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Jackson v Redcliffe City Council

 

[2010] QSC 206

 

SUPREME COURT OF QUEENSLAND

 

CITATION:

Jackson v Redcliffe City Council [2010] QSC 206

PARTIES:

VANESSA CAROL ANN JACKSON
(plaintiff)
v
REDCLIFFE CITY COUNCIL
(defendant)

FILE NO:

5238 of 2009

DIVISION:

Trial Division

PROCEEDING:

Claim

ORIGINATING COURT:

Supreme Court of Queensland

DELIVERED ON:

23 June 2010

DELIVERED AT:

Brisbane 

HEARING DATE:

7, 9 and 11 June 2010

JUDGE:

Applegarth J

ORDERS:

1.The plaintiff’s proceeding is dismissed.

2.Judgment for the defendant.

3.The plaintiff pay the defendant’s costs of and incidental to the proceeding, including reserved costs, if any, to be assessed on a standard basis.

CATCHWORDS:

TORTS- NEGLIGENCE – NUISANCE – BREACH OF STATUTORY DUTY -  whether the plaintiff’s property has been continually inundated by stormwater runoff from modifications to uphill properties – whether any continuing inundation caused structural movement and damage to the plaintiff’s house and land – whether any loss and damage is due to the defendant local government authority’s alleged negligence, breach of statutory duty or nuisance

ACTS CITED

Local Government Act 1993 (Qld), s 956

CASES

Jackson v Redcliffe City Council [2009] QCA 38, considered

Jackson v Redcliffe City Council and Lancefield [2008] QDC 254, considered

COUNSEL:

The plaintiff appeared on her own behalf

R W Morgan for the defendant

SOLICITORS:

The plaintiff appeared on her own behalf

Barry & Nillson for the defendant

  1. The plaintiff has been the owner of a dwelling house and land situated at 55 McCulloch Avenue, Margate (“the property”) since 1988.  She sues the Redcliffe City Council (“the Council”) for damages for breach of statutory duty, negligence and nuisance over the alleged consequences to the property of stormwater run-off.  She seeks, in the alternative, equitable compensation in lieu of an injunction in respect of such future loss and damage as may be suffered by reason of the Council’s alleged breach of statutory duty, negligence and nuisance.
  1. The plaintiff’s grievances against certain neighbours and against the Council have a lengthy history. Soon after moving into the property in 1988 she complained about what was said by her to be “unlawful drainage” from uphill. In 1994, the Council installed “retaining chambers” in the backyard of 57 McCulloch Avenue to diffuse the flow, and, according to the plaintiff, this corrected the problem.[1]  After 1996 the plaintiff came into dispute with the then owner of 53 McCulloch Avenue in respect of fencing issues.  She attempted to enlist the support of the Council in her dispute.  There was a Small Claims Tribunal hearing of her fencing dispute in September 1998.  The Tribunal ordered that a fence be constructed and the fence was completed in late 1998.  The plaintiff obtained a statutory order for judicial review and in June 1999 there was a second order of the Small Claims Tribunal.  In around 1999 drainage works were undertaken on the plaintiff’s property.
  1. The plaintiff remained in dispute with her then neighbour, Ms Lancefield, who was the owner of number 53, and with the Council. She was sued by the Council in the Redcliffe Magistrates Court for unpaid rates and counterclaimed for damages. She pursued grievances against the Council with the Ombudsman, which accepted the Council’s explanation for its conduct in respect of stormwater drainage in the vicinity of the property.
  1. These proceedings were commenced in the District Court at Brisbane on 24 December 2007.  The plaintiff initially sued the Council as first defendant and Ms Lancefield as second defendant.  In mid-2008 each of the parties sought summary judgment.  A judge of the District Court considered the plaintiff’s material and her pleading and observed that she faced an array of legal problems.  Her case was not assisted by what was described as “the diffuse and confusing nature of her amended pleading”.  In the light of evidence that indicated that any property damage caused by flooding was sustained well before, and in any event at the latest by, June or July in 1999, the learned judge concluded that her claim remained untenable and ought to be struck out on the basis, at least, that it was statute barred.  Summary judgment was given for each defendant.[2] 
  1. The plaintiff appealed. The Court of Appeal agreed with the primary judge’s conclusion that the statement of claim had manifest deficiencies, and concluded that it should be struck out under r 171 of the Uniform Civil Procedure Rules 1999.  It did not disturb the primary judge’s finding that by mid-1999 at the latest, the plaintiff was aware of the damage allegedly arising from the acts or omissions of the respondents, and that claims in respect of such damage were time-barred.  However, the Court of Appeal raised an issue that was not raised before the primary judge.  It was that the plaintiff appeared to be complaining of recurrent damage and that where damage is continuing or recurrent, a new cause of action arises from day to day, or upon the occurrence of fresh damage.[3]  This point was not taken in the notice of appeal and the Court of Appeal remarked that allowing the point was “rather generous” to the plaintiff in circumstances in which the point that resolved the appeal was not raised before the primary judge.  The summary dismissal of the plaintiff’s proceeding had denied her the opportunity “to litigate a claim in respect of so much of it as arose within the period of six years preceding commencement.”[4]  The Court of Appeal noted that the appellant had not sought injunctive relief.  It struck out the plaintiff’s amended statement of claim, with leave to re-plead.  The plaintiff’s proceeding against Ms Lancefield was subsequently settled.
  1. The plaintiff filed a new statement of claim against the Council on 9 April 2009. It was lacking in particularity. It asserted that:

“3.Over the years, in wet weather, “the property” has been continually inundated by stormwater run-off from prior modifications and alterations to up-hill properties, namely the properties at 57 and 57A McCulloch Avenue, and also causing blockage downstream namely by 53 McCulloch Avenue.”

The Council requested further and better particulars of this and other allegations. However the particulars were deficient.  They did not clearly identify inundation, let alone any new damage that had occurred, within the limitation period.

  1. On 11 January 2010 the plaintiff was ordered to provide further particulars of the date or dates on which each and every structural movement became evident, and to identify the type of structural movement which became evident. Again, the plaintiff’s purported particulars were inadequate.
  1. At the start of this trial I invited the plaintiff to open her case concerning the damage that she alleged she had suffered since December 2001, and how it was said to have arisen. She was unable to do so. I stood the matter down whilst the defendant prepared, at my suggestion, a final request for further and better particulars which would enable the plaintiff to focus on whether she was able to advance a claim of the kind that the Court of Appeal permitted her to litigate.[5]  She frankly acknowledged after being given an opportunity to review the request that she was unable to do so.  The plaintiff also acknowledged that she could not provide valuation evidence to support her claim for a diminution in value since December 2001.[6]
  1. In the light of her acknowledged inability to prove her pleaded case in respect of any damage sustained since December 2001 and her inability to pay the costs that would be thrown away by an adjournment of the trial, I ascertained that the plaintiff wished to litigate what she claimed to be an ongoing drainage problem.[7]  For reasons given by me on the first day of trial, I concluded that it was in the interests of justice that the litigation be conducted with a view to the expeditious resolution of the real issues between the parties at a minimum of expense so that the plaintiff’s legal rights, if any, against the Council be determined by conducting a trial on the allocated dates.  I permitted the plaintiff to amend her claim to seek relief in respect of future damage that she contended would be sustained by her if the claimed nuisance continued.[8]  I granted leave to the plaintiff, without opposition from the Council, to claim “Equitable compensation in lieu of an injunction in respect of such future loss and damage as will be suffered by reason of the defendant’s negligence, breach of statutory duty and nuisance”.

The issues

  1. The substantial issues arising from the plaintiff’s amended pleading may be summarised as follows:
  1. Whether the property has been continually inundated in recent years by stormwater run-off from modifications to properties at 57 and 57A McCulloch Avenue that is blocked downstream on the fenceline between 53 and 55 McCulloch Avenue.
  1. If so, whether the continuing inundation has caused the plaintiff’s land to be saturated, causing structural movement and damage to the plaintiff’s house and land.[9]
  1. Whether there is a substantial risk of further inundation with consequential loss and damage to the plaintiff’s property.
  1. Whether any past loss and damage, and any expected future loss and damage is due to:
  1. the Council’s breach of statutory duty;
  1. the Council’s negligence;
  1. the Council having “caused, continued or adopted”[10] a nuisance.
  1. The measure of compensation to which the plaintiff is entitled in respect of:
  1. past loss and damage;
  2. future loss and damage

that is shown to have been caused, or which will be caused, by such breach of statutory duty, negligence or nuisance.

Overview of the plaintiff’s case

  1. The plaintiff’s present pleading refers to stormwater run-off from two uphill properties. Her evidence and submissions do not complain about surface run-off. Her evidence was that her property has “very good drainage”[11] and that she did not “have a problem with surface run-off – surface overland flow from uphill properties”.[12]  Her complaint related to what she described as “inground drainage” of water from properties at 57 and 57A McCulloch Avenue.  She advanced the case that this water, including stormwater directed into the ground from a carport on number 57 and from other hard surfaces on numbers 57 and 57A, drained underground onto her land, and was prevented from escaping to lower land on number 53 by a blockage on her border with number 53.  The plaintiff’s case is that her soil becomes saturated, and the water backs up towards the front of her block where her house is situated, and collects under the slab of her house.
  1. The plaintiff’s case with respect to issues of alleged inundation and loss and damage confronts a number of difficulties.
  1. The first is a lack of persuasive proof of the inundation, loss and damage of which she complains. For example, the plaintiff produced no photographic evidence of images taken over the last decade of water pooling in the back of her property, which is the lowest part of her property, or in gravel-filled trenches beside her home which are designed to direct water into her backyard.
  1. The second is the lack of expert evidence that did more than raise the possibility of water backing up under her home as a theory. The plaintiff’s engineering expert, Mr Rebibou, did not advance evidence to support the theory, and did not contradict the Council’s engineering expert, Mr Fox, on important issues. Ultimately, Mr Rebibou was of limited assistance because of the very limited nature of his investigations.  He inspected the property only once and, unlike Mr Fox, did not observe it after a period of rainfall. 
  1. The third is the evidence of Mr Fox. Mr Fox inspected the property after substantial rainfall occurred in early March 2010. He prepared a comprehensive report and a joint report with Mr Rebibou. He was cross-examined at length by the plaintiff. His evidence does not support the plaintiff’s case. His observations and analysis are against it. The plaintiff acknowledged that if I accepted Mr Fox’s evidence, she would be left without a case.

The topography of the property

  1. The plaintiff’s two storey home was constructed on the front of her property long before she moved into it in 1988. Her home faces north. The general topography of the area means that her land slopes towards the south east, and above ground stormwater would drain towards the back corner of her property near a garage situated at the back of number 53. The topography of the property is more comprehensively described in Mr Fox’s report.
  1. The plaintiff accepted that the gradient of her property meant that rain falling on her block disappears very quickly. She said that she had “very good drainage”. This included drainage ditches on both sides of her driveway and a grassed backyard with about six inches of topsoil, beneath which there is a layer of gravel which enables water to flow towards the bottom corner of her yard.[13]
  1. Many of the photographs that were tendered by the plaintiff were taken in 1997, 1998 or 1999 before the drainage of her property was improved. They include a photograph taken of a long waterslide that was constructed out of plastic and rubber tyres which was arranged to slope diagonally in the direction of the back corner with number 53.[14]  The photographs taken in these years include photographs of water pooling in the back corner after what is described in a caption to the photographs to have been the heaviest rainfall in ten years.[15]  More recent photographs depict the fall in the plaintiff’s land towards the back corner with number 53.[16]
  1. Mr Fox estimated the fall from the slab surface at the rear of the plaintiff’s home to the left corner of the backyard to be about 900 mm. The plaintiff contended that it was only about four inches or 100 mm. Mr Rebibou was unable to assist with an estimate of the extent of the fall.
  1. The plaintiff’s back fence is constructed of blockwork. The dividing fence between her property and number 53 is a paling fence constructed over a two sleeper high garden wall of about 400 mm in height that is designed to retain soil on number 55. The back corner is shown in photograph 9 to Mr Fox’s report and in a recent photograph taken by the plaintiff.[17]  From his inspection of the fence/sleeper garden wall and his review of plans for its construction Mr Fox concluded:

“... it is clear that the sleeper garden wall is not a water retaining structure.  That is, water ponding against the face of the sleepers might be impeded temporarily but would inevitably flow through between and under the individual planks of the wall.  Further, there is only about 200 mm maximum of “freeboard” in the very corner of the property.  It follows that in the event of major rainfall event water physically can only pond behind the sleeper wall to a depth of about 200 mm before it would flow over the top of the sleepers and into #53.

In my opinion the arrangement is a practical approach to the difficulties with water flow that are common on small suburban blocks.  If the sleepers were removed it is almost certain that soil from #55 would be washed across the boundary into #53, thereby inconveniencing the occupants of that property, and scouring of the rear section of #55 would result.  It is difficult to see how the occupants of #55 are inconvenienced in any significant way by short-term ponding in the very back corner of their property in the event of a downpour.”[18]

The plaintiff’s home

  1. Mr Rebibou and Mr Fox were both of the opinion that the plaintiff’s home was originally constructed as a single level residence on a suspended timber floor on stumps, with the lower level subsequently being “closed in” to form a lower level habitable area. Mr Rebibou doubted whether there was a vapour layer under the slab, and thought it likely that the slab was laid in “bits and pieces” around old stumps. He expected that, regardless of any vapour layer, each joint between each slab would be a potential source of moisture ingress.[19]  He estimated the concrete stumps to be at least 30 to 40 years old and he observed what is described as “spolling” which occurs when there is expansion of the reinforcing steel inside the concrete post.  Based on his substantial experience, Mr Rebibou stated that spolling is a particular risk in an area with salt-air and that a 40 year old concrete stump in a location a few hundred metres from Moreton Bay would be at considerable risk of displaying spolling, particularly if it had not been covered.  He had professional experience of spolling of such stumps that had not been painted.  He also remarked that the concrete blockwork that closed in the lower level of the plaintiff’s home was a porous substance, that vertical cracks between the blockwork and the stumps permitted ready ingress of wind-driven rain and that in periods of heavy rain water present on the ground could also gain access through such cracks.[20]
  1. Both Mr Rebibou and Mr Fox agreed that the concrete blocks had not been properly fixed to the stumps. Mr Fox expressed the opinion that the work would not have been carried out by professional tradespeople and that, as a result, serious building defects were present. This included an absence of floor “freeboard”: the finished internal floor level is approximately the same height as the external slab. Relevant building regulations require the minimum height of a slab above the ground for habitable rooms to be 225 mm. The external walls to the lower level were not waterproof. They had been painted at some time, however, the paint had deteriorated to such an extent that there had been no effective protection from moisture penetration for many years.
  1. Mr Fox observed that some individual concrete stumps displayed evidence of spolling consistent with exposure and that such deterioration is common where such stumps are not adequately shielded from moisture.

The plaintiff’s evidence

  1. The plaintiff did not give evidence that the spolling on concrete stumps only manifested itself in recent years. In general, she was unable to identify any damage to her property that had manifested itself since December 2001. An exception was that she said that cracks in concrete pillars at the back of her house had led to a window falling out and that these cracks were not there before 2001.[21]
  1. She also recounted an occasion when water came into her downstairs level and wet a mattress that was on the floor.[22]
  1. She stated that water would come up through the slab of the house “if it rises enough and when there is pressure”. This was when there was “incredibly heavy periods of rainfall” when the ground is completely saturated after a wet period of weeks. It had not happened in the last few years and did not occur in March 2010 after days of heavy rain after which Mr Fox inspected the property.[23]  The plaintiff agreed under cross-examination that there was no pooling of water in her yard in early March 2010 when Mr Fox visited her property after it had been raining for a number of days.  She sought to explain the absence of any water pooling in her yard at this time by saying that even if the ground became saturated and there had been five days of very steady rain she would not expect to see any surface water, save for water in the bottom corner until it drained away.[24]
  1. As to the state of the blockwork on the lower level of her house, the plaintiff explained that the sides of her house had not been painted since she moved there in 1988 and that they had not been repainted in the last 12 years because all renovations stopped 12 years ago and she “never expected Council to withhold information so long”.[25]  Two sections of the blockwork were painted a brown colour in around 1999.  The plaintiff also explained that a back deck was removed in about 1999, but the weatherboard was not replaced.  She acknowledged that driven rain could easily enter in the gap between the blockwork and the upper part of the house where there was no weatherboard.[26]
  1. The plaintiff estimated that the difference in height between her concrete slab and the lowest part of her yard was half a besser block or about four inches.[27]  On another occasion she stated that the fall on the slopes of her grassed lawn was about eight inches.[28]

Mr Rebibou

  1. Mr Rebibou provided a report dated 14 May 2008 on the basis of an inspection of the property on 17 April 2008 and information provided to him by the plaintiff. He provided another report dated 8 June 2010. He qualified his oral evidence and the opinions expressed in his reports by stating that his involvement had been limited, mostly due to the plaintiff’s lack of resources and timing issues affecting the preparation of reports.[29]  His sole inspection of the property was for about three hours and he explained that his report was to offer “one possible scenario” assuming that drainage arrangements had been changed that might have resulted in the plaintiff’s property becoming, in effect, a large absorption pit.[30]  He frankly and fairly conceded under cross-examination that he had no evidence to support the possibility that there had been some unidentified, long-term change in the subterranean water flows in the area, and that this was a theory.[31]
  1. Mr Rebibou’s views were not based upon any observation of the block after rain. His evidence was that the ground had an ability to absorb a certain amount of water, but after it became saturated water would begin to show up on the surface.[32]  He made no observation of stormwater run-off.  His views were based upon what the plaintiff told him about how the soils became saturated. 
  1. Mr Rebibou took no measurements of the difference between the slab of the lower storey and the left rear of the garden. He did not contradict Mr Fox’s estimate. Instead, by the time he prepared the joint report with Mr Fox on 20 April 2010 he could not recall the exact surface profile. He stated in the joint report that a level survey should be undertaken to confirm surface levels in and around the property. However, the experts were agreed that “if the discharge point at the rear left of the site is significantly lower in level than the floor level of the house, say by at least several hundred millimetres, surface stormwater cannot be trapped under the house.”[33]
  1. As to the escape of water from the backyard through the sleeper walls and paling fence, Mr Rebibou stated that the sleeper walls would have some porosity. He did not suggest that the sleepers and the paling fence above it created an impervious barrier. Instead, they would slow the escape of water.[34]  Given the degree of porosity in the sleeper retaining wall, he accepted that any subsurface water in the plaintiff’s property was going to find it easier to fall to number 53 than if number 53 was level with number 55.[35]
  1. As previously noted, Mr Rebibou accepted that the spolling on concrete posts that had been erected at least 30 to 40 years earlier would result from the concrete blocks being exposed to the air for such a period. He accepted that water might enter the lower level of the plaintiff’s home through vertical cracks between the block work and stumps, for example, during periods of heavy rain or from water present on the surface of the ground. He also acknowledged that after heavy rain water in the gravel-filled drains and other water that entered the ground beside the house was able to flow underneath the slab. Because the slab had not been vapour-proofed, water that entered the property was “at liberty to simply enter the ground beside the house” and the house being built on the side of a hill, one of the obvious paths for such water was to go beneath the slab. Because the slab was not vapour-proof the water that went under the slab could rise through the slab and appear in the form of rising damp in the slab or on the insides of walls.[36]
  1. Mr Rebibou’s evidence was of assistance to the resolution of issues. However, his evidence suffered from the limited extent of his investigations and his dependence upon the plaintiff’s information by way of background. This included instructions to the effect that modifications to side fences and walls actually blocked drainage flow from the property.[37]  His opinions were based upon an assumption, derived from the plaintiff’s instructions that “Following significant rainfall, and with no possibility for the drainage to escape due to changes carried out by neighbours to existing drainage, flooding of the entire property followed with the ground floor of the dwelling and the entire property saturated for over six (6) months”.[38]  These instructions may relate to episodes that occurred many years ago.  They do not accord with the plaintiff’s evidence concerning the collection of water on her property in recent years. 
  1. Ultimately, the “absorption pit” theory advanced by Mr Rebibou remained simply that. His theory was not supported by his own investigations or reliable evidence. Photographs taken during Mr Fox’s visit on 5 March 2010 do not support Mr Rebibou’s theory.  No photographs taken by the plaintiff of her property in recent years following rainfall depicts the ponding of water in her backyard, in the gravel trenches beside her house, on the exterior slabs beside it or on the internal slab. 
  1. Mr Rebibou’s evidence leaves open the distinct possibility that entry of water into the lower level of the plaintiff’s home is from a number of sources. These include gaps between concrete posts and block walls, the porous nature of the concrete walls which have not been painted and entry of water through the slab which is not sealed from water which naturally runs under it, from the front to the back of the property.

Mr Fox

  1. Mr Fox reached the following conclusions in his report dated 19 March 2010:

“1.The only significant stormwater that would be present on the subject property in the area of the residence during “normal” rainfall events would be from rain falling directly onto the subject property.

  1. Stormwater runoff from the property on the right (#57) crosses the boundary at the rear of the subject property and flows across the backyard to discharge across the boundary into the property on the left (#53).  This pattern of flow is consistent with the natural slope of the ground and there is no evidence that such flow is a problem for the subject property.
  1. The maximum impediment caused by the sleeper garden wall to stormwater discharge from the subject property onto the property on the left (#53) would be temporary ponding to a depth of 200 mm, over an area of a couple of square metres at the very back left corner of the property.  This temporary ponding presents no practical problem for the occupants of the subject property and assists to prevent scouring of soil on the subject property.
  1. The actions and/or inactions of the Council have in no way contributed to stormwater problems on the subject property.
  1. There is no way that the sleeper garden wall causes water to collect under or around the residence on the subject property.
  1. There is no evidence to suggest that conditions have changed such that the ground beneath the residence now becomes saturated.
  1. There is no evidence to indicate that physical deterioration of the residence has been caused by saturation of the ground beneath the residence, or in any other way by stormwater flow on the property.
  1. No remediation of the residence or the enclosure is warranted due to stormwater flow on or around the property.”
  1. Mr Fox inspected the property on 5 March 2010. There had been substantial rain in the previous week. There had been a small shower shortly before he arrived. He saw no ponding in the back garden and there was no surface run-off evident. In particular, there was no surplus water gathered against any part of the timber sleepers.[39]
  1. Mr Fox rejected the scenario advanced by Mr Rebibou. He noted that there was no identified mechanism whereby water would collect underneath the house by overland flow, remain underneath the slab, but not appear in the backyard.[40]  If water collected under the house then he would expect it to flow out into the backyard and for there to be soggy ground in the backyard.  However, he observed no such conditions.  Mr Rebibou’s scenario was a theoretical discussion and Mr Fox could not identify any physical mechanism that would lead to some kind of absorption pit underneath the house.  In particular, there was no identified process for a loss of bearing capacity of founding soils.  If the soils had become saturated, leading to a loss of bearing capacity, as suggested by Mr Rebibou, then the effects on the house would have occurred long ago.  They would not be happening at present or in the future.[41]
  1. Under cross-examination Mr Fox explained he did not procure level surveys and subsoil tests because the costs of such exercises were not justified. In the discussions between experts Mr Rebibou did not dispute that there was a slope. Whilst Mr Fox said that he would have been assisted by all sorts of geotechnical investigations, he explained that it was a matter of drawing a reasonable balance between the information that he already had and the costs involved in further investigations. A level test may have been more precise in determining the level between the floor and the back left corner, but Mr Fox was of the opinion that it was clearly in the order of at least 700, 800 or 900 mm and he did not think that the expense of undertaking a level survey was warranted. He said that the extent of the drop in this order could be seen from photographs. Under cross-examination he explained by reference to photographs why the height difference would be at least several hundred millimetres.[42]  I accept Mr Fox’s explanation as to why he did not obtain a level survey.  I found his evidence reliable and I prefer his estimate of the difference in height between the floor slab and the back corner to that of the plaintiff.  Mr Rebibou did not contradict Mr Fox’s estimate, but merely stated in their joint report that a survey could be undertaken to confirm Mr Fox’s estimate that the discharge point at the rear left of the site was at least several hundred millimetres lower than the floor level of the house. 
  1. Mr Fox gave evidence of his inspection on 5 March 2010 in company with the plaintiff and I accept that he has no recollection of seeing any water collected in the gravel trenches beside the plaintiff’s home.
  1. Mr Fox gave his evidence in a clear manner despite difficulties associated with the form in which the plaintiff phrased many questions. Under cross-examination he addressed the plaintiff’s contentions about the effect of rainfall on the carport, hard stand area and shed located on uphill properties. Mr Fox explained that these features were unlikely to produce any difference compared to the rainwater going into the ground. He explained that any rubble pit in number 57 was a device whereby water was allowed to percolate into the ground and that any retention chamber on number 57 would be designed to slow down the flow of water.
  1. Mr Fox did not accept the plaintiff’s premise that the carport on number 57 and other hard surfaces on the uphill properties led to “a colossal amount of water” coming onto the plaintiff’s land. Instead, Mr Fox said that the water would gather in the back of number 57 until such time as it reached a point where it seeped through or went over the wall, made its way across number 55 and into number 53.[43]  Once it went into number 53 it would not come back onto number 55.[44]  The sleepers between numbers 53 and 55 did not present an impermeable wall.  However, Mr Fox stated that even if the sleepers represented an impermeable wall they were not far beneath the ground and would not have any great effect on the general dispersal of underground flow on number 55.  Any effect would be in the immediate area of a few square metres in the corner and could not have any effect further up the slope.[45]  Even if the drop was not as high as 900 mm, the principle was the same. 
  1. Mr Fox’s evidence, which I accept, is that there is a significant fall from the level of the plaintiff’s slab to the back corner of her garden, and therefore any build-up or impediment to ground water flow would build up in the vicinity of the sleepers and then flow over as surface flow.[46]  Mr Fox’s opinion was not dependent upon his estimate of 900 mm being correct, or even upon the drop being several hundred millimetres.  Even if the drop was half of what he estimated it to be the same principle applied.  He observed that he and Mr Rebibou agreed at the joint conference that there was sufficient fall for the water to flow away.[47]

The plaintiff’s criticisms of Mr Fox’s evidence

  1. The plaintiff, in the course of her cross-examination of Mr Fox, and in notes concerning his evidence which she relied upon as her written submissions, made a number of criticisms of Mr Fox’s evidence. I do not accept her contention that the evidence of Mr Rebibou is in direct conflict with that of Mr Fox. Their joint report indicates areas of agreement. In addition, the fact that Mr Rebibou was unable to recall the surface profile of the property from his inspection, and therefore unable to agree with Mr Fox’s estimate of a drop of several hundred millimetres, does not mean that Mr Rebibou contradicted Mr Fox’s estimate. He was simply unable to agree with it and did not undertake another inspection to either confirm or contradict it. I accept Mr Fox’s explanation for not undertaking a precise survey. For the reasons given by him, the cost of such a survey was not justified in the circumstances. I accept Mr Fox’s evidence about the approximate size of the drop.
  1. To the extent that there was a conflict between the evidence of Mr Fox and that of Mr Rebibou, I prefer the evidence of Mr Fox. Mr Rebibou’s evidence was limited in its usefulness because of the limited nature of his investigations. It advanced theoretical possibilities that were not supported by the evidence. Mr Fox’s evidence in the form of his report was comprehensive, considered and had the advantage of being based upon observations undertaken following a period of extensive rain that occurred in early March 2010. Mr Fox’s evidence concerning the topography was supported by photographic evidence. Mr Fox responded to the case mounted by the plaintiff in cross-examination, and to the theoretical possibilities advanced by Mr Rebibou.  Mr Fox’s oral evidence was given patiently and without any hint of partisanship. 
  1. I accept his evidence concerning the likely flow of both above ground and subterranean run-off from the uphill properties and that such stormwater run-off would not meet an impenetrable barrier in the vicinity of the fenceline between 53 and 55 McCulloch Avenue.  I accept his evidence generally.  It is to the general effect that after particularly heavy rain water might pool in the back corner of the property.  As Mr Rebibou also explained, the sleeper fenceline which protruded only a few hundred millimetres above the ground is permeable, and it would only slow, not obstruct, the flow of water from number 55 to number 53 McCulloch Avenue.  There is no satisfactory evidence that it would collect in that corner in a manner which would cause water to collect in such a volume as to penetrate the floor slab of the plaintiff’s home, causing loss and damage. 
  1. The plaintiff acknowledged in her final oral submissions that if I accepted Mr Fox’s evidence that was effectively the end of her case. I accept Mr Fox’s evidence.

The absence of evidence to support the plaintiff’s case

  1. A remarkable feature of the plaintiff’s case is the absence of recent photographic evidence to support the theory advanced by the plaintiff. On the plaintiff’s case, the inundation caused by run-off from the uphill properties, the small drop between the level of her slab and the back corner and other features should have led to the pooling of water in her backyard, in and around the concrete exterior slabs and in the gravel-filled trenches beside her house. The alleged inundation of her property from stormwater from the uphill properties that was blocked downstream should have led to the entry of water into the lower level of her house. However, the plaintiff did not produce photographic evidence of such pooling. Instead, she adhered to the theory that her backyard drained well and that, somehow, water backed up under the slab of her house without her backyard becoming saturated and water appearing above the surface. However, Mr Rebibou was of the view that once the ground became saturated, water would appear above the surface. Remarkably, the plaintiff produced no evidence of the pooling of water in her backyard in recent years. She gave evidence of one occasion when a mattress on the floor of her daughter’s room became wet. She acknowledged in her final address that water had not entered her lower floor for many years, and she acknowledged that there was no water inside the house on the day that Mr Fox visited.[48]  The plaintiff was unable to explain why she was unable to produce any photographic evidence of inundation in recent years.[49]  She was able to produce photographic evidence taken some time around 1997 – 1999 showing pooling of water in the back corner.  She was unable to produce even a single photograph of similar pooling in the last decade. 
  1. The absence of such evidence of water pooling in her backyard in recent years is not necessarily inconsistent with water flowing underground. However, the absence of such evidence and the plaintiff’s evidence that her property has “very good drainage” is hard to reconcile with a theory that her backyard becomes saturated leading to water being blocked by the fenceline between 53 and 55 McCulloch Avenue. Given the slope of the land and the evidence of Mr Rebibou, any stormwater run-off from properties at numbers 57 and 57A that was blocked downstream on the fenceline between 53 and 55 McCulloch Avenue would be expected to emerge through the surface of her backyard once the ground became saturated. 
  1. In addition to my acceptance of Mr Fox’s evidence, the plaintiff’s case fails for want of proof of inundation to the extent alleged and consequential loss and damage. It is unsupported by the photographic evidence taken by Mr Fox in early March 2010, particularly photograph number 9 which depicts the area in which water has flowed to the lowest point of the plaintiff’s yard and then, apparently, permeated through the sleeper wall into number 53.

Findings of fact

  1. I decline to find that the property has been continually inundated in recent years by stormwater run-off from modifications to properties at 57 and 57A McCulloch Avenue that is blocked downstream on the fenceline between 53 and 55 McCulloch Avenue.
  1. I find that the water that falls on numbers 57 and 57A McCulloch Avenue tends to follow a course, above ground, underground or both, through the backyard of number 55 where it exits into number 53.  The low sleeper wall between numbers 53 and 55 is apt to slow such run-off.  It does not block it other than temporarily.  There is no satisfactory evidence that it blocks the water to an extent that causes the water to pool other than in an area in the immediate vicinity of the back corner.  The plaintiff has not proven that the fenceline between her property and number 53 causes stormwater run-off to back up underground from her back corner to the level of her slab.  If the fence had the effect of impeding the exit of underground water then the water would begin to pool in the back corner after the ground became saturated.  There is no satisfactory evidence that the fence has the effect of causing stormwater run-off to collect to such an extent that it reaches the level of the plaintiff’s slab.  Before water reached that level it would discharge over the sleeper garden wall and into number 53.
  1. I am not persuaded that any inundation since December 2001 by stormwater run-off from numbers 57 and 57A McCulloch Avenue has caused any structural movement or damage to the plaintiff’s house and land.
  1. The plaintiff has failed to prove that modifications to properties at numbers 57 and 57A McCulloch Avenue have resulted in structural movement and damage to her house and land since December 2001, or are likely to cause such damage in the future.
  1. Aspects of the construction of the plaintiff’s home, including gaps between blockwork and concrete posts, the porous nature of the besser block walls which have not been painted for many years and the absence of an effective vapour layer beneath the slab explain the entry of moisture into the lower level of her house. Any physical deterioration of her home, including the spolling of concrete posts, is explicable by the entry of water by one or more of these means of entry. The fact that posts are not sealed would permit them to be spolled as a result of moisture in the air and normal atmospheric conditions in a bayside suburb. I am not persuaded that any physical deterioration of the plaintiff’s home since December 2001 is attributable to stormwater flow onto the property that was the result of modifications to properties at numbers 57 and 57A McCulloch Avenue.  Any entry of moisture through joints in the slab or the absence of a vapour layer beneath the slab may have occurred from the natural run-off of stormwater beneath the slab as it travels towards the lowest part of the block.  The plaintiff has not proved that this water would not have flowed beneath her slab if modifications had not been made to properties at numbers 57 and 57A McCulloch Avenue.
  1. The cracks that the plaintiff noticed some time after 2001 in concrete pillars at the back of her house have not been proved to be the result of the stormwater inundation of which she complains in these proceedings.
  1. In summary, I am not persuaded that any damage sustained by the plaintiff since December 2001 is attributable to inundation by stormwater run-off from modifications to properties at numbers 57 and 57A McCulloch Avenue and the retarding of stormwater flow on the fenceline between numbers 53 and 55 McCulloch Avenue.  I am not persuaded that there is a substantial risk of future loss and damage in this regard so as to justify an award of equitable compensation in lieu of an injunction.  I note, in passing, that at the start of the trial the plaintiff effectively conceded that she could not prove the occurrence of such damage after December 2001. 

Alleged breach of statutory duty, negligence and nuisance

  1. Because the plaintiff has failed to prove that she has suffered compensable loss and damage, or is likely to suffer compensable loss and damage in the future by reason of modifications to properties at numbers 57 and 57A McCulloch Avenue coupled with downstream blockages on the fenceline between numbers 53 and 55 McCulloch Avenue, it is strictly unnecessary to consider whether any such loss and damage from such a cause would have been due to a breach of statutory duty, negligence or nuisance. For completeness I shall address these issues.

Breach of statutory duty

  1. The plaintiff’s pleading relies upon s 956 of the Local Government Act 1993 (Qld) and asserts that pursuant to that section the Council was “required to regulate premises to connect stormwater installation to the local government stormwater drainage system to ensure that neighbouring properties do not adversely affect adjacent properties, namely the property”.  This misstates the terms of s 956 which provide:

“(1)  A local government may, by written notice, require the owner of premises to connect a stormwater installation for the premises to the local government’s stormwater drainage in the way, under the conditions and within the time stated in the notice.

(2)  A way, condition or time stated in the notice must be reasonable in the circumstances of the notice.

(3)  the owner must comply with the notice, unless the owner has a reasonable excuse.”

The term “stormwater installation” for premises means roof gutters, downpipes, subsoil drains and stormwater drainage for the premises, but does not include any part of local government’s stormwater drainage.[50]

  1. In his commentary on the Local Government Act Mr Fynes-Clinton of Counsel states that s 956:

“... does not provide a head of power for local governments to require individual property owners to construct works on their property to deal with overland stormwater flow affecting other properties.  Councils frequently find themselves approached by property owners who complain that an adjoining owner has altered the previous overland flow pattern (by earthworks, small retaining walls or similar works or structures which do not require a building permit or other Council approval), and asked to take steps to compel the offending property owner to redirect the flow into Council stormwater drainage so as to remedy a nuisance which has been created as a result of the ground level alterations.  This section does not apply in those circumstance, because it is concerned only with cases where a “stormwater installation”, as defined in the Schedule, has been installed on the premises, but is not properly connected to the Council’s drainage system.  The section applies to downpipes from roof guttering and other constructed drainage works of that type.”[51]

  1. The section confers a power and does not mandate that downpipes or other “stormwater installations” be connected to the local government’s stormwater drainage.
  1. There may be circumstances in a particular case by which a local government may be effectively obliged to exercise the power under s 956. However, the plaintiff in this case has not established circumstances that would oblige the Council to exercise its power under s 956 to require the owner of either of the uphill premises at numbers 57 or 57A McCulloch Avenue to connect a carport downpipe or any other “stormwater installation” to the Council’s stormwater drainage.
  1. For the reasons given by me, and principally on the basis of the evidence of Mr Fox, the stormwater that flows from downpipes on the carport at number 57 and other stormwater installations at numbers 57 and 57A have not been shown to materially affect what would have been the ordinary flow of rainwater from those properties in the direction of the backyard of number 55. Mr Fox did not think that the carport or any other hard area run-off would make a difference compared to having grass on the ground. Whether the water went into a rubble pit or directly into the ground, it would still go into the ground.[52]  I note that Mr Rebibou’s report and evidence did not provide an evidentiary basis to support the conclusion that the Council was or is under a duty to exercise its powers under s 956 in respect of stormwater installations on numbers 57 and 57A. 
  1. In addition, these matters were canvassed in 2006 and 2007 by the Council following complaints by the plaintiff to the Ombudsman. The Council investigated the feasibility of requiring stormwater installations at the relevant properties to be directed to the street. The investigations were to the effect that the buildings were below the level of the street kerb and it was not reasonably practicable to achieve drainage to McCulloch Avenue by force of gravity.  The Ombudsman investigated the Council’s conduct and decision-making process in this regard.  The Ombudsman accepted the Council inspector’s report that there was no reasonable action available to it to compel a change in roof water drainage at number 57. 
  1. The plaintiff’s case for breach of statutory duty is not supported by submissions on questions of law. I apprehend that the plaintiff misunderstands the scope of s 956 of the Local Government Act 1993, despite having received a comprehensive letter from the Ombudsman dated 29 June 2007 which explained the operation of s 956 and the factual basis as to why it was not reasonably practicable for the Council to achieve drainage to the street in the case of 57 McCulloch Avenue.
  1. The evidence of Mr McCaul, a qualified Building Certifier who had extensive experience with the Council and visited the property, confirms that the houses on the plaintiff’s side of the street are generally on the downhill side of it and in most cases it would be impracticable for reasons of gravity, especially with lowset houses, to direct stormwater from downpipes to the street.
  1. The plaintiff has not identified any power that the Council possessed, let alone was under a duty to exercise, in respect of the fence that was constructed between her property and number 53. The Council submits that under relevant building legislation the construction of the fence was self-assessable, and the Council had no role in approving it. The dividing fence dispute between the plaintiff and Ms Lancefield was adjudicated by a tribunal, and the Council was not a party to that dispute.  In any case, it was open to the Council to conclude, as the evidence in this proceeding establishes, that the fence did not block stormwater run-off to any great extent, and did so only temporarily.
  1. The plaintiff’s criticism of the Council’s alleged “inaction” and conduct in “creating a succession of individual property ‘bandaids’”[53] dates back to the original subdivision of 57 McCulloch Avenue in 1982, six years before she moved to 55 McCulloch Avenue, and the construction of two new houses on numbers 57 and 57A.  Her case failed to focus on the exercise by the Council of a statutory power, or its failure to exercise a statutory power, such as s 956, that caused her to suffer loss within the limitation period, or which threatens to cause her loss and damage in the future.  The evidence does not support the conclusion that the Council was under a duty to direct stormwater installations on number 57 and 57A McCulloch Avenue to the street.  Its actions in arranging for stormwater run-off on those properties to be directed into rubble pits and retention chambers in 1994 was said by the plaintiff to have corrected the problem.  In more recent years its approval of run-off from a carport[54] to be directed into existing drains has not been shown to constitute a breach of statutory duty.  It was open to the Council to reasonably conclude that the height and location of buildings on numbers 57 and 57A did not permit the water to be directed to the McCulloch Avenue kerb.  The construction of the carport on number 57 in 2002 has not been shown to have altered the flow of water onto the plaintiff’s property or to have increased its volume to such an extent that caused water to collect under the foundations of her house and to cause damage.  The evidence of Mr Fox is that one would be hard pressed to detect any difference in the amount of water that would be put into the ground on number 57 as a result of the carport.
  1. In summary, the evidence does not support a finding that the Council breached any statutory duty imposed upon it.

Negligence

  1. The plaintiff has not advanced in written or oral submissions a basis upon which the Council owed to her a common law duty of care. Assuming, however, for the purpose of argument, that the Council owed to her a common law duty of care in respect of the exercise of its powers in relation to stormwater drainage in her vicinity, for the reasons canvassed in respect of a claim for breach of statutory duty, the plaintiff has failed to establish that the Council was negligent in failing to exercise any statutory power.

Nuisance

  1. The plaintiff pleads that the Council “caused, continued or adopted” a nuisance.
  1. The precise basis upon which the Council is alleged to have done so is unclear. To the extent that the plaintiff’s case in nuisance is said to arise because the Council failed to exercise its powers under s 956, I decline to find that the Council caused a nuisance. The natural effect of rainfall on uphill properties was to direct that water downhill in the direction of the plaintiff’s property from which it would, in turn, flow in the direction of number 53. The evidence does not support the conclusion that the erection of carports or other facilities on numbers 57 and 57A materially altered the flow of water in the direction of the plaintiff’s property.
  1. The plaintiff has not called evidence that persuades me that it was reasonable for the Council to exercise its powers to require stormwater installation on uphill premises to be directed to the Council’s stormwater drainage on McCulloch Avenue.  The evidence does not support the conclusion that the owners of uphill properties conducted themselves in a way that constituted a nuisance, or that the Council, by its failure to exercise statutory powers or in any other respect, continued or adopted such a nuisance.  The fencing dispute with the former owner of number 53 was determined between the parties to that dispute, and the Council had no role in that dispute.  As Mr Fox explains, and Mr Rebibou agrees, the fence slows, but does not block the flow of water to number 53.  The fence has not been shown to create a nuisance, and the Council cannot be said, by act or omission, to have caused, continued or adopted a nuisance.

Measure of damage

  1. The plaintiff failed to prove the measure of any loss or damage suffered by her since December 2001, or the quantum of any future loss and damage which she may suffer in the absence of an injunction restraining what she contended were breaches of statutory duty, negligence or nuisance.

Conclusion

  1. The plaintiff has failed to establish her claim. There is no doubt that she feels aggrieved by the flow of rainwater across and under her property, and perceives that the fence constructed by Ms Lancefield has obstructed the flow of water out of the plaintiff’s property. It is, however, unfortunate that the plaintiff did not accept the Ombudsman’s report dated 29 June 2007 in respect of her complaint about the Council. The plaintiff may have convinced herself that subterranean stormwater run-off from uphill properties is somehow blocked by the fence between her property and number 53 and somehow backs up under the foundations of her home. She has failed, however, to persuade me that this is the case. Her case fails for lack of evidence. It also fails because Mr Fox’s evidence convincingly refutes the plaintiff’s case.
  1. It is unfortunate that the plaintiff has devoted her limited resources to litigation, with its personal stress and substantial cost. The Court of Appeal permitted the plaintiff to litigate a claim, if she had a viable claim, with respect to damage to her property after December 2001. On the first day of the trial she frankly conceded that she was unable to prove that she had suffered loss and damage after December 2001.  In addition, she was unable to prove that she is likely to suffer loss and damage in the future because of what she claimed to be inundation of her property by a colossal amount of water that flowed underground from uphill properties under her property resulting in saturation, structural movement and damage to her home.  The plaintiff’s case in this regard was not proven by acceptable evidence, including the observations of the two experts who visited the property.  Her case in this regard was convincingly contradicted by the persuasive evidence of Mr Fox. 
  1. The end result is that the plaintiff has failed to establish a claim for damages or equitable compensation. She did not formally seek an injunction against the Council. However, had she done so, the evidence would not have justified injunctive relief. The evidence does not entitle her to equitable compensation in lieu of an injunction for future loss and damage caused by the Council’s alleged breach of statutory duty, negligence or nuisance. The plaintiff has failed to establish that she is likely to sustain future damage to her house by reason of the Council’s alleged breach of statutory duty, negligence or nuisance.
  1. The orders will be:
  1. The plaintiff’s proceeding is dismissed.
  1. Judgment for the defendant.

I will hear the parties in relation to costs.  However, as presently advised, there is no reason as to why costs should not follow the event.  Subject to any further submissions, the order for costs will be:

The plaintiff pay the defendant’s costs of and incidental to the proceeding, including reserved costs if any, to be assessed on a standard basis.

  1. It may be necessary to make an order in relation to the name of the defendant in circumstances in which Council amalgamations have resulted in the amalgamation of the Redcliffe City Council into the Moreton Bay Regional Council.

Footnotes

[1] T 1-84, T2-5-6.

[2] Jackson v Redcliffe City Council and Lancefield [2008] QDC 254.

[3] Jackson v Redcliffe City Council [2009] QCA 38 at [21].

[4] Ibid at [24].

[5] Exhibit 4.

[6] T 1-55 – 1-56 l 7.

[7] T 1-49 l 45;  1-51 l 10.

[8] T 1-68 – 1-70.

[9] Statement of claim paras 7 and 8.

[10] Statement of claim para 11.

[11] T 1-91.

[12] T 1-83 ll 25-26.

[13] T 1-91 – T 92.

[14] Photograph No 35, Exhibit 16.

[15] Photographs 51 – 58, Exhibit 16.

[16] Exhibit 23.

[17] Fifth page of Exhibit 23.

[18] Exhibit 21 paras 33 and 34.

[19] T 2-86 l 20.

[20] T 2-87.

[21] T 1-74-75.

[22] T 1-75.

[23] T 1-76.

[24] T 2-21.

[25] T 2-24 – 2-25.

[26] T 2-28.

[27] T 1-94.

[28] T 2-37.

[29] T 2-63.

[30] T 2-70.

[31] T 2-89.

[32] T 2-63 l 60.

[33] Joint report of Experts, Exhibit 19 para 1.

[34] T 2-79.

[35] T 2-81.

[36] T 2-88.

[37] Exhibit 18, section 2.0, second dot point.

[38] Ibid third dot point.

[39] T 2-107.

[40] T 3-2.

[41] T 3-4 – 3-5.

[42] T 3-25.

[43] T 3-44.

[44] T 3-62.

[45] T 3-63 – 3-64.

[46] T 3-67.

[47] T 3-67.

[48] T 3-107.

[49] T 3-108 – T 3-109.

[50] Local Government Act 1993, Schedule 2.

[51] Fynes-Clinton, Stephen, A Commentary on the Local Government Act 1993, 3rd ed, 476/1.

[52] T 3-53.

[53] To quote from a document that included her recent instructions to Mr Rebibou and a chronology, and which became MFI-A.

[54] Exhibit 22.

Close

Editorial Notes

  • Published Case Name:

    Jackson v Redcliffe City Council

  • Shortened Case Name:

    Jackson v Redcliffe City Council

  • MNC:

    [2010] QSC 206

  • Court:

    QSC

  • Judge(s):

    Applegarth J

  • Date:

    23 Jun 2010

  • White Star Case:

    Yes

Litigation History

No Litigation History

Appeal Status

No Status