Port Stephens Shire Council v Booth & Ors; Port Stephens Shire Council v Gibson & Anor

(2005) 148 LGERA 351; [2005] NSWCA 323

NSW Court of Appeal

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Interrogate

Catchwords

1. Negligence
2. › Local government
3. › Council's approval of development and building applications
4. › Land within zone of noise affectation in ANEF
5. › Duty of care owed to subsequent purchasers
6. › Whether council in breach of duty of care in granting approvals without noise attenuation conditions
1. Negligence
2. › Local government
3. › Section 149 certificates
4. › Environmental Planning and Assessment Act 1979 (NSW), s 149
5. › Whether council in breach of duty of care in issuing certificates understating noise exposure forecast
6. › Whether defence of good faith under s 149(6) made out
1. Damages
2. › Diminution in value
3. › Difference between price paid and true value at date of purchase
4. › Whether subsequent events (later ANEF forecasts showing reduced noise) meant no loss suffered
5. › Whether loss was contingent only
6. › Environmental Planning and Assessment Act 1979 (NSW), s 149
1. Damages
2. › Interest
3. › District Court Act 1973 (NSW), s 83A
4. › Whether interest properly included where consequential losses included mortgage interest
5. › Whether partial rental return precluded interest award

Quick Take

A council that grants development consent and building approval for land within the 25 ANEF contour without noise attenuation conditions, and issues s 149 certificates understating the noise exposure forecast, is liable in negligence to subsequent purchasers who would not have purchased had the certificates been accurate. Subsequent noise exposure forecasts showing reduced affectation do not negate losses suffered at the date of purchase where those forecasts are uncertain and have not been formally adopted — they are not the inevitable manifestation of an inherent characteristic of the land as required by HTW Valuers v Astonland. Interest under s 83A of the District Court Act 1973 is properly awarded on damages including the interest component of consequential losses.