THE REFERENCE

1.1 On 27 September 1991 the Commission received a reference from the then Attorney General, the Hon Peter Collins MP, to inquire into and report on:

1. whether any changes should be made to the laws relating to the rights of adjoining land owners to support from adjacent land, including any buildings or structures; and
2. any related matter.

1.2 The reference followed receipt by the Commission of a memorandum from Justice Giles, on behalf of the judges of the Commercial Division of the Supreme Court of New South Wales, drawing attention to the unsatisfactory state of the law relating to the removal of support of land. The Commission released a Discussion Paper in 1992 (“DP 27”),¹ which put forward some reform options, and invited public comment.

1.3 Submissions² were received from organisations and individuals, all of which agreed that the law of support was in need of reform. However, because of the priority which the Commission found necessary to accord to other references, preparation of a Report was postponed. In the intervening period the Local Government Act 1993 (NSW) was passed. The relevant regulations³ contained within the Local Government (Approvals) Regulation 1993, made pursuant to the new Act, have retained the substance of their predecessor, and so have not altered any statutory right to support. This is discussed in greater detail in Chapter 2. Likewise, there have been no substantive developments in the common law since the publication of DP 27.

DISCUSSION PAPER 27

1.4 In its Discussion Paper, the Commission proposed two options for consideration:

1. amendment of Part 31.4 of Ordinance 70, Local Government Act 1919 (NSW) (superseded by Regulation 34, Local Government (Approvals) Regulation 1993); and
2. the introduction to the Real Property Act 1900 (NSW) of a provision similar to s 179 of the Property Law Act 1974 (Qld).

1.5 All submissions agreed that the law in this area is deficient, and favoured legislative reform broadly in line with the Commission’s proposals.

PROBLEMS WITH THE LAW OF SUPPORT

1.6 The existing situation is unsatisfactory on several grounds. These are summarised below and discussed in greater detail in chapters 2 and 3.

Common law unsuited to modern conditions

1.7 The common law principles on which the right to support is based were laid down in a nineteenth century English case.⁴ They are based on quite narrow proprietary rights, having little relevance to the reality of modern urban conditions, and were formulated prior to the Torrens system of land title registration and major developments this century in the law of negligence. The protection afforded by common law seems today to be narrow and arbitrary. There have been calls by the judiciary, academics and other commentators that, should the opportunity arise, the High Court depart from these outdated principles.⁵

Legislative intervention piecemeal and unsatisfactory

1.8 Some statutory protection for adjoining landowners does exist, but pertains to quite specific situations.⁶ There is, therefore, no legislation having comprehensive application, again leaving this area of the law open to the criticism that the protection it provides is patchy and arbitrary.

Anomalies in application of the law

1.9 Partly as a result of the problems referred to in the two previous paragraphs, anomalies arise in the application of the law with respect to where the burden of liability should lie. The consequences that can follow are that the victim has insufficient redress, that an innocent actor can be unjustly burdened, and that an actor whom the Commission believes ought to bear the burden escapes liability.

RECOMMENDATIONS

1.10 In summary, the Commission has five recommendations:

1. That the law of nuisance in relation to actions for withdrawal of support should be abolished.
2. That the law regulating the rights of owners and users of one piece of land to continue to enjoy the support of that land from other land be governed by the ordinary principles of negligence.
3. That a right to support of land from natural water bodies and reclaimed land be created and regulated in the same manner as the right to support of land from other land.
4. That a new type of easement, an easement for removal of support, be created.
5. That breach of certain regulations made pursuant to the Local Government Act 1993 (NSW) shall not give rise to any private right of action.

1.11 The recommendations are contained within draft legislation attached as Appendix B to this Report.

FOOTNOTES

1. New South Wales Law Reform Commission, The Right to Support by Adjoining Land (Discussion Paper 27, 1992).

2. Appendix A contains a list of submissions received.

3. See para 2.9.

4. Dalton v Henry Angus & Co (1881) 6 App Cas 740.

5. See for example para 3.24.

6. See paras 2.9-2.12.