Have you got that “sinking” feeling?

Natural Rights – The Right to Support

In recent weeks there has been a story in the news about the evacuation of a unit block in Harris Park after a sink hole opened up alongside the building. The recent heavy rain combined with the flooded excavation site next door caused the wall of the excavated site to wash away to such an extent that it put the foundations of the unit block next door at risk.

So what happens in a situation like this? Whose fault is it? Is it anyone’s fault at all? Or is it simply an unfortunate situation caused by the large amounts of rain which flooded the site?

The short answer is yes, it is someone’s fault.

Section 177(2) of the Conveyancing Act 1919 imposes a duty of care under the common law of negligence in relation to the right to support for land. It states that a person has a duty “not to do anything to land that removes or reduces the support that that land gives to other land.” It applies only to positive acts and not to the failure to do something. For example, a person will not be liable because they did not do something to prevent the loss of support to land from occurring, but will be liable if they actively did something that reduced or removed the support, such as excavating too close to the boundary.

As the duty is based on the principles of negligence, to show that the duty has been breached the loss or reduction of support must have been a reasonably foreseeable result of the action taken.

Damages can be sought in compensation for loss suffered as a result of the breach of duty. You may elect to receive compensation for either the loss in the value of the land or the cost of re-instatement. The courts will not however award compensation for re-instatement that is excessive when compared to the loss in value of the land.

This right is also compliments in 98F of the Environmental Planning and Assessment Regulation 2000 which requires a person excavating below the base of the footings of a building on adjoining land the excavator must “preserve and protect the building from damage” and if necessary underpin and support the building.

So if you are planning a medium or high density development which requires significant excavation close to the property boundary make sure that you consult engineers in relation to support for the neighbouring land to avoid any problems down the track.

If you would like more information please contact our office.

Harris Park Sink Hole

Harris Park Sink Hole

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