INTRODUCTION
2.1 As an incident of ownership of land, a landowner has a right to have his or her land supported, in its natural or “unbuilt upon” state by adjoining land. This aspect of land ownership developed from the fact that no piece of land is sufficient in itself and invariably its position depends upon the surrounding land and the owners of other land.1 Such a right came to be known as a “natural right” that was inherent in the land, as distinct from an easement or any other privilege that may be acquired and attached to the land.
2.2 This right to support of land by adjacent land, does not of course, entitle a landowner to insist that the adjoining land remains in its natural state. What it does entitle a landowner to, is an action against the adjacent landowner where excavation of the adjacent land causes the landowner’s property to subside or collapse. This right does not allow a landowner an action for damages if buildings or structures existing on the land also collapse and subside, and since the decision in Kebewar Pty Ltd v Harkin2 there is no right to ensure that an excavating neighbour does not excavate in a way that land that is presently unbuilt upon will be unable to support buildings in the future.
2.3 Withdrawal of support entails strict liability in nuisance,3 on the basis that the landowner’s use and enjoyment of the property has been invaded. In some cases an injunction may be sought to ensure that no further work is conducted on the adjoining property.
THE RULE IN DALTON v ANGUS
2.4 The common law principles associated with a right to support of land or buildings were firmly established in the House of Lords decision of Dalton v Henry Angus & Co4 (hereinafter referred to as Dalton). The court held that that which did not exist naturally upon the land (ie buildings or structures), was not entitled to be supported by adjoining land, except where a right of support for a building was conferred by grant or prescription.5 In the absence of such a right the owner of the adjacent soil may with perfect legality dig that soil away, and allow his neighbour’s house, if supported by it, to fall in ruins to the ground.6
2.5 Put in a historical context, this decision was consistent with prevailing attitudes, bearing in mind that the principles of negligence would not be fully established until the next century. With the increasing recognition that land use should no longer be construed only in terms of proprietary rights, the approach taken in Dalton has in more recent times been criticised as outdated and in need of review.
APPLICATION IN AUSTRALIA
2.6 The principles established in Dalton have been applied in Australia,7 but not without some concern. Stephen J in Stoneman v Lyons8 considered that the rule in Dalton was ill-adapted to conditions in modern cities and that it was at least arguable that the law of negligence imposed a duty of care on an owner of land not to excavate his or her land without any regard as to the effect it may have on his or her neighbour’s buildings.9
2.7 In New South Wales, Brownie J in LJP Investments Pty Limited v Howard Chia Investments Pty Ltd10 whilst agreeing that Dalton is now inappropriate for modern conditions, felt bound to continue to apply it, on the basis that it was still accepted by the High Court.
2.8 Giles J in Pantelone v Alouie11 (hereinafter referred to as Pantelone) also agreed with the view of Stephen J in Stoneman and suggested that the rule in Dalton well deserves consideration in an appellate court in Australia. His Honour commented that the fact that the owner of land can excavate negligently on his land, must be regarded as an anomaly founded upon the primacy given to the incidents of ownership of land.12
2.9 The decision in Pantelone highlights that Dalton only affects rights between adjoining landowners and is no bar to a cause of action against someone other than an owner, if in the circumstances a duty of care is found to be owed by that person to the landowner. In Pantelone the court found inter alia, the engineer engaged by the defendant landowner was liable to the owners of the adjoining land in negligence for causing the collapse of land and buildings.
2.10 These decisions indicate dissatisfaction with the principles established in Dalton. Commentators such as Butt,13 have also suggested that if the opportunity arises, the High Court should give consideration to whether Dalton should continue to be followed in Australia.
EXCEPTIONS TO THE RULE IN DALTON v ANGUS
2.11 An exception to the rule in Dalton, established in the decision of Public Trustee v Hermann & Ors,14 will exist if land subsides as a result of the withdrawal of support from that land by the adjacent land, and the subsidence has not been caused by the additional weight of buildings on the land. The landowner is then entitled to recover damages for the injury to the building as well as the land. This principle was followed in Pantelone, where the court held that the land would have subsided by reason of the excavation for the footings even if there had been no buildings erected on that land.15
RIGHT TO SUPPORT BY WATER AS DISTINCT FROM SOIL
2.12 The right to have one’s land supported by water does not exist at common law. As a consequence, a landowner who drains his or her own land and thereby withdraws from an adjoining property the support of water lying beneath the land, causing the surface of that adjoining land to subside, is not liable for the ensuing damage.
2.13 Similar to the law that evolved concerning support to land by land, the law establishing that there is no right to support of land by water has its origins in the rights associated with ownership of land. Early cases, such as Acton v Blundell16 and Chasemore v Richards17 (hereinafter called Chasemore) held that ownership of land entitled a landowner to use that land, including the water on or below the land, in any manner the landowner chose, regardless of the consequences to neighbouring land. These cases effectively prevented any action in nuisance arising. Later cases, including the decisions in Langbrook Properties Ltd v Surrey County Council18 and Stephens v Anglian Water Authority19 reaffirmed this right as being exercisable regardless of the consequences, and on that basis further held it could not be said that a landowner owed a duty of care when exercising that right. The effect of these cases removed any right to an action in negligence against the offending landowner.
2.14 An exception to this rule exists in Australia. In The Mayor, Councillors and Citizens of Perth v Halle20 the Municipality of Perth acting pursuant to statutory authority, caused the loss of support to the defendant's soil and buildings, and was subsequently held liable in nuisance for the resulting damage; and in Metropolitan Water Supply and Sewerage Board v R Jackson Ltd21 the Board was held liable for causing damage to the plaintiff’s building by withdrawing the support of water from adjoining land. These cases can be distinguished from the decision in Chasemore on the basis that the authorities were not the owners of the land upon which the work was carried out. They therefore did not have the same proprietary entitlements as an owner of land, in this context, to excavate or withdraw water from land regardless of the damage it may cause to adjoining land. The authorities only had such power as authorised by the statute from which they were derived, and if those powers were negligently executed (ie by excavating water on public land so as to cause the withdrawal of support from private land) the authority committed a nuisance and could not be protected by statute or the rule in Chasemore.22
2.15 Judicial remarks in the later decisions of Langbrook Properties Ltd v Surrey County Council and Stephens v Anglian Water Authority,23 and in Australia in Xureb v Viola,24 reveals some dissatisfaction with the law in this area. However, given the reluctance of the courts to overrule or even qualify this principle to date, it may be some time before the common law recognises that a landowner owes a duty to take reasonable care, when withdrawing water from beneath his or her land.
2.16 The following chapter considers these common law principles specifically within the jurisdiction of New South Wales.
FOOTNOTES
1. Peter Butt Land Law (2nd ed, The Law Book Company Ltd, Sydney, 1988) at para 1602.
2. (1987) 9 NSWLR 738.
3. John G. Fleming The Law of Torts (7th ed, The Law Book Company Ltd, Sydney, 1987) at 394.
4. (1881) 6 App Cas 740.
5. Dalton at 792, per Lord Selbourne.
6. Dalton at 804, per Lord Penzance.
7. The decision in Dalton v Angus has been accepted in Australia in a number of decisions including; Delohery v Permanent Trustee Co of New South Wales (1903-4) 1 CLR at 283, Johns v Delaney (1890) 16 VLR 729.
8. (1975) 133 CLR 550.
9. Stoneman v Lyons (1975) 133 CLR 550 at 567.
10. (unreported) Supreme Court, NSW, 22 December 1988, Brownie J, Common Law Division, Building and Engineering List.
11. (1989) 18 NSWLR 119.
12. Pantelone v Alouie (1989) 18 NSWLR 119 at 136.
13. Peter Butt “The Conveyancer” (1988) 62 ALJ at 376.
14. Public Trustee v Hermann [1968] 3 NSWLR at 94.
15. Pantelone v Alouie at 129.
16. (1843) 12 M&W 324.
17. (1859) 7 HL Cas 349.
18. [1969] 3 All ER 1424.
19. [1987] 3 All ER 379.
20. (1911) 13 CLR 393.
21. [1924] QSR 82.
22. The Mayor, Councillors & Citizens of Perth v Halle (1911) 13 CLR 393 at 399, per Griffiths CJ.
23. Langbrook Properties Ltd v Surrey County Council [1969] 3 All ER 1424 at 1440, and Stephens v Anglian Water Authority [1987] 3 All ER 379 at 383-384.
24. (unreported) Supreme Court, NSW, 2 February 1990, Giles J, Common Law Division, Construction List, transcript at 43-44.
