Ward v Caboolture Shire Council
[2002] QDC 77
•27 March 2002
DISTRICT COURT OF QUEENSLAND
CITATION: Ward v. Caboolture Shire Council [2002] QDC 077 PARTIES: TERRY JOHN WARD (Plaintiff)
v.
CABOOLTURE SHIRE COUNCIL (Defendant)FILE NO/S: D3872 of 1999 DIVISION: PROCEEDING: Trial ORIGINATING COURT: District Court Brisbane DELIVERED ON: 27 March 2002 DELIVERED AT: Brisbane HEARING DATE: 26-29 March 2001 JUDGE: McGill DCJ ORDER: Judgment that the defendant pay the plaintiff $65,000, together with interest and costs CATCHWORDS: DAMAGES – Assessment of Damages – land – interference with use and enjoyment from drainage works – reduction in value
LOCAL GOVERNMENT – Powers, Functions and Duties of Councils – drainage works – interference with use and enjoyment of land – compensation – Local Government Act 1993 s.1071
NUISANCE – Damages – increased inundation because of drainage works – reduction in value
VALUATION OF PROPERTY – Pastoral and agricultural land – increased inundation because of drainage works – reduction in value
Symons Nominees Pty Ltd v Roads & Traffic Authority of New South Wales (1996) 25 MVR 174, (1997) Aust Torts Reports 81-413 – applied.
Evans v Balog [1976] 1 NSWLR 36 – applied.COUNSEL: P.E. Smith for the plaintiff
J.D. Houston for the defendantSOLICITORS: Paul Everingham & Co for the plaintiff
Maskiells for the defendant
This action concerns a parcel of land, Lot 1 on Registered plan 21029, Parish of Toorbul, County of Canning, situated at 240 Peel Road, Beachmere. Peel Road connects the Caboolture-Bribie Island Highway with Beachmere; the Peel Road frontage is the eastern boundary of the land, which has an area of 15.95 hectares. The land is approximately 14.5 kilometres east of Caboolture town centre: Exhibit 20. Prior to 1998, the land was at the relevant time owned jointly by the plaintiff and Terri Lee Stainsby: p.16, Exhibit 22. In about February 1997, they separated, and it was subsequently agreed between that Ms. Stainsby’s interest in the land be transferred to the plaintiff: Exhibit 22, a property settlement agreement which also made provision for him to transfer his interest in other jointly owned land to her. In June 2000 the plaintiff, in consideration of natural love and affection, transferred the land to himself and Jian Liu Ward as the joint tenants.
At the commencement of the trial an application was made to amend the proceeding to include Ms. Ward as a second plaintiff. Ultimately that application was not persisted with, because of an agreement between the plaintiff and the defendant that the defendant would take no point as to the plaintiff’s entitlement to recover whatever relief could be recovered by the owner of the property (p.279), and the trial was conducted on both sides before me on the basis that I should treat the plaintiff as having been at all material times the owner of the property and entitled to enforce himself any cause of action which was relevant in this action. That has avoided a number of potential problems which might otherwise have arisen.
By his original claim filed on 1 October 1999, the plaintiff claimed damages for breach of contract or damages for negligence in respect of damage caused to the land by a levee bank constructed by the defendant in December 1997, partly on the land but mostly on other land. An amended Statement of Claim was filed on 14 March 2001, and a further amended Statement of Claim on 19 March 2001, and there were further applications before me for leave to amend the pleadings. Since the request for trial date was filed on 24 October 2000, these amended Statements of Claim were irregular since they were filed without first obtaining the leave of the court: Uniform Civil Procedure Rules r.380.
Ultimately the pleadings were put in order on both sides, and included claims for damages for breach of contract, negligence, nuisance, or for compensation pursuant to s.666[1] of the Local Government Act 1993. At the end of the trial, however, there was some agreement between the parties about liability: the plaintiff agreed not to press claims for damages for breach of contract or damages for negligence, and the defendant agreed that there was a potential liability (subject to proof of loss) either for damages for nuisance or for compensation under the Act, so that the only matter ultimately in issue was quantum: p.280.
[1]This is the number in the original Act up to Reprint Number 3; from Reprint Number 4, the section was renumbered as s.1071.
The defendant submitted that an appropriate award of damages or compensation was the sum of $15,000; the plaintiff submitted that on the evidence it was appropriate to make a much larger award. Although the matter which was ultimately in issue in the trial was quantum, but I think it is appropriate that I deal briefly with the question of liability (in a way not inconsistent with the agreement between the parties) if only for the purpose of making it clear just what it is for which damages are being assessed. As well, it may be helpful to set out (in case some difference should arise between the parties in the future) just what is or is not covered by this judgment. Before I do so however, it is necessary for me to say something further about the background to the matter.
Drainage characteristics of the land and surroundings
The plaintiff’s land is located to the north west of Deception Bay, and is relatively low lying ground (p.111), as is much of the land in the Beachmere area. Parallel to the beach there is a very low sand dune which nevertheless manages to act as a watershed, which runs a little to the south east of the plaintiff’s land: p.15 of Exhibit 24. Previously at times of heavy rain, water which accumulated to the north west of this sand dune had to drain away either to the north east into a large low lying area where there was a very small watercourse to Deception Bay, and where some relief from flooding was also provided by a disused clay pit (p.228), or to the south west where the water could find its way into King John Creek, and thus into the Caboolture River: p.2 of Exhibit 24. The position is illustrated in a diagram, Figure 1, on p.49 of Exhibit 24, which shows a shaded area identified as being frequently inundated. Because the land is generally flat, any run off has always been relatively slow. Apart from flooding after heavy rain in the immediate area, because of the low lying nature of the land, in the event of flooding in the Caboolture River, flood water could spread into this area, coming up from the south west. An aerial photograph, Exhibit 17, shows a rudimentary watercourse running roughly parallel to the sand dune, and through the plaintiff’s property: p.227.
Some time prior to May 1981, a drain was excavated through the sand dune at a point to the south of the plaintiff’s property. As a result, there was an alternative exit point for water in the area of the plaintiff’s property, which could now flow down that drain into Deception Bay: p.229. Although this provided a much shorter path to the sea, it was still a relatively flat drain and in lower reaches had to accommodate a good deal of run-off water from the other side of the sand dune as well. It left the area to the north west of the sand dune still subject to significant flooding in the event of heavy rain. The plaintiff’s expert engineer, Mr. Hegarty, was of the opinion that, prior to the construction of the levee, most of the run-off from the plaintiff’s land and land further to the north and east went down the drain, although some may have gone south-west to King John Creek: p.152-2, p.162.
Mr. Ogle, an engineer who has a good deal of experience in this field, and who was involved in the investigation of drainage work on behalf of the defendant, has marked the approximate boundaries of the catchment area for this drain in Figure 1 on p.49. He has divided the frequently inundated area into the catchment for this drain, the area which is to the south west which still naturally drains to King John Creek, and the area to the north east which still naturally drains away at that end, although he notes that there can be some interchange between these catchments which will depend on the source of the inundation and the respective efficiencies of the different drainage systems. In such flat terrain, of course, the location of a catchment boundary is a difficult thing to undertake with any degree of precision, but logically there must be a catchment for this drain and it must have some boundaries: p.233. The matter is complicated by the fact that there can be some crossover between adjoining catchments, depending on the respective water levels[2].
[2]Mr. Ogle put the lowest level for cross-over to the south-west from the catchment for the drain at RL 2.28m: p.230. For comparison, Figure 2 on p.50 in Exhibit 24 shows the area of inundation for a flood to RL 2.5m, and the levee was constructed with a spillway height of RL2.6m: Exhibit 42.
If the inundation is uneven, there may be more flooding in one catchment than in the others, and this would cause water to flow into the other catchments; if the catchments are all evenly flooded, but one of them was draining away more efficiently, there would be some tendency for water to flow into that catchment from the others. As well, if there is a contribution to the flooding from river flooding, any rising flood waters from the Caboolture River would be moving through the catchments from the south west to the north east. These are matters which really vary from event to event, and the principal significance for present purposes is that they are factors which mean that the drainage system will not necessarily always operate in practice in quite the same way that it would operate in theory, particularly if the theory assumes that each outlet drains only a defined catchment.
The drainage problems in the area have, if anything, been made worse in recent years because of clearing associated with development and the cutting out of large areas of pine plantation which formerly covered a large part of the region: p.227. The plaintiff’s land was cleared of plantation pine in about 1994 (p.53, and see p.124)), but much of it is now covered with regrowth: p.57. To the south of the plaintiff’s land is an area of rural subdivision, part of which was experiencing significant problems of flooding after heavy rain. It is referred to in Exhibit 24, and generally in the evidence, as the “Murray Court” problem area, named after a cul-de-sac running north/south and terminating a short distance south of the plaintiff’s land. This land is all within the catchment area of the drain running through the sand dune, as shown in Figures 1 and 2 of Exhibit 24.
Proposals for flood mitigation works
In March 1996 a firm of drainage engineers, Australian Water Engineering Pty Ltd (“AWE”), was retained by the defendant to undertake a preliminary assessment of drainage problems and mitigation options in the area. AWE reported on 30 April 1996: its report is part of Exhibit 24. They analysed the cause and nature of the drainage difficulties in the area, and recommended that flooding associated with a one in five year rainfall event was best dealt with by the construction of a levee along the rear of the Murray Court properties. In a more severe event, say a one in one hundred year event, flooding from the Caboolture River would be the dominant consideration., and flood water to the north west of the sand dune would be at a level of approximately RL3.2 m.
On 10 May 1996 the defendant instructed AWE to investigate in more detail the proposal to construct a levee, as a result of which AWE reported on 20 September 1996, recommending the construction of the levee running along Pritchard Road, then the western boundary of the properties in the Murray Court area, then along the northern boundary of those properties to a point close to Peel Road, where the tail of the levee ran on to the plaintiff’s land, ending close to his house[3]. The effect of this was that almost all of the plaintiff’s land would lie to the north of, and hence outside, the levee. The levee was to be constructed with a spillway in the north west corner.
[3]The levee ultimately constructed was about 1.2 km long: p.153.
This was expected substantially to fix the flooding problem in the Murray Court area, and in addition, by easing the demand on the capacity of the drain in the section closer to Deception Bay, improve the drainage of another problem area which lay to the south east of the dune, shown in figure 2 of Exhibit 24, which was also drained through the lower part of the same drain: p.232. In the event of a flood which overtopped the levee, of course, the position would not be any different until water had drained away to the point where the water level had fallen to the height of the top of the levee bank.
In this design there was provision for a pipe through the levee; Figure 3 on p.51 shows a nominal 225 mm diameter through the levee for low flow control, situated close to the western boundary of a property owned by Fernandez. This would drain from the area north of the levee (the plaintiff’s land) into a drain which would ultimately feed into the drain through the sand dune. The report acknowledged that the operation of the levee could adversely affect the drainage characteristics of properties upstream of the levee and in adjoining catchments, although this would merely return the situation to that which existed before the drain was cut through the sand dune[4]. I am not sure that that is quite correct; the area within the levee is a significant part of the area of frequent inundation within the overall catchment marked on Figure 1, and to the extent that water from the whole catchment would otherwise have run into that area, but is now being excluded from that area the additional water would worsen the flooding in the balance of the catchment[5], except to the extent that it discharged into adjoining catchments. Discharge into adjoining catchments will only occur if the water level of this catchment is higher than the water level in the adjoining catchments, and if the water level in this catchment is high, it means that flooding in this catchment in the areas outside the levee will have been made to that extent worse, that is, worse than it would have been if neither the drain through the sand dune nor the levee had been constructed. I would expect, however, that it would not be much worse.
[4]Mr. Ogle conceded that that would make it worse than it was after the drain was cut through the dune: p.216.
[5]Mr. Ogle appeared to concede this: p.231 line 24.
The point was made again on p.38 of Exhibit 24: “Leveeing of the Murray Court area will effectively force a return to the pre-existing drainage characteristics on properties outside the levee”. This meant the characteristics prior to the construction of the drain through the sand dune. It would, however, mean that most of the area within the levee would be freely drained almost down to surface level during an event up to one in five frequency. If the levee were overtopped, there would still be the same flooding within this area, but once levels drop to the point where they were contained behind the levee, the level inside the levee would drop more quickly. Some improvements to the drainage channels within the levee area were also proposed. The residents in the drainage problem area were overwhelmingly in favour of the levee proposal: p.42.
Negotiations between the parties
After receiving this report the defendant engaged in further consultation, in the course of which it wrote to the plaintiff on 6 October 1997 advising its intention to construct the levee bank as shown in an enclosed drawing at a height of between 300 mm and 900 mm[6]: Exhibit 2. The plaintiff received this and subsequently met Mr. Moorhead, council’s chief surveyor, at the property on 14 October 1997: p.242. They discussed the location of the wall, and the plaintiff requested that it be moved further away from his house so that the area of his land protected by the levee would be increased.[7] Mr. Moorhead made notes at the time on a copy he had of the plan of the proposal: Exhibit 40. Subsequently a new drawing was prepared showing the levee bank in this amended position: Exhibit 41. On 31 October 1997, the defendant wrote to the plaintiff enclosing a copy of this new drawing and seeking the plaintiff’s agreement to granting the defendant an easement[8] over the 10 metre strip containing the levee bank, and allowing access to construct it while the easement acquisition proceeded: P.244, Exhibit 7.
[6]The levee ultimately constructed had a maximum height of 1050 mm, and an average height of 830 mm: Exhibit 42.
[7]In respect of this I accept the evidence of Mr. Moorhead.
[8]The easement has yet to be formally put in place; it has been agreed between the parties that the plaintiff will not have any right to compensation for the easement in addition to whatever damages I assess: p.284.
The plaintiff did not immediately respond to this letter and a follow up letter was sent on 20 November 1997: Exhibit 6. The plaintiff then went to see Mr. Moorhead and after some discussion about fill, signed a form of agreement to the proposal and authorisation for council to enter on to the property and do the work, adding to Exhibit 6 the words “..and 10 loads of fill to be stockpiled”. There was no suggestion of paying the plaintiff compensation: p.247. The levee bank was subsequently constructed at the defendant’s expense, including the section on the plaintiff’s property on about 20 December 1997: p.24. The fill was delivered: p.74. When surveyors were pegging the location of the levee, the plaintiff had some concern that it was being set out in the wrong place: p.23. Ultimately, nothing turns on this. I accept that the wall was correctly located in accordance with the final design: p.249.
Subsequently, following complaints from the plaintiff (p.27), the defendant did some further work. The pipe under the levee was lowered in early 1998 (Exhibit 33), and later that year there were further works, including constructing some shallow drains parallel to the wall to help carry the remains of floodwater towards the pipe inlet, and putting in a second pipe through the wall: p.31, Exhibit 36. They also put a larger pipe in the culvert under the road to the northeast of the plaintiff’s property: p.29. The plaintiff said that the larger culvert made the situation worse, by facilitating water flowing towards his land from the catchment area on the other side: p.31. This work was done fairly soon after the original work and because of this and because no further works are proposed, it is appropriate to compare the situation prior to the construction of the levee with the situation after these modifications were made.
The effect of the construction of the levee
There was two kinds of evidence as to what effect the construction of the levee had on the plaintiff’s land: expert evidence as to what the effect would have been, and evidence of people who have observed the area before and after the wall was constructed, as to what the effect appeared to them to be. Evidence of the latter kind came from the plaintiff. He said that in late January or early February 1998 there was a fair bit of rain, and the paddock outside the wall filled up with water: p.24. There was more flooding that had occurred in that area during the time he had been there (about 7 years).[9] He said that it seemed to him that prior to the wall being built the area now outside the wall drained in about 1½ days, but that area stayed wet after the flooding in early 1998 until August 2000: p.26.
[9]He purchased the property in 1990: p.16.
The plaintiff said that because it took longer for water to get away and the land was wetter outside the wall, the grass was sour and a different type of grass was growing which was unsuitable for grazing horses: p.35. The plaintiff had had some good, well grassed paddocks on the land: see eg Exhibit 3. He had previously kept up to 14 horses on the land, and had been able to earn some money from agistment fees: p.16, p.58. Fourteen seems to me to be a lot of horses for such a property, and I do not accept that such intensive use was occurring regularly. He could not even get a tractor in to treat weeds in that area properly, because the ground was too soft. Some of the plaintiff’s evidence was, I thought, more a product of strong emotions than careful observation and precise description, and there was some conflict with the evidence of Mr. Moorhead, which I accept as generally reliable. Some things he said were not correct.[10] I do not accept everything that he said, but regard much of his evidence as fairly reliable, or as having at least some truth within it.
[10]For example, that there was no meeting with Mr. Moorhead on the property between 6 and 31 October 1997: p.197.
The plaintiff called evidence from a friend of his, Mr. Hird, who had been operating a worm farm in an area near some stables on the plaintiff’s land: p.78. This was prior to the construction of the wall, but perhaps not for many years prior. He said that the wall seemed to create a lot of problems for him, because the farm was flooded and then water became a problem: p.79. He took some photographs of the area (Exhibits 8, 9 and 10) in early 1998 which show water lying about, but was not able to date them specifically. He failed to indicate how long after the heavy rain that amount of water was there. He said there were times since August 2000 when he had been to the property and seen that it had dried out: p.80. He said he could recall the water being worse than what was shown in the photographs, presumably in the period between when the rain fell and when the photographs were taken: p.81. He had not however since early 1998 seen flooding on the property which was as bad as it had been then: p.82. Overall his evidence is of some use but not much.
The plaintiff also called a neighbour, Mr. Reif, who lived three doors away in Peel Road: p.83. He had only been living there since 1992: p.86. Prior to the construction of the wall he had seen horses regularly on the property, he suggested six to ten, although I suspect he never particularly counted them: p.84. His impression was that before the wall was built water would drain off the plaintiff’s property quite readily but that the situation has changed since then: p.84. Whereas previously water would run away in a day or two, now the property has water on it nearly all year round: p.85. After heavy rain it backed up to the next property: p.87. It takes weeks to drain away: p.88. He described the effect of the wall as turning the land into a swamp: p.85. There are only a couple of horses up near the house, that is on the inside of the wall, now: p.85. His impression was that about half of the large paddock on the plaintiff’s land had been cleared.
Mr. Reif also said that since the construction of the wall there was water over Peel Road in the vicinity of the plaintiff’s property after any heavy rain, whereas previously he could only recall it coming over there once: p.85. He said there had been water on the land in February 2001, and that the ground would be still be soft and wet to walk on: p.87. He denied that there had been any waterhole on the land in the area north of the wall prior to its construction (p.88) although that appears to be inconsistent with what appears in aerial photographs of the land taken in 1991, 1994 and 1995: Exhibits 17-19. Indeed, the plaintiff conceded that there had always been a dam or waterhole to some extent in that area, but claimed the situation there was now much wetter: p.53. In the light of this I am wary about the reliability of Mr. Reif’s evidence.
Mr. Brown, who gave evidence as a valuer, said that he was familiar with the land, having driven past it numerous times: p.108. Before the wall was constructed it used to be a grassy paddock, whereas now it was often waterlogged. My impression was that he had never paid particular attention to the land and its state, but I think that his evidence does demonstrate that after the wall was built there was some difference in the appearance of the land because the area behind the wall was wetter than it had been, and that this was enough to be noticeable to someone like him, who had only the general interest which a valuer and real estate agent practicing in the area would have had in that land.
Expert evidence
The plaintiff called expert evidence from Mr. Hegarty, a civil engineer with some particular experience in flood mitigation works: p.151, Exhibit 31. He prepared a brief report on 19 May 2000 (Exhibit 23). He estimated that the capacity of the pipe under the levee was about 5% of the capacity over land flow on occasions of heavy rain, so that the duration of inundation of the plaintiff’s property could increase by a factor of 20 because of the construction of the levee. In a second more detailed report prepared shortly before the trial (Exhibit 32) he calculated that in the design event drainage time on the plaintiff’s land would have been increased by a factor of about 10, and in smaller events by a factor of about 5. The design event was a 1 in 5 year storm, at which water was just to reach the spillway level of the levee bank, which was RL 2.6 m: p.156. As well, the frequency of inundation of the plaintiff’s land had increased by a factor of 4. He also concluded that once water dropped below RL 2.3m all water on the plaintiff’s property, and on properties to the north, would have to drain through the pipe under the wall in order to clear, because there was a slight slope from west to east on the plaintiff’s property. He was also of the opinion that there were no feasible additional remedial works which could overcome the adverse impacts, without withdrawing the protection afforded by the levee to the properties in the Murray Court area.
Mr. Hegarty said he visited the property earlier in the year shortly after about 154 millimetres of rain had fallen over three days; water was just flowing through the culverts under Peel Road, and there was water downstream of the levee bank about the point where the pipe came through, and other isolated pools on that side of the levee, but the water outside the levee appeared to be more extensive and it appeared that there was a difference in water levels of about 200 millimetres because of the levee: p.154. Mr. Hegarty had inspected the levee bank on three occasions, on 15 May 2000, during the first week of February 2001, and about 12 March 2001: p.158. The second of those inspections occurred on the days when photographs Exhibit 28 were taken.[11] Mr. Hegarty said that when he saw the area following rain in 2001, the properties inside the levee had very little water on them, but there was a higher water level outside the levee, in particular on the plaintiff’s land: p.180. In his opinion if the levee had not been there that water would have drained away without significantly increasing the water level on the downstream land.
[11]Note that the photographs and captions in this exhibit are out of sequence: p.147.
Mr. Hegarty said that the difference in water levels was best shown in photograph 6 which was part of Exhibit 28: p.182. This shows a lot more water outside the levee than inside. When he went back to the area on 12 March, the whole area was dry, including the area outside the levee: p.182. He also said that at the tail end of the flood, with low flow, the fact that the water had to travel an extra distance over the ground in order to get through the pipe would increase the time it would take for this part of the water to drain away: p.189. On the other hand, Mr. Ogle was of the opinion that the increased velocity in the drains caused by the greater depth the water achieved by concentrating the water into the drains would more than offset the extra length that the water had to travel before leaving the plaintiff’s property: p.235. On this point I prefer the evidence of Mr. Hegarty.
The defendant called as an expert engineer Mr. Ogle of AWE, the company which advised the defendant about this project. Mr. Ogle is a specialist drainage engineer with particular expertise in flood management and associated matters. He said that he visited the site late May 1996, prior to the construction of the levee, and found the whole area inundated, with the plaintiff’s property largely submerged, except for the higher ground around the house: Exhibit 24. His visit occurred when the water had receded only 10-15 centimetres below the highest levels in a 1 in 5 year event, which put water over various roads in the area including the lowest sections of Peel Road. On 17 May Peel Road was clear of the water, but most of the low lying areas, including a significant part of the plaintiff’s land, were still under water. He thought that not all the water had drained away from the plaintiff’s land when he visited again on 13 June 1996. He concluded that the plaintiff’s land was some of the lowest lying land in the area.
Following the construction of the levee, Mr. Ogle visited the plaintiff’s land on 17 August 1998 when there was a strip of shallow inundation outside the levee about 10 to 30 metres wide, and about 230 metres long. There was, however, some inundation as well on the inside face of the levee, and it appeared that the water level on both sides of the levee was similar as there was very little flow through the pipe. Accordingly, Mr. Ogle attributed the slow drainage at this point to the condition of the drain downstream of the pipe under the levee. Subsequent to this visit, the remedial work was undertaken on the land.
On 10 August 2000, Mr. Ogle visited the property and found that the land was completely dry apart from the water hole. On 31 October 2000, on a visit following a fall of 30 millimetres of rain, a small amount of water was seen in the drain outside the levee, but again there was very little flow through the pipe under the levee which Mr. Ogle considered was being retained in the area inside the levee, and therefore also outside the levee, by obstructions in the drainage system further down stream. He said that he would expect that if the ground was essentially dry up to about 25 millimetres of rain would just soak in: p.217.
Notwithstanding this, Mr. Ogle said there had been an improvement in conditions inside the levee, which had been achieved at the expense of some deterioration of conditions outside: Exhibit 24, p.9. Nevertheless, he said that the levee now had only a limited impact on that part of the property which was outside it, and that part which was inside it benefited from its construction. Ultimately, he concluded that the overall flooding and drainage situation on the plaintiff’s land was much the same as it had been before the construction of the levee.
Following significant rainfall in early February 2001, Mr. Ogle went to the property and took a series of photographs, including several taken on separate days from essentially the same vantage point: Exhibit 38. Photographs taken along the top of the levee from its end at Peel Road showed substantial areas of inundation on each side on 2 February and 3 February, although by 5 February there was much less water inside the levee, and still some outside, but less than earlier, and there was even less on 7 February. It is difficult in these photographs to get a clear view of the water in the areas outside the levee, but there certainly was some, although to some extent that may have been because of a waterhole located in that vicinity, shown in a separate series of photographs. Other photographs show fairly extensive inundation inside the levee on 3 February, but this had virtually disappeared by 5 February, with even less two days later.
A photograph taken on 2 February along the levee from where it moved away from the plaintiff’s southern boundary showed water clearly visible in the drain outside the levee, and apparently extending into the grass leading up to the trees nearby, although it is difficult to tell from the photograph just how much of the grass is standing in water. On the following day there seemed to be a similar amount of water outside the levee, and some water was still visible on 5 and 7 February, although somewhat less. Again, it is difficult to gauge the extent of the ponding at this point because of extensive areas of long grass. Photographs taken at the outlet of one of the pipes under the levee showed extensive inundation on 2 and 3 February, but by 5 February this had largely dropped so that it was almost all confined within the open drain across the Bradley property, and on 7 February there was only a small amount of water just covering the lowest part of the outlet pipe.
A photograph on 2 February looking west along that portion of the levee which was parallel to the plaintiff’s southern boundary showed an extensive area of water on the plaintiff’s land in the area near the boundary fence, although it was difficult to see how much of the plaintiff’s land was under water at that point because of the long grass; the shorter grass in the neighbouring property made it easier to see that even on that day much of it was dry. Another photograph taken from a similar position but looking more into the plaintiff’s property on 7 February shows some water in the drain on the plaintiff’s property near the boundary fence, and therefore outside the levee, and some adjacent area of muddy ground, but again the grass and trees make it difficult to see how far the water extends on to the property.
According to Mr. Ogle, on 2 February the difference in the water levee across the levee was approximately .3 of a metre. By the following day (that is in 24 hours) the difference dropped to .25 of a metre, while two days later there was a minimal difference (.02 of a metre) and the flow through the pipes had virtually ceased. By 7 February he said there was no difference in the water level, and the drains were “close to drying out”; I suppose that is an expression of somewhat elastic meaning, but it is not one, it seems to me, which readily applies to what I can see in the photograph of the drains outside the levee. Mr. Hegarty said that the photographs in Exhibit 38 showed the water on the plaintiff’s property draining away over three or four days following rain in early February 2001, but that for that rainfall event, if the levee had not been there, he would have expected it to have drained in perhaps half the time: p.184.
Mr. Ogle attributed the difference in water levels across the levee to the effectiveness of the levee in lowering the water level inside, rather than any raising of the water level outside: p.206. It some circumstances that might be true: if one looked at the situation after the water inside the levee had essentially drained off the land outside the drains, that time would have been reached more quickly after the rain with the levee, so the inside level had been lowered by it, and at that time the water level outside the levee would probably not be higher than it would have been anyway at some stage after the rain. But at that time the water level outside the levee will be higher than would have then been the case if the levee was not there.
Mr. Hegarty had calculated that the frequency of inundation of the plaintiff’s land had increased by a factor of 4, based on water levels in 1996 and after the construction of the levee (Exhibit 32), but under cross-examination he conceded that, if the 1989 flood levels were taken into account, the factor came down to between 1 and 2: p.186. Mr. Ogle was critical of this part of Mr. Hegarty’s analysis, because of his opinion that the levels achieved during flooding in February 1999 included back up from King John Creek: p.207. In his opinion, this was confirmed by levels attained in 1989, which he said gave a different impression, in relation to the issue of how much rain causes what level of flooding on the plaintiff’s land: p.208. Indeed, Mr. Ogle said his analysis of the levels in April 1989 and February 1999 suggested there had been no change in the levels achieved in flooding from equivalent amounts of rain following the construction of the levee. He and Mr. Hegarty therefore did not agree on the effect on frequency of inundation.
Mr. Ogle said this analysis also suggested that there had been no change in the drainage times: p.208. However, on 17 August 1998 he had written to the Chief Executive of the defendant saying inter alia: “There is obviously a perception that the part which is outside the levee is now being drained more slowly than the part which is inside the levee. To some extent the perception is probably correct because the drainage of the higher water levels outside the level will be restricted by the obstruction of the levee.” (p.221) Ultimately he settled on a figure of 2 as his estimate of the factor by which the duration of inundation of the plaintiff’s land had increased: p.211. He acknowledged that this factor would not apply to all incidents of inundation, and the figure could be higher, depending on the intensity of the rainfall, the extent of backing up from other areas, the extent to which the ground was dry or already waterlogged, the depth of the flooding, and other factors.
Mr. Hegarty conceded that he had not taken into account water loss to other catchments, that is to King John Creek, in his calculation of increase of duration: p.174. However, that will only be of significance in large events, when the flood level gets above RL 2.3 m, and even then, only if the adjoining catchment is not at the same, or a higher, level. If King John Creek flooding was contributing to the flooding of this property in February 1999, it would have been some time before water was draining into that catchment, so the duration of inundation for that event would have been much greater. I do not accept Mr. Ogle’s analysis on this point.
Under cross-examination, Mr. Ogle conceded that some of the water that he saw during his visit on 17 August 1998 might have been still there as a result of heavier rain which had fallen some time earlier: p.220. There had been no significant heavier rain for about three months recorded at Redcliffe (p.219) but there is always the possibility that the rainfall record at this site did not correspond with that at Redcliffe, which is some distance away. For this reason, I think some caution needs to be used when relating figures for rainfall at Redcliffe to what was observed on the ground at Beachmere at about the same time.
Mr. Ogle maintained that, as a result of the construction of drains on the plaintiff’s land, and through the property to the south of the plaintiff’s land to which the pipes discharged, the drainage after flooding was now operating more efficiently than it did previously, before the construction of the levee: p.223. Mr. Ogle conceded that one effect of construction of the levee was that the rate of flow of water along the drain through the sand dune would be reduced as the flood level in the Murray Court area fell more quickly: p.232. Hence it will take longer for the same volume of floodwater to clear the whole catchment by way of this drain. The effect of this is subject to the prospect of some of the water which would otherwise have flowed down through the drain being diverted by the levee to an alternative exit point, if the flood water was high enough to make this possible, and assuming that the other catchments were not equally flooded: p.233.
Some water which would otherwise have flowed into the Murray Court area from other areas without going on to the plaintiff’s land at all would now be deflected by the levee on to the plaintiff’s land in order to drain away through the pipe under the levee, because effectively once the water level drops below the level of the spillway on the levee it can only drain away into other catchments (assuming that they are not equally flooded) or through the pipes under the levee on the plaintiff’s property, and that water has to come on to the plaintiff’s land to do that: p.229. Hence one of the effects of the levee has been to deflect onto the plaintiff’s land some water which otherwise would not have come onto it.
It is clear that Mr. Ogle has made a much greater study of the factors relevant to the drainage in this whole area, and is much more familiar with them, and much of what he said I am happy to accept. I was however concerned that he did appear to be rather defensive about the existence of any adverse impact on the plaintiff’s land. To some extent he was trying to support two propositions which I think are mutually inconsistent: that the construction of the levee had significantly improved flood levels inside the levee, but at the same time had not significantly worsened the flood situation outside the levee. It seems to me that, in light of the analysis that I have attempted to set out in the course of this judgment, these propositions can only be both true if the effect of the level is to deflect water into other drainage systems. That would only be possible if the water level was high enough for the water to be able to escape into the other drainage systems, and if the other drainage systems were not equally flooded. If the other drainage systems were equally flooded, or if they were more flooded so that water was in fact coming into this system from elsewhere, it seems logically to follow that the construction of the levee will make flooding worse on the plaintiff’s land.
Although some of the reports prepared earlier for the defendant acknowledged the adverse impact of the construction of the levee on properties outside it, such as most of the plaintiff’s land, Mr. Ogle in his evidence was generally reluctant to acknowledge any adverse impact on the plaintiff’s land, although he did ultimately concede that the time to drain the land would commonly be doubled by the construction of the levee. On the whole, I do not accept Mr Ogle’s evidence as reliable as to the extent of the detriment to the plaintiff’s land as a result of the construction of the levee. Mr. Hegarty’s attempts to calculate how much worse the position had become as a result of the construction of the levee were, I think, modified by him where appropriate in his later report and in his oral evidence, although he did stick to the proposition that things had been made significantly worse for the plaintiff. I do not think that just how much worse can be calculated, but I did find Mr. Hegarty’s evidence of assistance, in its final form.
Conclusions as to the consequences of construction of the levee
I am satisfied that things have been made worse for the plaintiff, in relation to that part of his land which lies on the outside of the levee, which is most of it, as a result of the construction of the levee. I do not think that this is something which can be calculated, but it is consistent with both theoretical analysis and the general run of lay evidence following observation of the area, both before and after the construction of the levee. That evidence of course may be distorted because of differences in rainfall patterns in the relatively few years before and after the levee was constructed on which the evidence focused, but where there has been sufficient rain to cause some degree of inundation of that land, because the water clears by draining away rather than soaking in, the evidence supports a conclusion that the time which would elapse before the water drains away has at least doubled as a result of the construction of the levee, and in many cases much more than doubled. Given the relatively flat nature of this country, so that the time for water to drain away was always going to be measured in days, or after bad events, weeks, even doubling is a significant worsening of the position on the plaintiff’s land, and it could easily be worse than that. Indeed, under certain circumstances, it could be much worse.
Accordingly, the effect of the defendant’s action in constructing this levee has been to interfere with the plaintiff’s use and enjoyment of the land, by increasing the duration and extent of inundation of the land following significant rain. The defendant’s actions are, in my opinion, actionable as a nuisance on the part of the plaintiff.[12] In addition, the plaintiff had incurred loss or damage because of the exercise by the defendant of a power under s.665 of the Local Government Act 1993, which permitted the local government to enter the land to perform work on the land, the plaintiff having agreed to the entry: Exhibit 6. Accordingly, by s.666(2):
“The plaintiff is entitled to be paid by the defendant the reasonable compensation because of the loss or damage that is … decided by a court having jurisdiction … ”.
[12]Symons Nominees Pty Ltd v Roads & Traffic Authority of New South Wales (1996) 25 MVR 174, (1997) Aust Torts Reports 81-413.
Damages – Valuation evidence
The situation will not be rectified, and it was common ground between the parties that the appropriate basis for assessment of damage was diminution in the value of the land, an approach with which I would agree.[13] The plaintiff led evidence from two valuers. Mr. Brown had prepared two reports, Exhibit 1 on 24 June 1999 and Exhibit 26 on 22 March 2001. The latter was based on more information than the former: p.106. In Mr. Brown’s first report he said the value of the land prior to the construction of the levee was $275,000, and after construction of the levee, $135,000: Exhibit 1. With the benefit of further information subsequently available however his valuation was modified in Exhibit 26 to a pre-levee figure of $257,000 and a post-levee figure of $160,000. In addition, the plaintiff led evidence from Mr. McLennan, a valuer, who assessed the valuation prior to the construction of the levee at $280,000, and the valuation after construction of the levee at $140,000: Exhibit 21. The defendant led evidence from Mr. Jones, a valuer with the Department of Natural Resources, who assessed the valuation prior to the construction of the levee at $220,000, and the valuation after construction of the levee at $205,000: Exhibit 20.
[13]Evans v Balog [1976] 1 NSWLR 36.
In his second report, Mr. Brown gave an analysis of the various components of the valuation from which it appears that he thought the values of the house, the garage, the stable and the yards on the land had not changed as a result of the construction of the wall. Mr. Jones valued the house at $60,000, Mr. Brown at $80,500, and Mr. McLennan at $82,500[14]. Their respective values of the garage were $7,000, $7,500 and $7,000, and for the stables and yards $3,000, $4,000 and $3,000. The total land value for the property before the wall was constructed was put by Mr. Jones at $150,000, by Mr. Brown at $165,000 and by Mr. McLennan at $187,100.[15] After construction of the wall these figures reduced to $135,000, $78,000 and $68,000 respectively.
[14]Exhibit 30; he attributed an “after” value of $61,875 to the house, on the basis that it had been devalued by the loss of the attractive, immediate view. Neither of the other valuers thought that the value of the house had been reduced by what had occurred, and I prefer their approach. I consider that the change for the worse in the appearance of the land is relevant to the value of the land, not to the value of the house.
[15]I am including in the land values for Mr. McLennan the separate values he gave for fences and dams, which the others did not value separately.
Mr. Brown further divided the land value into that part which was in the vicinity of the house, the land on the inside of the levee, and the land outside. He attributed a value of $58,000 to the land in the vicinity of the house, and said he would not attribute much value to the rest: p.123-4. He indicated he had put a figure of $20,000 on this land, the land on the outside of the levee: p.129. If one assumes that he did not think the value of the land in the vicinity of the house had changed as a result of the construction of the wall, that suggests that his assessment of the value of the balance of the property had declined from $107,000 to $20,000.
Mr. McLennan was even more pessimistic about the current value of the land outside the wall; he attributed it to a negative value of $15,000, on the ground that it really added nothing to the property and the owner was going to be put to the trouble and expense of clearing groundsel by hand which would be a burden: p.144. He offered a valuation of the balance of the land now of $83,000: Exhibit 30. If the value of the rest of the property, that is everything other than the land outside the levee, had not changed as a result of the construction of the land, that suggests a pre-levee valuation of the land outside the levee of $104,100.
The drop in value of $140,000 which Mr. McLennan put forward was made up of reductions in land value of $95,000, in the value of the fences of $7,100, in the value of the house of $20,625 and in the whole value of the dams ($2,000) which had become worthless because the bulk of the land was unusable, plus the figure of $15,000 as the capitalised extra cost of weed control: Exhibit 30. The totals involved some rounding.
In my opinion, the appropriate approach is to try to identify the change in the additional value of the land which is now outside the levee as a result of the construction of the land. Although the land cannot be subdivided because of town planning restrictions, if one takes a notional subdivision of the land along the line of the levee, then in the light of the valuation evidence overall, in my opinion the value of the smaller part of the land inside the levee and the improvements thereon has not been reduced as a result of the construction of the levee. I accept that there would be some adverse visual impact of the levee[16], but I think that would be offset by the advantage in terms of drainage of the land inside the levee. In each case I think the figure is quite small and since they would tend to cancel out, overall they should be ignored.
[16]Mr. McLennan p.145, although this would also affect the land outside the levy. Mr. Brown though that the obvious presence of the levee would make the land difficult to sell” p.124.
Mr. Brown ultimately put a value of $58,000 on this notional block of land (p.129). Mr. McLennan presumably valued it at $83,000 (Exhibit 30) since he attributed no value to the balance of the land, and indeed regarded it as a detriment: p.144. Mr. Jones appeared to regard a comparable sale as showing a value of this notional block of $85,000: p.260[17]. Where the valuers are furthest apart is in their assessment of the value of the balance of the land after the levee was constructed. Mr. Brown thought it was of little value, but ultimately accepted a figure of $20,000: p.129. Mr. McLennan thought it had no value and indeed had a negative value of $15,000 because this represented the capitalised additional cost of keeping down weeds in the area: p.144. Mr. Jones valued the whole parcel at $135,000 so, deducting $85,000 for the area inside the levee, his assessment of the additional value of the balance of the land was $50,000.
[17]He spoke of that size indicating an absolute minimum value of $85,000 for the whole parcel of land, but seemed to proceed on the assumption that that valuation really assumed that the land outside the levee was of no value. Accordingly, it may be taken as some indication of his assessment of the value of the land inside the levee.
There were some aspects of all the valuation evidence which gave rise to some concerns. Mr. Jones identified areas of the plaintiff’s land, indeed the bulk of the areas on the plaintiff’s land, as being areas which drained to King John Creek: p.16 of Ex 20; and see p.255. This is inconsistent with the analysis of Mr. Ogle, who in Figure 1 of Exhibit 24 located the boundary between the catchment for the drain through the sand dune and King John Creek well to the west of the plaintiff’s land, and indicated that the flow in the shallow depressions identified by Mr. Jones was actually in the opposite direction from that assumed by him. Mr. Hegarty said that the highest part of the plaintiff’s land outside the levee was that near the western boundary, and that below RL 2.3 m all water on the plaintiff’s land drained through the pipes under the wall: Exhibit 32.[18] I do not accept the assessment of Mr. Jones on this point. Mr. Brown thought that, although there was some gentle rise to the north, the plaintiff’s land just seemed to be low through the middle: p.121. In addition, Mr. Jones said that there was a road to the west of the plaintiff’s land which was higher than the surrounding country (p.254) and I would have expected that to act as a barrier, preventing the water from draining to King John Creek, at least unless there was sufficient flooding to cover the road.
[18]I expect that the engineers agree on this (see Mr. Ogle at p.230) because both are taking account of the levels determined by survey on the line of the levee prior to construction set out in the drawing Exhibit 41, which show the natural ground levels along most of the plaintiff’s southern boundary.
Mr. Jones regarded the absence of town water from a comparable sale as only giving rise to a small detriment, on the ground that any significant rural activity on this block would require the establishment of a dam because town water would be too expensive for rural activities: p.260, 263. On the other hand, Mr. McLennan regarded the absence of town water as a major consideration (p.143), and that approach seems to me to make more sense. If one was considering living on one of these blocks, I think the availability of town water for the house at least would be a considerable advantage, even if one contemplated relying on a dam for any rural activities. This suggests that Mr. Jones has failed to give the subject land, which has town water available, a significant credit for that feature when comparing it with other parcels of land which lack town water.
Mr. Jones did not think there should be any allowance for capitalisation of the cost of controlling weeds, which he regarded as a normal feature of any wet country in this area: p.263. That may be true, but what is at least potentially significant here is the extent to which the cost of controlling the weeds has been increased by changes in the extent to which the land is wet land because of the construction of this levee. The weeds, particularly the problem weeds such as groundsel, do particularly well in wet land, and they are more difficult and more expensive to control in wet areas because it is more difficult to get machinery to them. Mr. Brown also took into account some additional cost, which he assessed at $1,000 a year, as one of the factors producing the difference in land value: p.108. The matter is complicated by the fact that the plaintiff’s failure to control timber regrowth on his land makes the use of mechanical equipment difficult anyway, although that is related to the difficulty he now has in using the land.
In the case of Mr. McLennan, I thought his depreciation of the value of the house was unrealistic in the circumstances, and he did not appear to have considered the same breadth of comparable sales as did the other valuers, or to make very much allowance for the extent of the areas above flood level in the comparable sales that he relied on, although these were generally much more extensive as a proportion of the whole land than was the case with the plaintiff’s land. I also suspect that he had less experience with this particular area than either of the other valuers. He had not taken into account that two of his comparable sales were of land which held some special attraction for the purchaser[19].
[19]His sale 1 in Exhibit 21 (which is also sale 4 in Exhibit 1) was an acquisition by an adjoining owner (p.260) but he did not know this: p.138. His sale 2 was conditional on a successful town planning application for a more intensive land use: p.260. He had not been aware of that: p.140.
In the case of Mr. Brown, there is the consideration that the plaintiff is employed by him as a real estate salesman and had been for four years prior to the trial: p.102. This gives rise to some concern that he may not have been entirely independent, and that his valuation may have been skewed in favour of the plaintiff because of the extent to which the plaintiff was upset by what had happened to the land. On the other hand, I was impressed by the way he reconsidered his earlier assessment of change in value after considering a number of additional sales. It did seem to me that by and large the comparable sales which were the basis of his second report were more relevant to the situation than those referred to in his first report. Much of what he said appeared to make sense; for example, his comments about the expected difficulty in selling land with a levee on it (p.124) and that he would expect a purchaser to find a natural swamp more attractive than a detention basin, which is what he thought the plaintiff’s land had become: p.105.
There was a good deal of overlap between the comparable sales relied on by the three valuers, although not complete overlap.[20] One sale common to both Mr. Brown and Mr. Jones is the sale of a property in Bestman Road, Ningi, a little to the east of the plaintiff’s land. The parcel was about the same size, located on a bitumen road, part reasonably high and part cleared wallum flats and uncleared wallum swamp. It included two substantial brick homes, and sold in August 1998 for $275,000. Mr. Jones regarded that property as much superior to the plaintiff’s land (Exhibit 20) and considered that this sale supported a very conservative approach to valuing the plaintiff’s land: p.258. Mr. Brown also considered the land superior (Exhibit 26) although that was partly because of the superior improvements. He regarded the good part of that land as better than the plaintiff’s land, although the wetter part as inferior, and thought that prior to the construction of the levee, the plaintiff had more useful land than there was on that block: p.120. That suggests that Mr. Brown regarded that sale as being superior only because of the superior improvements.
[20]There was considerable evidence about the various comparable sales considered, which I have taken into account, but most of it is too complicated and, taken alone, insufficiently important, to discuss in detail.
In addition, Mr. Brown was the real estate agent who sold that parcel of land, and was able to say that it was sold at what he regarded as a very low price after the owner, an elderly man, fell out of a palm tree on the property and was very keen to sell: p.104. Mr. Jones had not been aware of the circumstances of that particular vendor until he heard Mr. Brown refer to them in evidence (p.268), although he did say that it was “pretty reasonable buying” (p.258) which suggests that his analysis of other sales had already suggested that the price was lower than he would have expected. He said that it was not unusual in that area for properties to be offered for a long time at a higher price and then to be sold at a much lower price (p.259), but the effect of Mr. Brown’s evidence was not that the property had originally had a price that was too high, but rather that it was sold at a price which was really too low, and I think that is, to some extent, borne out by Mr. Jones’ comments, although Mr. Jones would not have taken into account the actual situation with that sale as did Mr. Brown, who was fully informed about it.
The difference in approach to the comparison between the plaintiff’s land and this land also points out an important difference between the plaintiff’s valuers and Mr. Jones: the plaintiff’s valuers were relying on the evidence of Mr. Hegarty, particularly his earlier report which indicated that the drainage conditions on the land had been made very much worse as a result of the construction of the wall, whereas Mr. Jones was relying on Mr. Ogle’s report that, compared with the situation before the levee was constructed, “the land continues to be affected similarly when seasons are similar and the drainage scheme is operationally effective”: Exhibit 20, p.6. It appears however that Mr. Jones did not accept this without qualification, since he referred to the wall appearing to hold the water back on the subject property for longer periods. Nevertheless, he was approaching his assessment in the light of expert engineering advice that the construction of the wall had not made the situation on the plaintiff’s land worse, or at least not much worse, whereas the plaintiff’s valuers were proceeding on the basis that the drainage situation had been made much worse. Although ultimately Mr. Hegarty modified the position put forward in his earlier report, the plaintiff’s valuers may well have been influenced by this to some extent, and this may have encouraged them to give greater significance to the construction of the wall than was really justified. Conversely, Mr. Jones does not appear to have attributed much significance to the construction of the wall, and this must be to some extent because of the reliance he has placed on Mr. Ogle’s approach, which I have essentially rejected.
Although Mr. Hegarty’s initial position was not made out at the trial, I ultimately considered that Mr. Ogle was being too optimistic about the small size of the adverse effect on the plaintiff’s land, and that the plaintiff’s land was significantly adversely affected in terms of its drainage characteristics by the construction of this levee. Mr. McLennan assessed the difference in valuation on the basis that before the wall was constructed this was useable rural property generating agistment income which, although susceptible to flooding, would drain within one day after the cessation of rain, whereas now it took three weeks to drain after flooding, and the soil had been soured and useable pasture had been killed, rendering the area outside the levee effectively useless, and converting the parcel into a small rural residential block: Exhibit 21. That is a very different picture from the one painted by Mr. Jones. Mr. McLennan said that he based his report on the earlier report of Mr. Hegarty which he accepted because it was consistent with what he was told by Mr. Ward and other people: p.137.
Interestingly, Mr. Jones’ description of the subject land was to the effect that at the time of his inspection (6 September 2000 – Exhibit 20, p.3), there were extensive areas of what he described as swampy soil which regularly flooded (Exhibit 20, p.16), or in his oral evidence as “wet land”: p.254. These look to me to cover more than half the land. An examination of the rainfall records which are in appendix D to Exhibit 24 shows that there had not been any substantial rainfall at Redcliffe since 11 June 2000 (28.2 millimetres). That was the first day with more than 10 millimetres working back from September 2000, and I had to go back to December 1999 to find a month where the rainfall at Redcliffe exceed 75 millimetres in total for the month. I did not understand Mr. Jones to be saying that there was water lying around in these areas, but they presented as land which was regularly flooded, although there had been no heavy rain since the previous year. Mr. Ogle said that when he visited the property in August 2000, there had been 10 weeks of relatively dry weather, and the surrounding area was completely dry. Nevertheless, they presented to Mr. Jones as areas which were regularly inundated, which suggests that there was some force in Mr. Ward’s complaint that the nature of vegetation in those areas had changed for the worse since the construction of the wall.
If Mr. Jones was assessing the value on the basis that the land had been not much better prior to the time when the wall was constructed, that would account for his having adopted a lower pre-levee land component, $150,000, compared with Mr. Brown’s $165,000 and Mr. McLennan’s $187,100. Mr. Brown also had the advantage of some personal familiarity with the land both before and after the levee was constructed, which he could take into account as well as the reports from Mr. Ward and others and the expert opinion with which he was provided. To that extent he was less likely to be led astray, but he did refer to the first report of Mr. Hegarty (Exhibit 20, p.7), and apparently relied on it. Accordingly, Mr. Brown may have somewhat overestimated the effect of the change notwithstanding such personal familiarity as he had with the land. I think that Mr. McLennan did, because of his reliance on the first report of Mr. Hegarty. On the other hand, I do not think Mr. Jones took enough account of the extent to which the drainage characteristics of this land were made worse as a result of the construction of the levee.
In view of the quality of the valuation evidence before me, I do not place any reliance on the figure of $220,000 given by the plaintiff for the value of the land on 19 June 1997 in Exhibit 22. Although he has had some involvement with real estate, this was not a carefully considered valuation: p.64. As well, its only relevance was for stamp duty purposes, so he had some incentive to adopt a conservative figure. For much the same reason, I do not place any significance on the figures inserted in a declaration on 9 June 2000: Exhibit 14. The plaintiff said, and I accept, that he did not regard this figure as having any relevance: p.38. It was apparently supported by the opinion of a sales consultant (Exhibit 15) but I do not place any weight on that opinion either. In May 2000 the plaintiff signed an application for finance which included a statement of assets and liabilities, stating a value of $250,000 for the house property at Peel Road: Exhibit 37. Again, I do not attribute any great significance to this, given the circumstances under which it was made, and bearing in mind the quality of the valuation evidence before me. The only real significance of this document is that the plaintiff initially denied that he had given that or any estimate to the bank for the purposes of a finance application (p.41), although he later qualified this answer by claiming not to recall: p.42. I do not regard this as throwing any light on the true value of the property, but it is of some concern as to the plaintiff’s credit.
Conclusions as to values
I do not think that this is a case where I should approach the resolution of this conflict on the basis that one valuer is right and the other valuers are wrong. All of them are quite experienced and apparently skilful valuers, and all provided good reasons for coming to the various assessments that they had made. Both Mr. Brown and Mr. Jones appeared to have considered the issues carefully and thoroughly. Given that the assessment of the market value of a parcel of land is a difficult and inexact process at the best of times, in my opinion the correct approach for me to adopt is to arrive at a figure taking due account of all of the various opinions expressed, but giving more weight to one rather than the others, or two rather than the third, where there is some good reason to do so. That might be, in a particular situation, simply that two of them have essentially agreed (although there were not many examples of that in this case).
With regard to the area inside the levee, Mr. Jones came to a figure of $85,000 by reference to the sale of a block in Bellay Road, a little to the south of the plaintiff’s land: Exhibit 20, p.20. According to figure 2 on p.50 of Exhibit 24, part of that land has a drainage problem, but it affected only about 20% of the block, whereas most of that part of the plaintiff’s land which lies inside the levee still lies within the drainage problem area. About half a hectare of the plaintiff’s land would count as being flood free, although it would be a rare event which would leave only that amount exposed. Nevertheless, even after the construction of the levee, it seems to me that the part of the plaintiff’s land inside the levee is significantly more susceptible to flooding than is the block in Bellay Road, and I do not think that Mr. Jones has made sufficient allowance for the difference between that block and the plaintiff’s land when attributing effectively the same value to the two hectares the plaintiff has inside the levee.
Mr. Brown regarded the Bellay Road block as superior to that part of the plaintiff’s land (p.129) and I think that it was reasonable to make some discount from the value of that other block, although taking it down to $58,000 puts it well below either Mr. Jones’ figure or Mr. McLennan’s figure of $80,000. Taking into account just the difference in the extent of flooding, the sale of that block at $85,000 suggests a lower figure, perhaps $70-$75,000, for the plaintiff’s two hectares. I was generally most impressed with Mr. Brown as a valuation witness; on the other hand Mr. Jones essentially has the support of Mr. McLennan at $80,000. On the whole I find that an appropriate figure in light of all of the valuation evidence for that part of the land is $75,000.
Overall, therefore, looking at the various components, the valuation of the common components of the house and garage, stables and yards (which in the way I approached the exercise does not matter) I assess at $80,000, $7,000 and $3,000 respectively; as to the house, Mr. Jones’ valuation is out of line of the other two, but I am giving it some weight in adopting a figure slightly below that of Mr. Brown. The figures for the garage, stables and yards are those on which Mr. Jones and Mr. McLennan agree, and are close to Mr. Brown’s figures.
With regard to the land, prior to the construction of the wall, on the whole I prefer the second assessment of Mr. Brown of $165,000 and accept that figure. It is an intermediate figure between the assessment of Mr. McLennan (which for reasons given earlier I thought was too high) and the figure of Mr. Jones, which I thought was unduly low because Mr. Jones was assuming that prior to the construction of the wall the land was worse than it really was. On the basis that the two hectares which came to be within the levee were worth the same $75,000 anyway, that attributes $90,000 to the additional value of the balance of the land. On this basis the total valuation prior to the construction of the levee was $255,000, a figure which is close to that of Mr. Brown, and intermediate between the other two valuations.
With regard to the position after the construction of the levee, I assess the area inside the levee as worth $75,000 and the additional value of the balance of the land at $25,000. This is a little more than that allowed by Mr. Brown, but closer to Mr. Brown’s estimate than the figure Mr. Jones would have attributed to the balance of the land, $50,000 (arrived at by subtracting from $135,000 the figure of $85,000 he attributed to the two hectare parcel). On the whole, I think that Mr. McLennan’s assessment of that additional land as having a negative value of $15,000 is unrealistic, and I largely discount it; I attributed most weight to Mr. Brown’s opinion, but also gave some weight to Mr. Jones’ opinion, in arriving at the figure of $25,000. That gives a total for the post-levee valuation of the land of $100,000, and a total of the post-levee valuation of the whole property of $190,000. Accordingly the difference is $65,000. That represents the diminution in value of the plaintiff’s land as a result of the construction of this levee, and therefore the plaintiff’s damages or compensation under the statute.
There will therefore be judgment that the defendant pay the plaintiff $65,000, together with interest. I will publish these reasons, and invite submissions from the parties as to the appropriate rate of interest and period in respect to which interest should be allowed. I will also invite submissions in relation to costs, but unless some other order is appropriate, I will order that the defendant pay the plaintiff’s costs of and incidental to the action to be assessed.
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