THE REFERENCE
1.1 On 27 September 1991 the Commission was given a reference by the Attorney General, the Hon Peter Collins QC MP to inquire into and report on:
- 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
- any related matter.
1.2 The reference was prompted by Justice Giles, on behalf of the judges of the Commercial Division of the Supreme Court of New South Wales, who considered that the law relating to the removal of support for land deserved the attention of the Commission. Initial research undertaken by the Commission revealed that there was scope for review of the law in this area, if not reform, and a formal reference from the Attorney General was requested. Any changes to the existing law will alter the rights associated with the ownership of land, and increase the legal burdens placed upon a landowner. Such changes appear necessary and desirable.
CATEGORIES OF SUPPORT
1.3 The common law of support evolved from traditional property law. It may be categorised into four main areas:
a) Support to land by adjoining land
An owner of land has a “natural right” to have that land supported by the land of an adjoining owner. This right is attached to the land and does not have to be created by easement or any other instrument. Withdrawal of this support entails strict liability in nuisance, but is only actionable after damage occurs.
b) Support to land by water
A landowner is not entitled to a natural right to support of land by water, and an adjoining landowner will not be liable for loss of support caused by the withdrawal of water, except where the person or organisation causing the withdrawal of support is someone other than the neighbouring landowner (eg a public authority).1
c) Support to buildings by adjoining land
The support of buildings by adjoining land does not exist as a natural right attaching to property but can be acquired by easement. In the absence of an easement, where the support is withdrawn and buildings or structures collapse, no action will lie against the adjoining owner, regardless of whether that adjoining landowner caused the withdrawal of support through recklessness or carelessness.
d) Support to buildings by buildings
There is no natural right to support of a building by a building. Such support can be created by easement, but in the absence of such an easement, at common law a landowner is under no obligation to take steps to prevent the withdrawal of that support, by shoring or underpinning. In practice there would however, be few cases where such an easement would not exist.
1.4 Whilst rights to support are limited at common law, there are some specific rights provided for in statute. Part 31.4 of Ordinance 70, made pursuant to s 318 of the Local Government Act 1919 (NSW) requires that where 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 shall preserve and protect such building from damage. Furthermore, s181B of the Conveyancing Act 1919 (NSW), expressly provides for mutual cross-easements of support, where buildings are mutually supported by party walls.2
THE LAW OF SUPPORT IN NEW SOUTH WALES
1.5 The central question for consideration is whether in New South Wales, there is adequate protection for a landowner either at common law or pursuant to legislation, for damage caused to buildings and/or land if support of that building or land is withdrawn. For well over a century, the common law governing liability where a landowner suffers damage to buildings or land as a result of the withdrawal of support, has been expressed in the relatively narrow terms of defined proprietary rights. This situation has remained despite developments this century in the law of negligence and the need for more effective laws to enhance responsible construction, given the increased building densities in large urban areas.
1.6 Existing protection in New South Wales is found in the following areas:
a) As mentioned in paragraph 1.4 of this paper, Part 31.4 of Ordinance 70, made pursuant to s 318 (17) of the Local Government Act 1919 provides some relief. The legislation is reproduced in full later in this paper.
b) An easement by prescription gives rise to a right to support over buildings. Such an easement can be acquired by uninterrupted enjoyment of a right to support over a twenty year period.
c) Following the decision in Pantelone v Alouie3 an action for damages for the collapse of land and/or buildings can lie against someone other than the owner of land, who in the circumstances is found to owe a duty of care to the adjoining landowner.
ISSUES FOR COMMENT
1.7 The Commission believes that there are a number of shortcomings with these existing remedies, including definitional problems with Pt 31.4, the availability of prescription in New South Wales and the fact that support for land or buildings by water is not available. In this paper the Commission considers these shortcomings and also raises proposals for reform, on which it invites comment. Among these are the amendment of Pt 31.4 to specifically define to whom liability is to attach, and the introduction of legislation similar to s 179 of the Property Law Act 1974 (Qld). This legislation attaches to the land an obligation not to do anything that will withdraw support from land or buildings or structures on land.
1.8 This paper examines the prevailing law, paying specific attention to reform in other jurisdictions and considers options for reform in New South Wales. The purpose of this paper is to generate comment and suggestions from interested parties as to whether the law in this area should be reformed. The views expressed in this paper do not represent the Commission’s final views.
FOOTNOTES
1. See Mayor, Councillors & Citizens of Perth v Halle (1911) 13 CLR 393
2. Some problems arise where a building and party wall are extended without extending the benefit of the cross-easement. The Commission does not propose to consider that issue in this paper.
3. (1989) 18 NSWLR 119
