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  • Unreported Judgment

Turner v Kubiak

 

[2020] QDC 223

DISTRICT COURT OF QUEENSLAND

CITATION:

Turner v Kubiak [2020] QDC 223

PARTIES:

DARREN JOHN TURNER &

BRIDGITTE LOUISE TURNER
(plaintiffs)

v

MANDY LORRAINE KUBIAK
(defendant) 

FILE NO:

2300 of 2019

DIVISION:

Civil

PROCEEDING:

Trial

ORIGINATING COURT:

District Court of Queensland

DELIVERED ON:

15 September 2020

DELIVERED AT:

Brisbane

HEARING DATE:

10, 11, 12 June and 9 September 2020 (with written submissions provided on 26 June, 10 July and 17 July 2020)

JUDGE:

Rosengren DCJ

ORDER:

  1. The plaintiffs’ claim is dismissed.
  2. Unless a party wishes to submit to the contrary within seven days, the plaintiffs are to pay the defendant’s costs of the proceeding. 

CATCHWORDS:

TORTS – NUISANCE – PRIVATE NUISANCE – where the parties are neighbours – where much of the defendant’s property slopes towards the plaintiffs’ property – where the defendant purchased the property with a shed and gravel pit on it close to the boundary with the plaintiffs’ property – whether the water from the shed and gravel pit have caused a significant and an unreasonable interference with the plaintiffs’ property

CONTRACT – ORAL AGREEMENT – where the plaintiffs allege that the defendant’s husband orally agreed that the shed and gravel pit were causing damage to the plaintiffs’ property and that that the defendant would pay to rectify the damage caused

CASES:

Amaca Pty Ltd v Ellis (2010) 240 CLR 111, applied

Fox v Percy (2003) CLR 118, applied

Gartner v Kidman (1962) 108 CLR 12, applied

March v E & MH Stramere Pty Ltd (1991) 171 CLR 506, applied

Rickard & Ors v Alliance Australia Insurance Ltd & Ors [2009] NSWSC 1115, applied

Riverman Orchards v Hayden [2017] VSC 379, applied

Roads and Traffic Authority v Royal (2008) 82 ALJR 870, applied

Robson v Leischke (2008) 72 NSWLR 98, cited

Sedleigh-Denfield v O’Callaghan [1940] AV 880, applied

Sleeman v SPI Electricity Pty Ltd [2014] VSC 49, applied

Southern Properties (WA) Pty Ltd v Executive Director of the Department of Conservation and Land Management (2012) 42 WAR 287, applied

Quick Alpine Nursery Sales Pty Ltd [2010] NSWSC 1248, applied

COUNSEL:

A Laylee for the plaintiffs

R Gallo for the defendant

SOLICITORS:

Colville Johnstone Lawyers for the plaintiffs
Carroll legal & Compliance for the defendant

Introduction

  1. [1]
    This is a dispute between neighbours of adjoining properties. In early 2016 the previous owner of the defendant’s property built a shed (‘the Shed’) and a gravel infiltration pit (‘the Gravel Pit’) on the property close to the boundary of the plaintiffs’ property. The plaintiffs moved into their property in approximately August 2016 and the defendant purchased her property in December 2016. The plaintiffs’ property is downhill from the defendant’s property.
  1. [2]
    These proceedings were commenced by the plaintiffs in mid-2018. The pleadings relied on by the parties for the purposes of the trial are the statement of claim filed 4 June 2018, the second amended defence (‘the defence’) filed 3 June 2020 and the further amended reply (‘the reply’) filed by leave at the commencement of the trial.
  1. [3]
    The trial was heard over four days. Seven witnesses gave oral evidence, of which three were experts. 30 exhibits were tendered. The parties provided detailed written submissions. These were supplemented with oral submissions.
  1. [4]
    The plaintiffs claim in the tort of nuisance and for breach of an oral agreement seeking damages and related injunctive relief. The plaintiffs assert that the stormwater runoff from the roof of the Shed is directed into the Gravel Pit which is inadequate for the volume of stormwater being directed into it. It is further contended that the volume and concentration of subterranean water flowing from the Gravel Pit onto the plaintiffs’ property has caused damage to the land and potentially to the foundations of their residence.[1]  A claim for negligence was also made in the statement of claim.  However, this was not addressed in the written submissions and during oral submissions counsel for the plaintiffs confirmed that it was no longer being pursued. 
  1. [5]
    There was a discussion between the male plaintiff and the defendant’s husband, Mr Kubiak on 2 December 2017. It is alleged by the plaintiffs that during this discussion Mr Kubiak (as the defendant’s agent) acknowledged that the water flowing from the Gravel Pit was causing an excessive volume of subsurface water on the plaintiffs’ property which was adversely impacting on the plaintiffs’ use and enjoyment of it. It is further asserted that Mr Kubiak agreed to incur the expense of drainage mitigation work to rectify the problem.
  1. [6]
    The defendant denies that the water flow from the Gravel Pit has caused damage to the plaintiffs’ land or foundations. The defendant alleges that the presence of the excessive water on the plaintiffs’ property has been caused by a variety of other factors unrelated to the Gravel Pit. The alleged oral agreement between the male plaintiff and Mr Kubiak is also denied, as is the asserted agency.
  1. [7]
    By way of relief, a principal focus of the plaintiffs is on the prevention of the apprehended future nuisance. They also claim the costs of the installation of a drainage trench in the sum of $6,180.40 and the hiring costs of a portable ensuite in the sum of $2,717. It is not disputed that the plaintiffs have incurred costs in these respective sums, however the defendant denies that she is liable to reimburse the plaintiffs for them.

Undisputed background facts

Topography of the area

  1. [8]
    The defendant’s property is at 367 Stanbrough Road, Belmont. It comprises 9,214m2 and is generally located on the corner of Stanbrough Road and Boston Road, apart from a much smaller block of land on the very corner where the two roads intersect.[2]  The eastern boundary is adjacent to Stanbrough Road and the southern boundary is adjacent to Boston Road.  Most of the block comprises a grassed area and generally has a two metre slope towards the north western corner.
  1. [9]
    The plaintiffs’ property is at 184 Boston Road, Belmont. The overall area of it is 10,200m2.  Boston Road slopes towards the plaintiffs’ property.  It has no swale drainage in the nature strip verge to cut off surface stormwater flow.  The eastern boundary of the plaintiffs’ property adjoins the defendant’s property.
  1. [10]
    Brisbane City Council contour plans that predate construction on the defendant’s property show that her block represents a locally high point with ground sloping towards the plaintiffs’ property. It is expected that 75% of the defendant’s property would have a flow path in a north western direction towards the plaintiffs’ property.[3]  Her property has a large catchment area estimated to be in the order of at least 1100m2 and includes the Shed and Gravel Pit.

Acquisition and use of the plaintiffs’ property

  1. [11]
    In late 2011 the plaintiffs first considered purchasing their property. They conducted a search of the records maintained by the Brisbane City Council pertaining to it, which revealed it was considered to be a low risk of flooding based on the modelling at the time.[4] 
  1. [12]
    The plaintiffs purchased the property in February 2012. There was a dilapidated house and a chicken coop on it at this time and these were removed. The proposal was to build a new single storey residence with a swimming pool, tennis court, gymnasium and cricket pitch. The residence was to be at the southern end of the property towards Boston Road, essentially filling the block between the eastern and western boundaries.
  1. [13]
    Soil Surveys Engineering Pty Limited (‘Soil Surveys’) were engaged by the plaintiffs to determine the nature and type of subsurface material at the site of the proposed residence and to allow engineering assessment for site classification, foundation recommendations, earthworks and site management. A representative from Soil Surveys carried out the inspection on 21 November 2012 and a report was provided dated 28 November 2012. At the time of the inspection the property was vacant.
  1. [14]
    Subsurface conditions were investigated by drilling and sampling four boreholes, described as BH1 to BH4. Groundwater was not observed in any of the boreholes at the time of the inspection. Having said this, the report explains that water levels will vary from time to time with seasons or recent weather changes and may not be the same at the time of construction. Based on the Bureau of Meteorology Data obtained from the Capalaba Treatment Plant (‘BOM Data’), which is a distance of some five kilometres from the plaintiffs’ property, the local area had been predominantly dry in the previous four or so months, with the highest daily rainfall having been three days earlier.[5]  
  1. [15]
    Relevantly BH2 was drilled close to the proposed footings on the north eastern side of the proposed residence close to the boundary with the defendant’s property. It revealed the soil below 500mm to be sandy clay which was described as very stiff with a high plasticity. This soil composition has the consequence that it is difficult for water to permeate the soil at a distance from 500mm below the surface. Above this depth the soil is described as very loose, which makes it highly permeable.
  1. [16]
    BH1 was drilled close to the footings on the south western side of the proposed residence. It revealed the soil below 900mm to be sandy clay. Above this, the soil is described to be ‘medium dense’. BH3 was drilled on the western side of the property north of the proposed residence. It revealed the soil below approximately 650mm to be sandy clay. Above this, the soil is described to be very loose. BH4 was drilled on the eastern side of the property quite a distance north of the proposed residence. It revealed the soil below approximately 650mm to be sandy clay. Above this, the soil is described to be ‘medium dense’ and loose.[6]  These measurements give a general indication of the composition of the soil on the plaintiffs’ property. 
  1. [17]
    The site was classified as moderately reactive in accordance with AS 2870 ‘Residential Slabs and Footings’. It was noted that the superficial clayey/silty sands in the local area had previously performed poorly when saturated. It was therefore recommended that footings be founded into competent natural soil. The report referred to the importance that proper site management for the soil conditions be observed. It recommended that the property be well drained with the ground around the residence sloping away at 1:20 to prevent ponding of water adjacent to the building.
  1. [18]
    The male plaintiff is a self-employed painter. In April 2013 he was granted an owner builder permit and in 2014 he commenced building the residence. He obtained professional advice in relation to the design and documentation of the foundations.
  1. [19]
    The footings of the residence were constructed in accordance with the recommended design, namely to a maximum depth of 400mm below surface level. During the inspection of the foundations no excessive water was noted in any footings or bored piers and ponding was not evident to the surround of the building platform. It is not known when precisely this work was undertaken. The BOM Data indicates that between February and May 2014, it was significantly drier than normal, except for the month of February.
  1. [20]
    The roof of the residence has a number of box gutter valves and stormwater downpipes. Relevantly, on the eastern side of the roof there is a box gutter valve on the front corner and the back corner. The one on the front corner is clearly depicted in photographs tendered.[7]  It effectively acts as a storm downpipe for water that falls on the eastern side of the roof in the vicinity of that valve.[8]  This water falls from the valve to the ground.  A pergola separate from but attached to the roof of the residence on the eastern side also has a stormwater downpipe. 
  1. [21]
    The residence was structurally completed by about August 2016 and the plaintiffs moved in. At this time there was no power or water and there was further non-structural work to be done.
  1. [22]
    A new chicken coop was built around this time. It is located towards the front of the plaintiffs’ property in the south eastern corner close to the boundary with the defendant’s property. Twelve holes needed to be dug to provide the foundations for the chicken coop. This was undertaken by Luke Turnham who is an earthmover. The male plaintiff had met Mr Turnham some time earlier and he had performed other earthmoving work on the plaintiffs’ property. Both the male plaintiff and Mr Turnham recalled seeing these holes fill with water.
  1. [23]
    There is no dispute that at some point after construction of the residence, the plaintiffs put fill around the back of the property, behind the residence. The male plaintiff explained that he had ‘brought in hundreds of truckloads of dirt to that property’[9] to raise the ground level on the western side of it.
  1. [24]
    In early December 2017, the male plaintiff noticed that the ground in the vicinity of the chicken coop was boggy. A drainage trench was dug in an attempt to address it. This is discussed in further detail below.
  1. [25]
    It had been the intention of the plaintiffs to install a septic sewerage system at the north eastern end of their property behind their residence. Ken Gray director of Quality Tanks Pty Ltd inspected the property on 21 March 2018 for this purpose. It was not raining although it had been on previous days. It was Mr Gray’s opinion that the soil conditions were too wet for the installation to proceed. He explained that installing a system in such conditions could be problematic for the electricals, as well as the pump and blower and that the system could lift out of the ground. He said that the excess water issue would need to be addressed before he could install the system.
  1. [26]
    The installation did not proceed and instead the plaintiffs hired a small portable ensuite from Portable Bathroom Hire that had a toilet, shower and sink in it. The plaintiffs continued incurring the expense of this portable ensuite until March this year at a total cost of $2,717. Around this time, the male plaintiff again requested for Mr Gray to install the septic sewerage system. Although Mr Gray considered that the soil conditions remained unsuitable, he installed the system after explaining to the male plaintiff that neither the installation nor the system would attract a warranty.

Acquisition and use of the defendant’s property

  1. [27]
    The residence on the defendant’s property is close to Stanbrough Road. There is also a small ‘Bali’ style hut and the Shed and the Gravel Pit.
  1. [28]
    The defendant purchased the property on 8 December 2016. The Shed and the Gravel Pit were already on the property. They had been built in early 2016 by the previous owner. The Shed is located approximately eight metres from the boundary with Boston Road and about the same distance from the boundary with the plaintiffs’ property. It is approximately 18 metres by six metres (108m2) and is made of steel.  It was constructed on a slightly elevated pad.  The Gravel Pit has a volume capacity of 2.25m3 and is in the south western corner of the block in the vicinity of Boston Road and the boundary with the plaintiffs’ property.  The various photographs show the locations of the Shed and Gravel Pit relative to the plaintiffs’ chicken coop.
  1. [29]
    Mr Turnham was introduced by the male plaintiff to the previous owner of the defendant’s property. He dug the hole for the Gravel Pit at the request of the previous owner. He said in evidence that its dimensions were one and a half metres long, one metre wide and one metre deep. As part of the conveyance of the property prior to the purchase, the defendant obtained a Form 21 – Final Inspection Certificate for the Shed from Adept Building Approvals. This is exhibit 18. It is not in issue that this related to the Shed even though the building being certified is described as the new construction of a garage.
  1. [30]
    In July 2018, the defendant installed a pair of identical water tanks next to the Shed with an estimated total capacity of 10,000 litres. The effect of the water tanks on the volume of water flowing in and out of the Gravel Pit is addressed in detail below.
  1. [31]
    The defendant explained in evidence that these tanks were installed so that the rainwater in them could be used to water her plants along the boundaries with Stanbrough Road and Boston Road and also along the boundary with the plaintiffs’ property. Some of these plants can be seen in the photographs in exhibit 19. There is a motorised pump connected to the water tanks.[10]  The defendant said in evidence that the pump is fitted with a mechanism so that it automatically turns off once the tanks have emptied.  It was the defendant’s evidence that she regularly activates the pump on weekends and also when a significant volume of rain is forecast.   

Discussion between male plaintiff and Mr Kubiak on 2 December 2017

  1. [32]
    In the late afternoon of 1 December 2017 a bobcat being used by Mr Turnham to undertake levelling work for the male plaintiff became bogged on the eastern boundary of the plaintiffs’ property. The male plaintiff thought it occurred in the vicinity of the power pole as shown in exhibit 8 at page 142. Mr Turnham recalled it having occurred further north around the front corner of the plaintiffs’ residence. The weather was dry although it was Mr Turnham’s recollection that it had rained for a few days in the previous week. The BOM Data indicates that while November 2017 was drier than normal, that October was significantly wetter than normal. Further, rain fell on 1 December 2017.[11]
  1. [33]
    The male plaintiff requested Mr Turnham dig an exploratory trench that afternoon. It was some two to three metres in length. The male plaintiff thought it was dug in the vicinity of the chicken coop and the depth of it was one metre. Mr Turnham thought it was closer to the house and that it was approximately one metre deep. Both witnesses observed it fill with water.
  1. [34]
    At the request of the male plaintiff, Mr Kubiak met him at the boundary fence at approximately 6am on the following day. It is common ground that the male plaintiff told Mr Kubiak that he had found excess subsurface water to the front of his property on the eastern side of it near their common boundary and that he thought the cause of it was the defendant’s Gravel Pit. It is also common ground that Mr Kubiak said during the course of the discussion that he would make enquiries with the Council to see whether the water from the roof of the Shed could be diverted to Boston Road. The remainder of the content of this conversation is in dispute and is addressed in further detail below.

Remedial works and expenses incurred by the plaintiffs

  1. [35]
    In the first two or so weeks of December 2017 Mr Turnham assisted the male plaintiff in carrying out earth works and installing a gravel subsoil drain (‘the drainage trench’). This was done at the suggestion of Mr Turnham as he had experienced a similar problem at his own property and had resolved it in this way. It involved digging the trench, laying pipe wrapped in geotextile and filling the trench with 20mm aggregate. The trench was then backfilled. The composition of the drainage trench is such that it can be penetrated with water from both sides. Mr Turnham also dug a large rubble pit for the stormwater at the most northern end of the drainage trench, which is behind the residence. Mr Turnham explained that there was rainfall during the construction of the drainage trench. It runs parallel to the boundary fence with the defendant’s property. It starts from a point south of the residence and extends past the rear of the residence to the rubble pit. Photos of it are in exhibit 8. As explained above, it is not in dispute that the cost of installing this is $6,180.40.
  1. [36]
    While the male plaintiff and Mr Kubiak have spoken little since 2 December 2017, there has been the exchange of text messages. Around 5 December 2017, the male plaintiff sent Mr Kubiak a text message including a photo of water pooling on his property that he asserted had come from the defendant’s Gravel Pit. Mr Kubiak replied that he had spoken to a representative from the Council and that someone from there would be inspecting the site and that he would not be diverting the stormwater from the defendant’s property to Boston Road without the approval of the Council.
  1. [37]
    On the evening of 8 December 2017, the male plaintiff forwarded a text message inviting Mr Kubiak to come down to their common boundary fence to see the work he had undertaken with the drainage trench. He also requested Mr Kubiak’s email address so that he could forward the invoices regarding the expenses that had been incurred in undertaking the work. Mr Kubiak responded that the Council had not yet carried out the inspection and that he was seeking the advice of his solicitor before proceeding further with this matter. In a subsequent text message, Mr Kubiak said that he was arranging for a plumber to provide a quote as to the cost of diverting the stormwater from the Shed and Gravel Pit to the Council’s easement.
  1. [38]
    In mid-December 2017, the male plaintiff forwarded another text message to Mr Kubiak again requesting his email address so that the details of the drainage trench work could be forwarded to him. Mr Kubiak responded that the male plaintiff had not provided him with any professional opinion confirming that the water problem had been caused by anything other than natural water flow.
  1. [39]
    There was a further exchange of text messages around this time. The male plaintiff pointed out that the need for a professional opinion had not been raised by Mr Kubiak when they had met at the fence line on 2 December 2017. Mr Kubiak responded to the effect that while he had acknowledged the plaintiffs’ water problem at the meeting, that he did not believe it was being caused by any unlawful discharge of water from the defendant’s property. He referred to the male plaintiff having said to him that the plaintiffs could sue him and he responded that the invoices (for the work undertaken) would need to be kept. Mr Kubiak went on to say that this did not mean that he would pay the male plaintiff for the costs of the drainage trench without any proof that water was being unlawfully discharged from the defendant’s property. It was further observed that it had been the male plaintiff’s choice to install the trench. The male plaintiff responded that Mr Kubiak had asked him how much it would cost and when Mr Kubiak was told the amount the response given was that “I wipe my ass with bills like that all day at my work”.

Was there an oral agreement

  1. [40]
    In paragraph 16 of the statement of claim, it alleged that on 2 December 2017 after the male plaintiff told Mr Kubiak that there was excessive subterranean water seepage from the Gravel Pit to his property, that Mr Kubiak acknowledged a number of matters. These included that the source of the excess water flow was likely to be the Gravel Pit and that there was the potential for it to damage the residence if the water affected the foundations to it. It is further alleged in paragraph 17 of the statement of claim, that during the discussion it was agreed that the plaintiffs would undertake urgent drainage mitigation work necessary to protect the structural integrity of the plaintiffs’ residence and that these works would be paid for in full by the defendant. These contentions are denied in paragraphs 14 to 16 of the defence.
  1. [41]
    There is clearly a factual dispute to be resolved as to the content of the discussion between the male plaintiff and Mr Kubiak on 2 December 2017.  I am mindful of the need to exercise caution in drawing conclusions about the credibility of either witness substantially from their demeanour in the witness box.[12]  It is but one of the considerations.  The others are the inherent consistency of their accounts, the consistency of their accounts with other witnesses and undisputed facts, and the inherent probabilities of the evidence in question.  The plaintiffs bear the onus of proof to satisfy the Court on the balance of probabilities that their claim should be accepted. 
  1. [42]
    It is unsurprising that neither the male plaintiff nor Mr Kubiak had a perfect recollection of the details of the conversation that occurred some two and a half years earlier. 
  1. [43]
    While I have no reason to question the honesty of the male plaintiff, it is my view that aspects of his evidence were coloured by a desire to support his interests in this litigation and his undoubted genuine belief that the water from the Gravel Pit is responsible for the excess water on his property. It follows that I do not accept his evidence in all respects.
  1. [44]
    I am also reluctant to accept Mr Kubiak’s evidence as completely reliable.  His wife is the defendant to the proceedings and he no doubt has a desire to vindicate his involvement in his discussions with the male plaintiff as to the cause of and responsibility for the excess water on the plaintiffs’ property.
  1. [45]
    The allegation that Mr Kubiak acknowledged that the source of the excess water on the plaintiffs’ property was from the Gravel Pit was not borne out in the evidence. It was not the male plaintiff’s evidence that Mr Kubiak expressly admitted this. Rather, he said that Mr Kubiak did not really say anything in response to his suggestion in this regard. He said that because Mr Kubiak was not negative in any way towards him, that he took this as Mr Kubiak acknowledging that the excess water was coming from his Gravel Pit. Mr Kubiak was adamant in his evidence that while he acknowledged that there was a water problem on the plaintiffs’ property, that he did not acknowledge that it was being caused by the water from the Gravel Pit.
  1. [46]
    Further, there is other uncontested evidence that in the month or so prior to this discussion, Mr Kubiak and his wife had been taking photos of the excess water on their property on the boundary with the plaintiffs’ property.[13]  It was Mr Kubiak’s firm belief that this was being caused by the plaintiffs having raised the level of their land with fill which was impeding the flow of water across the boundary between the two properties.  Therefore prior to this discussion on 2 December 2017, Mr Kubiak was aware of the water problem in a general sense and had attributed it to work undertaken on the plaintiffs’ property.  Against this background, it would seem improbable that Mr Kubiak would have acknowledged that the Gravel Pit was the cause of the water problem.
  1. [47]
    In addition, the male plaintiff said that the acknowledgment by Mr Kubiak was given in the context of Mr Kubiak having told him that there had been a water build up and condensation in the Shed. Mr Kubiak strenuously denied this. I prefer Mr Kubiak’s evidence in this regard. This is because there is no evidence that there had in fact been water build up or condensation in the Shed. Neither Mr Kubiak nor the defendant were cross-examined to this effect.
  1. [48]
    Given that I do not accept that Mr Kubiak acknowledged the water from the Gravel Pit as being the cause of the plaintiffs’ water problems and that I am satisfied that he did not consider it to be the cause, I am not persuaded by the male plaintiffs’ evidence that Mr Kubiak agreed to pay for it.  This is because it defies logic. Further, according to the male plaintiff, this agreement to pay was in the context of him having told Mr Kubiak that the estimated cost would be in the order of $5,000.  This is a relatively significant sum for Mr Kubiak to have agreed to pay.  This is particularly so where it was not being suggested by the male plaintiff that anyone other than himself considered the cause of the problem to be the Gravel Pit.
  1. [49]
    In making these findings, I am mindful that Mr Kubiak offered to speak with the Council about potentially diverting the water from the roof of the Shed to Boston Road. In my view this does not necessarily lend support to the male plaintiff’s assertion that Mr Kubiak acknowledged it to be the cause of the water problem. Clearly it was the male plaintiff’s view that the Gravel Pit was the cause of his problems and this could equally be seen as an attempt by Mr Kubiak to ‘keep the peace’ with his neighbour.
  1. [50]
    Further, the male plaintiff said that after his discussion with Mr Kubiak, he rang Mr Turnham and said “Well Dean’s happy with that.  Come down and we’ll start.[14] Mr Turnham did not give evidence of the male plaintiff having told him anything regarding Mr Kubiak’s attitude to the proposed remedial work.  He also did not give evidence of having provided to the male plaintiff a quote for the proposed work in the order of $5,000.  Rather it was Mr Turnham’s evidence that he had simply offered to provide a quote to the male plaintiff for this work.[15] 
  1. [51]
    It follows that I am not satisfied that there was an oral agreement as alleged by the plaintiffs and their claim in contract to recover the costs associated with the installation of the drainage trench therefore fails.

Effect of water tanks on the Gravel Pit

  1. [52]
    As explained above, since mid-2018, rainwater falling on the roof of the Shed has been redirected from the Gravel Pit to the water tanks. Mr Arthur opined in his report that the water tanks were unlikely to provide any reduction in the volume of water entering the Gravel Pit, especially during times of immense rainfall or extended periods of it. However, this opinion was expressed in circumstances where he was not provided with information as to the reuse of the water in those tanks.
  1. [53]
    This issue was addressed by the defendant in her evidence (as set out above). It is not in dispute that since the water tanks have been in place, the only time that water from the roof of the Shed would have been discharged into the Gravel Pit is if the tanks were at capacity causing them to overflow. The defendant was questioned in evidence about the potential for this to occur. She said that she routinely checks the water level in the tanks before activating the pump and that she has not seen them to be more than three quarters full. She also explained that when there have been major rain events, such as occurred in January and February this year, that the rainwater in the tanks has been discharged onto Stanbrough Road to prevent them from overflowing. She further said it was most unlikely that the tanks would have overflowed when she was not there. This is because it was her evidence that she had not been away from her property for more than a week since they had been installed and that it did not rain over this period.
  1. [54]
    Further, the capacity of the tanks to hold rain water is significant. Table C.2 in Appendix C of Mr Sargent’s report shows inflow water volumes to the Gravel Pit from the Shed roof for rainfall of between five minutes and 72 hours over both three month and 12 month periods. Table C.3 applies the same duration periods of up to 72 hours and estimates the outflow rates from the Gravel Pit. Mr Sargent clarified in evidence that even adopting the longest period of rainfall, the volume is such that it would be unlikely to fill an empty rain tank to more than half of its capacity.[16]  Further, I have no reason to doubt the defendant’s evidence that the tanks have not overflowed and that she regularly checks the water level in them and that the water is regularly emptied from them by an automatic pump and hose.  She was not challenged about her evidence in this regard.
  1. [55]
    For these reasons I consider it unlikely that the water from the roof of the Shed has been discharging into the Gravel Pit since the installation of the water tanks in July 2018.

Is there an actionable nuisance 

  1. [56]
    In paragraph 11 of the statement of claim and paragraph 3 of the reply it is pleaded that the defendant had an obligation to ensure that stormwater run-off from the Gravel Pit did not cause an unreasonable interference to the plaintiffs’ use and enjoyment of their property. It is further alleged that the defendant had notice of the interference and subsequent damage to the plaintiffs’ property by 2 December 2017 and since this time the defendant has failed to take steps to avoid it.
  1. [57]
    As to the nature of the interference, it is pleaded in paragraph 14 of the statement of claim and paragraph 5 of the reply that this unreasonable interference from the Gravel Pit has caused an issue with subsurface water flow around the plaintiffs’ chicken coop and down the side of their residence and out to the rear of the their property. This is clarified in paragraph 5 of the plaintiffs’ written submissions where it is said that the relevant area of the interference is to the north of the chicken coop, between it and the residence along the boundary with the defendant’s property (‘the relevant area’). This was confirmed in oral submissions.
  1. [58]
    It is further alleged by the plaintiffs that on account of this excess water problem, they have incurred costs in installing the drainage trench along the side of their residence; they have been unable to install concrete pads for air conditioning units along the side of their residence and complete the work at the rear of their residence; and that it adversely impacted on their ability to install a sewerage treatment plant with the consequence that they had to hire the portable ensuite for some two years.  
  1. [59]
    Paragraphs 12 and 12A of the defence plead that a number of factors other than water from the Gravel Pit are responsible for the excess water on the plaintiffs’ property. These include the water flowing onto their property on account of the natural topography of the land; water being discharged near the footings of their residence from the roof of the residence, in particular from the box gutter valve on the south eastern corner of the residence; the fact that the ground around the residence has not been sloped away at 1:20 to prevent ponding of water adjacent to the residence, as recommended by Soil Surveys; and the change in the natural water course over the plaintiffs’ property consequent upon them having cut and filled the property around the residence. Ultimately a finding of the relative contributions from any of these alternative sources is not necessary. This is because the only nuisance alleged by the plaintiffs is the water flowing from the Gravel Pit and the plaintiffs have the onus of establishing that this has caused a substantial and unreasonable interference to the relevant area.
  1. [60]
    There is little dispute between the parties regarding the elements of the tort of nuisance. A mere interference that causes damage does not constitute a nuisance.[17]  A balance has to be achieved between the right of an occupier to do as they desire with their own land and the right of their neighbour not to be interfered with.[18]  The plaintiffs plead that the excess water has caused an unreasonable interference.  However, to be actionable as a nuisance, the interference with the plaintiffs’ use and enjoyment of the property must be both substantial and unreasonable. 
  1. [61]
    Whether there has been a substantial interference is a question of fact.[19]  Whether the interference is also unreasonable involves weighing the respective rights of the parties in the use of their properties.  It calls for consideration of a variety of factors including:[20]

“… the nature and extent of the harm or interference; the social or public interest value in the defendant’s activity; the hypersensitivity (if any) of the user or use of the claimant’s land; the nature of established uses in the locality (eg residential, industrial, rural); whether all reasonable precautions were taken to minimise any interference; and the type of damage suffered.”

  1. [62]
    In paragraph 24 of the defence, it is pleaded that the defendant did not build the Shed and Gravel Pit. However, this is not the end of the matter. This is because an occupier of property does not need to create the nuisance for it to be actionable. The tort also encompasses situations where the occupier continues or adopts the nuisance.[21]  This was addressed by Viscount Maughan in Sedleigh-Denfield v O’Callaghan[22] in the following way:

“[A]n occupier of land “continues” a nuisance if with knowledge or presumed knowledge of its existence he fails to take any reasonable means to bring it to an end though with ample time to do so.  He “adopts” it if he makes any use of the erection, building, bank or artificial contrivance which constitutes the nuisance.”

  1. [63]
    The test to show the requisite degree of knowledge requires a consideration of whether there is evidence of facts, matters or circumstances from which the occupier ought to have known of the nuisance.[23]  An occupier with such knowledge or presumed knowledge is required to take steps as a reasonable person in their position would consider necessary to abate or minimise the risk of damage from the nuisance which is reasonably foreseeable.[24] 
  1. [64]
    Where water flows between adjoining properties from a higher property to a lower property, the occupier of the higher property is not liable merely because the water flows naturally on to the lower property. However the occupier of the higher property may be liable in nuisance if the water is caused to flow in a more concentrated form than it naturally would. An example of where this might occur is where a structure has been built on the higher property increasing the flow of water onto the lower property. The occupier of the higher property is not liable for a more concentrated flow from their land if it is the result of work done outside their property, for example by the guttering and lack of drainage on public roads.[25]
  1. [65]
    Factual causation is central to the question of whether there has been a substantial and unreasonable interference with the plaintiffs’ use and enjoyment of their property. It is therefore necessary to determine whether, as a matter of fact, the water flowing from the Gravel Pit has caused a substantial and unreasonable interference to the relevant area of the plaintiffs’ property. This is to be determined by applying common sense to the facts of the case.[26]  The act or omission must have materially contributed to the damage suffered, which may be the case even if other factors have played a significant role.[27]  Scientific proof is not required.[28] 

Has the Gravel Pit materially contributed to the excess water

  1. [66]
    The effect of the presence of the Shed and Gravel Pit on the volume of water flowing onto the plaintiffs’ property to the relevant area is a controversial issue between the parties and their respective experts. There is expert evidence from David Sargent, Brett Arthur and Mark Ballard. The plaintiffs arranged for Mr Sargent, hydrologist to inspect their property on 27 December 2018 and he has provided a report dated January 2019.[29]  Mr Arthur, civil engineer, also inspected the plaintiffs’ property at their request on 30 October 2018 and he has provided a report dated 28 November 2018.  Mr Kubiak requested Mark Ballard, geotechnical engineer to inspect the defendant’s property on 4 September 2018.  He provided an initial report on 15 October 2018 and has also provided an updated report (in a revised form) dated 2 May 2020.  The inspections by each of the experts was visual only and none of them inspected the Gravel Pit as it was covered in grass. 
  1. [67]
    There are a number of relevant matters that are not in dispute on the pleadings and/or the expert evidence. They are these:
  1. (i)
    the defendant’s property represents a local high point with the majority of the ground sloping towards the plaintiffs’ property;
  1. (ii)
    Boston Road adjoins both the plaintiffs’ and defendant’s properties and has no stormwater drains or a curb to prevent stormwater from flowing down to the defendant’s and plaintiffs’ properties;
  1. (iii)
    the roof catchment area of the Shed lies within the total catchment area of the defendant’s property and represents a very small proportion of the total catchment area;
  1. (iv)
    the water from the total catchment area of the defendant’s property flows downhill to the plaintiff’s property;
  1. (v)
    the plaintiffs’ drainage trench is permeable so that water can flow into it from the catchment area which borders it on the eastern side;
  1. (vi)
    since the installation of the water tanks in mid-2018, stormwater from the roof of the Shed only flows into the Gravel Pit if the tanks overflow;
  1. (vii)
    as to the soil composition, the upper sandier layer of the soil is more permeable than the lower sandy clay and water will infiltrate the upper layer more quickly; and
  1. (viii)
    the subsurface water would be expected to follow in a similar direction to that of the surface water flow.
  1. [68]
    When Mr Arthur inspected the plaintiffs’ property on 30 October 2018, the focus of his inspection seemed to be mainly on the immediate area of the Gravel Pit and directly downstream of it. This was based on information provided to him by the male plaintiff. In particular the male plaintiff reported to him that he had seen saturated soils in this area. Consistent with this understanding, Mr Arthur refers in his report to downstream drainage problems in the south eastern corner of the plaintiffs’ property. This is to the south end of the chicken coop between it and Boston Road. However, this is separate and distinct from the claimed relevant area for the purposes of these proceedings which commences at the opposite end of the chicken coop and extends down the eastern boundary towards the plaintiffs’ residence.
  1. [69]
    Mr Sargent concluded in his report that by a process of elimination of the other potential sources of the plaintiffs’ water problem, the only logical conclusion is that it results from the poor/failed operation of the defendant’s Gravel Pit.
  1. [70]
    The crux of Mr Sargent’s opinion is based on the premise that there is piping through the upper sandy layer of the soil and this has resulted in a direct hydraulic connection between the Gravel Pit and the southern end of the drainage trench on the plaintiffs’ property. The southern end of the trench is within the relevant area.
  1. [71]
    The preponderance of the evidence establishes that in the absence of the piping, water would be unlikely to flow from the Gravel Pit to the southern end of the drainage trench. Exhibit 8 comprises various photographs of the drainage trench. Figure 3 in Mr Arthur’s report shows the location of the southern end of it relative to the chicken coop and the Shed and Gravel Pit. In short, it is north of the chicken coop between the residence and the chicken coop. This is in circumstances where the edge of the Gravel Pit over which the water flows to the plaintiffs’ property is at the southern and opposite end of the chicken coop close to Boston Road.
  1. [72]
    I accept by reference to the Council contour plan that the expected water flow from much of the defendant’s property would be in a north westerly direction towards the plaintiffs’ property.[30]  Further, as mentioned above, the Shed and Gravel Pit are within the catchment area from which rainwater will flow towards the plaintiffs’ property.  This means that had the Shed and Gravel Pit not been constructed, the water falling on the footprint of the Shed would still have been absorbed into the permeable layer of the soil and have flowed down the slope through this layer towards the chicken coop and perhaps even the southern point of the drainage trench.  However, the existence of the Gravel Pit has meant that the water that would have fallen on the footprint of the Shed (prior to the installation of the water tanks) was being diverted to the Gravel Pit.  Any water flowing over the edge of the Gravel Pit would be likely to have flowed down to a more southerly position on the plaintiffs’ property than would have been the case in the absence of the Shed and Gravel Pit.  In short, their presence has effectively shifted the water flow further away from the relevant area and closer to Boston Road. 
  1. [73]
    This leaves the question of whether there is piping in the upper layer of the soil that has established an underground drainage path for water to flow from the Gravel Pit to the southern end of the drainage trench. I am not persuaded that such piping exists. There are numerous reasons for this. First, Mr Sargent conceded in cross-examination that his theory in this regard represents a possibility only. Second, there is no visible evidence of piping. While Mr Sargent explained in evidence that piping is not always visibly present, I prefer the evidence of Mr Ballard that it would be expected to be visibly present in this case if it existed, given the relatively loose sand in the upper layer of the soil. Mr Ballard explained that soil erosion caused by piping has unmistakable features and that given the particular soil composition here, that he would have anticipated that if it was present, these drainage paths would have collapsed, forming gullies which would be observable from the soil surface. There is no evidence that such gullies exist. It was Mr Ballard’s evidence that they were not present in the soil around the Gravel Pit when he inspected that area. Third, Mr Sargent conceded in cross-examination that he would not have expected to have seen grass covering the Gravel Pit if the water flow was such that it was eroding the sand under the grass as occurs with piping.
  1. [74]
    Fourth, while I accept Mr Sargent’s evidence that the Gravel Pit is undersized by reference to the Council guidelines, I am not persuaded that this under sizing has had the consequence that it has materially increased the volume and rate of water flow from it to the plaintiffs’ property and has thereby contributed to the formation of the piping. The Gravel Pit apparently has a gross volume of 2.25m3 when the guidelines provide for a gross volume in excess of 2.55m3.  This is not an overly significant volume differential.  Further, the flow into the Gravel Pit has not been able to exceed the capacity of the 90mm pipe through which water can flow from the roof of the Shed.  In addition, as Mr Ballard explained, the edge of the Gravel Pit over which the water flows is at least a metre in length.  I accept his evidence that the water flowing over it would not be concentrated in a narrow channel but would be likely to flow over the entire length of the edge.  
  1. [75]
    It is worth observing that even if I accepted that the Gravel Pit has increased the volume and rate of water flow to the plaintiffs’ property, I am in no way convinced that it would be likely to have caused an underground drainage path to form between the Gravel Pit and the southern end of the plaintiffs’ drainage trench or for that matter to form anywhere in the relevant area. It defies logic given that the contours of the land are such that water from the Gravel Pit would be unlikely to flow in this direction. Mr Sargent conceded as much.[31]
  1. [76]
    Fifth, Mr Sargent’s opinion in this regard was based at least in part on information provided to him by the male plaintiff to the effect that when the drainage trench was being dug in December 2017, water was only entering it at the southern end.[32]  In my view, this does not necessarily lend support to the presence of piping in the location proffered by Mr Sargent.  As explained above, the relevant area sits below the catchment area.  Mr Turnham also explained that the drainage trench was built with a fall so that water would naturally flow from that end of it.  He gave further evidence that it had rained during the construction of the drainage trench making it likely that water entered the trench from points other than the southern end of it. Against this background, it is difficult to attribute the water in the drainage trench observed by the male plaintiff in December 2017 to water having flowed from the Gravel Pit. 
  1. [77]
    There is evidence from the male plaintiff that since the installation of the water tanks he has dug holes along the boundary with the defendant’s property between his front fence and the northern end of the chicken coop and that those holes have filled with water. Exhibit 9 includes a video from 9 February this year and shows this. It also shows water on the ground inside the chicken coop. It is of note that these holes were not even within the relevant area of the claimed interference. Having said this, the evidence is significant as it demonstrates that the plaintiffs’ subsurface water problems have continued in circumstances where the water from the roof of the Shed is most unlikely to be contributing to them. This is because as I have explained above, since July 2018 this water has been flowing into the water tanks rather than over the edge of the Gravel Pit to the plaintiffs’ property.
  1. [78]
    The male plaintiff attached significance to the fact that in 2014 when the foundations of his residence were being laid he vacuumed approximately 70 pier holes out and he did not find water in any of them.[33]  Further, in mid-2016 when he was installing the electrical and mains trench on the western side of the property, he also did not observe water in the trench.[34]  Yet when the chicken coop was being built in around August 2016, his evidence was that water was observed in the 12 holes that were dug for it.  The significance of this is said to be that the Shed and Gravel Pit had not been constructed when he found no water in the pier holes to the foundations and in the electricals and mains trench but had been constructed when the water was found in the 12 holes dug for the chicken coop.  However, in my view it is an over-simplification to seek to rely on these observations in supporting the existence of a causal relationship between the presence of the Shed and Gravel Pit and the plaintiffs’ water problems in the relevant area.   
  1. [79]
    It is expressly stated in the Soil Surveys report that the water levels will vary from time to time with seasons or weather changes. The precise dates on which these various observations were made is not known. Further, it is not even known the month in which the male plaintiff noticed the absence of water in the 70 pier holes. It seems that it would have been in 2014 and probably towards the middle of that year. The BOM data between February and May 2014 shows that it was significantly drier than normal, apart from February. It is also not known the month in which the male plaintiff noticed the absence of water in the electrical and mains trench. There is no BOM data or other evidence of the rainfall for 2016. Further, it is of note that this trench is on the boundary furthest away from the defendant’s property and is in no way proximate to the relevant area the subject of these proceedings.
  1. [80]
    The fact that the male plaintiff and Mr Turnham observed water in the 12 holes dug for the chicken coop in around August 2016 does not assist the plaintiffs’ claim. Once again the chicken coop is not part of the relevant area. Unless there had been piping (and I am satisfied that there was not) water from the chicken coop would be unlikely to have flowed across to the relevant area. Further, I am not convinced that the presence of the Gravel Pit provides the explanation for the water observed in these holes. This is because, as explained above, since the installation of the water tanks, water has been observed by the male plaintiff coming out of the ground of the chicken coop and it is unlikely that the Gravel Pit provides the explanation for this. As stated above, the contour plans show that the chicken coop is immediately downstream from the catchment area on the defendant’s property and as Mr Ballard explained, the Shed makes up less than 10 percent of this area.
  1. [81]
    It follows while water from the Gravel Pit has flowed down to the plaintiffs’ property, I am not satisfied that the plaintiffs have proved on the balance of probabilities that it has constituted a substantial and unreasonable interference with the use and enjoyment of their property in the relevant area, or elsewhere. In short, I am not persuaded that the claim in nuisance has been made out.

Agency

  1. [82]
    In paragraph 16 of the statement of claim, it is pleaded that Mr Kubiak was the defendant’s agent for the purposes of the discussion between he and the male plaintiff on 2 December 2017. It is further alleged that Mr Kubiak acted as her agent when allegedly acknowledging the causal relationship between the Gravel Pit and the excess water on the plaintiffs’ property and his agreement to pay to rectify it.
  1. [83]
    It is further alleged by the plaintiffs that Mr Kubiak was the defendant’s agent on 2 December 2017 when it is alleged that he was made aware of the interference being caused to the plaintiffs’ property from the Gravel Pit.
  1. [84]
    These matters are denied in paragraphs 13(a), 13(b) and 14(a) of the defence.
  1. [85]
    Given my findings above, it is not necessary to resolve this agency issue.

Injunctive relief

  1. [86]
    The plaintiffs seek a mandatory injunction against the defendant requiring her to take remedial action within 28 days to cause the water from the Shed to discharge water in an appropriate manner so as to not interfere with the plaintiffs’ use and enjoyment of their land. Given my findings, the plaintiffs are not entitled to injunctive relief.
  1. [87]
    Even if I had been satisfied that the plaintiffs had established a claim in nuisance, I would not have granted the injunction sought. This is because I am not persuaded to the requisite standard that water from the roof of the Shed has continued to flow over the Gravel Pit since the installation of the water tanks.

Conclusion

  1. [88]
    The plaintiffs’ claims in contract and nuisance are dismissed.
  1. [89]
    As to the costs of the proceeding, the defendant has been successful. In these circumstances there will be an order that the plaintiffs pay the defendant’s costs, unless another order is sought. If this is to be contested, the party advancing the contest should file and serve a written outline on the issue, within seven days of delivery of the judgment, with the opposing party to have seven days to respond.

Footnotes

[1] Statement of Claim at [14].

[2] Exhibit 29 at 22. 

[3] Exhibit 29 at 5–6.

[4] Exhibit 1.

[5] Exhibit 29 at 7.

[6] Exhibit 2 at 113–118.

[7] Exhibit 10 at 581.

[8] Exhibit 11. 

[9] T1–90, ln 42–43.

[10] Exhibit 19.

[11] Exhibit 29 at 8.

[12] Fox v Percy (2003) CLR 118, 129 at [30].

[13] Exhibit 21.

[14] T1–18, ln 28.

[15] T2–17, ln 35–37.

[16] T1–126–127.

[17] Sleeman v SPI Electricity Pty Ltd [2014] VSC 49 at [34].

[18] Riverman Orchards v Hayden [2017] VSC 379 at [175].

[19] Ibid at [179].

[20] Southern Properties (WA) Pty Ltd v Executive Director of the Department of Conservation and Land

Management (2012) 42 WAR 287 at [118]–[119] (McClure P, Buss JA agreeing).

[21] Robson v Leischke (2008) 72 NSWLR 98 at [47].

[22] [1940] AV 880.

[23] Rickard & Ors v Allliance Ausralia Insurance Ltd & Ors [2009] NSWSC 1115.

[24] Quick v Alpine Nursery Sales Pty Ltd [2010] NSWSC 1248.

[25] Gartner v Kidman (1962) 108 CLR 12 at 48–49.

[26] March v E & MH Stramare Pty Ltd (1991) 171 CLR 506 at 522.

[27] Roads and Traffic Authority v Royal (2008) 82 ALJR 870 at [85] (Kirby J), [143] (Kiefel J).

[28] Amaca Pty Ltd v Ellis (2010) 240 CLR 11 at [6], [70].

[29] Exhibit 14.

[30] Figure 1 in Mr Ballard’s report.

[31] T1–128

[32] This information was also provided by the male plaintiff to Mr Arthur.

[33] T1–10, ln 35–40.

[34] T1–11, ln 1–9.

Close

Editorial Notes

  • Published Case Name:

    Turner v Kubiak

  • Shortened Case Name:

    Turner v Kubiak

  • MNC:

    [2020] QDC 223

  • Court:

    QDC

  • Judge(s):

    Rosengren DCJ

  • Date:

    15 Sep 2020

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.
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