:	EMERTON J
WHERE HELD:	Melbourne
DATE OF HEARING:	3 June 2013
DATE OF JUDGMENT:	25 February 2014
CASE MAY BE CITED AS:	Sleeman & Anor v SPI Electricity Pty Ltd
MEDIUM NEUTRAL CITATION:	[2014] VSC 49

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COMPENSATION – Applicants prevented from using their land as an aerodrome by the construction of power-lines on adjoining land - Whether the applicants are eligible for compensation under s 93(2) of the Electricity Industry Act 2000 - Whether the electricity corporation exercised powers under s 93(1) of the Electricity Industry Act 2000 – Whether s 93(1)(d) authorised the damage alleged - Southern Properties (WA) Pty Ltd v Department of Conservation and Land Management (2012) 42 WAR 287 - Benning v Wong (1969) 122 CLR 249 - Marriage v Norfolk Rivers Catchment Board [1950] 1 KB 284.

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APPEARANCES:	Counsel	Solicitors
For the Applicants	Dr J Bleechmore	Pearce Webster Dugdales
For the Respondent	Mr J Pennell	SPI Electricity Pty Ltd (In-house counsel)

HER HONOUR:

Introduction

The applicants, Mr and Mrs Sleeman, own a country property at 280 Wandong Road, Kilmore, which they purchased in July 2008 with the intention, they say, of constructing an aerodrome as a base for small aircraft used for private and business purposes. The property is in the shape of an elongated rectangle with minimal slope and cross-fall. It was advertised as being suitable for the purpose of an aerodrome, and the applicants allege that they paid a premium for the property for this reason.

At the time the applicants acquired the property, there were existing power-lines at the western end of the property, to the north of the property and approximately 44 metres to the east of the eastern boundary of the property on the other side of the Kilmore-Wandong Road (also known as the Epping-Kilmore Road and referred to hereinafter simply as ‘the Wandong Road’).[1]
[1] The property has long boundaries on its northern and southern sides and short boundaries on its eastern and western sides. Its eastern boundary abuts the Wandong Road. At the time of its purchase, the property was surrounded by power-lines on three sides:

The respondent is an electricity corporation for the purposes of the Electricity Industry Act2000 (the ‘Act’). It enjoys a range of statutory powers to enable it to perform its functions, including powers to enter upon private and public land to carry out works and maintain facilities to secure the transmission of electricity. In January 2011, the respondent began works (the ‘eastern line upgrade’) that involved constructing new poles and moving some of the surrounding power-lines closer to the property, particularly on the eastern side. As a result of the eastern line upgrade, a powerline on an adjacent farming property to the north…

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 Sleeman v SPI Electricity Pty Ltd

Details

AGLC: Sleeman v SPI Electricity Pty Ltd [2014] VSC 49
Case: [2014] VSC 49
Decision Date: 25 February 2014

CaseChat Overview and Summary

Sleeman and SPI Electricity Pty Ltd appeared before the court in a case concerning the applicants' claim for compensation for the loss of use of their land as an aerodrome due to the construction of power lines on adjoining land. The applicants argued that the presence of the power lines had rendered their land unsuitable for aerodrome operations and sought compensation under section 93(2) of the Electricity Industry Act 2000. SPI Electricity Pty Ltd denied liability, contending that the construction of the power lines did not constitute damage within the meaning of section 93(1)(d) of the Act.

The central legal issues that the court had to resolve were whether the applicants were entitled to compensation for the loss of use of their land as an aerodrome and whether the electricity corporation had exercised its powers under section 93(1) of the Act in a manner that authorised the damage claimed. The court had to determine whether the construction of the power lines fell within the scope of section 93(1)(d) of the Act, which provides immunity from liability for damage resulting from the exercise of powers in good faith and in accordance with the Act. The court also considered relevant case law, including Southern Properties (WA) Pty Ltd v Department of Conservation and Land Management (2012) 42 WAR 287, Benning v Wong (1969) 122 CLR 249, and Marriage v Norfolk Rivers Catchment Board [1950] 1 KB 284, to assist in its decision-making.

The court found that the applicants were not entitled to compensation for the loss of use of their land as an aerodrome. The court held that the construction of the power lines did not constitute damage within the meaning of section 93(1)(d) of the Act because the power lines were constructed in accordance with the Act and in good faith. The court found that the immunity granted by section 93(1) of the Act extended to the construction of power lines, and that the applicants' loss of use of their land as an aerodrome was not a consequence of the exercise of powers under the Act. The court dismissed the applicants' claim for compensation.

No further orders were made by the court.

Orders