In brief

The case of Turner v Kubiak [2020] QDC 223 concerned a claim in the tort of nuisance arising from a dispute between neighbours. The plaintiffs asserted that a gravel pit for stormwater runoff was inadequate to hold the volume of stormwater being directed into it and that the concentration of water flowing from the gravel pit onto the plaintiffs' property was causing damage. The plaintiffs also claimed that the defendant's husband had entered into an oral agreement to pay for the works to rectify the damage caused.

The District Court of Queensland dismissed the plaintiffs' claims for the following reasons:

  • The evidence did not support the allegation that the defendant's husband acknowledged that the source of the excess water was from the gravel pit.

  • The evidence did not support a finding that the water flowing from the gravel pit to the plaintiffs' property constituted a substantial and unreasonable interference with the use and enjoyment of the plaintiffs' property.

Background facts

The eastern boundary of the plaintiffs' property adjoins the defendant's property. The defendant's property slopes towards the plaintiffs' property and it is estimated that 75% of the defendant's property has a flow path towards the plaintiffs' property.

The plaintiffs purchased the property in 2012, demolished the existing house and erected a new single storey residence. After the residence was constructed, the plaintiffs built a chicken coop near the boundary with the defendant's property and noticed that after it was built, the ground around the chicken coop was boggy.

The gravel pit at the centre of the dispute was built by the previous owner of the defendant's property and was located in the vicinity of the boundary with the plaintiffs' property. The purpose of the gravel pit was to collect stormwater discharged off a shed built on the defendant's property. In 2018, the defendant also installed a pair of identical water tanks which had a capacity of 10,000L.

Dispute

In 2017, a bobcat that was being used on the plaintiffs' property got bogged. An exploratory trench was dug in the vicinity of the chicken coop and it was observed that the trench filled with water.
The male plaintiff requested that the defendant's husband meet him at the boundary fence to discuss the excess water. It was undisputed that the male plaintiff said he thought the excess water was from the gravel pit and that the defendant's husband said he would make enquiries to see if the water from the roof of the shed could be diverted onto the adjoining road.

Remedial works were undertaken to resolve the excess water at a cost to the plaintiffs of about $6,000. The plaintiffs asserted that the defendant's husband had agreed to pay the cost of this work and subsequently requested that those costs be paid by the defendant. The dispute escalated resulting in the claim in nuisance and breach of agreement by the plaintiffs.

There was no oral agreement

The Court concluded that there was no oral agreement because the evidence did not support the allegation that the defendant's husband acknowledged the source of the excess water was from the gravel pit.

The evidence from the male plaintiff was that the defendant's husband "did not really say anything in response" (at [45]), and that the defendant and her husband had taken photographs of the excess water on their own property in the months preceding the event with the belief that this was being caused by the plaintiffs' construction works.

Circumstances did not give rise to an actionable nuisance

The Court considered the following relevant principles for an actionable nuisance:

  • The plaintiffs had to demonstrate that the excess water was caused by the defendant and resulted in a substantial and unreasonable interference with the use and enjoyment of the plaintiffs' land (at [60] and [65]).

  • "An occupier of property does not need to create the nuisance for it to be actionable" (at [62]).

  • "Where water flows between adjoining properties from a higher property to a lower property, the occupier of the higher property is not liable merely because the water flows naturally on to the lower property. However the occupier of the higher property may be liable in nuisance if the water is caused to flow in a more concentrated form than it naturally would" (at [64]).

The Court concluded that there was no actionable nuisance and its reasons for that decision included the following:

  • The evidence demonstrated it was unlikely that the water from the roof of the shed had been discharging into the gravel pit since the installation of the 10,000L water tanks in 2018.

  • The event giving rise to the dispute occurred in 2017 prior to the installation of the water tanks. Despite the tanks being installed and directing water away from the gravel pit, the area around the chicken coop was still wet.

  • The evidence demonstrated the likelihood that the gravel pit was actually directing water away from the chicken coop and closer to the road, and that the water flowing over the gravel pit would not be concentrated in a narrow channel.

Conclusion

The Court dismissed the plaintiffs' claim in contract and nuisance and ordered that the plaintiffs file submissions if they were of the view that they ought not to pay the defendant's costs.

This is commentary published by Colin Biggers & Paisley for general information purposes only. This should not be relied on as specific advice. You should seek your own legal and other advice for any question, or for any specific situation or proposal, before making any final decision. The content also is subject to change. A person listed may not be admitted as a lawyer in all States and Territories. © Colin Biggers & Paisley, Australia 2021.

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