MUCKLE v ANDERSON & ANOR [2002] NSWCA 283

MUCKLE v ANDERSON & ANOR [2002] NSWCA 283

Condition 3 had to be construed in the context of the Environmental Planning and Assessment Act 1979 and the common law rights recognised in Gartner v Kidman. Although the trial Judge's factual findings about easterly movement of surface water were not disturbed, the diffuse movement of surface water across flat land was not a "water drainage system". The condition was directed to natural or artificial watercourses used for drainage, not ordinary surface water flow. The appellant's fill therefore did not breach condition 3, and the proceedings should have been dismissed.

Jurisdiction
Australia
Judgment Date
09 September 2002
Procedural Posture
Appeal From Class 4 Land and Environment Court Proceedings Concerning Alleged Non Compliance With a Development Consent Condition / Court of Appeal Judgment on Appeal From Decisions of Cowdroy J Dated 25 October and 30 November 2001
Outcome
Appeal allowed; orders below set aside; proceedings dismissed with costs.
Legal Topics
['development Consent Conditions' 'interpretation of Consent Condition' 'water Drainage System' 'surface Water Flow' 'natural Watercourse' 'earthworks and Land Fill' 'relief for Breach of Development Consent']
['land and Environment' 'planning and Development' 'water Law' 'property Law'] ['development Consent Conditions' 'interpretation of Consent Condition' 'water Drainage System' 'surface Water Flow' 'natural Watercourse' 'earthworks and Land Fill' 'relief for Breach of Development Consent']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Appeal From Class 4 Land and Environment Court Proceedings Concerning Alleged Non Compliance With a Development Consent Condition / Court of Appeal Judgment on Appeal From Decisions of Cowdroy J Dated 25 October and 30 November 2001

Legal Issues

  1. 1 ['Whether the trial Judge erred in finding that surface water on Lot 9 could move easterly across Lot 8 and that fill on Lot 8 impaired or obstructed that flow.' 'Whether, on its proper construction, the expression "water drainage system" in condition 3 of the development consent included surface flow of water.' 'Whether the placement of fill on Lot 8 obstructed "any water drainage system" within the meaning of condition 3.' "Whether the trial Judge's order requiring alteration of the boundary drain would have served any purpose."]

Ratio Decidendi

Condition 3 had to be construed in the context of the Environmental Planning and Assessment Act 1979 and the common law rights recognised in Gartner v Kidman. Although the trial Judge's factual findings about easterly movement of surface water were not disturbed, the diffuse movement of surface water across flat land was not a "water drainage system". The condition was directed to natural or artificial watercourses used for drainage, not ordinary surface water flow. The appellant's fill therefore did not breach condition 3, and the proceedings should have been dismissed.

Court Disposition

Appeal allowed; orders below set aside; proceedings dismissed with costs.

Orders

  • ['Appeal allowed.' 'Set aside orders 1 and 2 made by Cowdroy J on 30 November 2001.' 'In lieu thereof order that the proceedings be dismissed with costs.' "The respondents to pay the appellant's costs of this appeal but to have a certificate under the Suitors' Fund Act 1951 if so qualified."]