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Would you build a house, knowing that the next door owner could dig away on his or her own land, and suffer no liability if your house collapsed as a result?
According to a Report released today by the Law Reform Commission, this could happen to you. In contrast, if your digging neighbour caused your land to subside, then he or she may be strictly liable for the damage. This is without any proof of negligence, a result at odds with legal developments throughout the twentieth century which have linked liability to fault.
According to Mr Craig Kelly, the Commissioner in charge of the project:
'The law recognises that land in its natural state requires support from adjacent soil to avoid subsidence. However, the legal response to a loss of support from adjoining land can be heavy-handed, inappropriate and apparently quite arbitrary depending on whether the damage occurred to land or a building.
In one case, an excavator, acting in accordance with instructions from a developer, removed soil from a property. Because the developer subsequently went into liquidation no work proceeded on the property and, in time, and following heavy rain, land next door subsided due to the loss of support from the excavated land. The excavator was held liable, having dug the hole in the first place which allowed the damage to occur. This was despite the fact that the excavator had done the work properly, not been negligent, and been in no position to prevent any of the subsequent events.'
The New South Wales Law Reform Commission has proposed means of remedying the anomalies and shortcomings in this area of the law. In its Report entitled The Right to Support from Adjoining Land(Report 84, December 1997) (PDF, 272.7 KB),[PDF, 277Kb] the Commission proposes replacing the existing right to bring an action for loss of support in nuisance, with a regime based on the principles of negligence, so that fault-based liability will be introduced. The Report contains draft legislation which, if adopted, would amend the Conveyancing Act 1919 (NSW) and the Local Government (Approvals) Regulation 1993 (NSW).
The Commission has also recommended that a right to support of land from water and reclaimed land be created and regulated in the same way as that proposed for support from land.
Under the Commission's recommendations, neighbouring landowners can agree to modify the duty of care owed by one to the other, but this will have no effect on subsequent purchasers of the land, unless the agreement has been embodied in a registered easement for removal of support.
Copies of the Report can be obtained from the Commission at the address below. Enquiries should be directed to Mr Craig Kelly (Commissioner) on (02) 9210 4725 or Judy Maynard (Senior Legal Officer) on (02) 9228 8230.
03 Oct 2023
We acknowledge Aboriginal people as the First Nations Peoples of NSW and pay our respects to Elders past, present and future. We acknowledge the ongoing connection Aboriginal people have to this land and recognise Aboriginal people as the original custodians of this land.