In October 2023 we reported on the New South Wales Supreme Court’s decision in Hunt Leather Pty Ltd v Transport for NSW [2023] NSWSC 840 which held that Transport for NSW was liable in private nuisance to businesses situated in Sydney’s CBD following delays to the construction of the Sydney Light Rail (SLR).

In summary, the Supreme Court found that:

• delays to the SLR construction activities amounted to a “substantial and unreasonable” interference with the plaintiffs’ enjoyment of their property; and
• Transport for NSW had created or procured a state of affairs leading to the nuisance by providing no disincentives in the Project Deed for the Contractor’s non-compliance with the staged delivery of the works, which divided the construction route into separate fee zones.

Our article on the NSW Supreme Court’s decision is available here.

Transport for NSW appealed the Supreme Court decision on multiple grounds, including that the respondents did not suffer a substantial and unreasonable interference because neither:

• the Initial Delivery Program (IDP); or
• the amended IDP (prepared and relied upon in testimony by the respondents’ planning and programming expert)

could be considered a reasonable estimate of construction time for the SLR project.

The Court of Appeal (Bell CJ, Leeming JA and Mitchelmore JA) unanimously allowed the Transport for NSW appeal and in reaching its decision noted that:

• The original IDP could not be regarded as a reasonable estimate of construction time for any of the fee zones as it made no allowance for circumstances such as inclement weather or the discovery and treatment of unknown utilities, or various other contingencies.
• The amended IDP contained extended timeframes to address the identified deficiencies in the original IDP but proceeded on the basis that construction would not commence until there was complete knowledge of the thousands of sub-surface utility services along the route.
• The primary judge’s findings were premised on the Contractor’s occupation of the fee zones becoming tortious after the extended timeframes in the amended IDP had expired.

The Court of Appeal found that:

• if the primary judge’s position (outlined above) was adopted then the respondents needed to establish evidentially:
  • first, that it was possible in some rational way to obtain complete knowledge of the utilities prior to commencing construction;
  • secondly, assuming it was possible to obtain such knowledge, the amount of interference that the investigation would cause to completion of the works; and
• the respondents did not adduce any evidence to establish “how in some rational way without causing further substantial interference with [the] occupiers’ enjoyment of their property could complete knowledge of the utilities be obtained in advance of construction.”

Further, and in any event, the Court noted that even if:

• there was complete knowledge of the sub-surface utilities; and
• it was reasonable to complete construction in the timeframes stated in the amended IDP,

this did not establish that there was an actionable nuisance for every week or month that any time zone was occupied for longer than the timeframe recorded in the amended IDP. In this regard the Court noted the extreme complexities of the SLR project and stated that “[i]t cannot be the law that construction authorised by statute becomes actionable nuisance if it takes a month or two months or three months longer than scheduled.”

The full judgment is available here.