In issue
The extent to which public authorities are protected, in whole or in part, from liability for private nuisance when undertaking public works.
The background
The respondent to the appeal, TfNSW, planned and procured the construction of the Sydney Light Rail. As sandgropers, we have not had the pleasure of riding the SLR, though we’re reliably informed (see page 14 of the High Court transcript) that, despite a painstaking and laborious construction, it operates at a slightly slower pace than your dear reader’s own two legs.
The issue in the proceedings was not the speed of the trains, but of the construction, the period of which grossly exceeded that which had been planned and announced.
The appellants, lessees of business premises which fronted the road along the route of the SLR, brought representative proceedings on behalf of similarly located businesses. It was not in dispute that the appellants had suffered substantial interference with the use and enjoyment of their premises, having regard to the noise and dust generated by the construction and to the presence of hoardings and barricades along the roads during the construction. What was in dispute was whether, and if so for how long, that interference was unreasonable.
The decision at first instance
The primary judge accepted that the light rail construction was not a common or ordinary use of a road, but determined that was insufficient to establish liability in private nuisance at common law. Although the substantial interference each had suffered had not initially been unreasonable, there came a point when it was. TfNSW did not establish that it had taken reasonable care to protect the interests of business owners along the construction route or that the substantial and unreasonable interference was inevitable, such that TfNSW was unable to escape common law liability by reason of having acted within statutory authority.
The decision on appeal
The Court of Appeal agreed that the primary judge had applied the correct legal test for determining liability in private nuisance at common law, but it concluded that the primary judge had erred in finding that the substantial interference with the use and enjoyment by Hunt Leather and the other appellants of their respective premises had ceased to be reasonable.
The High Court’s decision
The ratio of the majority was concisely summarised by Beech-Jones J at paragraph 260 of the judgment:
The Court was unanimous in considering that:
- TfNSW’s use of the land caused a substantial interference, and
- The relevant statutory scheme did not exempt TfNSW from liability for private nuisance. Nor did s 43A of the Civil Liability Act 2002 (NSW) (that is, this section did not apply to prevent recovery unless the appellants could prove that the conduct of TfNSW was so unreasonable that no authority in its position could properly consider it to have acted reasonably. This was so as its acts were not done in the exercise of a special statutory power).
There was a divergence of opinion as to whether the construction of the SLR constituted a common and ordinary use of the land, however in light of the evidence led at trial, this did not affect the outcome of the appeal.
Gordon and Edelman JJ, and Jagot J separately, considered that the use was not common and ordinary. This then placed the burden on TfNSW to establish that it used the land in a manner that reasonably minimised the extent of interference (the defence of statutory authority). While TfNSW was not required to negate every imaginable allegation that it had failed to reasonably minimise the extent of the substantial interference suffered by the appellants, some cogent evidence that TfNSW had undertaken the project in a manner that ought to have reasonably mitigated disruption was required. Here, the appellants had met their relatively modest evidentiary burden by leading evidence from an expert, who asserted, in simple terms, that the construction work took longer than it ought to have.
The onus then fell on TfNSW to explain why this asserted delay was 'inevitable' in the circumstances, in that it could not be avoided despite the exercise of all reasonable care. TfNSW led no evidence on the issue – it was insufficient to simply criticise the evidence of the appellants’ expert, as that criticism went to weight, not admissibility. While the relevant statutory scheme impliedly authorised inevitable substantial interference with adjacent property owners’ use and enjoyment of their land during construction, what was inevitable was a matter for TfNSW to prove. Accordingly, Gordon and Edelman JJ found that private nuisance was established for the period in which the expert had asserted that the work continued when it ought to have been finished.
Beech JJ considered that the use was common and ordinary, but the appellants’ expert evidence (referred to above) established a prima facie case that the work was not 'conveniently done' and TfNSW had not defeated that prima facie case, as it had not led evidence to show that it reasonably minimised the extent of the substantial interference.
Implications
In its application of what it considered to be the long-settled principles applicable to actions in private nuisance against statutory authorities, the High Court has made it clear that there is a significant evidentiary onus on the authorities to establish that a substantial interference was inevitable. Precisely how that heavy factual onus will be met in individual cases will be determined by a consideration of all relevant background facts, but will likely require the authority to grapple in some detail with the development of the project plan and chronological progress of the project, and to explain any significant diversion from a project timetable.
The High Court was at pains to make it clear that an authority 'does not bear an impossible onus of negating every imaginable allegation', but establishing the inevitability of an interference, both in terms of its period and magnitude, necessitates a degree of forensic analysis that will likely only be possible if a project is carefully and expertly investigated and planned and its progress documented in careful detail. Practically, that level of detail will then provide fertile ground for criticism by impacted neighbours.
While again the High Court considered the legal principles long-settled, prospective plaintiffs may be emboldened by the High Court’s confirmation that proof of the 'reasonableness' or 'inevitability' of a substantial interference with a neighbour’s rights rests firmly with the entity that did the interfering.
Hunt Leather Pty Ltd v Transport for NSW; Hunt Leather Pty Ltd v Transport for NSW [2025] HCA 53
