Stevens v Body Corporate for Trinity Circle Community Title Scheme 18651
[2004] QSC 471
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- Stevens v Body Corporate for Trinity Circle Community Title Scheme 18651[2004] QSC 471
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Stevens v Body Corporate for Trinity Circle Community Title Scheme 18651[2004] QSC 471
Stevens v Body Corporate for Trinity Circle Community Title Scheme 18651[2004] QSC 471
SUPREME COURT OF QUEENSLAND
CIVIL JURISDICTION
JONES J
Claim No 588 of 2004
BRUCE GORTON STEVENS | First Plaintiff |
and |
|
JENTON HOLDINGS PTY LTD (ACN 010 111 976) | Second Plaintiff |
and |
|
THE BODY CORPORATE FOR TRINITY CIRCLE COMMUNITY TITLE SCHEME 18651 | Defendant |
CAIRNS
DATE 23/12/2004
JUDGMENT
HIS HONOUR: The plaintiff seeks interim orders couched in restrictive and in mandatory terms to protect their property from the effects of stormwater run-off from the defendant's land. Already there has been some land slips which have caused damage to part of the plaintiff's property. The plaintiff's immediate concern is to protect his residence from any further land slippage. There is some dispute as to the existence of any such risk and the extent of it, and whether the remedial measures proposed by the plaintiff are indeed justified.
The defendant is the body corporate of a community land title scheme. It controls an area of land on behalf of a number of persons who have built residences on the uphill of the plaintiff's residence.
In 1989 the defendant altered the natural slopes of the land by cutting into the hillside to create a walking track on the slope above the plaintiff's residence. There is located in the area, also, a sewerage tank which services the residents of the persons involved in the community title scheme. The walking track operates something of a catchment and a conduit for the stormwater run-off.
Mr Priestly, of counsel on behalf of the defendants, refers me to the geotechnical report of Mr Chen, a engineer, which is Exhibit KC1 to his affidavit. He carried out site inspections on 15 May and 23rd June 2004. This consisted of a walkover survey, mapping of topographical features, reference to a geological map for the Cairns region, and soil analysis, particularly in areas of previous land slips.
He expressed the following opinion:
“Although the factors of safety against a large-scale failure on the lower slope which may impact on the house are considered to be adequate, the factors of safety against the further instability within the failed area are considered to be inadequate.
A significant volume of slipped debris is present on the upper slope berm above the stone-pitched wall. This debris has not only blocked the drain above the stone-pitched wall (which is of critical performance to the performance of the stone-pitched wall) it is imposing additional surcharge on the stone-pitched wall. Immediate action should involve removal of all slipped debris from the slope above the berm and on the berm.
Following clearling of the slipped debris the potential for further slips, slumps, to occur on the slope above the berm will remain high. Ongoing clearing of slipped debris will have to be accepted by the owner otherwise stabilisation of the slopes above the berm, using soil nails or rock nails, will need to be carried out.”
So whilst the main danger appears to be presented by debris from previous slips, the impression I am left with is that the land in the area is susceptible to slippage. I am well aware that the occurrence and the extent of slippage is very difficult to predict.
Mr Perry, engineer, advocated the construction of a cut-off drain as necessary to provide improved slope stability and scour control. There have been meetings between the plaintiff and residents involved in the community title scheme about appropriate drain formation.
Engineering opinion differs as to the effects of run-off and what are the appropriate remedial measures. In an attempt to resolve these issues I directed, by order on the 9th of December, that the engineers confer on-site to see whether there is some common ground as to the remedial measures necessary.
From all of this it is clear that there is a serious issue arising between the parties to be tried. No argument is raised against that.
The next consideration is whether, in the balance of convenience, the orders sought by the plaintiff ought to be made, to the extent that the orders sought involve work being undertaken on the land of the defendant when there has been no final determination of the issues about the effect of storm-water run-off and remedial measures may seem intrusive or even harsh. But I have to weigh that fact against the potential for quite serious damage to the plaintiff's down-slope residence. Given what has happened already that appears to me to be quite a serious risk.
By contrast the use to which the altered land of the defendant's is put is as a walking track. If there is inconvenience to the residents of the community title scheme by the work having to be undertaken on or adjacent to the walking track that seems to me to be minor compared with the serious risk that could confront the plaintiff.
On balance, then, it does seem to me that the remedial measures proposed by the plaintiff ought to be undertaken with the safeguard that the engineers engaged on behalf of the defendants will have some oversight as to what is proposed and the parties will have the opportunity to come back to the Court if there is significant disagreement between the engineering experts.
The alteration that is proposed to the defendant's land is something that seems to me to be capable of being rectified should the alterations made prove to be unjustified. Whatever consequential damages flow from this incursion into the defendant's land can be made good both by an order for rectification, if necessary, and the payment of monetary damages. The plaintiff's undertaking as to damages is sufficient, in my view, to cover both those alternatives.
The counsel on behalf of both parties have agreed, and in the light of my having indicated my preparedness to make orders that a drain be constructed on the defendant's land, upon the terms of that order. I will make orders in terms of the draft which is now initialled with me and placed with the papers.