INTRODUCTION
3.1 The decision in Dalton has not been directly overruled in New South Wales. In the absence of such a step, several alternatives to overcome the problems it has given rise to have been established. This chapter considers these alternatives and also the availability of prescription in New South Wales.
THE AVAILABILITY OF PRESCRIPTION IN NEW SOUTH WALES
3.2 Where a right to support of buildings by the soil of adjacent land is acquired as an easement, the rule in Dalton will not apply.1 The acquisition of such an easement will entitle the owner of the building to the exact same support as a natural right to support of land.2 The easement can be acquired in the following manner:
3.3 An easement by prescription is acquired by uninterrupted enjoyment of a right over a twenty year period. Such an easement does not, however, sit well with the philosophy of the Real Property Act 1900 (NSW), (hereinafter referred to as the RPA), namely that the Register is to be the conclusive document. This is because easements by prescription arise without compliance with the formalities required under the RPA, in particular that the creation of an easement has to be executed by an approved form of transfer and the dealing creating the easement has to be recorded in the folio of the Register.4 Consequently, prescriptive easements are not registrable in the same manner as most interests affecting Torrens land,5 and in light of the nature of the Torrens system of land registration, this is not particularly desirable.
3.4 Further, s 45C of the RPA states:
(1) Except to the extent that statutes of limitation are taken into consideration for the purposes of this Part, no title to any estate or interest in land adverse to or in derogation of the title of the registered proprietor shall be acquired by any length of possession by virtue of any statute of limitations relating to real estate, nor shall the title of any such registered proprietor be extinguished by the operation of any such statute. (Emphasis added)
Section 45C and the formal requirements for the creation of an easement seem to preclude the recognition of an easement by prescription.6 In Kostis v Devitt7 Justice Powell stated that the scheme of the RPA does not permit the creation or acquisition of easements otherwise than in the manner provided by s 46 and 47 of that Act.8 In Dewhirst v Edwards9 Powell J further stated that with the exception of a prescriptive easement existing before the land was bought under the RPA, but omitted from the register on registration, the RPA does not recognise the existence of easements alleged to have been acquired merely by the effluxion of time.10
3.5 Stein and Stone in their textbook, Torrens Title, express the view that prescriptive rights cannot be created with respect to registered land in New South Wales.11 Commentators such as Butt12 and Young and Cameron et al13 also query whether an easement by prescription is compatible with the Torrens system. Young and Cameron et al14 comment that:
although express easements can be granted for support of adjoining land and buildings, in the ordinary case these are not present and problems have to be solved by resort to the general law with respect to implied easements for support. This at once causes difficulty with respect to Torrens system land because one cannot have such an easement under the Torrens System.
3.6 Commenting on the recent decision of Dobbie v Davidson,15 Mark Leeming16 states that the decision has unintentionally reopened the debate over whether easements by prescription can be acquired over Torrens Title land, by allowing prescriptive easements to constitute an exception to indefeasibility. Mr Leeming observes that although such an expansion of exceptions to indefeasibility may be considered contrary to the purpose of Torrens registration, if it is possible to create easements by prescription over Torrens Title land, then an immediate consequence would be that every building from the moment it is erected, begins to acquire an easement for support from the adjacent owner’s land, crystallising after twenty years.17
3.7 The Commission takes the view that there is little scope for the operation of prescription in respect of land that is registered as Torrens title. Specific amendments to the RPA would be the most effective means of clarifying the ambiguity that currently exists.
THE EFFECT OF Pt 31.4 OF Ord 70 OF THE LOCAL GOVERNMENT ACT 1919 (NSW)
3.8 In the absence of an express easement of support for buildings, a landowner suffering damage to buildings, as a result of the withdrawal of such support may be able to rely on Part 31.4 of Ordinance 70, made pursuant to s 318 (17) of the Local Government Act 1919. This Part provides as follows:
31.4 (1) Where an excavation extends below the level of the base of the footings of a building on an adjoining allotment of land, the person causing the excavation to be made shall, at his own expense-
(2) The person causing the excavation referred to in subclause (1) to be made shall, seven days before excavating below the level of the base of the footings of a building on an adjoining allotment of land, give notice of his intention to do so to the owner of the adjoining allotment of land and shall at the same time furnish to such owner particulars of the work he proposes to do.
3.9 Ordinance 70 replaced Ord 71 of the Local Government Act 1919. The equivalent of Pt 31.4 was the following:
44 (a) For the purpose of this clause the expression “building owner” means an owner who proposes to erect or is erecting a building the plans and specifications of which have been approved by the Council.
(b) Where a building owner proposes to erect a building in close proximity to any other building (such other building being the property of another owner) and if it be necessary for him to excavate or dig out the ground against the wall of such other building, the building owner shall at his own cost shore up and underpin such wall to its full thickness and to the full depth of such excavation with proper and sufficient material in a workmanlike substantial manner. For the purpose of this subclause a building owner, his servants, agents or workmen may at reasonable hours enter on the premises of the owner of such other building. In any such case the building owner shall pay compensation for any disturbance of business or for any damage or injury caused by such entry.
3.10 There are several significant differences between the old and new provisions. Firstly, Pt 31.4 only affects “excavations extending below the level of the base of the footings”, whereas Pt 44 (b) covered excavations digging out the ground “against the wall of the other building”, the latter inferring that regardless of the depth of the excavation the building owner was required to comply with the provision. Part 44 (b) also makes specific provision for the entry of the building owner (or servants and agents) at reasonable times onto the adjoining land, and states that compensation for the disturbance to business and for damage or injury caused by that entry will be payable. This is not included in the later provision.
3.11 Further, there is considerable ambiguity surrounding Pt 31.4 concerning the question of liability. The previous provision imposed liability on the “building owner”. The liability pursuant to Pt 31.4 rests with “the person causing the excavation to be made”. It is possible that Pt 31.4 was widened on the basis that “the person causing the excavation to be made” may not in every case be the building owner. Whatever the reason, it has given rise to uncertainty. In Pantelone Giles J in discussing the intention of the provision did not believe that it gave rise to multiple liability and held on the facts of that case that the owner (not the owner’s contractors or subcontractors) of the adjoining property where the excavation was carried out, was liable. His Honour considered that Pt 31.4 (1) had to be read in conjunction with Pt 31.4 (2) which required notice and particulars to be given, and the owner was the only person identified as being in a position to do so.
3.12 Anderson v Mackellar County Council18 (hereinafter referred to as Anderson) is the leading decision with respect to this provision. Although it concerned the predecessor of Pt 31.4, the decision has been accepted as authority for a number of propositions that also apply to Pt 31.4. Anderson established that this provision of the Local Government Act gives rise to a private action for damages where that provision of the Act is breached. Whilst arguments were raised in Anderson that the legislature was concerned with the control of building by local government authorities in the interests of the public generally,19 the court was firmly of the view that:
there are ... provisions which specifically deal with the relationship between a building owner and an adjoining owner in terms which I have no doubt create private rights and obligation between them.20
3.13 Anderson also concluded that the legislation allowed a landowner who suffers damage to his or her buildings, as a result of excavation on adjoining land, to recover damages. Although the building regulations do not give the landowner a right in the nature of an easement of support, nevertheless they permit an action for damages for compensation.21
3.14 The principles arising from the decision in Anderson have been applied in later decisions. In Kebewar Pty Ltd v Harkin22 the court accepted that Pt 31.4 specifically imposes a duty to preserve and protect buildings where the excavation extends below the level of the base of the footings of a building.23 Giles J in Pantelone24 also accepted that the principles established in Anderson were equally applicable to Pt 31.4 of Ord 70.
3.15 Commentators such as Bradbrook and Neave25 claim that Pt 31.4 of Ord 70 provides a useful form of redress for landowners affected by their neighbour’s excavation. The legislation fails to create specific liability in the case of the removal of support by water, thereby limiting its application. Combined with the other discrepencies discussed previously, the Commission believes that the legislation is in need of review. The current review of the Local Government Act 1919 may provide the appropriate opportunity.
3.16 As a final point, note should be made of the effect of the Building Code of Australia (hereinafter referred to as BCA), which has been adopted in New South Wales. This national building code commenced on 1 January 1992, and to effect its adoption, Ordinance 70 has been amended.26 There will be a transitional period of 12 months from commencement, during which time an applicant for building approval may elect to conform with either the standards of Ordinance 70 or those of the BCA, as adopted by the Building Code of Australia (Administrative Provisions) Ordinance 1991. This Ordinance reproduces Pt 31.4 without amendment.
THE CONSEQUENCES OF THE DECISION IN PANTELONE
3.17 In Pantelone the plaintiffs owned a building at No 310, containing a flat, which was leased to Mr and Mrs Walters, and a restaurant which was leased to Mr and Mrs Kemp. No 310 encroached upon No 312, enjoying the benefit of an easement of support, the grant of which was limited to support of so much of the building on No 310 as was erected upon No 312 and the extent to which that building derived support from so much of its area as is at present built upon No 312. The defendant, who owned the vacant block of land at No 312, embarked upon the construction of a two storey building. He engaged an engineer to prepare drawings, who engaged an experienced backhoe operator to do the excavation work. Excavations were carried out on land at No 312, which exposed the foundations of the building at No 310. The Court found that the excavations for No 312 resulted in the removal of lateral support for soil immediately below the footings at No 310. The building at No 310 subsequently collapsed.
3.18 Actions for damages arising from the collapse of the land and building at No 310 were brought by the owners of No 310 against the owners of No 312, the engineer and the backhoe operator. The Walters and the Kemps bought the same actions for damages.
3.19 On the specific issues raised in the case, the Court reached the following conclusions.
- As to the easement of support:
The limitation of the grant of the easement was to be recognised as a means of accommodating the encroachment rather than as making provision for a right of support to the whole of the building on No 310.
- Common law right of support:
(a) In relation to the engineer and the backhoe operator the court found that the land of No 310 would have subsided by reason of the excavation for the footings even if there had been no buildings erected in that land (Public Trustee v Hermann27 applied). The evidence for that finding was not admitted against the owner of No 312, consequently the owners of No 310 could not succeed in their claim against the owner of No 312 in respect of the collapse of the building on the ground of infringement of the common law right of support.
(b) As against the excavator and the engineer, the relevant cause of action is in nuisance. This followed Dalton - withdrawal of support from land is an actionable nuisance for which strict liability attaches without proof of any negligence. Liability in nuisance normally attaches to the occupier, but liability may also be incurred by someone who creates a nuisance on the land in the occupation of another. Following the decision in Fennell v Robson Excavations Pty Ltd,28 liability attaches to any person who creates a nuisance. This decision left open the question of whether that class of person includes trespassers. In Fennell the excavator engaged by the developer of land to carry out excavation work was held liable for the subsidence of the adjoining land. The owner of No 310 was successful against the backhoe operator, but not against the engineer, who only confirmed what the drawings required by site directions and did not “cause” the excavation to be carried out.
A breach of Pt 31.4 of Ordinance 70 gives rise to a private right of action for damages at the suit of the person, be he owner or occupier, who suffers damage as a result of the breach against “the person causing the excavation to be made”. The primary identifier of that person is the person upon whom the statutory obligations in respect of notice of intention to excavate, notice of particulars of work proposed and protective measures are imposed. In the circumstances, the owner of No 312 was liable for breach of statutory duty, but the excavator and the engineer were not (Anderson and Kebewar considered).
Because the owner of No 312 and the backhoe operator were otherwise liable, their liability in negligence was not specifically considered. In the circumstances it was held that the engineer, who drew the plans, who knew of the imminent danger of collapse of the building and who knew the limits of his client’s experience in relation to excavating, owed a duty of care to the owner of No 310 notwithstanding that the owner of No 312 may have been under no duty of care to the owner of No 310 in relation to the excavation (Dalton v Angus distinguished). The duty of care of the engineer extended to making known to the owner of No 312 the true extent of the danger known to him and was not limited by the terms of his engagement by the owner on No 312.
3.20 The Walters' claim was made on the same four grounds as the owner of No 310, and were found to be entitled to succeed on those grounds. Of significance, was the fact that as the tenants of No 310 they were entitled to bring an action pursuant to Pt 31.4 of Ordinance 70 (following Anderson v Mackellar County Council which found the predecessor to Pt 31.4 conferred a right to owners and occupiers). Similarly, the Kemp’s claims succeeded on the same grounds as the owners of No 310.
3.21 The case is particularly important for the way it has applied the principles of negligence where more than one person is at fault. A further issue to consider that arises from Pantelone, is the extent of the duty to be owed to the owner of the adjoining land, his or her tenants, licensees, and, particularly where personal injuries are sustained, trespassers. Presumably, legislative reform would carry with it the consequence that any injuries sustained in circumstances attracting liability, carry appropriate consequences as to damages.
FOOTNOTES
1. Dalton v Angus (1881) 6 App Cas 740 at 792.
2. Public Trustee v Hermann [1968] 3 NSWR 94 at 108.
3. In such a case it would be prudent to register the easement on title.
4. Real Property Act 1900 (NSW) (RPA) s 46-47.
5. Peter Butt Land Law at para 2211.
6. An easement by prescription may be held to be an exception: see s42(1)(b) of the RPA, ie it was omitted or misdescribed when the land to which it applies was converted to Torrens Title.
7. (1979) 1 Butterworths Property Reports (BPR) at 9231.
8. (1979) 1 BPR at 9239.
9. [1983] 1 NSWLR 34.
10. [1983] 1 NSWLR 34 at 47-48.
11. RTJ Stein & MA Stone Torrens Title (1st ed, Butterworths, Sydney, 1991) at 60.
12. Peter Butt Land Law (2nd ed 1988) at para 2041-2042.
13. Young, Cameron, Macquarie, McFadzean, Rossiter and Stone Conveyancing Service (NSW) (Butterworths)
14. Young and Cameron et al Conveyancing Service (NSW) (Butterworths) Vol 1 at 936.
15. (1991) 23 NSWLR 625. This decision redefines “omission” for the purposes of s42(1)(b) of the RPA as merely “left out”, removing any question of fault on the part of the Registrar-General.
16 Mark Leeming Case and Comment, Dobbie v Davidson (1992) 14 Sydney Law Review at 106.
17. Mark Leeming at 109.
18. [1968] 2 NSWR, 217.
19 Anderson v MacKellar at 218, per Jacobs JA.
20. Anderson v MacKellar at 219, per Jacobs JA.
21. A J Bradbrook and M A Neave Easements and Restrictive Covenants in Australia (1st ed, Butterworths, Melbourne, 1981), at 146.
22. (1987) 9 NSWLR 738.
23. Kebewar Pty Ltd v Harkin at 745.
24. (1989) 18 NSWLR at 131.
25. Easements and Restrictive Covenants in Australia at 146.
26. As published in Gov Gaz No 153, 1.11.91.
27. [1968] 3 NSWR 94.
28. [1977] 2 NSWLR 486.
