Written by The NSW Court of Appeal has just dismissed the class action on behalf of small businesses, finding that delays in construction of the Sydney Light Rail did not constitute an actionable nuisance. This overruled an earlier win concerning the light rail line between the Sydney CBD, Randwick, and Kingsford in which the plaintiffs were awarded $3 billion in compensatory damages. The construction of the 12km-long light rail began in 2014, with a completion date of 2019 as per the Initial Delivery Program. In fact, the construction finished in 2020, due to the government agency failing to organize investigations into utility pits beneath the route.
The appeal by Transport for NSW was allowed on the grounds that it cannot be the law that construction which is authorized under statute will become an actionable “nuisance” if it takes longer than scheduled. The decision clarifies that a construction project may be a nuisance only if it was possible for the delays to have been avoided by pre-construction investigations. The court found that the means of investigating the utility pits prior to construction would have been equally disruptive as discovering them during the process.
Though the plaintiffs alleged that Transport for NSW had exceeded the Initial Development Program and created both private and public nuisance through the nature and length of constructions, the court found that there was no reasonable estimate of timeframes, as the IDP did not have allowances for utilities, inclement weather, or other contingencies. The Court of Appeal further dismissed a cross-appeal by the Plaintiff regarding costs for litigation funding, leaving Transport for NSW no longer liable for the financial losses of businesses arising from the light rail construction.