4.1 Several jurisdictions have either recommended reform or have in fact enacted legislation to overcome the problems in this area.1
NEW ZEALAND
4.2 New Zealand has chosen not to follow the principles enunciated in Dalton. The New Zealand Court of Appeal in Bognuda v Upton & Shearer Ltd 2 applied the ordinary rules of negligence and held that there was an obligation on the part of a landowner to take reasonable care to avoid damage to a neighbouring landowner’s buildings when excavating on his or her own land. The court distinguished the decision in Dalton from the case at hand on the basis that the principles established in Dalton stemmed from the gaining of a prescriptive right of support for a building from the adjoining land. Prescriptive rights cannot be acquired in New Zealand as a result of amendments to the Land Transfers Acts 1952.3 Consequently the court saw no reason why the principles laid down by Atkin LJ in Donoghue v Stevenson4 could not apply and the respondent landowner owed a duty to the appellant landowner to exercise reasonable care for the protection of the appellant’s wall when excavating the soil adjacent to the appellant’s building. North P held that:
the standard of care required of the adjacent owner should not be fixed at an unreasonable level, much less should it be fixed in a way that would impose on him absolute liability, as would be the position if his neighbour had acquired an easement either by grant or by prescription. In short his obligation would be to take reasonable care to avoid damaging his neighbour’s building in excavating the soil on his own land.5
4.3 Although this reform has been admired in Australia, Dalton still remains good law. If however, as discussed in the previous chapter, an easement acquired by prescription cannot be acquired under the Torrens system of registration, then it may be argued that the rationale used by the court in Bognuda should apply to the state of the law in New South Wales and a landowner should be able to insist that an adjoining landowner carrying out excavations does so with reasonable care to avoid subsidence of land or buildings.
ENGLAND
4.4 A Working Paper entitled Appurtenant Rights was released by the English Law Commission in 1971.6 This Paper examined the existing natural rights of support at common law and discussed proposals for creating a general obligation relating to the support of buildings by other land and specific obligations in respect of party structures.7 The recommendations of this Working Paper have not been implemented, although the Paper was used in conjunction with a Report on Positive and Restrictive Covenants by the English Law Commission, released in 1984.8 The Law Reform Commissions of Queensland and Western Australia have based their recommendations on the English Law Commission’s proposals.
QUEENSLAND
4.5 As mentioned in paragraph 1.7 of this paper, Queensland provides an exception to the common law right of support. The Property Law Act 1974 (Qld) extends the natural right to support owed by one piece of land to an adjoining piece of land to include buildings on that land. Section 179 provides:
For the benefit of all interests in other land which may be adversely affected by any breach of this section, there shall be attached to any land an obligation not to do thereon anything which will withdraw support from any other land or from any building, structure, or erection which has been placed upon it.
4.6 The section implements recommendations made by the Queensland Law Reform Commission.9 The Commission found it difficult to justify either in logic or as a matter of policy, the two qualifications on a natural right of support; namely that there is no natural right to support for buildings or the additional burden which they place upon the land, and secondly, that there is no right to support of land by water. Sharing the views of the English Law Commission,10 the Queensland Commission recommended that there should be a legal obligation to avoid damage to buildings as well as to land deriving natural support from such land, regardless of any other precautions an excavating landowner may take.
4.7 The Queensland Commission argued that with advances in engineering techniques, an owner both can and should, and in practice almost invariably does, take precautions against damage to his neighbour’s building caused by subsidence arising from excavations on his land. Its recommendations were therefore that good building practice should be converted to a legislative requirement.11 The generality of the section appears to deliberately abolish the distinction (and thereby problems) between support for land and buildings and support derived from water or otherwise. Possibly the most important feature of the legislation is that the right attaches to the land rather than individuals, thereby avoiding the problems that arise in enforcing personal rights against the other party to an easement of support.12
4.8 The legislation does not specifically state to whom liability is to attach. However, the Report recommending the introduction of s 179 talks in terms of an owner taking precautions against damage to a neighbour’s building.13 Commenting on this provision in Property Law and Practice in Queensland, Duncan and Vann14 state that s 179 seeks to attach an obligation upon neighbouring owners. It may be argued that such an interpretation could operate to destroy an obligation at common law on the part of some other person, for example the excavator. Some amendment to this provision may be required to clarify the position.
WESTERN AUSTRALIA
4.9 A Report by the Western Australian Law Reform Commission in 1986 15 recommended that legislation similar to s 179 of the Property Law Act 1974 (Qld) should be included in the Property Law Act 1969 (WA).
4.10 Of particular importance to the Western Australian Commission’s proposals was the existence of s 391 of the Local Government Act (WA). This section provides some protection to the owner of a building against withdrawal of support for the building by an adjoining landowner, by imposing certain duties on an owner of land in relation to alteration of ground levels where that owner intends to erect a building or a structure. Some similarities can be drawn between this legislation and Pt 31.4 of Ordinance 70 of the Local Government Act 1919 (NSW).
4.11 Section 391 is applicable to either residential or commercial developments and comes into operation where an owner intends to erect a building or structure within three metres of a building belonging to an adjoining owner, and part of the proposed building or structure within the three metres extends to a level lower than the foundations of the adjoining building. Notice provisions apply in respect of the proposed excavations and any disputes can be determined by referees. The building owner can also be found liable to compensate the adjoining owner for inconvenience, loss or damage that is caused as a result of the excavation.
4.12 The Western Australian Commission believed that s 391 would be an adjunct to its recommendation that a right of support for buildings be created, and suggested that it be transferred to the Property Law Act 1969 (WA).16 No action has been taken in respect of these recommendations. The Western Australian Department of Local Government is currently re-examining these recommendations of the Western Australian Law Reform Commission with a view to incorporating them into proposed building legislation.
FOOTNOTES
1. The Commission does not propose to examine those jurisdictions, such as Canada, where the common law situation that stems from the decision in Dalton still applies. Rather, the purpose of this chapter is to consider those jurisdictions that have attempted to resolve the problems in this area.
2. [1972] NZLR 741.
3. Section 64. The New Zealand Law Commission in Preliminary paper No 16, entitled The Property Law Act 1952, released in November 1991, provisionally proposes the abolition of prescriptive rights of all kinds. The only pieces of land capable of gaining a prescriptive right are those rare cases where by an oversight, the land has not been bought under the Land Transfer Act 1952.
4. [1932] AC 562.
5. Bognuda v Upton & Shearer Ltd [1972] NZLR 741 at 757.
6. England and Wales. The Law Commission Appurtenant Rights (Working Paper 36 1971).
7. The Law Commission WP 36 at 40.
8. England and Wales. The Law Commission Transfer Of Land The Law Of Positive And Restrictive Covenants (Report 127 1984) at 3.
9. Queensland. Law Reform Commission On A Bill to Consolidate, Amend, and Reform the Law Relating to Conveyancing, Property, and Contract and to Terminate the Application of Certain Imperial Statutes (Report 16 1973).
10. England and Wales. The Law Commission Appurtenant Rights (Published Working Paper 36 1971).
11. QLRC Report No 16 at 102.
12. See Kebewar Pty Ltd v Harkin (1987) 9 NSWLR 738.
13. QLRC Report No 16 at 102.
14. W D Duncan & R J Vann Property Law and Practice in Queensland (loose leaf service) (Sydney, The Law Book Company, 1982) at 1204.
15. Western Australia. Law Reform Commission Report On Alteration Of Ground Levels (Project 44 1986).
16. In WALRC Project 44, the Commision made a number of recommendations in respect of s 319 of the Local Government Act (WA). These recommendations are not however discussed in this paper.
