Conveyancing Amendment (Law of Support) Bill 1997

Explanatory note

Overview of Bill

Generally under the common law, the owner or occupier of a parcel of land has a ``natural right'' not to have the support of that land removed by the owner or occupier of an adjoining (or neighbouring) parcel of land. This common law natural right of support is distinct from a right to support that is acquired by easement. If it is infringed and damage has been caused to the supported land, an action lies in nuisance.

The object of this Bill is to reform this area of the law by providing that an infringement of the right to support is actionable in negligence and not in nuisance. Accordingly, a common law duty of care is established. The duty of care, based on the common law of negligence, is not to do anything that will result in the removal or reduction of support to other land. This reform is achieved by an amendment to the Conveyancing Act 1919.

This Bill also provides that a breach of the conditions specified under the Local Government (Approvals) Regulation 1993 in relation to retaining walls and support for neighbouring buildings will not give rise to any private right of action. The failure to comply with the conditions of a local council's building approval is dealt with under section 627 of the Local Government Act 1993.

This Bill gives effect to the recommendations made by the New South Wales Law Reform Commission in its report entitled The Right to Support from Adjoining Land.

Outline of provisions

Clause 1 sets out the name (also called the short title) of the proposed Act.

Clause 2 provides for the commencement of the proposed Act on a day or days to be appointed by proclamation.

Clause 3 is a formal provision giving effect to the amendment to the Conveyancing Act 1919 set out in Schedule 1.

Clause 4 is a formal provision giving effect to the amendments to the Local Government (Approvals) Regulation 1993 set out in Schedule 2.

Schedule 1 amends the Conveyancing Act 1919 for the purposes described in the above overview.

Schedule 2 amends the Local Government (Approvals) Regulation 1993 for the purposes described in the above overview.

Contents

1 Name of Act

2 Commencement

3 Amendment of Conveyancing Act 1919 No 6

4 Amendment of Local Government (Approvals) Regulation 1993

Schedules

1 Amendment of Conveyancing Act 1919

2 Amendment of Local Government (Approvals) Regulation 1993

Conveyancing Amendment (Law of Support) Bill 1997

No , 1998

A Bill for

An Act to amend the Conveyancing Act 1919 to reform the law relating to the right to support for land; to amend the Local Government (Approvals) Regulation 1993 for related purposes; and for other purposes.

The Legislature of New South Wales enacts:

1 Name of Act

This Act is the Conveyancing Amendment (Law of Support) Act 1997.
2 Commencement
This Act commences on a day or days to be appointed by proclamation.
3 Amendment of Conveyancing Act 1919 No 6
The Conveyancing Act 1919 is amended as set out in Schedule 1.
4 Amendment of Local Government (Approvals) Regulation 1993
The Local Government (Approvals) Regulation 1993 is amended as set out in Schedule 2.

Schedule 1 Amendment of Conveyancing Act 1919

(Section 3)

[1] Section 177

Insert before section 178:

177 Duty of care in relation to support for land

(1) For the purposes of the common law of negligence, a duty of care exists in relation to the right of support for land.

(2) Accordingly, a person has a duty of care not to do anything, or not to omit to do anything, on or in relation to land (the supporting land) so as to cause damage by removing the support provided by the supporting land to any other land (the supported land).

(3) For the purposes of this section, supporting land includes the natural surface of the land concerned, the subsoil of the land, any water beneath the land, and any part of the land that has been reclaimed.

(4) The duty of care in relation to support for land does not extend to any support that is provided by a building or other structure on the supporting land except to the extent that the supporting building or structure concerned has replaced the support that the supporting land in its natural or reclaimed state formerly provided to the supported land.

(5) The duty of care in relation to support for land may be excluded or modified by express agreement between a person on whom the duty lies and a person to whom the duty is owed. Any such agreement has no effect in relation to any successor in title of the supported land unless the agreement is embodied in a registered easement for removal of support relating to that land.

(6) The right to agree to the removal of the support provided by supporting land to supported land is a kind of right that is capable of being created by an easement.

(7) Any right at common law to bring an action in nuisance in respect of the removal of the support provided by supporting land to supported land is abolished by this section.

(8) Subsection (7) does not apply in respect of any proceedings that have commenced before the commencement of this section.

(9) Subject to the operation of any limitation period for bringing an action in negligence, any action in negligence that is brought after the commencement of this section in respect of the removal of the support provided by supporting land to supported land may be wholly or partly based on anything that was done, or that was omitted to be done, before the commencement of this section.

(10) This section extends to land and dealings under the Real Property Act 1900.

(11) A reference in this Act to the removal of the support provided by supporting land includes a reference to any reduction of that support.

[2] Section 181A Construction of expressions used to create easements
Insert at the end of section 181A (2):
easement for removal of support
[3] Schedule 8 Construction of certain expressions
Insert at the end of the Schedule:

Part 15 Easement for removal of support

The owner of the lot benefited (being the owner of the supporting land as referred to in section 177) may:

(b) remove the support provided by the lot benefited to the burdened lot (being the supported land as referred to in section 177), and

(c) do anything reasonably necessary for that purpose.

Schedule 2 Amendment of Local Government (Approvals) Regulation 1993

(Section 4)

[1] Clause 33 Retaining walls

Insert at the end of the clause:
(2) The failure to comply with any such condition:

(b) is taken not to be a civil wrong, and

(c) does not give rise to any proceedings by a person other than the council that gave the approval concerned.

[2] Clause 34 Support for neighbouring buildings
Insert after clause 34 (1):
(1A) The failure to comply with any such condition:

(b) is taken not to be a civil wrong, and

(c) does not give rise to any proceedings by a person other than the council that gave the approval concerned.