Bonaccorso v Strathfield Municipal Council

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

5881/02 - BONACCORSO v STRATHFIELD MUNICIPAL COUNCIL JUDGMENT 1 HIS HONOUR: The plaintiffs are the registered proprietors of the land comprised in Folio Identifier 1/190578 which is situate at 11-13 Agnes Street Strathfield. 2 The land is affected by two significant pipes passing under it. One is a 9 inch diameter sewerage pipe which is irrelevant to this case; the other is a 3 foot diameter stormwater pipe which is central to it. 3 The previous folio of the Register Book, Volume 5162 Folio 78, shows a line running almost diagonally across the land marked "Centre of line of new 3 foot Monier pipes". The same notation appears on DP (formerly FP) 190578. 4 It is common ground that at no time was there any easement vested in any person with respect to the pipe. 5 The circumstances in which the pipe was placed under the land appears from evidence taken from the records of the defendant Council in 1939 and 1940. 6 The minutes of the meeting of the defendant Council of 1 August 1939 show that the Council was considering a pro forma plan of subdivision lodged by Mr L Pinn, presumably of the subject land. The building committee had recommended that there be no building over "the drain through the property", but the Council resolved to ask Mr Pinn to submit a plan showing the present position of the drain. It would seem that Mr Pinn put forward a further plan and on 15 August Council rejected it and asked that Mr Pinn be informed that the position of the water course precludes the erection of two cottages on the land in question. 7 On 21 November 1939, the Council minutes record the following report from the building committee which the Council received and adopted: "5. That Miss Y Layton be informed in answer to her enquiry re piping of a stormwater drain through Lot 16 Agnes Street that Council will obtain estimates of the cost of the work but will not permit any deviation of the drain from its natural position."

The Registrar General's records show that Yvonne Anna Layton of Strathfield, Spinster, became the registered proprietor of the subject land by transfer C924718 which was registered on 24 July 1940, the transfer being dated 9 December 1939. It is clear, accordingly, that Miss Layton was a prospective purchaser of the subject land at the time she made her enquiry. 8 The building committee's report which was adopted by the Council at its meeting on 5 December 1939 shows: "7. That the quotation of Rocla Ltd of 13/2 per lineal foot for a 36 inch diameter stormwater drain, Agnes Street, be recommended to the owner for acceptance on condition that Council supplies the labour and the company the supervision and lifting gear and that the Council bear two-thirds of the cost of the work." 9 The Town Clerk reported to the Mayor on 2 January 1940 that the 36 inch concrete pipe drain through private land in Agnes Street had been completed. The original of FP 190578 shows that the survey for the plan was made on 15 January 1940 and the plan itself was completed on 3 May 1940 and it shows the 3 foot Monier pipe across the land in the same position as it currently is. 10 Although various plans were submitted, there was little evidence before me as to the concourse of the land or what it was like before it was more or less completely built over in the 1930s and 1940s. 11 Agnes Street appears to be almost due south of Homebush railway station. There appears to be a significant stormwater channel which runs from just to the south west of Strathfield railway station, to the north of Homebush railway station, which flows into Homebush Bay. The plan shows that there is a drain coloured blue on the exhibit (which indicates control by Sydney Water) which follows an irregular path from (so far as is relevant to this case) Albyn Street, Strathfield to the main stormwater drain. Albyn Street is one block north of Agnes Street. From Albyn Street to Llandillo Avenue, which is one block south of Agnes Street, there is a prolongation in a more or less straight line of this drain shown in green which indicates control by a local cuncil so far as Sydney Water is concerned. 12 This plan, together with the Council minutes of 1939 to which I have referred, enables me to infer, and I do infer, that before any artificial works there was a natural flow of water from Llandillo Avenue across the subject land to the drain commencing in Albyn Street. Furthermore, before the erection of the pipe in 1939, there was more likely than not a "natural watercourse" through the land more or less on the position of the present pipe which carried some water which would have drained from surrounding lands. 13 By their summons filed 11 December 2002, the plaintiffs claim a declaration that the discharge of stormwater through the pipe constitutes a trespass, and they seek an injunction restraining such trespass continuing. 14 I directed pleadings. In them, the plaintiffs relied on nuisance as an alternative for trespass. Although at some stage substantial damages were sought, in the end, the plaintiffs' counsel indicated that the plaintiffs were content with nominal damages and an injunction, postponed, if necessary, for six months so that the public authority could institute alternative drainage systems for the area. 15 The defence was that under the Local Government Act 1919, the defendant has been entitled to discharge stormwater from its stormwater drainage system through the pipe and it has been necessary for it so to do. Furthermore, it supplied the labour for and paid two-thirds of the cost of the pipe and is, by virtue of ss 59A(1) and 749 and clause 22 of Schedule 7 of the Local Government Act 1993, the owner of the pipe and that it is entitled to operate the pipe by discharging into it stormwater from its stormwater drainage system. 16 Alternatively, the Council says that the plaintiffs fully appreciated and voluntarily accepted the risk of injury or damage from the stormwater drainage system when they purchased the land. 17 The evidence as to the purchase of the land by the plaintiffs was rather bizarre. The male plaintiff is a real estate agent practising in the area. He claims that he had no knowledge of the instant pipe until June 2002. It would not appear that the plaintiffs retained a solicitor to advise them on the purchase. The male plaintiff saw a copy of the deposited plan before he completed. He says that he mistook the pipe for the sewerage pipe. I must confess I found this all a little hard to accept, but as the evidence was hardly challenged I suppose I need to accept it, though perhaps it makes very little difference to the outcome of the case. 18 The hearing took place before me on 22 April 2003. Mr F M Douglas QC appeared with Mr T G R Parker for the plaintiffs, and Mr G O Blake SC, appeared for the defendant. I am indebted to both sets of counsel for their clear presentation and for the helpful written submissions which they prepared. At the end of the oral argument there were certain loose threads. Mr Blake asked for some time to consider these matters to see whether some amendment should be made. I granted that application but I was advised later that week that no amendment would in fact be made. I thus reserved my decision. 19 The basal argument of the plaintiffs is that they are the registered proprietors of the land, and there is no easement in favour of the Council. The Council's pipe is buried in the land. The plaintiffs want it removed. The Council is passing more water through the pipe because it is part of its drainage system than would naturally flow, and the plaintiffs are entitled to an injunction to stop that continuing. 20 Both parties, of course, accepted the law as to water laid down by the High Court in Gartner v Kidman (1962) 108 CLR 12, especially per Windeyer J at 23-24 where his Honour said: "By the common law the proprietor of land upon the banks of a natural stream of running water, is entitled to have, and is obliged to accept, the flow of water passing his land. He cannot either deprive those lower down the stream of its flow nor pen it back upon the lands of his neighbour higher up. These rights and obligations do not depend on prescription or grant. They are proprietary in character, natural incidents of the ownership or lawful possession of the land abutting on the stream … . "The position of an artificial watercourse, that is a water channel constructed by man as distinct from a natural stream, is entirely different. Generally speaking, the owner of land through which an artificial watercourse runs may block or divert it at his will, unless some easement over it has been acquired by grant or prescription." 21 What is a watercourse is discussed by Windeyer J at p 27. Although both a natural depression in which surface water is carried away in times of heavy rain and a continuously flowing stream are both commonly called watercourses: "The law treats such valleys and depressions very differently from watercourses that have the qualities of rivers and streams." 22 In the instant case there is little evidence but what there is inclines me to the view that prior to 1940 there was a natural depression across the plaintiffs' land which appears to be the low point through which water ran, but there is insufficient to show that it was the sort of watercourse that was a natural flowing stream. Furthermore, it would seem almost incontrovertible that the Council's plan for draining the surrounding streets has meant that there is more water now flowing through the pipe than would be the case if the land had been left in its unbuilt upon state. 23 Thus it would seem to me that on the principles of Gartner v Kidman, unless there is some statutory defence available to the Council the plaintiffs should succeed subject only to the question of "coming to the nuisance" which I have mentioned is raised in the defence. 24 Before dealing with the statutory and other defences, I should make some general comments. 25 There was some discussion before me as to the nature of the Council's rights and who owned the pipe. There was some discussion as to whether the Council might have an interest in land (vide Toronto City Corporation v Consumers' Gas Company of Toronto [1916] 2 AC 618 and Telecom Auckland Ltd v Auckland City Council [1999] 1 NZLR 426), but doubtless in view of the existence of the High Court's decision in Commissioner of Main Roads v North Shore Gas Company Ltd (1967) 120 CLR 118, the defendant decided not to rely on this line of argument. However, there was put to me some argument as to whether the pipes were fixtures or not, but in view of what was said in the cases to which I have just referred, it is clear that such submissions can go nowhere. 26 I also threw out some suggestions that it may be that the defendant would like to consider some estoppels based on conduct of the plaintiffs' predecessors in title, but such suggestions met with nil response. 27 I have already noted that there was no defence of any easement claimed by the Council either prescriptive or by necessity or otherwise. Nor was there any application under s 88K of the Conveyancing Act for the court to create such an easement. 28 Where the parties have deliberately confined the issues which they wish the court to decide, then almost always the court should merely deal with those issues and that is what I will now proceed to do. 29 The first statutory defence is that from December 1939 to 30 June 1993, pursuant to ss 382-3 of the Local Government Act 1919 and thereafter pursuant to ss 21, 23 and 24 of the Local Government Act 1993, the defendant was entitled to discharge stormwater from its stormwater drainage system into the pipe and through the plaintiffs' land. 30 Section 382 empowers the Council to construct control and manage drainage works and s 383 gives it power to enter land, construct works thereon and makes it a constructing authority for the purpose of compensation under the Public Works Act 1912. 31 There is no doubt that this right exists. However, Mr Douglas QC for the plaintiffs says that it is completely irrelevant in the instant case because, whilst the Council may have had those statutory powers, it never exercised them. He says that the evidence from the Council minutes which I have abstracted clearly shows that the pipes were purchased by the then owner of the land to which purchase price the Council made a contribution and whilst they may have been laid with Council labour, there is insufficient to show that the works were being constructed by the Council. With respect, I agree. The proper construction of what happened as evidenced by the minutes is that the owner laid pipes through her own land with a subsidy from the Council. She did this so that she could get her building plans through Council to build over the pipeline or drain that was otherwise there. 32 Sections 21, 23 and 24 of the 1993 Act take the matter no further. Again, they are merely facultative empowering councils, but there is no evidence that anything was ever done pursuant to those powers. 33 The second statutory defence is based on s 59A of the 1993 Act. This section was added to the Act by Act No 40 of 2002 and was proclaimed to commence on 1 August 2002. The section is as follows: "59A(1) Subject to this Division, a council is the owner of all works of water supply, sewerage and stormwater drainage installed in or on land by the council (whether or not the land is owned by the council). (2) A council may operate, repair, replace, maintain, remove, extend, expand, connect, disconnect, improve or do any other things that are necessary or appropriate to any of its works to ensure that, in the opinion of the council, the works are used in an efficient manner for the purposes for which the works were installed."

Act No 40 of 2002 also added to the 8th Schedule of the 1993 Act the words "No compensation is payable to any person as a result of the operation of s 59A". 34 Again Mr Douglas says that the section has no application because on the facts of this case, the stormwater drain was not installed by the Council. Mr Blake SC puts the contrary proposition and says that what happened in the instant case, which I have already related, does come within the words "installed by the Council". 35 There was tendered, without objection by the defendant, the Second Reading Speech made by the Minister together with other speeches with respect to cognate legislation, but apart from saying what was clear already that the purpose of s 59A was to empower Council to enter premises to replace and repair drainage works without having to purchase an easement, the speeches do not address the problem that I have in the instant case. 36 In Engineering Industry Training Board v Foster Wheeler John Brown Boilers Ltd [1970] 1 WLR 881, 887, Lord Wilberforce said: "Now, 'installation' is a metaphorical word. It is not a word of any great precision. … It conveys putting in place something already made so that it can be used. There may be an element of assembly required; but basically a thing installed is ready to work when it is put in its place and, if necessary, connected up." 37 His Lordship approved what the Manitoba Court of Appeal said in Winnipeg CC v Brian Investments Ltd (1952) 7 WWR (NS) 241, 246-7 per Coyne J: "'Installed' is not a word of art nor a word of precision. Indefiniteness gives it, as it gives any word, a chameleon-like character so that associate words show through and give their colour and meaning to it."

The important aspect of "install" is to place in position and not to supply; see eg Louisville CC v Jefferson County Fiscal Court 212 SW (2d) 107, 109 (Ky) (1948). 38 However, there is no guidance that I have been able to find or to which counsel have referred me, as to whether if A supplies the goods to be installed and B supplies the labour, and as a result of their co-operation A's pipes are installed on A's land for the benefit of A and B, the pipes are installed by A or by B or by both of them. 39 In my view, the pipe was installed by the Council. I say this for three principal reasons:

(1) As I have indicated, the natural meaning of "installed" does not have anything to do with the ownership of the pipe but rather the physical matter of placing it in position.

(2) By analogy of the borrowed servant cases in the law of tort, see eg Mersey Docks & Harbour Board v Coggins & Griffith (Liverpool) Ltd [1947] AC 1, 10, the law considers the lender of the servant as being the person responsible for the act of the servant rather than the person to whom the servant is lent save in exceptional circumstances. This line of thinking would seem to suggest that it is of minor importance that the pipe belonged to the plaintiffs' predecessor in title as did the land in which the pipe was installed. The fact that Rocla may have supervised the men is not, in my view, of any significance.

(3) The concatenation of verbs used in s 59A(2) leans very strongly in favour of the view that s 59A should be construed widely. 40 The next argument is whether the section should be read as only applying to installations carried out by the Council after it came into effect. Mr Douglas QC argued that this must be its effect as if it were not, the section would have the effect of divesting the plaintiffs of their existing and long-standing property right in the ownership of the pipe as part of the land, and it is an a fortiori case when one sees that the affectation of the land by s 59A is not to carry compensation. 41 In Clissold v Perry (1904) 1 CLR 363, 373, Griffith CJ said: "In considering this matter it is necessary to bear in mind that it is a general rule to be followed in the construction of Statutes such as that with which we are now dealing [compulsory acquisition Statutes], that they are not to be construed as interfering with vested interests unless that intention is manifest."

That principle has been applied. 42 There are very many other statements of high authority to the same effect. In Anthony Lagoon Pty Ltd v Maurice (1986) 13 FCR 262, 267, Morling J said: "There is a presumption that legislation will not be construed as encroaching on rights, including property rights, of the individual and that a statute will normally be construed in favour of the individual … . Nevertheless, the statute may show an intention to override private rights … . It is necessary to balance the individual's rights against the more general interests with which the Act is intending to deal."

(That decision was reversed by a Full Court reported as Anthony Lagoon Station Pty Ltd v Aboriginal Land Commissioner (1987) 15 FCR 565 but the present point was only mentioned in the dissenting judgment).

See also Wade v NSW Rutile Mining Co Pty Ltd (1969) 121 CLR 177, 185 and Metropolitan Petar v Mitreski [2003] NSWSC 262 [80]. 43 These principles must be borne in mind, but as Morling J pointed out, the question is what was the intention of the statute. 44 Mr Blake SC draws attention to the fact that the verb "install" is used in its past tense. He also draws attention to the addition to Schedule 8 that no compensation is payable as a result of the operation of 59A. Although Mr Blake's submissions tend to deal with s 59A as if it were merely a declaratory provision, it seems to me that it is not a declaratory provision but a constitutive provision vesting ownership of material which was not previously the property of the Council into the Council without compensation. It seems to me that both the literal and purposive interpretation of the section is that as on its coming into operation on 1 August 2002, wherever there was drainage works installed by a council, those works became the property of the council without compensation. 45 Accordingly, despite running contrary to the general presumption of this sort of statute, it seems to me that in the instant case the legislature has used sufficiently strong words to show that the section covers installations both before and after 1 August 2002. 46 The consequence is that the works, not only the pipe but also the air space within the pipe and the material flowing within the pipe, are the property of the Council. Those rights may well constitute real property sui generis as hinted at by Windeyer J in the North Shore Gas Company case at pp 131-134. Whatever be its classification, however, the right to operate, maintain and improve the pipe and do any other necessary or appropriate things to it must carry with it the right to keep the pipe in situ and the right to pass a reasonable amount of water through it; see Madden v Coy [1944] VLR 88. 47 Because the pipe was initially placed and the permission to put water through the pipe was done with the consent of the plaintiffs' predecessor in title, and was not an act which was explicitly authorised by the Council, there can be no action in trespass. The action, if there is any at all, is on the case and in nuisance. 48 As there is a statutory right to operate the drainage works through the plaintiffs' land, unless there is what I might loosely describe as an excessive user, no nuisance is committed. 49 Although the evidence tends to suggest that more water runs through the pipe than would have run through a watercourse draining the higher land in its natural state, there has not been such a flow of water as to cause any damage to the plaintiffs' land. In an action on the case, damage needs to be established. In my view, there is thus no nuisance. 50 Because I have reached this view there is no need to look at the doctrine of a plaintiff "coming to the nuisance". 51 As the bound Torts volume of the Laws of Australia (Law Book Co, 2003) p 377 states: "It is no defence to say that the plaintiff 'came to the nuisance'. The fact that the defendant's use of his or her property preceded the presence of the plaintiff who complains of that use is irrelevant."

It is, of course, true that a person may adopt a nuisance, see PSP 14198 v Cowell (1989) 24 NSWLR 478, or acquiescence in it for a sufficiently long period of time, or the otherwise tortfeasor might have some prescriptive right, but none of those matters appear to have any relevance to the present case. 52 I noted earlier that there was no defence of an easement of necessity. However, it was faintly argued by the defendant that it was a defence to an action for nuisance that the alleged nuisance came into being in order to avoid a threatened harm and was reasonably necessary in all the circumstances. It is clear that there is some sort of defence but its parameters are extremely unclear, though it would seem fairly certain that the defence cannot justify a long continued nuisance; see Torts Laws of Australia op cit, 33.7:28 on p 375. 53 Accordingly, on the arguments that were put to me, the plaintiffs must fail in these proceedings only because of the enactment of s 59A of the Local Government Act 1993-2002. However, the proceedings were commenced after the commencement of the Act, namely on 11 December 2002, so as at the date of the filing of the summons there was no right to any declaration or injunction. 54 It would seem that the plaintiffs only became aware of the possible nuisance by the Council in October 2002, and if they did revoke any licence of the Council to use the pipe then that revocation would have taken place after October 2002. That there was some sort of licence in the Council before August 2002 is fairly clear. Accordingly, at no stage before 1 August 2002 was there the commission of the tort of nuisance which could lead to an award of damages. 55 I should note that a number of submissions were made to me about the importance of the plaintiffs' rights under the Real Property Act 1900. I was conscious of these submissions. However, it not infrequently happens that the legislature overrides such private rights by public statutes. In my view s 59A of the Local Government Act 1993 clearly overrides any private rights. Accordingly, it is not necessary to consider the submissions in these reasons. 56 It follows that the plaintiffs' suit must be dismissed with costs.

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