Davies v Gold Coast City Council

DISTRICT COURT OF QUEENSLAND

CITATION:	Davies & Ors v Gold Coast City Council [2021] QDC 135
PARTIES:	MATTHEW GEORGE DAVIES and TINA JAYNE DAVIES (first plaintiffs) and DAVID LEO FITCH and RACHEL KAREN FITCH (second plaintiffs) v GOLD COAST CITY COUNCIL (defendant)
FILE NO:	BD No. 2721 of 2019
DIVISION:	Civil
PROCEEDING:	Trial
ORIGINATING COURT:
DELIVERED ON:	9 July 2021
DELIVERED AT:	Brisbane
HEARING DATE:	17 – 21, 24, 25 August and 12 October 2020
JUDGE:	Jarro DCJ
ORDER:	There will be judgment for the plaintiffs.  I will hear from the parties as to the form of the order and costs.
CATCHWORDS:	REAL PROPERTY – EASEMENTS – PARTICULAR EASEMENTS AND RIGHTS – OTHER EASEMENTS – where the servient tenement is subject to a utility easement for a stormwater pipeline – which structures are within the purview of the easement agreement. TORTS – NUISANCE – PRIVATE NUISANCE – WHAT CONSTITUTES AND GENERALLY – where the plaintiffs have been unable to use their backyard as contemplated when purchasing the property – the obligations in nuisance which attach to the right of use and maintenance of a utility easement TORTS – NUISANCE – PRIVATE NUISANCE – REMEDIES – INJUNCTION – where a faulty stormwater pipeline within an easement has caused damage to the servient tenement – where sinkholes and subsidence have damaged the plaintiffs’ landscaping and accompanying structures – whether the plaintiffs are entitled to an injunction to for repair, remediation and/or removal works – whether, in the alternative, the plaintiffs are entitled to damages for their loss TORTS – NUISANCE – PARTIES – WHO MAY BE LIABLE – OCCUPIER, OR CONTROLLER OF PREMISES, NOT CREATING NUISANCE – where Council did not construct the faulty pipeline but entered into an easement instrument with the owners of the servient tenement – whether persons who did not create, but fail to stop, a nuisance are liable.
LEGISLATION:	Local Law 17 (Maintenance of Works in Waterway Areas) 2013 (Qld) Local Government Act 2009 (Qld) District Court of Queensland Act 1967 (Qld)
CASES:	Brown v Jackson [2015] QSC 355 Turner v Kubiak [2020] QDC 223 Sutherland Shire Council v Becker [2006] NSWCA 344 Mount Cathay Pty Ltd v Lend Lease Funds Management Limited [2013] 1 Qd R 528. Jones v Pritchard [1908] 1 Ch 630 Comserve (No.1877) Pty Ltd v Wollongong City Council [2001] NSWSC 302 Southern Properties (WA) Pty Ltd v Executive Director of Department of Conservation and Land Management [2012] WASCA 79 Hargrave & Ors v Goldman (1963) 110 CLR 40 State of Queensland v Michael Vincent Baker Superannuation Fund Pty Ltd [2019] 2 Qd R 146 Warne v Nolan [2001] QSC 53 Dimitrios Michos & Anor v Council of the City of Botany Bay [2012] NSWSC 625
COUNSEL:	M D Ambrose QC with S M McNeil for the plaintiffs K S Howe with R Nichols for the defendant
SOLICITORS:	Short Punch & Greatorix for the plaintiffs OMB Solicitors for the defendant

1. Sinkholes and subsidence issues have plagued a canal front property at 49 Dogwood Drive, Palm Beach (“the property”) for a significant period of time.  The first plaintiffs and second plaintiffs, who are relatives, have jointly owned the property since 23 November 2012.  The first plaintiffs and their four children continue to reside at the property.  There is a drainage easement over part of the property in favour of the defendant which carries a pipeline for the defendant’s stormwater system.  Due to the ongoing occurrence of sinkholes and subsidence at the property and what the plaintiffs contend is the inability of the first plaintiffs’ family to sufficiently live in and use their property, the plaintiffs have principally sought injunctive relief against the defendant for nuisance and/or breach of the terms of the easement.

2. A significant focus of dispute between the parties is who bears ultimate responsibility for the part of the plaintiffs’ revetment wall from which the defendant’s pipeline exits from Dogwood Drive into the canal.  Before resolving this significant issue and other pressing issues between the parties, it is necessary to set out some of the factual circumstances giving rise to this proceeding.       

The Property

3. In 1977 the defendant approved a residential housing estate within which the property is located.  A house was constructed on the property by the original owner Mr David Richards.  In November 2012, the plaintiffs purchased the property from Mr Richards.  The first plaintiffs have resided on the property since then. 

4. The property is one which backs onto a canal and is accessible from Dogwood Drive, Palm Beach.  It occupies an area of 767m², which is approximately 19.5 metres in width and 40 metres in length.  

5. Located on the property is a two storey dwelling consisting of five bedrooms, two bathrooms, a kitchen, a dining room, a living room, a study, a sunken lounge room, a media room, a family room with a built-in bar and a double garage (“the house”).  There is an outdoor covered entertaining area adjoining the house and overlooking the canal. Located on the property is a concrete in-ground swimming pool.

6. The property is burdened by a stormwater easement in favour of the defendant. Situated within the easement is the defendant’s stormwater pipe which is connected to another stormwater pipe constructed under the road of Dogwood Drive and transports stormwater from the road pipe out into the canal.  The easement is granted for drainage purposes.  The easement runs along the eastern boundary of the property and is four metres in width.  Within the easement, and located underground, is the pipeline which allows the stormwater to exit the pipe from Dogwood Drive into the canal.

7. Adjacent to both the canal and swimming pool is a block retaining wall (“the retaining wall”).  The retaining wall is the responsibility of the owners.  It was constructed prior to the plaintiffs’ purchase of the property.  The defendant says the retaining wall has never been approved.  It is nine metres in length, 0.8 metres in height, and constructed of besser blocks.  It sits adjacent to a revetment wall which sits and runs adjacent to the canal and the swimming pool.  In other words, the revetment wall runs along the entire width of the property.  There is a boundary brick wall constituting a fence between the property and the neighbouring property at 47 Dogwood Drive.  The boundary brick wall sits on and runs along the entire eastern boundary of the property (“the boundary fence”).  

The Easement

8. The property has been the subject of a drainage easement since December 1978.  It is accepted by the parties that the property was burdened by the easement and the defendant has enjoyed the benefit of it.  The terms of the easement provide:[1]

   “… DO HEREBY GRANT AND TRANSFER to Grantee [defendant] an Easement for drainage purposes over the servient tenement AND the Grantor and the Grantee DO HEREBY MUTUALLY COVENANT AND AGREE as follows:-

   1.   For the purposes of this Grant of Easement the expression “for the drainage purposes” shall mean and include the full and free right and liberty to use the servient tenement for the conveyance of stormwater or other water through across or under the servient tenement together with the right at all times and from time to time to enter upon the servient tenement for all purposes incidental to the construction use and maintenance of the drainage works and thereafter forever to use and maintain sewers drains or pipes in connection therewith.

   2.   The Grantors and all persons claiming under or through them shall at all times therafter at the request of the Grantee and persons claiming through the Grantee do all such acts and execute all such further instruments as maybe reasonably required to perfect this Easement.”

   [1]Exhibit 1, pages 853 – 855.

9. There is no express obligation on the defendant to maintain and repair, though the terms of the easement expressly authorises it to do so.  The plaintiffs do not proceed against the defendant upon an obligation contained within the easement to maintain and repair, though they do rely on the easement granting the defendant access to the property to carry out those functions so as to prevent unreasonable interference or physical damage.  Moreover, the plaintiffs assert that the easement does not authorise the defendant to either:

   (a)unreasonably interfere with the plaintiffs’ use and occupancy of the property; or,

   (b)to cause, create or contribute to any physical damage of the property.[2]

   [2]Fourth Further Amended Statement of Claim, [13].

10. The defendant contends that the terms of the easement do not impose any obligation on the defendant to make good any damage to the easement caused by reason of the existence of the pipe or any part of the outlet structure as alleged by the plaintiffs.  Instead, the limit of the defendant’s obligation with respect to the easement when carrying out maintenance on its pipe is to carry out only that work which is reasonably necessary and to do so in a reasonable manner.[3]  It was submitted at trial by the defendant that the terms of the easement did not prevent the plaintiffs from maintaining or repairing their own land (and wall) for themselves or from stabilising the soil within the easement land for themselves had they chosen to do so.  The only limitations upon the plaintiffs’ use of the easement land was to the extent that such works interfered with the defendant’s own full and free right to use the land for the purpose of conveying stormwater and from undertaking any construction or maintenance with respect to the defendant’s pipe on the land.  I will return to these matters later, however in the meantime, it is necessary to discuss some of the technical aspects of what is physically contained within the easement, the pipe, the pipe outlet and other relevant parts in the immediate vicinity of Dogwood Drive as it relates to the defendant’s stormwater system.       

    [3]Hare v van Brugge (2013) 84 NSWLR 41, 48.

The Defendant’s Pipeline and the Plaintiffs’ Walls

11. It is not in dispute between the parties that:

    (a)a concrete pipe (consisting of a number of smaller pieces of concrete reinforced stormwater pipe joined together) some 43 metres in length, and of 675 mm in diameter, constructed approximately 40 years ago, is buried in the ground and runs along the entire eastern boundary of the property from Dogwood Drive to the canal, and immediately adjacent to the boundary fence and the house (“the pipeline”);

    (b)the pipeline carries stormwater from the defendant’s stormwater system, through the pipe and allowing it to discharge from the pipe into the canal, through a pipe stormwater outlet (“the pipe outlet”);[4]

    (c)there is a concrete apron which abuts and sits below the wall;

    (d)there are two concrete wing walls which abut the wall and concrete apron;

    (e)the defendant owned, and is responsible for, the maintenance and repair of the pipe and the concrete apron;[5]

    (f)the pipeline would have been contained within a trench which would have contained compacted bedding and haunch zones and then a section of compacted fill to above the top of the pipe.[6]

    [4]The defendant has pleaded “the pipe outlet” is the end of the pipe which terminates at the canal and that the pipeline does not include “the pipe outlet structure”: Fifth Amended Defence, [12AB] and [12A].

    [5]Fifth Amended Defence, [6B(b)] and [6B(c)].

    [6]Exhibit 1, page 703. 

12. What is controversial between the parties is what comprises the pipeline and the extent of the pipe outlet structure.  Same in turn determines the responsibility of the parties.  In this respect, I was assisted with expert engineering evidence of which I shall refer to later.  It is suffice to note at this juncture that the plaintiffs have contended that the pipe outlet structure comprises:

    (a)a headwall on the same alignment as the revetment wall, through which the concrete pipe penetrates and at which point the pipe empties onto the concrete apron;

    (b)a cut-off wall which extends under the pipe outlet;

    (c)a concrete apron which abuts and sits below the concrete pipe outlet and between the concrete wings;

    (d)two concrete wings which abut the concrete pipe outlet and the concrete apron, which sit either side of the concrete pipe outlet.[7]

    [7]Fourth Further Amended Statement of Claim, [14(i)].  Although a cut-off wall was not pressed at trial. 

13. The defendant has contended that the entire wall is the plaintiffs’ responsibility and the defendant is responsible for the pipe alone.  It has been submitted that the headwall is a section of the revetment wall through which the pipe penetrates which also:

    (a)continues to serve the function of the revetment wall for the property to prevent subsidence, retain the plaintiffs’ land, hold back tidal water and protect the plaintiffs’ land from erosion;

    (b)continues to remain the responsibility of the plaintiffs to maintain (that is the revetment wall is the responsibility of the plaintiffs as it is located within and extends across the entire northern boundary of the property);[8] and,

    (c)does not alter its function as a revetment wall merely because it facilitates the exit of the defendant’s pipe from the plaintiffs’ land to the canal.[9]

    [8]Fifth Amended Defence, [4A(aa)] and [4(b)].

    [9]Fifth Amended Defence, [12A(b)].

14. Further if there is a “cut-off wall”, the defendant has submitted that the plaintiffs are responsible for it and rely upon provisions of the Gold Coast City Council’s Local Law 17 (Maintenance of Works in Waterway Areas) 2013 (Qld) to demonstrate that it is not its responsibility.[10]  Whilst the defendant accepts that it owns and is responsible for the pipe including the maintenance and repair of the pipe, contrary to the plaintiffs’ suggestion, it alleges it has no responsibility for that part of the revetment wall through which the pipe exits.  Moreover the contention is there is no basis at law for the assertion that, the part of the revetment wall through which the pipe exits, either vests in, or becomes the property or responsibility of the defendant upon its construction or at any other time and, importantly, the plaintiffs are responsible for maintaining their own property which includes the whole of the revetment wall.

    [10]The subordinate legislation was enacted in July 2013.

15. Whether a headwall or revetment wall, the plaintiffs seek a finding that it is the defendant’s responsibility and, as such, is properly the property of the defendant and was unarguably (at least prior to July 2013 when the Gold Coast City Council’s Local Law 17 (Maintenance of Works in Waterway Areas) 2013 was enacted), the responsibility of the defendant as much as the pipe, concrete apron and two wing walls were.  The headwall is an essential element of the stormwater system contained within the easement because the headwall performs the essential task of:

    (a)permitting the pipe to terminate and disgorge water through it;

    (b)protecting and retaining the engineered bedding, haunch and fill layers contained within the trench pipe.

16. I will return to some of these issues when it is convenient to do so.      

17. To further complicate the factual and legal nuances associated with this matter, the pipe exits the plaintiffs’ retaining wall which runs adjacent to both the canal and the swimming pool.  The wall:

    (a)is approximately nine metres in length;

    (b)is approximately 0.8 metres in height;

    (c)is constructed of besser blocks; and

    (d)sits adjacent to the revetment wall, running the entire width of the property.[11]

    [11]Fourth Further Amended Statement of Claim, [5(c)(v)], as admitted in the Fifth Amended Defence, [1].

18. The parties are in dispute as to whether the retaining wall was actually approved by the defendant. 

19. No specific approval plans regarding the retaining wall were furnished at trial.  The male first plaintiff Mr Matthew Davies said that he was told by Mr Richards at a pre-purchase inspection of the property that the retaining wall was approved.  Mr Davies recalled that at the time of the second inspection, Mr Richards told him the wall was “engineered designed and approved”.  Mr Richards provided Mr Davies with a manila folder of documents pertaining to the property.[12]  Mr Richards however was not called to give evidence at trial.[13]  The plaintiffs instead rely upon relevant documents to support a finding that the retaining wall was approved by the defendant.[14] 

    [12]Exhibit 3.

    [13]The plaintiffs had difficulty serving a subpoena upon him in order for him to give evidence.

    [14]Exhibit 3.

20. The plaintiffs also rely upon the evidence of neighbour Mr Ken Teakle, who was called at trial and was the individual who constructed the retaining wall and the brick dividing fence between his property and the property.  Mr Teakle is a registered builder and qualified bricklayer. 

21. Mr Teakle’s recollection was that the retaining wall was approved and he constructed it in accordance with the plans.[15]  He said he was engaged by his friend and neighbour, Mr Richards in about 1982, to construct the retaining wall.  He did so and was paid accordingly.  Mr Teakle outlined the process of his construction of the retaining wall.  Relevantly, Mr Teakle viewed what he described as the approved plans from the defendant.  They were approved because he recalled that they were stamped by Council.  He had seen the stamp on the plans that he worked from.  The plans were for the design of the blockwork and construction work and he accordingly built the wall in accordance with those plans.  He recalled Mr Richards giving him a copy of the plans.  He also recalled that the details of those plans identified the size and width of the footings, depth, and placement of the steel and starter bars.  At the time when he constructed the retaining wall, he remembered nothing else being on the property, including the dwelling itself.  The pool was not constructed at that stage.

    [15]It was unclear to me though from Mr Teakle’s reference to “approved plans” whether it related to exhibit 3 or any of the documents in exhibit 8.

22. Mr Teakle remembered being at an inspection conducted by a representative from Council who viewed the placement of the steel before concrete was permitted to be poured.  He recalled the Council representative was a person by the name of Larry Potter.  He was clear about this recollection.  Mr Teakle said that once the placement of the steel was approved, concrete was poured into the footings and the blockwork commenced.  Thereafter another inspection took place by the same inspector.  Mr Teakle was present at this inspection as well.  He was not present for any further inspections.  Mr Teakle denied the proposition that he was mistaken as to seeing an approved plan.[16]  Mr Teakle explained that the retaining wall was behind the revetment wall.  He also explained that he did brickwork on the dwelling and the boundary fence.  When Mr Teakle commenced building his own house, he constructed the retaining wall in accordance with what were his approved plans (of which he said he still retained a copy to date).  He explained his retaining wall abutted the neighbour’s retaining wall in that they were side by side. 

    [16]T3-17.

23. In about February 2012, a search was conducted of the records the defendant held with respect to any building applications lodged with it for the property.  The search revealed that documents were held by the defendant regarding three building approval applications lodged by the previous owner and granted in respect of the property, namely:

    (a)the dwelling (BA81/513) in 1981;

    (b)the swimming pool (BA81/557) in 1981;

    (c)alterations/extensions to the dwelling (89/5163) in 1989.[17]

    [17]Exhibit 1, pages 1054 – 1062 and exhibits 9, 31 and 34. 

24. The defendant submitted that these records demonstrated that:

    (a)the building application and permit 81/513 was an application to build a house, not a retaining wall;

    (b)the plans for the house state that no portion of the building was to encroach on the easement;

    (c)the document setting out the information to be attached to the building application identified that three copies of structural drawings for structural members constructed of reinforced concrete including retaining walls were to be provided to Council;

    (d)the Gold Coast City Council Schedule of Standard Building Conditions provided that for retaining walls exceeding 600 mm, details must be approved by the defendant prior to excavation and/or construction;

    (e)building application and permit 81/557 was a permit to construct a pool, not a retaining wall;

    (f)the plans for the pool state that no part of the pool was to encroach the easement;

    (g)the pool was constructed by 15 November 1981.

25. Just because no approved plans regarding the retaining wall were produced at trial does not preclude me from finding that the retaining wall was approved.  Despite Mr Richards not giving evidence at trial, I am prepared to act on Mr Teakle’s largely unchallenged evidence to find that building approval was granted by the defendant to the previous property owners to build the retaining wall.  Mr Teakle gave clear and persuasive evidence about his recollections of constructing the retaining wall.  He was specific about the requirements and details associated with its construction.  He recalled details of each inspection involving a Council inspector, by the name of Potter. 

26. If needed, the documentary evidence also supports to an extent an acceptance of Mr Teakle’s evidence that the defendant had been aware of the retaining wall.  For instance, the approval to alter the dwelling (BA89/5163) reveals the presence of the retaining wall.[18]  Those plans to alter the dwelling were approved.  Earlier on, the original approval for the dwelling (BA81/513) showed the approval checklist list which noted, among other things, the retaining wall section as having been ticked.[19]      

    [18]Exhibit 34.

    [19]See exhibit 1, page 1055.

27. I do not act upon Mr Davies’ hearsay evidence regarding Mr Richards informing him prior to the purchase that the retaining wall had been approved by Council.  Mr Davies, who is a qualified builder however, suggested among other things, that the drawing in respect of the swimming pool approval was consistent with there being a retaining wall present.[20]  That evidence is consistent with the earlier evidence upon which I am prepared to act but I have treated that part of Mr Davies’ evidence with some caution given he is not an independent witness.    

    [20]Part of exhibit 9.

28. Further there were a number of occasions throughout the trial where a call for production of many documents was made upon the defendant and none of those documents were produced.  As such I was not entirely confident that all documents concerning this action were readily available.  The inference is therefore open that the records held by the defendant are inconclusive such that records pertaining to an approval of the retaining wall could have been misplaced or lost.  Also, despite the defendant’s suggestion to the contrary, evidence was led at trial about the existence of other retaining walls within the Gold Coast locality having been constructed over drainage easements in favour of the defendant.[21]  For completeness I should add that I am not prepared to act on the evidence of the searches undertaken by Mr Martin Roberts, a senior development compliance officer for the defendant, as he caused someone else to perform the searches and did not conduct them himself.  That has therefore caused me to have little confidence in his evidence about the existence or otherwise of approved plans held by the defendant.               

    [21]See exhibits 30 and 27.

29. I find that the retaining wall was approved when it was constructed. 

30. In any event, as was submitted on behalf of the defendant, having no building application approval for the retaining wall to be built over the defendant’s pipe in the manner so constructed is only one factor for consideration in this trial.  Other considerations which require exploration include whether the retaining wall has breached the terms of the easement, what the parties’ obligations are regarding the property and easement, who bears the cost of rectification and for what works (and the like).  Before considering these matters, it is necessary to deal with the lay evidence to illuminate why this matter has become the subject of litigation between the parties.         

The Davies Family

31. Mr Davies is a builder by occupation.  As stated, in November 2012 he and his wife became the registered owners of the property as joint tenants in common in equal shares with the second plaintiffs.  The first plaintiffs live at the property with their four children. 

32. Shortly prior to acquiring the property, the first plaintiffs were looking for a larger house with more space.  Mr Davies said they were after a house to renovate and the property appealed to them because of the sandy beach front, larger yard, swimming pool, it had a larger house and it was within the current school catchment area particularly for their two eldest children who were nine and 14 at the time of the house purchase.  Mr and Mrs Davies’ youngest two children were two and four at the time.

33. Mr Davies had about two inspections including with the original owner of the property, Mr David Richards, prior to entering into the purchase of the property with the second plaintiffs who are his sister and her husband.  He was aware there was an easement over the property.  The existence of the easement did not concern him. 

34. At the first inspection, Mr Davies noticed the block retaining wall which was behind a brick veneer wall.  Mr Davies would go on to perform the building inspection (given he is a builder) and to prepare the building report.[22]  Relevantly the building report noted under the section dealing with “retaining walls”:

    “Brick veneer on rear retaining wall being pushed away from structural retaining wall by tree roots growing into the cavity and forcing brick veneer.  Poses safety risk as fence is attached to the described wall.  Prompt rectification is advised which would require the removal of several large palm trees and the removal of the brick veneer wall.”[23]

    [22]Exhibit 1, pages 1081 – 1090.

    [23]Exhibit 1, page 1085.

35. The report also noted “brick fence at rear left side of property attached to above mentioned retaining wall has pulled away from brick pier”.[24]

    [24]Exhibit 1, page 1085.

36. At the second inspection, Mr Davies saw a metre section of the garden that looked like it had been replaced and did not look consistent with the rest of the garden.  He asked Mr Richards what happened there and said he was told “The Council came out and did some repairs on the pipe” and “[i]n future, they’re going to come back and reline the pipe”. [25]  Mr Davies was “comforted” by these statements.  The defendant highlighted that no independent enquiries were made with the defendant at that time as to what had happened with the area or why the pipe needed to be relined or when the pipe was scheduled to be relined.  It was also raised by the defendant that no independent enquiries were made by Mr Davies in order to ascertain whether the retaining wall was approved or whether advice was sought from a structural engineer.  Instead the plaintiffs elected to proceed with the purchase.  They initially sought a reduction in the purchase price of $5,000 and then withdrew that request and proceeded to waive the benefit of the building inspection clause and ultimately settled on the purchase.[26]

    [25]T1-39.

    [26]Exhibit 1, pages 965, 968.

37. In January 2013, Mr Davies removed the brick veneer wall of the retaining wall, which he had earlier identified in his building report.  During that, he discovered that over the part of the easement, the wall “had sunk down over the top of the pipeline and there were cracks in the retaining wall”.[27]   Mr Davies then contacted Council in about late January 2013 and following a further approach to Council, a representative (Mr John Stehmann) visited the property.  Mr Davies said he spoke to Mr Stehmann and told him the pipe (or the work on the pipe the year prior) had “undermined the [retaining] wall”.[28]

    [27]T1-43, lines 19 – 20. 

    [28]T1-43, lines 41 – 43.  Mr Davies is not an engineer and any opinion as to causation is to be disregarded. 

38. In around early 2013, Mr Davies also noticed sinkholes appearing in and along the roadway of Dogwood Drive.[29]  Mr Davies made complaints about this to Council.[30]

    [29]T1-47, lines 43 – 46. 

    [30]Exhibit 1, pages 971, 972.

39. After some rain in April 2014, Mr Davies noticed that the corner of the property had “sunk”.   There was further subsidence in the rear garden.  A stormwater engineer from Council, Mr Matt Richardson, attended the property and explained to him that Council had finished relining the pipe and they were going to “come back and recompact the easement”.[31]  Mr Davies raised the cracks in the retaining wall with Mr Richardson who apparently was not aware there was a retaining wall on the property.  The defendant had previously relined the pipe.  Various exchanges were made between the parties prior to the defendant engaging its own lawyers for representation, including Mr Richardson emailing Mr Davies advising that he was “taking on the investigation into the matter at 49 Dogwood Drive”.[32]  Mr Davies was requested to put in writing why the defendant was responsible for the retaining wall.[33] 

    [31]T1-48, line 35.

    [32]Exhibit 6.

    [33]Mr Davies sent his letter to Council in July 2014: see exhibit 1, page 1122 (and 1012) and T1-48 to T1-49.

40. Mr Davies recalls that a senior compliance officer Mr Martin Roberts attended the property in October 2014 and advised him that the retaining wall was not approved.  He then requested building plans from the local Council office and obtained copies of the plans Council had available.  None of those plans revealed a specific documented approval with respect to the retaining wall.

41. It seems that steps, according to Mr Davies, were then taken to attempt to address the issue with Council but ultimately the steps were unsuccessful. 

42. In January 2015 when Mr Davies was moving the lawn at the property, his foot went into a sinkhole, the depth of which proceeded halfway up his shin.

43. Mr Davies said that a show cause notice was issued by the defendant to the owners regarding the retaining wall on 13 March 2015.[34]

    [34]Exhibit 1, pp 1139 – 1143.

44. Mr Davies then attempted to organise the local councillor to facilitate the issues surrounding the property.  The local councillor organised an on-site meeting on 31 July 2015. 

45. The on-site meeting comprised of the defendant’s lawyer, a Council employed engineer, an independent engineer Mr Kelvin Borkowsky, as well as Mr and Mrs Davies and Mr David Finch (the male second plaintiff).[35] 

    [35]T1-61.

46. Discussions were had regarding the cause of the problem following the on-site meeting and, Mr Davies said, a report was to be furnished by Council.  Mr Davies indicated that he has never received any written report identifying the problem following the on-site meeting.  At the meeting, Mr Davies assumed that Mr Roberts would be in attendance (and rightly so given Mr Roberts issued the Show Cause Notice) however Mr Roberts did not attend.  He “forgot”.  A letter of apology was forwarded from Mr Roberts for his non-attendance.[36]  Mr Davies accepted that he was told by the defendant that the retaining wall was his responsibility and that the defendant was willing to rectify the area once the retaining wall was properly reinstated and approved.  He said, however, that there was no contact from the defendant following the on-site meeting. 

    [36]Exhibit 14.

47. The parties are now at an impasse and sinkholes continue to develop to the present day.  Mr Davies continues to fill some of them with either crusher dust or soil. 

48. Since moving onto the property, Mr and Mrs Davies have carried out a variety of renovations. Some $50,000 to $60,000 has been spent on renovations to date which has extended to carpeting, painting and some renovations to the bedrooms at the front of the dwelling, a bathroom and the powder room downstairs.  To this day however, the renovations remain incomplete despite the Davies family’s desire to “fully modernise” and renovate the house when they purchased it.  For instance, Mr Davies has pulled up the flooring in the entry and across the bedroom side of the house and has started some tiling but has been unable to complete it.  There is blue plastic floor covering over those parts of the dwelling and exposed bare concrete on the floor.[37]     

    [37]See for instance exhibit 22. 

49. Mr Davies spoke about the effects on him and his family, particularly that of his wife, regarding the state of the house.  As a result of the subsidence, the Davies children were not allowed to go near the affected area.  Mr Davies said “we drummed it into them” because of the randomness of where the sinkholes would arise.  That “family rule” was set in early 2015.

Mrs Davies

50. Mrs Davies is a primary school teacher.  At the time of trial, her children were 10, 12, 17 and 22.  Mrs Davies spoke about the effects of the inability of herself and her family to have the full use and enjoyment of the property. 

51. Like they had done so in their previous house prior to moving into Dogwood Drive, the Davies family planned to continue socialising and entertaining family and friends in their new dwelling, in the manner in which they were accustomed, as it was larger than their old one.  They used to regularly host family and friends.  Unfortunately because of the subsidence issues, the regular gatherings of family and friends ceased.

52. They were attracted to the property for a number of reasons.  Mrs Davies described her boys were getting older and needed more area in the yard to play.  She and her husband were originally encouraged by the house given its size; namely that it had five bedrooms and the openness of the floorplan of the house including the external areas.  She was able to work within the living areas whilst her children, for example, were outside playing in the yard.  Initially the family set up a trampoline beside the pool area and a basketball hoop on the side of the house adjacent to the easement area.  The kids, she said, would use that area every day especially in the summertime.

53. Upon moving into the property she said that, in a number of rooms the carpets were old and required replacement, and the garden needed some maintenance which included the removal of trees close to the property and boundary (on the easement side). 

54. At the time of purchase, Mr and Mrs Davies had planned for renovations by what Mrs Davies described as a “facelift” which included new carpets and painting. 

55. The gathering of family and friends ceased immediately after the Davies family experienced safety concerns.  In addition to the safety concerns, which Mrs Davies referred to as the sinkholes and the fear that people might injure themselves, the state of the yard and house was in disarray and “embarrassing”.  It was evident that that impacted Mrs Davies adversely.  The disarray and embarrassment has increased over the years since the problem first started.  Mrs Davies described it as “wearing you down”.  She was emotional at times when giving her evidence.      

56. She said sinkholes first developed in 2013 from the road, as well as subsidence in the back corner of the property on the easement side.  More sinkholes appeared on the property from the beginning of 2015.  Consistent with her husband’s evidence, Mrs Davies described her husband mowing in an area located off the side of the veranda and having stepped into a sinkhole.  She described the depth of the sinkhole as “alarming”.  Thereafter the Davies children were not allowed to traverse that area anymore and so they moved the trampoline and basketball hoop to the front of the house.  Mrs Davies said the difficulty with moving the outdoor activities to the front of the house, was that it requires constant parental supervision.  Her children are only allowed to play at the front of the house when they are properly supervised and that requires her having to sit and supervise whilst they play, as opposed to tendering to work and home duties.  She said the children have suffered and played less because of her demands as a full-time working mother.  The emotional impact has remained a constant.  Mrs Davies described her children as not being “free” and she and her husband’s desire was for them to not play on the Xbox.  The children are, according to Mrs Davies, “dying for a pool party” but they simply cannot do that.  After all, they bought the property with the intention to entertain and have the children outside however that is simply not sustainable.  She feels “sad for them”.  She cannot relax.  She prefers not to socialise at the property.  The only people who attend are family and they only really attend to celebrate birthdays. 

57. She described in her evidence the areas within the house that have been renovated and which have not been renovated or indeed partly renovated.  Regarding the partial renovations, those have been incomplete for five years.  Mr and Mrs Davies’ decision to stop renovating is because of their concerns with finances.  She described the outside of the property as being the main priority and the house as being very difficult to live in, in its current state. 

58. I found Mrs Davies’ evidence extremely telling particularly insofar as it related to the issues surrounding the first plaintiffs’ inability to enjoy their property.

Former Neighbour, Mrs Kelly May

59. Kelly May is a former neighbour of the Davies family.  She and her family lived beside them for a period of two to three years in another suburb.  She spoke about how often they socialised together both at their earlier property as well as the Davies’ new property.  The May and Davies families would go over to each other’s houses generally once a month to socialise over a barbeque and drinks.  She observed that the children initially played on the trampoline which was located next to the pool on the grassed area.  This is consistent with Mrs Davies’ evidence.  Initially they would also socialise around the pool area if it was warm.

60. There has been a change in frequency in the time the families now socialise.   These days it is less regular and involves the adult parents, where generally they socialise at places other than the Davies’ property.  On the infrequent occasions when they go to the Davies’ property, they are generally in the lounge room.  Mrs May has observed the Davies’ children to be in the pool on some of those occasions but not in the backyard.  This has been ongoing for quite a few years.

Neighbour, Mr Ken Teakle

61. Ken Teakle, a registered builder and qualified bricklayer, has been the owner and occupier of the house adjoining the property.  Mr Teakle’s house is adjacent to the easement.  Mr Teakle’s evidence, in addition to that recounted earlier in these reasons regarding the construction of the retaining wall, was that he knew the original owners of the property, David and Gail Richards.  They were neighbours for approximately 25 years before the Richards family sold to the current owners. 

62. When Mr Teakle commenced building his own house, he constructed the retaining wall in accordance with what he said were approved plans of which he said he still retained a copy to date.[38]  He explained his retaining wall abutted the Davies’ retaining wall in that they were side by side. 

    [38]It is unclear whether Mr Teakle’s approved plans for the retaining wall were similar to the approved plans pertaining to the plaintiffs’ wall.  

63. Following the presence of a sinkhole within his property, he has filled it but describes the hole as getting “washed away”.  He complained about his sinkhole issues in about June 2016 to the defendant through a local Gold Coast councillor.

64. Under cross-examination, Mr Teakle accepted, not unsurprisingly, that he has an interest in the outcome of this matter.  

Other Lay Evidence

65. There is other evidence given largely by representatives of the defendant in respect to their dealings with the property and the defendant’s stormwater system along Dogwood Drive.  I intend to deal with that evidence now (and later when discussing some of the technical engineering features pertinent to this matter). 

66. There were sinkhole and subsidence issues on the property and its surrounds even prior to the plaintiffs’ purchase of the property in November 2012.

67. Mr Daniel Cybulski is a maintenance officer for Council.  Mr Cybulski gave evidence and recalled that he attended the property on a number of occasions between 2009 and early 2012, probably three or four times, in order to inspect “the lines”.  The “lines” relate to the various pipes underground.  The pipes included the stormwater pipe which runs along the easement, as well as the pipes on Dogwood Drive.  Mr Cybulski discussed the process of inspection and repair of the Council pipes. 

68. Notably prior to early 2012, Mr Cybulski was required to attend the property in relation to the presence of “soft spots”.  In that period, Mr Cybulski:

    (a)observed small voids, soft areas and minor infiltration through the joints of the pipe;

    (b)applied MaxPlug to the joints such that there was no longer a need for repair and compacted the voids;

    (c)did not keep a record as to when he applied MaxPlug and to which joint because it was not a major issue and it is otherwise a small standard practice to repair joints.[39]

    [39]T3-62, lines 1 – 7. 

69. Mr Cybulski was present in January 2012 when the presence of the soft spots became more prominent.[40]  He observed the rear garden of the property to have collapsed.[41]  He realised there was something major going on within the easement.[42]  He said:

    “….Yeah, so this was the time I think we went out there and first relayed there was something major going on within the easement of that property.”[43]  

    [40]See for example exhibit 25, the photograph taken by Mr Cybulski’s supervisor, Mr Rob Gray.

    [41]T3-46, lines 3 – 13.  See also exhibit 1, page 964.

    [42]T3-46, lines 3 – 5. 

    [43]Ibid.

70. Under cross-examination, Mr Cybulski accepted that on 27 January 2012 there were two complaints made regarding the property.  The first related to “a drain outside of the property ‘sucking’ soiling into drain and is collapsing garden”.  The second complaint was in relation to “also, potholes collapsing on road”.[44]  He explained that at high tide, seawater can travel from the canal to the manhole at the street of Dogwood Drive.  He described observing a joint displacement of between 25 to 50mm which he said he had not seen previously in the pipe in any of his prior attendances.  He applied MaxPlug to repair it and then undertook a further follow up and repair with MaxPlug after a number of oysters had been removed within a two week window of the issue being identified.[45]  Mr Cybulski said that it was standard practice to apply MaxPlug and if MaxPlug would not be effective for repairs, the pipe would be placed on the defendant’s reline program.  As it transpired, Mr Cybulski was involved in the relining of the pipes which occurred between February and March 2014. 

    [44]Exhibit 1, page 964.

    [45]T3-46 and T3-48.

71. Like Mr Cybulski, the defendant’s maintenance supervisor, Mr Rob Gray, attended the property a number of times prior to 2012.  Mr Gray attended the property in respect to what he described as “minor suck ins”.  During those attendances, there were no signs of major displacement within the stormwater pipe. 

72. Under cross-examination, Mr Gray could not recall whether he went out to the property in March 2009.  He said that there was a work diary.  The work diary would have been kept by members of his team.  Such members included a Stephen Thomas.[46]  However no records were furnished.  Mr Gray said MaxPlug was used on the pipe before 2009.  Mr Gray said that “…the line running through the easement had most of the repairs in that line done before 2009, so those repairs in that line were done well before 2009”.[47]    He said that complaints had been received prior to 2009 in respect of the pipe.[48]      

    [46]A call was made for the production of the work diary.

    [47]T4-12, lines 27 – 29. 

    [48]T4-12, lines 33 – 47. 

73. Mr Gray recalled that the last time he attended the property was in 2012 when he noticed the sinkhole (as referred to earlier) in the rear garden and observed that the retaining wall had a lean and there was a break in the revetment wall.  Mr Gray took the photographs of the area in January 2012.[49]  On that occasion, he saw structural damage to the retaining wall and the base of the pipe at the revetment wall.  There was some displacement in respect to the latter.  As a consequence of this, Mr Gray emailed Mr Brett Hames of the defendant’s City Assets because of what he perceived to be structural damage and his duties only extended to maintenance.  When structural damage is reported, observed or otherwise potentially observed, the matter is referred to City Assets given the Council’s budgetary constraints.  Mr Gray could not specifically recall a discussion on 27 January 2012 with Mr Brett Hames about the garden soil being compacted.  Mr Gray accepted that in February 2012, it was determined that no further action be taken.  He emailed Mr Hames on 8 February 2013 advising “against backfilling at this stage as the brick wall that supports [plaintiffs’] back yard and pool is bulging and could collapse if we try to fill the hole and compact.  This is not a simple fix”.[50] 

    [49]Exhibit 1, pages 1119 – 1121.

    [50]Exhibit 1, page 1118.

74. Mr John Stehmann is a senior drainage technician officer with Council.  He was part of the Council’s City Assets and he managed the defendant’s program for relining of major pipes that were failing within the Council district.  Pipes that were of a high priority were put on that list.  Mr Stehmann gave evidence about the factors needed for a relining of the Council’s pipes, which included viewing CCTV footage to ascertain whether the pipes required relining.  He spoke about the defendant’s relining budget for each year and indicated that Council prioritised relining for pipes if they were considered high priority.  He was able to produce spreadsheets pertaining to pipes placed on the relining program between the years 2012 through to 2014.  He said the spreadsheets evolved over time when new information was received regarding a pipe. 

75. Mr Stehmann said that he had no contact with the original property owner, Mr Richards.  He attended the property a couple of times after 27 January 2012.  On the first occasion, he noticed that there was a sinkhole, a fracture of the stormwater pipe, as well as minor displacement.  As a consequence of that, Mr Stehmann decided to place the pipe on the reline program.

76. He attended the property in about January 2013 and inspected the pipe and observed further displacement.  He explained that the pipe was relined between February and April 2014 and since the reline, no other work has been performed on the property to his knowledge. 

77. Senior compliance officer, Mr Martin Roberts, attended the property in October 2014.  Mr Roberts’ evidence was to the effect that he inspected the pipe and prepared a file note.[51]  Remarkably the file note was prepared one month after inspection of the pipe in circumstances where Mr Roberts did not make any written notes of his attendance concerning that inspection.  No engineering opinion was obtained by Mr Roberts regarding many of the matters contained within the file note.  The recommendation from the file note was “to issue a Show Cause Notice in relation to the unapproved and failed structure/s”. 

    [51]Exhibit 32.

78. A Show Cause Notice was issued to the plaintiffs in March 2015.[52]  Mr Roberts accepted in cross-examination that the Show Cause Notice did not specify any particular details regarding, for example, the materials purportedly used, the year the wall was built, and the year the extensions were made.  He was not aware as to whether the defendant had any engineering knowledge regarding the cause of the damage to the pipe at the time of issuing the Show Cause Notice.  Upon issuing the Show Cause Notice, Mr Roberts received a response from the lawyers for the plaintiffs.[53]  He accepted that he gave no response to the letter.  He further accepted that he received another letter from the lawyers for the plaintiffs on about 29 April 2015 which attached three reports by Jeffrey Hills & Associates.[54]  Mr Roberts recalled “perusing” the covering letter, but was unsure as to whether he considered the three reports, or indeed whether the three reports were provided.[55]  He claimed that he was “under instructions to send everything through” to the defendant’s lawyers. 

    [52]Exhibit 1, pages 1139 – 1143. 

    [53]Exhibit 38.

    [54]See Exhibits 39-42.  Mr Hills was an engineer who, but for his untimely death, would have been called by the plaintiffs to give expert evidence. 

    [55]Despite the three reports being identified as enclosures to the letter.

79. The weight of the evidence largely from Council employees which I am prepared to accept demonstrates that:

    (a)The defendant was aware of the existence of gaps in the pipe joins prior to 2009.

    (b)The defendant directed its employees to apply MaxPlug to all of the pipe joins.

    (c)MaxPlug was applied to the pipe joins in 2009. 

    (d)After MaxPlug was applied however there were ongoing complaints of sinkholes and subsidence at the property.

    (e)The application of MaxPlug did not rectify the continuation of sinkholes and subsidence.

    (f)In late January 2012, the rear garden area of the property, within the easement and above the pipe, significantly collapsed. 

    (g)By late January 2012, the defendant knew there was something major going on within the easement which prompted the email from Mr Gray to Mr Hames advising “against backfilling at this stage as the brick wall that supports [plaintiffs’] back yard and pool is bulging and could collapse if we try to fill the hole and compact.  This is not a simple fix”.[56]  

    (h)The pipe was relined in early 2014.  Since the reline, no other work has been performed on the property. 

    (i)A Show Cause Notice was issued to the plaintiffs in March 2015.

    [56]Exhibit 1, page 1118.

80. To date, no action has been taken regarding the Show Cause Notice.  Aside from the expert opinion, of which I shall refer to in a moment, there was also evidence from Mr John Urquhart and Mr Saxon Wong regarding the removal of the retaining wall and boundary fence.

81. Builder and bricklayer, Mr John Urquhart gave evidence regarding the removal and replacement of the retaining wall and boundary fence.  He provided two quotations dated 20 June 2016 and 10 August 2020.[57]  The latter was given following a site inspection of the property.  Mr Urquhart’s uncontested evidence that the cost to remove and replace the existing retaining wall, construct a new wall per the design by Jeffrey Hills & Associates, removal and replacement of part of the boundary brick wall and associated landscaping and fill was in the sum of $110,108 (inc GST) comprising as follows:

    (a)$88,868 for what was described as “being for removal and replacement of the brick retaining wall per the drawing and the provisional sum allowance for barge hire and machine hire to remove and dump the existing concrete block retaining wall and foundation, to trim the bank and to prepare the site, to backfill the wall on completion”;

    (b)$14,118 – being “the contingency fee for any damage to the neighbour’s wall and fence”;

    (c)$4,330 – “contingency allowance for rectification of existing landscaping”;

    (d)$2,800 – “contingency for the supply of extra fill”.

    [57]Exhibits 23 and 24.

82. I pause at this juncture to note that Mr Jeffrey Hills of Jeffrey Hills & Associates, until his untimely death, was engaged by the plaintiffs as an engineering expert.

83. Obviously Mr Hills (by reason of his death) could not give evidence or be cross‑examined in respect to what was or what was not included in the quotation for his estimate to remove and replace the retaining wall.[58]  The estimate given by Mr Hills was $62,500 plus GST.

    [58]As set out in exhibit 19, being the quotation dated 28 December 2015.

84. The defendant submitted that Mr Urquhart’s estimate regarding the need for a barge operator to assist in the process was inadmissible or alternatively ought to be afforded little weight in circumstances where Mr Hills, the expert engineer engaged by the plaintiffs at the time, did not state that his estimate included such costs expected to be required to undertake the works to demolish and reconstruct the canal and side boundary retaining walls.  The defendant submitted that, at most, the evidence tendered at trial is to the effect only that the reasonable costs to remove and replace the retaining walls, undertake grout injection at the canal end and landscaping and turfing is as stated by Mr Hills to be the figure of $62,500 plus GST ($68,700 inc GST).  However the defendant led no evidence in respect of any alternate cost in regard to the removal and replacement of the retaining wall, the boundary fence and associated costs, and I am not persuaded that I should act only upon the quote given by Mr Hills as a true estimate of the costs of carrying out the works required by the plaintiffs.  Mr Hills’ estimate was dated December 2015 and has obviously not been updated to account for an increase in the costs, labour and materials to 2020.  As such it cannot be regarded as an accurate representation of current market costs.  It is further and clear from Mr Hills’ quote to what extent he was proposing to remove and replace the boundary fence.  I am prepared to act on the uncontested evidence of Mr Urquhart in relation to the amount of $110,108 (inc GST) for the costs in respect to the removal and replacement of the retaining wall and boundary fence, and associated work. 

85. Mr Saxon Wong gave evidence.  He is a civil engineer with the Council and an asset technician officer.  He has qualifications in both civil and structural engineering.  He has been assessing applications for the Council since 2014.  He said in general a retaining wall cannot be built over a pipe.  He identified various parts of the Queensland Development Code MP1.4, Building over or near relevant infrastructure, which has been in place since 2013.  He was aware of the property.  He has not inspected the property, but has examined Council information in order to provide a preliminary view regarding Mr Hills’ plans.[59]  Mr Wong noted that after looking at the plan, his preliminary view would be that the ball pipe piers were very close to the pipe which would exclude an approval on face value.  He identified six parts of the MP1.4 document which would, on their face, exclude the approval as is.[60]   Not unsurprisingly then, the defendant suggested that the retaining wall as constructed did not comply with MP1.4, among others, and had the plaintiffs submitted an application for approval of the retaining wall as constructed at any time from 2012, the same would not have been approved by the defendant.

    [59]Exhibit 18.

    [60]See pp 13, 14, 15, 16, 26 and 29 of the plan. 

Has the Retaining Wall Breached the Terms of the Easement?

86. An issue between the parties was whether the retaining wall has breached the terms of the easement.  If so, it will be a matter which would have worked against the plaintiffs in the advancement of their claim against the defendant given the defendant highlighted that the ongoing presence of the failed retaining wall breaches the terms of the easement which relevantly require the plaintiffs:

    (a)to allow the defendant, full and free right and liberty to enter upon the easement land for all purposes incidental to maintenance of the drainage; and,

    (b)at the request of the defendant, to do all such acts as may be reasonably required to perfect the easement.

87. The defendant submitted that retention of the retaining wall in its current state over the pipe prevents the defendant’s full and free right and liberty to undertake maintenance works such as excavation of the soil around and under the pipe and restoring the last section of the pipe closest to the canal to its correct position.  Following relining of the pipe in 2014, the defendant offered to the plaintiffs on three previous occasions, whilst not being obliged, to undertake recompaction works along the easement to remedy the issue of then existing voids present along and under the pipe and requested the plaintiffs remove the retaining wall to enable such works to be undertaken safely.[61]  It was submitted therefore that the retaining wall as it is presently constructed, and having failed, presents as a substantial and material interference with the rights granted to the plaintiffs under the easement.  The defendant has requested its removal and the plaintiffs, it was said, have failed to comply with those requests in breach of the terms of the easement.

    [61]See Exhibit 1, pages 1013, 1130 and 1146.

88. It is clear the retaining wall is damaged and requires replacement.  The issue is who should bear that cost.

89. I have already found that the retaining wall was approved by the defendant.  As such the defendant cannot claim a breach or interference with its rights under the easement given that it consented to and approved the retaining wall.  Further given the retaining wall was approved, the wall clearly was not in breach of the terms of the easement (otherwise the defendant would not have approved its construction).  Moreover the proper interpretation of the terms of the easement did not prohibit the construction of the retaining wall. 

90. I accept as was contended on behalf of the plaintiffs that it is clear that upon a proper construction of the terms of the easement, the terms of the easement do not expressly or impliedly prohibit the construction of any structure, such as a retaining wall, across the easement by the servient owner.  In Brown v Jackson,[62] Boddice J in dealing with a right of way easement, set out the principles in respect of construing an easement dealing with a situation where obstructing the easement in any way was prohibited.  His Honour stated:

    “Generally, unless there is a provision to the contrary, a right of way easement which is sufficiently wide to permit its purpose, will not prevent the servient owner from fencing the easement, with the dominant owner accessing the right of way by means of gates at such points as reasonably meet his or her requirements.”

    [62][2015] QSC 355 at [16].

91. It was highlighted for the plaintiffs, that in Brown, the parties were in dispute in respect of the entitlement of the servient tenement to place gates over a driveway, which the owner of the dominant tenement (Jackson) used to access his property.  There, the easement instrument expressly prohibited the placement or obstruction of any part of the easement’s land by the words:

    “… do hereby transfer and grant… for the time being of all that piece of land… full and free right and liberty for herself and them… with the [servient tenement]… will not at any time hereafter build over or upon or obstruct or cause to be built over upon or obstructed… keep the said subdivision B… for all time open to the sky and free from all obstructions and will remove all obstructions of whatever kind now or at any time hereafter being upon the same.”[63]

    [63]Ibid at [15].

92. Boddice J held that on a proper construction of this grant of easement, it excluded an entitlement of the servient tenement to install anything which would “block up or close up or make difficult of passage” along the driveway, and that “such an exclusion constitutes a specific provision in the terms of that easement preventing the servient owner from constructing gates to that easement”.[64]  His Honour concluded that the installation of the gate there constituted a real and substantial interference with Brown’s access along the driveway easement.

    [64]At [27].

93. It was submitted on behalf of the plaintiffs that Brown was a different situation from the terms and purpose of the present easement.  Relevantly this is a drainage easement to facilitate the conveyance of stormwater or other water through, across or under the servient tenement.  It exists in circumstances where the conveyance of stormwater occurs in and through a man-made structure which is entirely underground, such that other than for the purpose of digging up (as is now required) part of the pipe for repair and replacement, the mere existence of the retaining wall does not prevent the defendant from utilising the easement for such drainage purposes and for maintenance purposes.  I agree with this submission in light of the terms and purpose of the drainage easement.  All in all, my view is that the proper construction of the terms of the easement instrument did not prohibit the construction of the retaining wall over the easement and that the existence of the retaining wall is not in breach of the terms of the easement.  

What Has Caused the Sinkholes and Subsidence at the Property?

94. The plaintiffs assert that subsidence and/or sinkholes have developed at the property since November 2012 which were or are caused by:

    (a)gaps around the point of pipe penetration through the headwall/revetment wall;

    (b)cracks in the outlet structure other than at the pipe penetration;

    (c)tidal flow under the cut-off wall below the outlet;

    (d)the poor design and/construction of the outlet structure in that gaps were able to develop in the structure namely:

    (i)a hole in the lower left corner of the headwall;

    (ii)gaps at the point of pipe penetration through the concrete pipe outlet;

    (iii)gaps between the apron and pipe collar (where the pipe penetrates the concrete pipe outlet);

    (iv)gaps in the vertical joints of the wall;

    (e)the poor design and/or construction of the outlet structure in that differential water pressure and/or water flow under and in close proximity to the pipe was able to occur from both rainfall run off and tidal water;

    (f)the poor design and/or construction of the outlet structure in that the design and/or construction of the cut-off wall was:

    (i)insufficiently or inadequately deep to prevent differential water pressure; and/or

    (ii)inadequate to prevent the occurrence of gaps occurring in the headwall;

    (g)the poor design and/or construction of the bedding material for the trench in which the pipe was laid;

    (h)movement of the pipe;

    (i)the failure of the pipe by allowing water and/or soil or sand from the ground into the pipe and from the pipe into the ground.[65]

    [65]See Fourth Further Amended Statement of Claim, [16(c)], [16A(a), (aa) and (b)] and [16D], [16AA], [16I] and [16G].

95. In response, the defendant’s position is that:

    (a)it admits that subsidence and sinkholes occurred at the property due to:

    (i)the condition of the revetment wall/headwall including in respect of the large hole in the wall external to the wing walls and not in the vicinity where the pipe discharges to the canal; and/or,

    (ii)the presence of any cut-off wall under the same,

    but the defendant says that it is not responsible for these structures as they are the property of the plaintiffs;

    (b)the defendant is not responsible for the effects of tidal flow at the property, including with respect to any material around the pipe;

    (c)it admits the break in the pipe caused further sand and/or soil to enter the pipe, but that:

    (i)the pipe was repaired with MaxPlug in 2012;

    (ii)the pipe was relined by the defendant in April 2014 such that since that time the pipe was completely water tight and no water, sand or soil continued to leak into or out of the pipe; and

    (iii)the maintenance undertaken by the defendant with respect to the pipe in 2012 and 2014 was reasonable and carried out in a reasonable manner based on the matters then known to it and the resources of the defendant;

    (d)the defendant is not responsible for the design and/or the construction of the revetment wall (including the headwall alleged by the plaintiffs) or any cut-off wall or to remedy the same if it was poorly designed and/or constructed;

    (e)the defendant is not responsible for any hole which was developed in the alleged headwall/revetment wall given this is the responsibility of the property owners;

    (f)the defendant is not responsible for the design and/or construction of the bedding material in which the pipe was laid given this was been undertaken by the developer of the land and the sand/soil which surrounds the pipe is land which is the plaintiffs’ property;

    (g)any movement of the pipe is caused by factors for which the defendant is not responsible;

    (h)the defendant’s responsibility was, and is, to take reasonable steps to maintain the pipe;

    (i)the plaintiffs themselves contributed to the ongoing development of subsidence and/or sinkholes at the property since November 2012 by:

    (i)failing to remediate the revetment wall;

    (ii)failing to construct an adequate cut-off wall beneath the revetment wall;

    (iii)failing to remove the retaining wall to enable the defendant to compact the soil around the pipe;

    (iv)failing to stabilise the sand/soil around the easement land themselves and/or fill in any sinkholes or undulations in the ground.[66]

    [66]See submissions for the defendant, [69] and also Fifth Amended Defence, [13(c)], [14A], [14D], [14F], [15], [13A(d)], [14AA], [13(a)], [14F], [14G], [15], [13A(b)], [14A(ab)], [13A(d)], [14AE], [14G], [13A(d)], [15(f)] and [38].

96. Fortunately I was assisted at trial by the evidence of three experts who are well versed in structural and/or geotechnical engineering matters, namely Geotechnical Engineer Dr Philip Shaw, Structural Engineer Mr Kelvin Borkowsky and Structural and Geotechnical Engineer Mr Eric Fox, whom were largely in agreement about many issues.[67] 

    [67]Structural Engineering Expert Jeffrey Hills, as indicated earlier, would have but for his untimely death been called to give evidence at trial.    

97. The structural experts (Engineers Borkowsky and Fox) agreed that the issues of sinkholes and subsidence arose directly or indirectly from movement of sand from around the stormwater pipe over an extended period of time.[68]   They also agreed that there were two areas of sand loss.  The first was loss along the length of the pipeline due to leaks and the like.  The second was loss close to the canal through tidal surge.[69]  The experts agreed:

    (a)the relining of the pipe in 2014 stopped leakage through the joints in the pipe;[70]

    (b)continuing formation of sinkholes in the easement after 2014, particularly after heavy rain, is probably a result of water flow through voids in the backfill from before the pipe relining and from continuing tidal flow after the pipe relining;[71]

    (c)with respect to the loss at the pipe outlet, that loss of sand resulted from continual tidal flow through the hole in the wall external to the wing walls and gaps in the outlet structure within the revetment/headwall and between the pipe and the wall.  This loss of sand likely caused the break in the pipe about three metres from the outlet;[72]  

    (d)it is highly likely that continuing loss of sand from around the pipe due to influx and efflux of tidewater has extended a void or voids in the bedding and haunch area of the pipe a substantial distance along the easement, and perhaps as far as the road.[73]

    [68]As per the geotechnical experts (Dr Shaw and Mr Fox in a joint report of 15 May 2020): exhibit 1, pages 792 to 796.  See page 794, [2.1.1].  

    [69]Exhibit 1, page 794, [2.1.2].

    [70]Exhibit 1, page 794, [2.1.4].

    [71]Ibid.

    [72]Exhibit 1, page 794, [2.1.5].

    [73]Exhibit 1, page 794, [2.1.6].

98. The geotechnical experts (Engineers Shaw and Fox) identified the loss of sand backfill from around the pipe resulted in loss of pipe stability and generation of voids in the ground that in turn manifested as ground surface subsidence and sinkholes where the voids reached surface level.[74]  They too were in agreement regarding three ‘mechanisms’ that caused or contributed to the existence of the sinkholes and subsidence, namely:

    (a)the loss of sand through gaps in and around, and beneath the pipe outlet structure (“mechanism 1”);

    (b)the loss of sand into the pipe through gaps in the pipes, from the ground around the pipe (“mechanism 2”); and,

    (c)the loss of sand from around the pipe into voids within the bedding material beneath the pipe (“mechanism 3”).[75]

    [74]Exhibit 1, page 794, [2.1.4].

    [75]Exhibit 1, page 799, [2.1.2].

99. For instance, Mr Fox gave evidence that:

    “…the break in the pipe, in my opinion, was not causative of anything.  It was the result of the loss of sand.  The loss of sand, in my view, removed support for the pipe.  The pipe subsided, which caused the gap we were talking about.  So it’s not – the gap didn’t cause the loss of sand; the loss of sand caused the gap in the pipe.”[76]

    [76]T6-37.

100. The geotechnical experts (Engineers Shaw and Fox) opined that it was not possible to provide definitive statements about the timing of the damage resulting from the various mechanisms of sand transport.  I accept, as was identified in their joint evidence, that in terms of the timing of the damage resulting from the various mechanisms, it was not possible to provide a definitive statement, however:

     (a)with respect to the loss of backfill from the pipe outlet and the consequent ground subsidence and sinkhole formation, they stated that it is likely that some loss of sand occurred from not long after construction; and,

     (b)with respect to loss of backfill from the pipeline in areas away from the outlet and consequent ground subsidence and sinkhole formation, they stated that aerial photographs showed pavement repairs had been undertaken over the pipeline in the street prior to November 2009 and on that basis, it is likely that there had been sinkhole formation along the pipeline in 2009.[77] 

     [77]Exhibit 1, pages 795 to 796.

101. It was submitted on behalf of the plaintiffs that Mr Borkowsky attempted to identify a further mechanism which was said to have caused or contributed to the existence of the sinkholes and subsidence.  He referred to a hole in the wall immediately to the left of the wing wall.[78]  This was the focus of cross‑examination by the plaintiffs given this additional mechanism was never raised earlier despite Mr Borkowsky’s involvement with the property as early as 2015.  The plaintiffs promulgated the following matters regarding the fourth mechanism:

     (a)despite having specifically considered (both singularly and jointly with Mr Fox) the causes of damage to the pipe in the retaining wall and despite having agreed with Mr Hills, and in terms of Dr Shaw about what has been identified as the three mechanisms of failure, not writing to the Council’s solicitors or Mr Fox to identify that there was an additional matter that required consideration;[79]

     (b)not having taken any measurements or referred to any photographs in his report to supplement his opinion nor having identified any photograph in his report as showing the retaining wall footing;[80]

     (c)not identifying in his report the mechanism that is the origin of the water and the movement of the water which would exfiltrate from that hole;[81]

     (d)not providing any explanation as why the three accepted mechanisms have apparently been overtaken by a new theory or taken into account the extent to which those other three mechanisms caused or contributed to loss of sand in that area of the wall (which he accepted as relevant);[82]

     (e)not undertaking any investigation on Mr Teakle’s property to identify pathways for water or sand movement, or other investigation to show a connection between the hole and the subsidence on Mr Teakle’s property or elsewhere on the property;[83]

     (f)not relying on any new evidence brought to his attention, no new opinion from one of the other experts (including any discussion with Mr Fox during the joint report process during which he had an opportunity to make any amendments to the joint report document).[84]

     [78]Exhibit 48 (being a supplementary report dated 20 August 2020).

     [79]T6-85.

     [80]T6-82.

     [81]T6-82.

     [82]T6-82 and 83.

     [83]T6-83 and 84.

     [84]T6-85.

102. It was submitted on behalf of the plaintiffs that there is insufficient basis upon which Mr Borkowsky’s additional mechanism could be accepted as a likely cause of damage to the retaining wall.  Indeed, Mr Borkowsky properly conceded that he had not undertaken the investigations or proper application of cause and effect to be able to draw any conclusions in that regard at all.  But I accept as was highlighted by the defendant that Mr Borkowsky has not attempted to introduce a fourth mechanism at all.  I take his supplementary opinion to reiterate an earlier opinion given by both Mr Borkowsky and Mr Fox to the effect that each considered the hole in the wall to be part of mechanism one.  Therefore, at the end of the day, only three mechanisms, which caused or contributed to the existence of the sinkholes and subsidence, remain.  They are the three mechanisms identified by the experts as having caused the damage at the property.[85] 

     [85]As stated in [98] above. 

103. Relevantly the fallout of the three mechanisms were acknowledged in the combined report of Engineers Fox, Shaw and Borkowsky dated 28 May 2020, only after the experts agreed that a Dynamic Cone Penetrometer (“DCP”) survey of the easement area should be conducted to identify the weak areas in the easement that would require remediation.  This is a procedure where a steel rod is driven vertically down into the ground using a steel hammer, dropped at a specified depth at various location points.  The DCP survey was conducted in January 2019.  The experts were satisfied that the DCP survey was comprehensive and all areas of the easement that could reasonably be surveyed in the circumstances were tested.[86] 

     [86]Exhibit 1, pages 804 – 839.

104. The experts reported that the DCP survey could not evaluate the integrity of the backfill in the bedding and haunch area beneath the pipe, even if the penetrometer was driven close to the pipe.  It followed that undetected very loose and/or voided soil could be present beneath the pipe.[87]  The experts agreed that remediation should follow a two-stage approach.  Firstly, grout walls should be constructed to protect structural elements during subsequent works.  Secondly, excavation and remedial works should be undertaken.[88]

     [87]Exhibit 1, page 807, [3.1.9]. 

     [88]Exhibit 1, pages 808 and 809.

105. It was highlighted on behalf of the plaintiffs that the DCP test results supported Mr Fox’s opinion that the pipe bedding has, in effect, become a pathway for the movement of sand and water to the canal, or, as Mr Fox stated:

     “… in my opinion the more serious issue is that the loss of sand backfill undoubtedly would have caused the formation of voids and fissures in and around the backfill layers.  These voids would act as subterranean streams, allowing passage of water through the trench outside the pipe itself.  The water flow would inevitably cause further erosion of sand from around the pipe.  I believe it is highly likely that these ‘streams’ have become permanent, particularly towards the canal where the effects of tides would ensure active water flows”.[89]

     [89]Exhibit 1, page 711, being the report of Mr Fox dated 28 February 2020, [86].

106. Dr Shaw did not completely disagree with Mr Fox’s view but suggested that this likely occurred after the collapse of the pipe at the canal end of the pipeline.  The joint report (involving Dr Shaw and Mr Fox) stated:

     “…Engineer Shaw does not completely disagree with Engineer Fox but suggests that movement of sand into the bedding layer through mechanism 3 was unlikely to continue indefinitely and after an initial movement of sand particles into the gravel being an equilibrium condition would have been established.  The initial movement of sand by mechanism 3 into the bedding layer would have left loose zones, voids and passages in the sand backfill around the pipeline.  Due to repeated tidal flows in the bedding layer and along the pipeline over time, the voids and passages in the backfill may have become connected.  Engineer Shaw suggests that after the collapse of the pipe at the revetment end and the formation of the resulting sinkhole, there was greater potential for tidal flow to wash sand from the backfill and bedding into the sinkhole and out to the canal.” [90]   

     [90]Exhibit 1, pages 799 – 800, [2.1.6].

107. As was highlighted on behalf of the plaintiffs, the extent of damage along the easement, up to the property boundary, together with the evidence of regular sinkholes appearing on Dogwood Drive (which was largely torn up and replaced in the vicinity of the property) supported Mr Fox’s theory that ongoing sand loss along the length of the pipe was occurring.  I accept this submission given the ongoing presence of sinkholes over time over the easement area and similar issues beyond the property on Dogwood Drive, even after the defendant took some steps to attempt to address matters pertaining to the property and, on balance, consistent with Mr Fox’s evidence, I accept that the loss of sand backfill caused the voids to form such that subterranean streams enabled the passage of water through the trench outside the pipe itself with the consequence that the water flow caused further sand erosion around the pipe.         

108. Mr Fox and Dr Shaw agreed that the areas of sand loss around the outlet (i.e. gaps and joints and the like in structure and inadequate cut-off baffle beneath the outlet) most probably were present to at least some extent from construction.  They also agreed that it followed that some loss of sand probably occurred from soon after construction, and gradually escalated.[91] 

     [91]Exhibit 1, page 800, [2.1.7].

109. Some evidence related to whether the retaining wall, including soil backfill, had any impact towards the pipeline or gaps in the outlet structure.  Mr Fox and Mr Borkowsky agreed that:

     “It is very unlikely that either the construction of the retaining wall, or the weight of the retaining wall and soil backfill had any detrimental effect on the pipeline”.[92]

     [92]Exhibit 1, page 795, [3.1.1].

110. I agree and I therefore proceed on the basis that the retaining wall had no detrimental effect on the pipe, contrary to Dr Shaw’s view, namely that the weight of the retaining wall was sufficient to widen existing gaps in the outlet structure, and perhaps cause additional gaps.  Rather, and consistent with the weight of the structural expertise, the three mechanisms of the movement damaged the retaining wall.  Further, I note Mr Borkowsky agreed with the conclusions and calculations of Mr Hills in his earlier reports and adopted them as correct.[93]  Dr Shaw, on the other hand, properly acknowledged that he did not undertake any calculation or assessment of the type necessary to draw a conclusion to the effect of one structure upon the other (in order to offer a slightly different view), and, as highlighted on behalf of the plaintiffs, seems to have presumed that the wall would only have had a detrimental effect once the bedding material below the pipe had been compromised.[94]  Therefore, I accept the submission advanced on behalf of the plaintiffs that the failure of the pipe or loss of support through one or a combination of the three mechanisms were necessary precursors to the retaining wall having any effect on the pipe.  It was not, as was agitated by the defendant, to do with other factors that have given rise to subsidence and sinkholes at the property, which factors pre-dated the pipe fracture, and themselves continue.  Put another way, it was only through the antecedent damage to the retaining wall caused by loss of support that resulted in it having the potential to have an effect on the pipe.[95]

     [93]T6-54, lines 14 – 44.

     [94]T6-92, line 37 to T6-93, line 10.

     [95]No actual causal link has been established. 

135. In considering certain criticisms of the primary judge’s reasoning, Morrison JA summarised the effect of the decision in Melaleuca:

     “… all that Giles JA was doing was to state the obvious, that if the work in question was carried out with all reasonable regard and care for the interests of other persons, and in strict conformity with private rights, then absence of negligence was a reflection of inevitability of the result.”[149]

     [149]At [164].

136. In Warne v Nolan [2001] QSC 53, Muir J (as his Honour then was) explained the fact that an artificial element “was not a nuisance when constructed, did not prevent it from becoming one as a result of changes in natural conditions and other causes”.[150]  It was highlighted on behalf of the plaintiffs in the present case that the construction of the pipeline (excavation, bedding and compaction) together with the construction of the outlet structure is obscured by time.  No certainty can attach to what actually occurred, though the experts are in agreement that it is likely, as regards the pipe bedding, that there was uneven or unstable bedding.[151]

     [150]At [106].

     [151]Exhibit 1, p 794, [2.1.3].

137. I accept as was highlighted on behalf of the plaintiffs that the defendant’s reliance upon Becker is fundamentally misplaced for a number of reasons:

     (a)First, the respondent (owner of the damaged land) was not the servient tenement, the storm water easement was on an adjoining property.[152]

     (b)Secondly, the property damage related to fill material on the respondent’s land, to which it had no entitlement to maintenance of lateral support from the adjoining property (which contained the storm water easement).[153]

     (c)Thirdly, the reliance on Becker at [136] and in particular the sentence “in the law of nuisance as it operates in this case, negligence is a necessary element …”, the element of that case which made negligence a necessary element of the nuisance claim was that negligence was pleaded as having caused the nuisance.[154]

     (d)Fourthly, the ultimate question was not one of negligence, but rather, when the pipeline in that case became a nuisance, the Council failed to remedy it without undue delay.[155]  It became a nuisance when “it came to be in a defective state so that the escape of water was an unreasonable and unjustifiable interference with the rights of nearby land owners to enjoy their property”.[156]

     (e)Fifthly, the evidence in this case reveals and in contrast to the conclusions in [136] that the defendant did inspect the pipe from prior to 2009, that it was aware of the need to make repairs and that, as per the expert reports, if the repairs that were identified were carried out, the nuisance would be removed.

     [152]At [29] and [30].

     [153]At [5], [6] and [23].

     [154]At [112].

     [155]At [121].

     [156]At [121].

138. Importantly too, and as was highlighted on behalf of the plaintiffs which I accept, the plaintiffs in the present case have not relied on negligence to make good their claim in nuisance.  To the extent that the defendant has sought to avail itself of statutory authority immunity, it must bring itself within the principles set out in State of Queensland v Michael Vincent Baker Superannuation Fund Pty Ltd.  I am not satisfied the defendant has done so in this case.  The defendant has been exercising its rights pursuant to the terms of the private easement and not exercising any rights as a statutory authority in its use of this pipeline for drainage purposes. 

139. A nuisance will be caused where there is an unreasonable interference with the use and enjoyment of a person’s property.[157]  That involves an objective test to be applied as to whether there has been “an inconvenience materially interfering with the ordinary comfort physically of human existence not merely according to elegant or dainty modes and habits of living, but according to plain and sober and simple motions of the community”.[158]  Matters such as the locality in which the interference occurs, the duration of the interference, including the frequency and the extent of the interference are matters relevant to determining whether there has been an unreasonable interference.[159]

     [157]Hargrave v Goldman (1963) 110 CLR 40 at 62.

     [158]Don Brass Foundary Pty Ltd v Stead (1948) 48 SR (NSW) 482 at [486]-[487].

     [159]Sturges v Bridgman (1879) 11 Ch D 852 at 865; Halsey v Esso Petroleum Co Limited [1961] 1 WLR 683.

140. It matters not that the defendant did not construct or install the pipe because the classes of person who may be liable for nuisance fall into two broad categories.  The first is those who create a nuisance.  The second is those who fail to stop a nuisance.  What matters is the existence of the nuisance which was something that was known to the defendant, as certainly by November 2012, when the plaintiffs purchased the property.  The defendant knew of the existence and occurrence of sinkholes and subsidence.  By the time of the purchase of the property by the plaintiffs in November 2012, the defendant was aware of sinkholes and the collapse of the garden that had occurred between March 2009 and January 2012.[160]  The defendant also received complaints from the previous owner, Mr Richards, from at least 17 April 2009.[161]  Repairs were undertaken upon the pipe and were completed before 2009.[162] 

     [160]Fifth Amended Defence, [20].

     [161]Exhibit 1, pages 914, 961, 962, 964.

     [162]See evidence of Mr Cybulski.

141. Despite the defendant having asserted that it repaired the pipe in 2012 with MaxPlug, the evidence remained unpersuasive about this.  Mr Gray could not give evidence about this.  Mr Cybulski assumed a repair was done in January 2012 however the defendant’s maintenance request record of 27 January 2012 recorded: “further repairs to line are required.  This will happen this week”[163] and a third party contractor was arranged to flail the line on 1 February 2012 and take CCTV footage.  No compelling evidence was led by the defendant to support a finding Maxplug was applied in 2012. 

     [163]Exhibit 1, page 964.

142. In any event, the plaintiffs’ first complaint to the defendant seemed to have been in January 2013.  I am unaware of what steps if any were taken by the defendant to investigate the cause of the damage to the pipe and the ongoing sinkholes and subsidence in and around the easement land.  Even if any steps were taken, I am not satisfied such steps were reasonable because of the ongoing presence of the nuisance which is of no fault of the plaintiffs.  It therefore follows that the defendant adopted the nuisance that existed and failed to take any (reasonable) steps to abate it.

143. By way of explanation, I note that prior to 2009, the defendant was aware of problems with the pipe which required each of the joints between sections of the pipe to be treated with MaxPlug.  The evidence was unclear as to whether MaxPlug was applied in 2012.  The reline of the pipe occurred in 2014 after Mr Davies contacted the defendant to complain about subsidence in the back rear garden.  The pipe was relined with the resin liner inserted into it.  Mr Davies was informed that after the reline, he was advised by Mr Richardson that Council would recompact the easement.  However there was no evidence by the defendant to demonstrate that it obtained any engineering evidence between February 2012 and April 2014 to establish that recompaction of the property could be done safely and without damaging the retaining wall.  I note Mr Gray’s opinion held in February 2012 that the retaining wall that supported the backyard and pool was bulging and could collapse if they tried to fill the hole and compact.  

144. The occurrence and existence of the sinkholes and subsidence have caused and continue to cause substantial and unreasonable interference with the use of the property by the first plaintiffs.  It therefore constitutes a nuisance.  The existence of the nuisance has, according to the evidence given by the first plaintiffs of which I am satisfied, rendered it unsafe for them and their family to use the back and side area of the property due to the risk of injury to one, some or all of them.  Given my earlier findings regarding the cause of the sinkholes and subsidence, as well as the ownership and responsibility of the pipeline including the headwall in light of the obligations under the terms of the easement, I find the occurrence of the sinkholes, subsidence and undulation since November 2012 have caused, and continue to cause a nuisance to the plaintiffs in respect of their use of the property.  Additionally I am satisfied the first plaintiffs have been unable to use and enjoy their house and back and side yards as they naturally intended to do when they purchased the property in November 2012.

145. A further offer to recompact the easement was made in October 2014 by the defendant’s lawyers.  However that offer was made on the condition that the plaintiffs removed the retaining wall.[164]  Even if the retaining wall had been removed, it is unclear to me whether the recompaction which was offered by the defendant would have resolved the nuisance.  I accept, as was submitted on behalf of the plaintiffs, that indeed if it was anything less than that which was now identified by the experts as being necessary, it must be inferred that any such proposal of recompaction would have failed.  Indeed, the proposition was expressly put to Mr Fox as to whether recompaction of one metre of fill would have stopped the occurrence of sinkholes and subsidence.  Mr Fox strongly disagreed with the proposition.[165]  Dr Shaw stated that had recompaction been undertaken in 2015, no additional sinkholes would have formed in the easement, but when he was cross-examined about this opinion, he agreed that he had not been asked to assume the level of compaction work that would have been carried out per the joint report, and otherwise made an assumption as to what would occur.[166]  He later said he was not aware of the Groutech proposal, obtained by the defendant on 12 June 2014 but, “was aware that I think Mr Cybulski was looking at obtaining quotes”.[167]  Mr Cybulski gave no evidence that he was to, or did, obtain any quotes for grout injection or recompaction of the easement.

     [164]Exhibit 1, p 1013 – 1014.

     [165]T6-37, lines 35 – 37.

     [166]T9-93, lines 18 – 47.

     [167]T6-99, lines 11 and 12.

146. I am not satisfied that reasonable steps were taken by the defendant in response to its knowledge of the sinkholes and subsidence.  I am also not satisfied that reasonable steps were taken in respect of carrying out any investigation in respect of the cause of the problems.  The installation of the lining in the pipe did not fix the then existing problems within the soil in and around the easement land and it did not prevent the ongoing occurrence of sinkholes and subsidence in and around the easement land.  Rather, the lining of the pipe resolved only one of the three failure mechanisms (mechanism 2, being loss of sand into the pipe through cracks).  I accept, as was submitted for the plaintiffs, that the defendant would have been aware of these issues had it investigated the cause of the failures.  Further, and as was highlighted for the plaintiffs, the defendant’s offer to recompact the soil in the easement was contrary to the opinion held by Mr Gray, and the defendant had no engineering evidence to support a finding of fact that such recompaction would have fixed the subsidence and sinkholes and prevented any further ones from occurring.  The expert evidence is in fact to the contrary.  There is no evidence before me to support a finding that the defendant took any step, other than the relining of the pipe, to abate the occurrence of the nuisance on or from January 2013 when the plaintiffs first noticed the occurrence of sinkholes and subsidence and notified the defendant of these issues.

147. All in all in this instance, I am therefore satisfied that the plaintiffs have established a case of nuisance against the defendant.  

Relief for the Plaintiffs

Should Injunctive Relief be granted?

148. In addition to general damages for nuisance, the plaintiffs primarily seek an injunction requiring the defendant to remove and replace the pipe or alternatively requiring the defendant to carry out the remediation work (to both the easement and the property around the easement as detailed in the joint report of experts Fox, Shaw and Borkowsky dated 28 May 2020) and to replace the section of the pipe three metres from the pipe outlet structure, and to replace or repair the pipe outlet structure (including the provision of a suitable water stop detail for the headwall as per the report of Mr Fox dated 28 February 2020).

149. The onus is therefore upon the plaintiffs to establish, under s 68(1)(b)(xii) of the District Court of Queensland Act 1967, that this court has the jurisdiction to grant such relief in this matter. The court may grant an injunction to restrain any ongoing nuisance.[168]

     [168]Gales Holdings Pty Ltd v Tweed Shire Council [2011] NSWSC 1128, [296]; McCombe v Read [1955] 2 QB 492, 436; Pride of Derby and Derbyshire Angling Association Limited v British Celanese Limited [1953] Ch 149, 181.

150. Rightly so, after the evidence concluded in this matter, the defendant raised the jurisdictional issue given there was no evidence before the court about the value of the land in accordance with s 68(1)(b)(xii). As such, the plaintiffs sought leave on 12 October 2020, at the time of closing addresses, to file an affidavit of Mr Davies annexing the land valuation from the Valuer-General of the Department of Natural Resources and Mines showing the unimproved value of the land, at the time of commencement of these proceedings, as $690,000. Fairly no opposition to its filing was made by the defendant. The plaintiffs can be excused for overlooking this trivial issue whilst giving their evidence. Leave was granted. In any event, s 69(1) and (2) permits the court power to grant relief by way of injunction, irrespective of the value of the land.

151. In Dimitrios Michos & Anor v Council of the City of Botany Bay[169] it was said by Slattery J, who considered the jurisdiction of the court to grant a mandatory injunction to restrain an ongoing nuisance, stated the following about general applicable principles:

     [169][2012] NSWSC 625.

     “79. The jurisdiction to order a mandatory injunction, an injunction to compel the performance of a particular act, is exercised cautiously: the particular act or acts the defendant is required to do should, if possible, be specified precisely, although in some nuisance cases orders have been made in more general terms.  It is always a matter of discretion: Redland Bricks Ltd v Morris [1970] AC 652 at 657 - 658 per Lord Upjohn.

     80.  The general principles guiding the grant of a mandatory injunction can only be laid down in the most general terms; every case must depend upon its own particular circumstances; but in Redland Bricks Ltd v Morris Lord Upjohn stated the following principles at 665-666:

     "1. A mandatory injunction can only be granted where the plaintiff shows a very strong probability upon the facts that grave damage will accrue to him in the future.

     2. Damages will not be a sufficient or adequate remedy if such damage does happen.

     3. The question of the cost to the defendant to do works to prevent or lessen the likelihood of a future apprehended wrong must be an element to be taken into account:

     (a) where the defendant has acted without regard to his neighbour's rights, or has tried to steal a march on him or has tried to evade the jurisdiction of the court or, to sum it up, has acted wantonly and quite unreasonably in relation to his neighbour he may be ordered to repair his wanton and unreasonable acts by doing positive work to restore the status quo even if the expense to him is out of all proportion to the advantage thereby accruing to the plaintiff.

     (b) but where the defendant has acted reasonably, though in the event wrongly, the cost of remedying by positive action his earlier activities is most important for two reasons.  First, because no legal wrong has yet occurred (for which he has not been recompensed at law and in equity) and, in spite of gloomy expert opinion, may never occur or possibly only upon a much smaller scale than anticipated.  Secondly, because if ultimately heavy damage does occur the plaintiff is in no way prejudiced for he has his action at law and all his consequential remedies in equity.

     So the amount to be expended under a mandatory order by the defendant must be balanced with these considerations in mind against the anticipated possible damage to the plaintiff and if, on such balance, it seems unreasonable to inflict such expenditure upon one who for this purpose is no more than a potential wrongdoer then the court must exercise its jurisdiction accordingly.  Of course, the court does not have to order such works as upon the evidence before it will remedy the wrong but may think it proper to impose upon the defendant the obligation of doing certain works which may upon expert opinion merely lessen the likelihood of any further injury to the plaintiff's land.

     4. If in the exercise of its discretion the court decides that it is a proper case to grant a mandatory injunction, then the court must be careful to see that the defendant knows exactly in fact what he has to do and this means not as a matter of law but as a matter of fact, so that in carrying out an order he can give his contractors the proper instructions".

     81.  The considerations guiding the grant of a mandatory injunction include: whether the nuisance is minor or trivial (Bennetts v Honroth[1959] SASR 170); whether the grant of the injunction will cause hardship to the defendant (Baulkham Hills Shire Council v AV Walsh Pty Ltd[1968] 3 NSWR 138); whether there has been delay or acquiescence on the part of the plaintiff in responding to the nuisance (Spencer v Silva [1942] SAStRp 55; [1942] SASR 213); and whether performance in accordance with the injunction is futile or impossible.”

152. The plaintiffs refer to the joint opinion of Mr Fox and Dr Shaw who agree that damage to the soil will continue from a loss of backfill, and further damage will result, possibly causing detrimental effects on the stability of the house, boundary fence and swimming pool.[170]  Unless and until this work is carried out, subsidence and sinkholes will continue to occur in and around the easement land, continuing to prevent the first plaintiffs from using their property in those areas, which they have been unable to since early 2015, as well as continuing to present a physical danger to the plaintiffs in respect of the use of this part of their property by reason of the risk of new sinkholes opening up.  It was submitted that because this is not a right of way easement, the plaintiffs cannot simply undertake any repair work and if that work is not carried out by the defendant therefore, the plaintiffs will be unable to safely use their property for the foreseeable future. 

     [170]Exhibit 1 at page 801, [2.1.13].

153. On the other hand, the defendant contends that the relief sought by the plaintiff has attributed every aspect of subsidence in sinkholes, and the various factors including those which themselves caused the fracture of the pipeline, and which have continued beyond repair of the pipe, to be the fault of the defendant.  It was submitted on behalf of the defendant that this court would err in granting the relief sought by the plaintiffs in respect of any loss or damage suffered by the plaintiffs beyond that established to have been caused by the nuisance (including negligence of the defendant). 

154. On the whole and for reasons already expressed, the defendant is left with the burden of the nuisance and until the defendant rectifies the nuisance in accordance with the repair work, the plaintiffs are unable to continue to safely use their property into the foreseeable future.  I am therefore satisfied injunctive relief should be made in this instance because damages are not an adequate remedy given the ongoing issues of the sinkholes and subsidence.  I will hear from the parties further as to the precise form of the order regarding the injunctive relief.     

General Damages for the First Plaintiffs for Nuisance

155. The first plaintiffs seek the amount of $150,000 for loss of use and enjoyment of the property.  It has been highlighted the impact of the nuisance in the use of the property by the plaintiffs are such that:

     (a)The first plaintiffs and their children have been unable to use their back and side yard since January 2015 because such use presented a safety risk to each of them by reason of the ongoing existence and occurrence of sinkholes and subsidence.

     (b)The first plaintiffs were unable to use the outside area of the property as they had intended, being a flat grassed area for their children to use and play in, whilst being supervised from inside the house by the first plaintiffs.

     (c)The first plaintiffs have been unable to allow their children to invite their friends over to the house to play, or for birthday parties, for fear of their children or their children’s friends suffering injury by reason of the existence of the sinkholes in the yard.

     (d)The first plaintiffs have had to limit the time that their children were able to play outside, by reason of having to constantly supervise them whilst playing out the front of the house.

     (e)The first plaintiffs have been unable to invite friends and family over, as they had done when living in previous properties, and as they had done when they initially moved into the property, for fear of those persons suffering injury in the backyard, in addition to embarrassment in respect of the state of the property, both inside and outside

     (f)The existence of the nuisance caused the first plaintiffs to put their renovations on hold which has impacted upon their use and enjoyment of their house.

     (g)The occurrence of putting partially completed renovations on hold has had a significant emotional impact upon, particularly Tina Matthew, how the plaintiffs feel about their home, and how they live in and use their home on a daily basis.

156. Slattery J in Dimitrios Michos, in awarding the plaintiff damages of $40,000, said in regards to considerations of awarding damages for nuisance that:

     “153. This statement of Scarman LJ were applied in Oldham v Lawson (No 1) [1976] VicRp 69; [1976] VR 654 at 658 per Harris J and Stockwell v Victoria[2001] VSC 497 at [482] per Gillard J. Awards of damages for loss of enjoyment have often been modest: Oldham v Lawson at 659.  But this is sometimes because they relate to a nuisance for only a short period.  In Hosie v De Ferro (1984) 3 BPR 9418 McClelland J awarded $5,000 for annoyance, anxiety, inconvenience and loss of amenity to the plaintiffs. In that case there was a collapse of land caused by excavations carried out on neighbouring land. As a result of the collapse of land, for a period of nine months the plaintiffs were deprived of the use of a substantial part of their backyard, a means of access between their property and a lane at the rear of their property and also lost some degree of security to their property which had previously been provided by the wall and a gate at the top of the steps. In current dollars $5,000 in 1985 dollars would worth $12,665. Here though the nuisance has lasted for over eight years, counted from January 2004.

     154. In Oldham v Lawson the nuisance called was noise coming from a neighbouring property.  Harris J commented, at 959: "What I have to do is to determine what is reasonable compensation, and I have got to bear in mind that in so doing there must be an element of moderation.  It is an interference with the enjoyment of the premises that has to be compensated.  There cannot, of course, be any exact equivalent for that discomfort, any more than there can be any exact equivalent in money for damages suffered for personal injuries or for injury to reputation.  His Honour awarded $500 for the noise nuisance intermittently over 12 months.

     155.In Van Son v Forestry Commission of New South Wales (1995) 86 LGERA 108 Cohen J awarded $3,000 damages for loss of a plaintiff's enjoyment and the use of her land.  In that case the plaintiff was unable to pump water from nearby creek because of the pollution of the creek.

     156.There are a number of special factors in this case that influence the assessment of the appropriate award of amenity.  The nuisance has lasted for over eight years.  The defendant has taken no physical action to prevent root ingress since January 2004.  The result of the root penetration is that the plaintiffs have become reasonably fearful for their own safety on their front lawn area.  The use of this part of their home has effectively been sterilised by the nuisance.”

157. The defendant contends that the amount sought by the plaintiffs is unreasonable and excessive based on comparisons with other awards.[171]  In addition, it highlights that the evidence of the first plaintiffs was that they did not elect to cease using the yard or become concerned for their safety until Mr Davies put his foot through a sinkhole whilst mowing on 24 January 2015.  That is in circumstances where the defendant had, prior to this date in October 2014, provided the plaintiffs with a reasonable way forward and that was for the plaintiffs to remove their failed retaining wall so the defendant could safely recompact and stabilise the soil in and around the easement area.  By that time, the defendant had obtained a quote to undertake such work including by way of Groutech grout injection along the entire alignment of the pipe at a cost of $56,327.[172]  The defendant highlights that the claim of the first plaintiffs therefore takes no account of their own failure to take any steps at all to remedy the issue despite having had ample time, and resources, to do so.  In the event that an amount is awarded, the defendant submits that an award of no more than a nominal amount could be ordered against the defendant in the circumstances.

     [171]The defendant also relied upon the awards identified in Dimitrios Michos at [150] - [157].

     [172]Exhibit 36.

158. It seems to me the defendant’s comments regarding the first plaintiffs’ allocation of their own private resources are unwarranted.  It is irrelevant to the fact that the plaintiffs claim includes ones for damages and the financial reasons of a party against whom a nuisance has and is being committed are irrelevant to the liability of the defendant, and obligation to compensate in respect of that nuisance.

159. The plaintiffs highlighted that the defendant led no evidence as to precisely what the proposed recompaction entailed from when it was first proposed in 2014, such that there is no evidence before the court to enable the court to make a finding that the plaintiff should have accepted this offer.  Such general proposition was strongly refuted by Mr Fox.[173]

     [173]T6-37, lines 35-37 and T6-14, lines 10-13.

160. There is no basis for any apportionment of damages claimed in the present instance by reason of the ownership of the pipeline, including the headwall, by the defendant. I have already determined that the occurrence in existence of the nuisance is the sole responsibility of the defendant.

161. Using Dimitros Michos as a comparable decision and having regard to the evidence of Mr and Mrs Davies, I award $50,000.  The chief considerations include: the duration of the nuisance; the amount of land unable to be utilised more reasonably by the first plaintiffs having regard to the overall size of the property; the inability of the first plaintiffs to entertain family and friends as they had intended for risk or fear of injury occasioned to them, including allowing their children, and friends, full access to the entire property; and the associated annoyance, inconvenience and discomfort of the ongoing presence of sinkholes and subsidence and loss of amenity.  The reality is this has been a longstanding ordeal for the first plaintiffs.    

Special damages

162. The plaintiffs have also sought that the court should award the sum of $110,108 to the plaintiffs as damages for nuisance/breach of the easement in respect of the removal and replacement of the retaining wall and boundary fence, and associated work per the quotation of Mr Urquhart plus interest on this amount.[174]  The figure of $110,108 comprises as follows[175]:

     (a)$88,868 (being for removal and replacement of the block retaining wall per the drawing and some allowance for barge hire and machine hire to remove and dump the existing concrete block retaining wall and foundation, to trim the bank and to prepare the site, to backfill the wall on completion);

     (b)$14,118 (contingency allowance for any damage to the neighbour’s wall and fence);

     (c)$4,330 (contingency allowance for rectification of existing landscaping);

     (d)$2,800 (contingency for the supply of extra fill).

     [174]Exhibit 24.

     [175]I obtain a figure of $110,116 not $110,108.

163. The defendant maintains that it is not liable for such costs based on the claims for breach of the terms of easement and/or nuisance (including negligence).  Alternatively, the defendant has attacked the quantum of the claim for reasons stated earlier particularly with respect to the quotation provided by Mr Urquhart.[176]  In addition, the evidence of Mr Wong was to the effect that any application made during the defendant for approval to build the retaining wall based on Mr Hill’s drawing[177] would not be approved, one of the reasons being the piers were too close to the pipe and no excavation is allowed within 600mm of the outer wall of the pipe.[178]  The defendant maintained regarding Mr Urquhart’s evidence was that he appropriately accepted his quotation was simply an estimate of what would be charged to do the work and that other companies and other builders would have a different view about the costs they were charged.  Further, the first plaintiffs did not give evidence confirming that they would in fact engage Mr Urquhart to proceed to undertake the work the subjects of his quotation, and on the basis of such quotation, or that they would ever intend to incur those costs at all. In the circumstances, at most, the evidence tended at trial was to the effect that only the reasonable cost to remove and replace the retaining walls, undertake grout injection at the canal end, and landscaping and turfing was that stated by Mr Hills to be $62,500 plus GST or $68,750 including GST.

     [176]As stated in [84] above.

     [177]Exhibit 18.

     [178]T 5-74, line 18 – T5-75, line 16.

164. Given the absence of any contrary evidence, I am satisfied that I can act upon Mr Urquhart’s estimate in respect of the removal and replacement of the retaining wall and boundary fence, and associated work.  His estimate is more recent than Mr Hills’ estimate who, for obvious reasons, could not be examined about his estimate.  I am satisfied $110,108 should be awarded for special damages for nuisance.  

165. Interest is also sought.  There is no reason why interest should not be awarded. 

Alternative claim for damages for breach of easement and/or alternatively nuisance for diminution in value of the property

166. The plaintiffs seek an alternative to the injunctive relief sought, namely damages for diminution in value to the property in the sum of $470,000.  This is in reliance upon the jointly held opinion of the valuers Laurie Hamilton and Tim Cunningham in their joint report of 26 October 2018 in which the experts agree that the adopted value of the property without the stormwater pipe failure is $1,325,000.[179]  Those experts agreed that having regard to the situation of the un-remediated pipe, the value of the property is $887,500, leaving a diminution in value (as agreed between the experts) of $437,500.  The plaintiffs have accepted that this figure is the amount that should be awarded to the plaintiffs (rather than $470,000) in circumstances where the court declines to grant the injunctive relief, requiring the defendant to carry out the remedial work and repairs per the joint engineers report.

     [179]Exhibit 1, page 581.

167. It was submitted that in the factual circumstance of this case, the court should grant the injunction and order that the defendant carry out the remedial work, because whilst an award to the plaintiffs of $437,500 would compensate them for the loss of the value to their property, by reason of the fact that the pipeline and headwall, which is the cause of the problem in the first instance, does not belong to the plaintiffs, they cannot use this money to repair the full extent of the property.  As it is the primary relief claimed by the plaintiffs, the circumstances of this case are such that the court should grant the injunction, rather than award the plaintiffs damages for diminution in value of the property.  I agree and grant injunctive relief in the circumstances.

Conclusion

168. There is judgment for the plaintiffs.  Consistent with these reasons, I invite the parties to confer as to the precise form of the order within 21 days, to reflect the following matters:

     (a)an injunction requiring the defendant to remove and replace the pipe or alternatively requiring the defendant to carry out the remediation work (to both the easement and the property around the easement as detailed in the joint report of experts Fox, Shaw and Borkowsky dated 28 May 2020) and to replace the section of the pipe three metres from the pipe outlet structure, and to replace or repair the pipe outlet structure (including the provision of a suitable water stop detail for the headwall as per the report of Mr Fox dated 28 February 2020);

     (b)general damages for nuisance in the sum of $50,000 to the first plaintiffs;

     (c)special damages for breach of the easement and/or nuisance in the sum of $110,108.

169. If necessary I will hear from the parties as to interest and costs, if interest and costs cannot otherwise be agreed.