OPTIONS PROPOSED IN DP 27

4.1 Discussion Paper 27 concluded with the following options for consideration:

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

Section 179 provides as follows:

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 anything on it which will withdraw support from any other land or from any building, structure, or erection which has been placed upon it.

This section seeks to extend protection to buildings threatened with a loss of support, regardless of whether that support is derived from land, water or otherwise.

4.2 Submissions received unanimously favoured amending the law of support, and, for the most part endorsed both the proposals set out above, particularly the second, although with the suggestion that the Conveyancing Act 1919 (NSW) might be a more appropriate home for such a provision so as not to exclude Old System title. Submissions from the Commercial Law Association of Australia and the Law Council of Australia expressed the view that principles of negligence ought to play some part in determining liability. As well, some submissions called for the right to support to be extended to include support by water.

THE COMMISSION'S APPROACH

4.3 The fundamental problems with the law of support, as discussed in the preceding Chapter, may be summarised as follows:

• the common law right of support, as it now stands, extends only to land in its natural state, and does not extend to buildings or other improvements;
• there is not at present a right to support by water;
• the defendant is strictly liable in nuisance, without proof of negligence, which offends against the common notion that liability should be fault-based, and is out of step with developments this century in the law of negligence;
• it is an anomaly that the rights of the victim differ according to the nature of improvements on his or her land;
• the history and terminology of the tort of nuisance are subject to confusion, which can cause uncertainty in applying the law in support cases: for example, should nuisance apply in cases of continuing interference with enjoyment of land as well as isolated cases, and should it apply to both physical and non-physical damage?

4.4 The tentative proposals set out in para 4.1 deal with some of these, mainly the problems associated with providing adequate support for buildings and other structures. They do not deal adequately with the concerns raised in the previous chapter regarding the fair apportionment of liability. The Commission now considers that a more thoroughgoing reform than that previously proposed should be adopted. One possibility is the formulation of a comprehensive code. The disadvantage of this course, however, is the difficulty in anticipating every variation that problems in this area may take, and providing for their remedy.

4.5 The Commission has formed the view that reform of the law of support should be effected by abolishing recourse to the tort of nuisance, and in its place providing for a common law right of action in negligence. This would entail the enactment of statutory provisions to alter the existing law and define the elements the Commission wishes the new law to embody.

LIABILITY BASED ON NEGLIGENCE

4.6 The Commission considers that the objectives of reform of the law in this area should be:

1. abolition of the rule in Dalton v Henry Angus & Co,¹ and
2. establishment of a regime of liability based on negligence.

4.7 The issues relating to rights of support from adjoining land are wider than those canvassed in Dalton v Henry Angus & Co, so the Commission considers that it would not be sufficient simply to provide that the rule established in that case no longer applies. As well, abolition of that rule may have unintended consequences for rights associated with ownership of land. As a result of decisions including Burnie Port Authority v General Jones Pty Ltd² general principles of negligence will already apply to actions of a person that cause damage to neighbouring land through the escape of hazardous substances. The reforms that the Commission proposes relate only to compensation for damage caused by removal of support of land or buildings.

4.8 The suggested reform is intended to replace the common law right to support as an incident to land, with an obligation on the person to take reasonable care that he or she does not do or omit to do anything to land which might cause loss or damage by removing support provided by that land to other land. For this purpose, the supporting land includes the natural surface of the land, the subsoil, subterranean water, and reclaimed land, but does not include man-made structures on that land, except to the extent that those structures replace the support provided by the supporting land in its natural state. With respect to buildings it is not intended to create rights for support where none presently exist, except in so far as such rights would exist but for the rule in Dalton v Angus. Therefore, if a building is supported by a building erected on adjoining land, without a registered easement for support, the owner of the supported building will not be able to claim compensation if the supporting building is demolished, altered or not properly maintained. If, however, a building receives support from adjoining land, and the excavation or other use of that land results in a loss of actual or potential support which is reasonably foreseeable, the owner of the building may claim compensation for loss or damage from the person whose act or omission causes the loss of support. The same result could be reached if the land’s ability to support new buildings which might reasonably be expected to be built were reduced.

4.9 As the remedy in nuisance would be abolished under the suggested reform, the Commission considers it prudent to create a duty of care by statute, even though it is arguable that a duty of care would be placed by the general law on the owner or occupier of supporting land.

4.10 The advantages of a negligence-based system of liability are as follows:

• the right to support is no longer an incident of the land itself, and can, therefore, be actionable against anyone failing to exercise reasonable care;
• the right is not confined to land in its natural state;
• the flexibility of the common law is retained, so as to encompass a wide variety of fact situations and remedies;
• a duty of care between neighbouring landowners is established, consistent with principles developed throughout the century; and
• liability for damage to land and structures can be apportioned according to fault, in accordance with basic notions of fairness.

4.11 The Commission does not wish to restrict the ability of landowners to make contractual arrangements between themselves concerning rights of support. Such arrangements, however, can only be enforced as between the parties to the contract. So as to protect the rights of those parties, and to ensure that subsequent purchasers of the land have notice of these arrangements, the Commission recommends that s 181A of the Conveyancing Act 1919 be amended to provide for the creation (and thus the registration under the Real Property Act 1900) of an “easement to remove support”.

4.12 A draft Bill giving effect to the Commission’s recommendations is Appendix B to this Report.

THE COMMISSION'S RECOMMENDATIONS

RECOMMENDATION 1

Commission recommends inserting into the Conveyancing Act 1919 (NSW), and such other legislation as may be necessary, provisions giving effect to the following:

1. The abolition of the right of any person to bring a common law action in nuisance in respect of a reduction in support for any land.
2. Everyone must take reasonable care that they do not do or omit to do anything on or in relation to land which might cause loss or damage by removing support provided by that land to other land.
3. For this purpose “land” includes the natural surface of the land, the subsoil and any subterranean water, and reclaimed land, but does not include man-made structures on that land, except to the extent that those structures replace the support provided by the supporting land in its natural state.
4. If those with interests in land agree among themselves to exclude, restrict or modify the duty of care, they may register that agreement in ways that bind their successors in title to the land by means of an “easement to remove support”.

Features of a proposed right to support in negligence

Duty of care

4.13 The proposed right to support in negligence would create a duty of care, imposed upon any person (not necessarily the owner of the land) carrying out or involved in an activity, or omitting to do anything having an effect on land in favour of all persons enjoying the ownership or use of any other land This duty of care prohibits any activity which:

1. damages the affected land;
2. renders the affected land, including any structures on it, unsafe; or
3. renders the affected land unable to support safely any structures which may foreseeably be erected on it in the future.

Foreseeability

4.14 In contrast with s 179 of the Property Law Act 1974 (Qld), the proposed duty of care will not prohibit every withdrawal of support. It seems likely that some degree of loss of support could result, for example, from changes to other land, but in the Commission’s view these should not be actionable if they are of a trivial nature and do not cause any damage to affected land. The duty is limited by the concept of foreseeability which will take circumstances such as the prevailing land use into account. For example, it is not intended that construction of a residence in a predominantly residential area will entail an obligation to maintain support to neighbouring land sufficient to carry the burden of multi-storey buildings which, as a technical possibility, might be built there at some time in the future.

Structures built below land surface

4.15 The proposed reform is not intended to give rise to a right to support by a building or other structure, except where the supporting building or other structure replaces the support provided by the land in its natural state. In such cases the supporting building or structure will be subject to the same obligation as would have existed if that land had been left in its natural state.

No need for common boundary

4.16 The parcels of land need not have a common boundary for a right to support to arise. There may, for example, be a corridor of land between the two lots, but this will not prevent an obligation to take care not to remove support arising.

Support agreements

4.17 Where an occupier of land proposes to use the land in ways which might be reasonably foreseen to cause damage to other land, it may be necessary for the occupier to make an agreement with those having an interest in the land affected. Such an agreement might, by analogy, “run with the land” in the way an easement does. Neither the Conveyancing Act 1919 (NSW) nor the Real Property Act 1900 (NSW) currently provide for the registration or enforcement of “support agreements” other than easements for support under the Real Property Act 1900, and it will be necessary to insert provisions in these Acts for this purpose. Support agreements will be necessary or convenient in circumstances where there is doubt as to pre-existing natural surface levels, or where substantial alteration to the natural surface levels of the different parcels of land has occurred or is proposed.

Applicable to all forms of title

4.18 The reform should apply to all land, irrespective of the title system involved. For this reason, the principal proposed statutory provision should be inserted into the Conveyancing Act 1919 (NSW).

Persons owing duty of care

4.19 The proposed duty of care will be imposed on any person performing, or concerned in, the relevant prohibited activity and will be owed to any person enjoying the use of the affected land.

Independent contractors

4.20 The recommended reform is not intended to alter the existing law in regard to the liability of principals for the acts of their independent contractors.

RECOMMENDATION 2

The Commission recommends that a provision be inserted into the Local Government Act 1993 (NSW) stating that the breach of certain Regulations made pursuant, and listed in a Schedule, to the Act shall not give rise to any private right of action. It is further recommended that Regulations 33 and 34 of the Local Government (Approvals) Regulation 1993 (NSW) be listed in the relevant Schedule.

Private rights of action arising from breach of statutory duty

4.21 The Commission is of the view that the rationale for the reforms contained in Recommendation 1 would be undermined if a plaintiff could elect to pursue a private right of action ensuing from the breach by the defendant of Regulation 34 of the Local Government (Approvals) Regulation 1993 (NSW). Such a plaintiff could bypass the recommended requirement to prove negligence, for, in theory, the plaintiff may be called on to do no more than demonstrate that a breach has occurred in order to recover. This would represent a return to a strict liability regime in certain cases, an outcome the Commission opposes for the reasons set out in the previous chapter. It would also have the effect of preserving the current anomaly in allowing different rights of action depending on the nature of improvements on the land.

FOOTNOTES

1. (1881) 6 App Cas 740.
2. (1994) 179 CLR 520.