Negligence And Nuisance - New Case on Retaining Walls

The duties of care owed by local governments are many and varied. One such duty is a local government’s duty as a neighbour – that is, the duty owed by a Council, in its capacity as an owner or trustee of land, to neighbouring landholders.

These issues can come under the microscope in a range of different scenarios, including:

  • where a Council is the trustee of reserve land that has natural retaining features for private property;
  • for road reserves located adjacent to private property that are on hillslopes and carry water during rain events.

Recent case law in the District Court of Queensland has considered the duty of care owed by neighbour, in the context of particular retaining works that caused a nuisance during a rain event.  Similar principles apply to local governments, but are modified by legislation.

New Case Law

In Graham & Anor v Alic & Anor [2022] QDC 106, the District Court considered neighbours’ duties of care to one another.

The applicants in that case were the low-side neighbours of the respondents in a rural residential suburb west of Maroochydore, and were located on a street that was relatively steep.

The respondents conducted works on the Property that involved the establishment of a retaining wall, cutting a slab, re-locating the soil from the cutaway to create a tiered effect, flattening the tiered effect, and increasing the slope of the land that connects to the retaining wall. The respondents had also placed topsoil and grass seeds along the slope.

During a period of heavy rainfall, the applicant’s property had become inundated with the respondent’s topsoil and grass seed, with the water continuing to flow over (through and under the retaining wall) in concentrated flows for up to several days after the event of the rainfall.

Considerations and Outcome

It appeared that the respondent’s soil (both the re-located cut away and the topsoil) acted as a sponge, soaking up the rainfall that would ordinarily have just flowed down the hill and across the applicant’s property. The apparent defects in the retaining wall also contributed to the obstruction of the flow of the water.

The applicants relied on the evidence of a hydrologist, who compared what the flow of water would have been with the respondent’s property in place before the original works and further works had been conducted, with what the then-current flow of water was. The respondents had instead relied heavily on what was considered ‘natural’ and submitted that because the applicant’s hydrologist only had considered the flow after a house was in place, the applicants could not prove the flow of water was now worse than it would have been in the ‘natural’ state.

The primary consideration in the case was how far back must one go to establish what is the ‘natural’ state of land. The earlier case of State of Queensland v Baker Superannuation Fund Pty Ltd [2019] 2 Qd R 146 found that what needs to be considered is not the ‘natural’ state of the land but the result from the ‘natural and reasonable use of the land.’

In Graham’s case, the Court looked at the characteristics of the flow of water in comparison to (at the time) the reasonable use of their land. The Court found that there was nuisance, in that the defects in the retaining wall were not a natural use of the respondent’s land and were the root of concentrated flows of water. The respondent was ordered to remove and redesign the retaining wall to a reasonable state with adequate drainage.

Key Takeaway

The key takeaway from this decision is that landowners have a duty of care to their neighbours, to occupy and maintain their property in accordance with its natural and reasonable use.

Essentially, this requires landowners to:

  1. refrain from constructing improvements on the land that are contrary to its natural and reasonable use;
  2. avoid poor-workmanship of improvements to prevent structural defects by engaging qualified professionals to advise on and install the improvement;
  3. prevent or minimize foreseeable risk of damage or injury as a result of the land and the improvements located on the land; and
  4. maintain the improvements and the land to a good order at all times.

The Civil Liability Act

The nature of a local government’s duty of care is modified by the Civil Liability Act 2003 (“CLA”).

The CLA provides some important “limitations” on Council’s overall liability, by reference to Council’s many other functions and human and financial resources. 

The CLA also provides that in a proceeding about whether a local government has breached a duty of care, it is relevant to consider:

  • whether the Council has complied with its general procedures or any particular standards;
  • whether any act or omission of the Council was so unreasonable, that no other public authority could have considered the act or omission to be a reasonable exercise of the local government’s functions.

Preston Law regularly assists local governments throughout Queensland with advice on liability matters.  If you wish to discuss, please contact our team.

 

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