Graham v Alic - [2022] QDC 106

DISTRICT COURT OF QUEENSLAND

CITATION:

Graham & Anor v Alic & Anor [2022] QDC 106

PARTIES:

Philip William Graham and Naomi Louise Sunderland

(Applicants)

v
Flaviu Riolan Alic and Nona Mirela Alic

(Respondents)

FILE NO/S:

BD1504/21

DIVISION:

Civil

PROCEEDING:

Originating Application

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

28 April 2022 (ex tempore)

DELIVERED AT:

Brisbane

HEARING DATE:

8, 11, 27 & 28 April 2022

JUDGES:

Jackson QC DCJ

ORDERS:

1.   The respondents are to:

(a)      demolish the timber retaining wall presently located on the respondents’ property immediately adjacent to the boundary between the applicants’ property and the respondents’ property (“the Existing Retaining Wall”);

(b)      construct a retaining wall, to replace the Existing Retaining Wall, which:

(i)       is to be designed and built according to plans approved and certified by an engineer nominated by the president of Board of Professional Engineers of Queensland.

(ii)     includes as part of its design and construction, adequate and reasonable drainage necessary to abate the nuisance identified in the Reasons for Judgment.

2.   The preceding order be stayed for three months from the date of this order.

3.   Liberty to the parties to apply on three days’ written notice to the other party in relation to the operation of orders 1 and 2.

4.   The respondents are to pay the applicants’ costs of and incidental to the proceedings:

(a)   up to and including 11 April 2022 on the standard basis;

(b) thereafter, on the indemnity basis.

CATCHWORDS:

NUISANCE – NATUAL AND REASONABLE USE OF THE LAND – CONCENTRATION OF SURFACE WATER – Where the applicants claim that works undertaken on the respondents’ property have interrupted the “natural flow” of water – Where the applicants claim that works on the respondents’ property have increased the concentration and velocity of water flowing onto their property – Where the respondents submit that the works on their land are a reasonable and natural use of their land – Whether or not the respondents have created a nuisance to the applicants’ property.

INJUNCTION – Whether an injunction should be granted.

DAMAGES – Where the applicants claim they have suffered damage – Whether damages should be awarded.

CASES:

COUNSEL:

Bell v Pitt [1956] Tas SR 161
Corbett v Pallas (1995) 86 LGERA 312
Gales Holdings Pty Ltd v Tweed Shire Council (2013) 197 LGERA 381
Gartner v Kidman (1962) 108 CLR 12
Kraemers v Attorney-General (Tas) [1966] Tas SR 113
State of Queensland v Baker Superannuation Fund Pty Ltd [2019] 2 Qd R 146

P Somers for the applicants
M McDermott for the respondents

SOLICITORS:

Bennett & Philp Lawyers for the applicants
Frangos Lawyers for the respondents

Introduction

The applicants and the respondents are neighbours.
The applicants live at 26 Fernhill Place, Diddillibah (“the applicants’ property”) and have done so since 30 June 2017. The respondents live on a higher contiguous lot at 22 Fernhill Place, Diddillibah (“the respondents’ property”). The respondents have owned their property since 27 August 2013 but did not commence building on it until…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2022] QDC 106
Decision Date: 28 April 2022 (ex tempore)

CaseChat Overview and Summary

In the matter of Graham v Alic, the applicants sought relief against the respondents for the alleged nuisance caused by the respondents' works on their property, which the applicants claimed had increased the concentration and velocity of water flowing onto their property. The applicants argued that the respondents' works had interrupted the natural flow of water and caused damage to their property. The respondents maintained that their actions were a natural and reasonable use of their land. The court was tasked with determining whether the respondents had created a nuisance and whether an injunction or damages should be granted.

The court considered the evidence and expert reports presented by both parties, focusing primarily on the Stormwater Drainage Joint Report, which highlighted the effects of the respondents' works on the natural surface stormwater flows. The court found that the removal of the cut-off bund and the construction of the retaining wall had reduced the quantity and velocity of rainfall runoff discharges from the respondents' property, but did not entirely eliminate the nuisance caused to the applicants' property.

Ultimately, the court found in favour of the applicants and ordered the respondents to demolish the existing retaining wall and construct a new one with adequate drainage to abate the nuisance. The order was stayed for three months to allow for the implementation of the new design. The respondents were also ordered to pay the applicants' costs of the proceedings.

In summary, the court recognised the applicants' claims of nuisance caused by the respondents' works and ordered the necessary changes to address the issue while balancing the respondents' right to use their land in a natural and reasonable manner.

Orders

Orders of the court

1. The respondents are to:

(a) demolish the timber retaining wall presently located on the respondents’ property immediately adjacent to the boundary between the applicants’ property and the respondents’ property (“the Existing Retaining Wall”);

(b) construct a retaining wall, to replace the Existing Retaining Wall, which:

(i) is to be designed and built according to plans approved and certified by an engineer nominated by the president of Board of Professional Engineers of Queensland.

(ii) includes as part of its design and construction, adequate and reasonable drainage necessary to abate the nuisance identified in the Reasons for Judgment.

2. The preceding order be stayed for three months from the date of this order.

3. Liberty to the parties to apply on three days’ written notice to the other party in relation to the operation of orders 1 and 2.

4. The respondents are to pay the applicants’ costs of and incidental to the proceedings:

(a) up to and including 11 April 2022 on the standard basis;

(b) thereafter, on the indemnity basis.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

I found Dr Alic to be doing his best to reliably give evidence as to what he observed. Having said that, I consider that the applicants were in a significantly better position to have observed water travelling onto their block and to discuss its effects. I also query Dr Alic’s evidence to the effect that he recites in various places that no water travels out from underneath the retaining wall which in my view is completely inconsistent with the state of the ag-pipe. The expert evidenceStormwater drainage and groundwater hydrogeology The applicants rely on three reports of Christopher Anderson dated 16 March 2021, 20 July 2021 and 10 March 2022. The respondents rely on two reports of Brett Thomson dated 20 May 2021 and 22 October 2021 and a report of Ian Unsworth dated 3 November 2021. In addition, each of these experts participated in a joint site inspection meeting on 31 January 2022 and subsequent email and telephone calls and produced a joint report dated 18 February 2022 (the Stormwater Drainage Joint Report). It is convenient to focus attention upon the contents of the Stormwater Drainage Joint Report, especially given the extent of agreement between the experts. During 2013, the cut-batter slope being a three metre deep cut batter was created around the southern and eastern ends of the shed to facilitate a flat building pad for it. They described the cut-batter as relatively steep and composed of exposed subsoils without topsoil, vegetation or other types of ground cover. They also describe the effect of the cut-off bund being installed in about November 2013 along the boundary with the applicants’ land but generally located on the respondents’ land by the previous owner/builder of the applicants’ land. They agree that the cut-off bund would have intercepted and diverted and therefore reduced the natural surface stormwater flows from the respondents’ property to the applicants’ property as occurred prior to the respondents constructing their house and associated works. They agree that the functionality of the cut-off bund maybe considered as being generally consistent with the intent of the requirements of drawing DD1 included in Appendix 5 of the Site Investigation & Footing/Slab Design Report – Lot 7(number 26) Fernhill Place, Diddillibah by EBIS dated 17 July 2013[58] as relevant to diverting stormwater away from the buildings on the applicants’ land.[58]Exhibit 2. As part of the construction of the respondents’ house, pool and associated works, the cut-off bund was removed and in September 2015 an approximately 40 metre long section of retaining wall was constructed. The experts agree that the construction of the respondents’ house and hard stand areas with runoff diverted to the road reserve to the west and to the environmental covenant area to the east had the effect of reducing the quantity and velocity of rainfall runoff discharges from the respondents’ property which may have otherwise been directed towards the applicants’ land.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Graham & Anor v Alic & Anor [2022] QDC 106
PARTIES:	*Philip William Graham and Naomi Louise Sunderland* (Applicants) v *Flaviu Riolan Alic and Nona Mirela Alic* (Respondents)
FILE NO/S:	BD1504/21
DIVISION:	Civil
PROCEEDING:	Originating Application
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	28 April 2022 (ex tempore)
DELIVERED AT:	Brisbane
HEARING DATE:	8, 11, 27 & 28 April 2022
JUDGES:	Jackson QC DCJ
ORDERS:	1. The respondents are to: (a) demolish the timber retaining wall presently located on the respondents’ property immediately adjacent to the boundary between the applicants’ property and the respondents’ property (“the Existing Retaining Wall”); (b) construct a retaining wall, to replace the Existing Retaining Wall, which: (i) is to be designed and built according to plans approved and certified by an engineer nominated by the president of Board of Professional Engineers of Queensland. (ii) includes as part of its design and construction, adequate and reasonable drainage necessary to abate the nuisance identified in the Reasons for Judgment. 2. The preceding order be stayed for three months from the date of this order. 3. Liberty to the parties to apply on three days’ written notice to the other party in relation to the operation of orders 1 and 2. 4. The respondents are to pay the applicants’ costs of and incidental to the proceedings: (a) up to and including 11 April 2022 on the standard basis; (b) thereafter, on the indemnity basis.
CATCHWORDS:	NUISANCE – NATUAL AND REASONABLE USE OF THE LAND – CONCENTRATION OF SURFACE WATER – Where the applicants claim that works undertaken on the respondents’ property have interrupted the “natural flow” of water – Where the applicants claim that works on the respondents’ property have increased the concentration and velocity of water flowing onto their property – Where the respondents submit that the works on their land are a reasonable and natural use of their land – Whether or not the respondents have created a nuisance to the applicants’ property. INJUNCTION – Whether an injunction should be granted. DAMAGES – Where the applicants claim they have suffered damage – Whether damages should be awarded.
CASES: COUNSEL:	Bell v Pitt [1956] Tas SR 161 Corbett v Pallas (1995) 86 LGERA 312 Gales Holdings Pty Ltd v Tweed Shire Council (2013) 197 LGERA 381 Gartner v Kidman (1962) 108 CLR 12 Kraemers v Attorney-General (Tas) [1966] Tas SR 113 State of Queensland v Baker Superannuation Fund Pty Ltd [2019] 2 Qd R 146 P Somers for the applicants M McDermott for the respondents
SOLICITORS:	Bennett & Philp Lawyers for the applicants Frangos Lawyers for the respondents