RIGHT TO SUPPORT FROM ADJOINING LAND
Support to land
2.1 According to common law, the right to the support of land in its natural state is an incident of the land itself. It is a “natural right”, not an easement or grant, evolving from a recognition that land in its natural state requires support from adjacent soil, and the notion that a landowner has a right to the enjoyment of his or her own property.1 This right does not, however, entitle the landowner to insist that the adjoining land remain in a natural state.
2.2 Where the owner’s land subsides due to excavation or other activity on the adjoining land, he or she can bring an action for damages in nuisance against the adjoining landowner, provided that the owner can establish that his or her land would have subsided without the weight of any building erected on the owner’s land.2 In some cases it may be appropriate to seek an injunction to prevent further work being undertaken, and, in some circumstances, a court may grant a quia timet injunction to prevent the commencement of work which poses a serious risk of the nuisance occurring and leading to irreparable damage.3 The Court also has jurisdiction to award equitable damages in addition to, or in substitution for, an injunction to restrain a threatened nuisance.4
Support to buildings
2.3
[I]t is the law, I believe I may say without question, that at any time within twenty years after the house is built the owner of the adjacent soil may with perfect legality dig that soil away, and allow his neighbour’s house, if supported by it, to fall in ruins to the ground.5
As these words of Lord Penzance attest, there is no obligation at common law to support buildings erected on adjoining land, unless specifically provided for by grant or prescription. This is, however, subject to the qualification that where land subsides due to a loss of support, and not from the additional weight of buildings thereon, the landowner is entitled to recover damages for injury to the building in addition to damages for the land subsidence.6
2.4 There is uncertainty as to what kinds of improvements will be deemed to alter the natural state of land, so that it forfeits its natural right to support. In a recent case in this State, Xuereb v Viola,7 it fell to be decided, inter alia, whether the wall of an earth dam on the plaintiff’s property should be considered to be a building, and thus not entitled to have its load supported by the adjoining land. Justice Giles found that both the dam wall and the dam itself were in the same position as a building:
because they are a man-made construction changing the natural ground, and changing the distribution of loads upon and through the natural ground by the imposition of an additional load on the ground on which the dam is constructed. The natural right of support is a right to the support of land in its natural state, not to land in a state where the loads upon the adjoining land have been altered. The alteration may be by a wall or by filling, and in my view may also be by the construction of a dam. (Nice questions could arise upon what the natural state of land is - does a time come when a man-made construction, at least one by way of earthworks, becomes the natural state of the land? No such question arises in the present case.)8
Prescription or grant
2.5 The rule in Dalton v Henry Angus & Co9 (hereinafter referred to as Dalton) will not apply where a right to support is acquired by easement. That case referred to the distinction between the natural right to support of land and the right, “founded upon prescription or grant, express or implied”, to support of buildings. According to Lord Selborne “the right ... is properly called an easement”.10 In theory, therefore, an easement of support can be created by three methods:
- express grant or reservation;
- implied grant or reservation; or
- prescription.
If the first of these methods is employed, and the easement is registered on title, then the neighbouring building is clearly entitled to support. Doubts arise, however, regarding the second and third methods. As they are not created by written instruments they are not registrable, and therefore contrary to the purpose and functioning of the Real Property Act 1900 (NSW) (“RPA”), at whose core is the principle that the Register be conclusive as to title. Section 42 of the RPA gives the registered proprietor title to land free of any unrecorded interests, subject to specific exceptions. Notwithstanding s 42, an implied easement may be said to have been created where, for example, a personal right is enforceable against the registered proprietor. However, such a right will not be enforceable against a successor in title to the registered proprietor.11
2.6 As for easements by prescription, these are acquired by uninterrupted enjoyment of a right over a period of twenty years. In Kostis v Devitt12 the Supreme Court of New South Wales 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 s 47. In Dewhirst v Edwards13 it was held that, with the exception of a prescriptive easement in existence prior to the land being brought under the RPA but omitted from the Register on registration, the RPA does not recognise the existence of easements claimed to have been acquired merely by effluxion of time.
2.7 It would appear that easements arising by implication or prescription have little, if any, application in respect of Torrens title land, and therefore are of little relevance in the majority of cases where a building is damaged through loss of support from adjoining land. Thus, to the extent that these exceptions may have provided some limited relief to the rule in Dalton, they have been rendered almost obsolete by the enactment of the RPA.14
RIGHT TO SUPPORT OF A BUILDING BY A BUILDING
2.8 There is no natural right for a building to be supported by an adjoining building. An easement can be created to provide such protection, and in practice there would be few instances where this did not exist. In the absence of such an easement, however, the position at common law is that a landowner is under no obligation to prevent withdrawal of support through, for example, shoring or underpinning.
STATUTORY RIGHT TO SUPPORT OF AN ADJOINING BUILDING
2.9 Regulation 34 of the Local Government (Approvals) Regulation 1993 has retained similar wording to Pt 31.4 of Ordinance 70 (made pursuant to s 318 (7) of the Local Government Act 1919 (NSW)).15 However, reg 34 contains one important difference to Pt 31.4. Instead of imposing the obligation directly, reg 34 operates by importing its provisions into the terms of any approval to erect a building granted under the Local Government Act 1993 (NSW). It states:
34 (1) It is a condition of an approval to erect a building that, if 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 must comply with this clause.
(2) The person must at the person’s own expense:
(a) preserve and protect the building from damage; and
(b) if necessary, underpin and support the building in an approved manner.
(3) The person must, at least 7 days before excavating below the level of the base of the footings of a building on an adjoining allotment of land, give notice of intention to do so to the owner of the adjoining allotment of land and furnish particulars to the owner of the proposed work.
(4) In this clause, allotment of land includes a public road and any other public place.
2.10 In addition, reg 33 provides that it is a condition of an approval to erect a building that if the soil conditions so require, retaining walls or other approved methods of preventing soil movement must be provided, and adequate provision must be made for drainage. Failure to comply with the terms of an approval:
- is an offence under s 627 of the Local Government Act 1993 (NSW), which carries a maximum penalty of 50 units for individuals and 100 for corporations, one penalty unit being $110;16 and
- is a breach of the Local Government Act 1993 (NSW) which may be remedied or restrained by the courts on the application of any person (see sections 673 and 674).
2.11 As to the meaning of “the person causing the excavation to be made” Justice Giles observed in Pantalone v Alaouie 17 that Pt 31.4 was not intended to give rise to multiple liability, but rather that liability was intended to attach to the person in the position to give seven days notice of the intention to excavate, as required by that part. The imposition of the obligations in Regs 33 and 34 as conditions of approvals under the Local Government Act 1993 (NSW) is consistent with this construction.
2.12 Submissions received by the Commission following publication of DP 27 highlight two obstacles which limit the application of Pt 31.4. These obstacles, which would apply equally to reg 34, are:
- The qualification contained in both Pt 31.4 and reg 34 that the excavation “extends below the level of the base of the footings of a building on an adjoining allotment of land”, rather than to any excavation, regardless of depth.
- Regulation 34 applying only to excavations which require lodgment of a building application. While in practice this will catch most excavations, it is nevertheless not comprehensive. A landowner could, for example, dig a large hole on his or her land for which no building application is required, which removes support sufficient to cause damage to a structure on adjoining land.
RIGHT TO SUPPORT BY WATER
2.13 There is no natural right to support of land by water. Early English cases, such as Chasemore v Richards,18 established the right of an adjoining landowner to use the land, including water percolating below it in an undefined channel, as he or she wished, regardless of the consequences to neighbouring land. Later decisions reaffirmed this right,19 and held further that the landowner could not be said to owe a duty of care when exercising that right. As a result, an aggrieved neighbour could not sue in either nuisance or negligence. In Stephens v Anglian Water Authority20 , the English Court of Appeal cited with approval the conclusion reached by Justice Plowman, the judge at first instance, in Langbrook Properties Ltd v Surrey County Council, who had stated as follows:
The authorities cited on behalf of the defendants in my judgment establish that a man may abstract the water under his land which percolates in undefined channels to whatever extent he pleases, notwithstanding that this may result in the abstraction of water percolating under the land of his neighbour and, thereby, cause him injury. In such circumstances the principle of sic utere tuo ut alienum non laedus does not operate and the damage is damnum sine injuria. Is there any room for the law of nuisance or negligence to operate? In my judgment there is not.21
Judicial comment in these cases reveals dissatisfaction with the existing law.22
2.14 An exception may exist where a statutory authority, and not the landowner, removes the support of water, leading to damage to adjoining land. In The Mayor, Councillors and Citizens of Perth v Halle23 the Municipality of Perth, authorised by the Municipalities Act 1906 (WA),constructed a stormwater drain in a public street. By virtue of the same Act, absolute property in the streets of Perth was vested in the municipality. Because of negligent construction, holes developed in the drain, through which passed quantities of sand and water from the plaintiff’s land adjoining. This reduced support to the plaintiff’s land, resulting in subsidence and damage to two houses. Because of its negligence the Council was held to have acted outside its statutory authority, which extended only to proper execution and maintenance of the work, and thus to have created a nuisance. Counsel for the defendant had attempted to argue that the plaintiff was not entitled to a right of support from water underlying his land. Justice O’Connor responded as follows:
The true position of the landowner in my opinion is this: - He is entitled to have his land supported by the underground water which naturally underlies it. That right is one of the incidents arising out of his ownership, and, unless it is taken away by Statute, he can assert it against all the world except the adjoining owner. Even the latter is entitled to interfere with the full enjoyment of the right only when the lawful use of his own land necessarily involves that interference. But, as against every person other than the adjoining landowner, he has the same remedy for the protection of this, as he has for the protection of any other, right arising out of his ownership. The municipality in this case had not, as I have pointed out, either the rights of a private owner or the authority of a Statute to justify what they have done. Their position was and is no other than that of any public body which, having charge of a public street, has by negligent, and therefore unauthorised, work in the street injuriously affected the right of an adjoining owner to his special damage. The construction and maintenance of the drain under these circumstances is a nuisance, actionable at the suit of a party injured.24
2.15 In Metropolitan Water Supply and Sewerage Board v R Jackson Ltd25 , the appellant Board was held liable for damage to the plaintiff’s building occasioned by withdrawing the support of water from adjoining land in the course of constructing a sewer. The Full Court of the Queensland Supreme Court rejected the Board’s contention that it was in the position of an owner. The Court held that the Board’s powers to construct sewers in the streets were independent powers conferred directly by the legislature to do certain acts, and not exercised by the Board as a delegate or licensee of the Crown, nor derived from the Crown’s ownership of the soil. The Board was not an owner, nor acting by consent of the owner, but merely exercising statutory powers.26 It appears, therefore, that even where property is vested in statutory authorities, the latter are not, in this context, regarded as being in the position of an adjoining landowner, and may, therefore, be liable in negligence and nuisance.
FOOTNOTES
1. Dalton v Henry Angus & Co (1881) 6 App Cas 740 at 791.
2. Dalton v Henry Angus & Co (1881) 6 App Cas 740; Pantalone v Alaouie (1989) 18 NSWLR 119.
3. J G Fleming The Law of Torts (8th ed, Law Book Co, Sydney, 1992) at 446. See also Hooper v Rogers [1975] 1 Ch 43; Grasso v Love [1980] VR 163 (FC).
4. Supreme Court Act 1970 (NSW) s 68, paralleling the Chancery Amendment Act 1858 (Lord Cairns’ Act ); Leeds Industrial Co-operative Society Ltd v Slack [1924] AC 851; Barbagallo v J & F Catelan Pty Ltd [1986] 1 Qd R 245.
5. Dalton v Henry Angus & Co (1881) 6 App Cas 740 at 804, per Lord Penzance.
6. Brown v Robins (1859) 4 H & N 186, 157 ER 809; Stroyan v Knowles (1861) 6 H & N 454; 158 ER 186; Public Trustee v Hermann (1968) 88 WN (Pt 1) (NSW) 442.
7. (1990) Australian Torts Reports 67,667.
8. (1990) Australian Torts Reports 67,667 at 67,684.
9. Dalton v Henry Angus & Co (1881) 6 App Cas 740.
10. Dalton v Henry Angus & Co (1881) 6 App Cas 740 at 792.
11. Australian Hi-Fi Publications Pty Ltd v Gehl [1979] 2 NSWLR 618; Kebewar Pty Ltd v Harkin (1987) 9 NSWLR 738.
12. (1979) 1 Butterworths Property Reports 9231 at 9239.
13. [1983] 1 NSWLR 34.
14. See also Conveyancing Act 1919 (NSW) s 181B which provides for mutual cross-easements of support in the case of party walls.
15. Discussed in DP 27 at para 3.8 and following.
16. Interpretation Act 1987 (NSW) s 56 (as amended by Statute Law (Miscellaneous Provisions) Act 1997, Sch 1.11).
17. (1989) 18 NSWLR 119 at 131.
18. (1859) 7 HL Cas 349;11 ER 140; see also Acton v Blundell (1843) 12 M & W 324;152 ER 1223.
19. Langbrook Properties Ltd v Surrey County Council [1969] 3 All ER 1424; Stephens v Anglian Water Authority [1987] 3 All ER 379.
20. [1987] 3 All ER 379 at 381.
21. [1969] 3 All ER 1424 at 1439-1440.
22. See Stephens v Anglian Water Authority [1987] 3 All ER 379 at 383-384; Langbrook Properties Ltd v Surrey County Council [1969] 3 All ER 1424 at 1440.
23. (1911) 13 CLR 393 (HC).
24. (1911) 13 CLR 393 at 414.
25. [1924] QSR 82.
26. [1924] QSR 82 at 100-101.
