GENERAL

5.1 It is unfortunate that the decision in Dalton has not yet been reconsidered by the High Court. Combined with the doubtful application of the doctrine of prescription, this has created particular difficulties in New South Wales. Whilst the decision in Pantelone has made an impact on the law relating to support, it has not yet been approved by a higher court.

5.2 The Commission suggests that legislation to rectify the problems created by Dalton is appropriate. Two options are put forward for consideration:

a) amendment of the existing Pt 31.4 of Ordinance 70; or

b) the introduction of a provision similar to s 179 of the Property Law Act 1974 (Qld) to the RPA.

AMENDMENT OF Pt 31.4 OF ORDINANCE 70

5.3 The current review of the Local Government Act 1919 provides a convenient opportunity for such an amendment. The following factors need to be considered if a complete review of Pt 31.4 is intended.

• Any amendment of this provision should firstly include the extension of liability to where a subsidence of land or buildings is caused by the removal of water from the adjoining land.
• The question of liability needs to be addressed in more detail than it currently is, in particular, a definition of “person who causes the excavation” should be included.
• Consideration needs to be given to whether only an owner is to be held liable, or whether subcontractors, engineers and others charged with the design or supervision of work, should also be held liable in circumstances where they may have been the direct cause of the subsidence.
• Should liability under this provision be strict, or should there be some recourse to the principles of negligence.
• Should liability be widened to include excavations other than those “below the base of the footings”.

AMENDMENT TO THE REAL PROPERTY ACT 1900 (NSW)

5.4 Amending the RPA by introducing a provision similar to s 179 of the Property Law Act 1974 (Qld) is another way by which the effect of Dalton could be overcome. Whilst the section is fairly widely drafted, accommodating any damage done to buildings by the withdrawal of support, by either the removal of land or water, the Commission is concerned that liability is not specifically addressed. The provision states that the obligation “shall be attached to any land”, and although there is a belief by some that this automatically attaches liability to the owner of that land, the Commission is concerned that such an assumption places a heavy burden on a landowner, and would ignore the negligence of subcontractors, when in fact they may be directly responsible for the subsidence. Clearly, before any introduction of a similar provision in New South Wales this concern should be addressed.

5.5 The Commission does not put either of these proposals forward on the basis that they are its final recommendations, rather, they are designed to provoke comment on whether either of these options is appropriate in New South Wales.