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Van Son v. Forestry Commission of New South Wales

Pays/Territoire
Australie
Type de cour
Nationale - cour supérieure
Date
Fév 3, 1995
Source
UNEP, InforMEA
Nom du tribunal
Supreme Court of New South Wales
Juge
Cohen
Numéro de référence
(1995) 86 LGERA 108
Langue
Anglais
Sujet
Eau
Mot clé
Droit d'usage Droits d'utilisation de l'eau
Résumé
This case dealt with water rights and riparian rights of landowners. The plaintiff owned property on the North coast of New South Wales. Part of the boundary of the plaintiff’s land was bordered by a creek and she pumped water from it into tanks for her domestic use. She and her children also used the creek for recreation. After logging operations in the adjacent forest, especially the using of snig tracks to haul fallen timber along, which had preceded rainfall, the plaintiff noticed that the creek water had been polluted by soil sediment. It was accepted by the court that the pollution was caused by soil erosion from the logging operations. The plaintiff initiated court proceedings against the Forestry Commission. The court analyzed the statutory schemes relating to water rights, forestry management, environmental offences and penalties and pollution control. It also adressed the question whether the common law riparian rights of the landowners were still available taking into account the application of the statutory schemes. It concluded that the plaintiff could not succeed in a claim based upon alleged breach of common law riparian rights arising out of a restriction of the flow from an upstream owner, but the plaintiff had established that the logging operations of the defendant constituted private nuisance against her. The snig tracks had been constructed in an unreasonable way, as they had not been constructed with sufficient concern for the effect that they might have on erosion. Therefore, the defendant could not claim any implied statutory immunity from the nuisance arising from the statutory schemes of forest management and water pollution control. The plaintiff was entitled to a modest amount of general damages for the loss of enjoyment of the use of her land, but nothing for alleged aggravated damages.
Texte intégral
au.Van Son v Forestry Commission.pdf