Negligence and local councils

In some instances a local council may be liable in relation to negligence, including with respect to development consents.

What is negligence

Negligence is a failure to take reasonable care to avoid causing injury or loss to another person. An action in negligence against a local council exists where the council owes a duty of care, and the council breaches that duty in such a way that it causes injury and damage.

When can local councils be liable in negligence

Councils have protections and immunities against most negligence claims. There are only a few situations where a local council could be liable in negligence.

One instance where a local council may be liable in negligence is where the council acts (or fail to act) in circumstances that are so unreasonable that no authority having the functions of the council could properly consider the act (or failure to act) to be a reasonable exercise of its functions.

Another instance where a local council could be liable in negligence is when a council fails to take the formal steps required to give effect to an approval. This occured in Avenhouse v Hornsby Shire Council. In those proceedings, the NSW Supreme Court of Appeal determined that after the council had approved a subdivision it was under a duty of care to take the formal steps necessary to give effect to that approval, and to do so with due diligence and within a reasonable time. The steps following approval of the subdivision were conditioned as part of the subdivision approval and were of an “operational” character, and the Court determined there was no reason why the council should not be subject to a duty of care in carrying out the operational steps. The council was found to have been negligent in carrying out those steps.

What remedies are available if negligence is proven?

The primary remedy available in negligence is damages for past losses as a result of the negligence.

 

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Alyce is a civil engineer and a practicing lawyer, who has a desire to share her insights on the legal and practical realities of the development industry.

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