Claim for damages for trespass and nuisance in relation to a sewer main rejected by the Supreme Court

In brief

The case of Woolnough & Anor v Isaac Regional Council [2019] QSC 17 concerned a claim in trespass and nuisance to the Supreme Court of Queensland by the registered owners of the land at Nebo (Landowners) against the Isaac Regional Council (Council). The Landowners sought damages in relation to the cost of decontaminating and removing soil from the land, loss of rental income from the dwelling on the land and the cost of rectifying the alleged subsidence to the Landowner's shed slab, house slab and rear fence.

The Court held that the Landowners' allegations against the Council were not supported by persuasive evidence and the Court dismissed the Landowners' claim on all grounds.

Issues in dispute

The Court identified three issues for determination and found that the issues were matters of fact rather than complex legal principles. The issues were as follows:

1. whether the Council had trespassed onto the Landowners' land to install a sewer main;

2. whether the installation of the sewer main caused subsidence in relation to the Landowners' shed slab, house slab or rear fence;

3. whether the sewer main caused sewage leakage onto the land which constituted an unreasonable interference with the Landowners' use and enjoyment of the land.

Background

The Landowners became the registered owners of the land on 28 November 2006. Relevantly, at this time, the land was within the local government area of the Nebo Shire Council, which in 2008 formed part of the Isaac Regional Council.

As a consequence of the amalgamation, the Council inherited the responsibility for providing sewerage services in Nebo, which included the installation of underground sewer mains throughout the township. The Council was required to install a sewer main which traversed the rear of the Landowners' land.

In the Landowners' pleading, the Landowners alleged that the sewer main was installed on their land without their consent or knowledge on or about July 2007. The Landowners further alleged that as the sewer main was installed without their consent, its continuing presence constituted a continuing trespass. Additionally, the Landowners alleged that in 2010, untreated sewage began to surface and escape from the sewer main onto the land and that it had, from time to time, continued to leak untreated sewage. The Council refuted this allegation.

The Landowners consequently commenced proceedings against the Council in the Supreme Court for loss and damage for the cost of decontaminating and removing the soil from the land, the loss of rental income and the cost of rectifying the alleged subsidence to the Landowners' shed slab, house slab and fence.

Trespass

The Landowners alleged that the installation of the sewer main was completed without their consent and knowledge and that the installation constituted a trespass. The Landowners further alleged that as the installation of the sewer main was unlawful, its continuing presence on the land was therefore a continuing trespass. The Court noted that the Landowners did not advance an alternative case of continuing trespass on the basis that even if the previous registered owners had consented to the installation, the Landowners had not consented to its presence once they had become the registered owners.

The Council alleged that the sewer main had been installed through the property in 2005 and that they had obtained the Landowners' consent from the previous registered owners. The Council argued that as they had obtained consent from the previous registered owners in 2005, the sewer main was lawfully installed under section 1070(2)(b) of the Local Government Act 1993.

The Council called the previous registered owner as a witness who gave evidence that a sewer main was installed along the back fence of her land at a time before she had sold the land to the Landowners. The Council also sought to rely upon documentary evidence regarding the installation of the sewer main to support its argument that the installation occurred in 2005. In the cross-examination, the Landowners sought to discredit the previous registered owner.

Ultimately, the Court was satisfied on the evidence that the installation of the sewer main occurred in 2005 and therefore found against the Landowners' claim for trespass and continuing trespass.

Subsidence

The Landowners also alleged that the sewer main was poorly installed, the trench was too narrow, the backfill compaction was inadequate and the filled trench subsided. The Landowners alleged that the poor installation had caused subsidence to the shed slab, house slab and rear fence.

The Landowners also submitted that the sewer main had caused a “sinkhole” which eroded the bedding sand surrounding the pipe, which resulted in the pipe sagging and breaching. The Landowners exhibited photographs of the land showing cracks and one of the Landowners testified that he noticed that “the ground was sinking along the rear fence”.

The Court accepted that there was some modest lowering of the height of the land's rear fence line but ultimately held that there was no credible evidence of trench settlement or side subsidence that had occurred to such an extreme extent that it caused the earth and structures to have subsided. The Council's forensic engineer estimated that the cost to rectify the minor deviation of the rear fence line would be roughly $800. The Court found that as the damage to the rear fence was estimated to have occurred within two to three years of the installation of the sewer main, it was beyond the relevant period of limitation.

The Court also accepted the evidence of the Council's forensic and geotechnical engineers that the installation of the sewer main had no effect on the house slab as it was "too far away to be within the zone of influence" and that it did not cause any material degree of subsidence to the shed slab.

The Court therefore held that the Landowners had failed to prove any compensable loss or damage resulting from subsidence and that the Landowners' claim for subsidence had failed.

Nuisance

The Landowners also alleged that, from time to time, sewage had leaked up from the installed pipe. The Landowners alleged that the leakage consequently contaminated the soil on the land, was harmful to human health and emitted an offensive odour, and that it constituted an unreasonable interference to their enjoyment of the land.

The Landowners relied on lay descriptions of what had been seen and smelt at the land. The Court was critical of the Landowners' decision to not obtain expert evidence to prove that the installation caused sewage to repeatedly leak from the pipe up onto land. The Court held that the probative value of the lay witnesses' evidence was limited by sensory subjectivity as they were not sewer experts and could not, without a doubt, correctly identify sewage. The Court also found that due to the fact that the witnesses were aware of the Landowners' complaints of the alleged leaking sewage, the evidence was therefore also limited by subjective influence.

The Council relied on the evidence submitted by their sewer and stormwater expert. The Council’s sewer and stormwater expert had conducted a number of inspections of the sewer main in 2013 and 2015 and had found no fault with the integrity of the pipeline that would allow any sewage to escape. The sewer and stormwater expert also noted that the smell of sewage had not been detected at the ground surface during the inspection of the land.

The Court accepted the Council's sewer and stormwater expert’s evidence and found that there was not an apparent breach in the integrity of the sewer main under the land, which would cause sewage to leak onto the ground. The Court additionally considered the evidence of the Council’s geotechnical engineer being that there was no evidence of sewage leakage in the samples of soil taken from the land.

The Court concluded that the Landowners had not proved, on the balance of probabilities, that the sewer main caused repeated sewage leakage on the land. The Court therefore found against the Landowners' claim for nuisance.

Conclusion

The Court held that each of the Landowners' claims ought to be dismissed on the basis that there was insufficient evidence. The Court ordered that the Landowners pay the Council's costs on a standard basis. However, the Court allowed the parties the opportunity to file submissions if they desired to contend for a different costs order.