5518 7777 * "No Win - No Fee" on plaintiff TPD, Income Protection and Family Provision Application estate claims * admin@leelawyers.com.au

Michael Vincent Baker Superannuation Fund Pty Ltd v Aurizon Operations Ltd [2017] QSC 26

Culvert

FACTS

The Plaintiff owned land which it claims was subject to the continued discharge of water by the Defendants. In 1885 a railway line was built by the Commissioner for Railways for a total amount of £43.5.0. The land was acquired from Mr Abbott whose land was divided by the construction of the railway. It was maintained by Queensland Railways, until 1995 when Queensland Railways ceased operating, and was replaced with Queensland Rail. The land in which the railway line was built was declared ‘non-rail corridor’ in June 2002. It is now used for recreational cycling, horse riding, and walking.

Incorporated into the structure of the railway line are two culverts that face directly towards the Plaintiff’s land. Erosion and subsidence have been caused to the Plaintiff’s land. The Plaintiff purchased the land in 1995 and uses it for grazing cattle, as well as vegetable and fruit crops.

The erosion caused a large gully to form, which cut-off access to the northern paddocks in 1999, a bulldozer was used to reform the track, but this again eroded and it became impassable to vehicles.

LEGAL ISSUE

Was the injury to the land compensated for under the original scheme by which the Commissioner for Railways acquired the land for the railway.

  • Was there consultation with, or permission from the Plaintiff’s predecessor in title in relation to the construction of the culverts.
  • Did the Defendants continue the nuisance by failing to remedy or take steps to deal with the erosion.
  • Is the damage to the Plaintiff’s land a nuisance.
  • Has the Defendant failed to mitigate their losses.
  • What work is required to repair the erosion to the Plaintiff’s land.

FINDINGS AND CONCLUSION

The original purchase amount included an amount for compensation to Mr Abbott for acts injurious to the land. However, the culverts were not installed in the original construction of the railway. Even if Mr Abbott had been consulted on the installation of the culverts, such consultation would not regulate the relationship between the Defendants and Mr Abbot’s successors in title. Therefore, the compensation paid to the Plaintiff’s predecessor in title does not cover the damage which has occurred subsequently, and now affects the Plaintiff’s use and enjoyment of the land.

The expert evidence was agreed that the erosion was caused due to water-catchment upstream being concentrated through the culverts, and that the severity of the erosion was exacerbated by clearing that took place on the neighbouring property. That the land clearing was a contributing factor to the erosion does not mean that the role of the culverts in concentrating the erosion can be ignored.

The Plaintiff demonstrated ongoing erosion since 1999, and that they were consequently unable to use the nearby paddock. The Defendants had not called any evidence suggesting that the culverts were the only way to disperse the surface flow of water, therefore the nuisance was not ‘an inevitable consequence’.

Given that the Plaintiff acquired the land in 1995 the erosion caused to that point in time was acceptable to the Defendant. The erosion did not become problematic until 1999, and so it is remediation to the pre-1999 condition that is the appropriate basis for calculating the remedy for the Plaintiff, rather than remediation to the pre-1885 conditions (before the railway was built).

At trial, the experts offered widely varying opinions as to the cost of remediation. The remediation of the area should be to a different standard of that expected for a family home, given its use is agricultural, not residential.

The appropriate method of preventing further erosion is for the Defendants to install a different method of drainage, and blocking the offending culverts. In injunction was granted to that effect, but stayed for 6 months to allow for that work to be designed, and installed.

The Plaintiff had done nothing to mitigate its losses. However, due to the distance between the culverts discharge of water, and the Plaintiff’s land, there was little that could be done by the Plaintiff to mitigate, break-up, or re-direct the water flow. As the Defendants did not put forward any practical means by which the Plaintiff might have mitigated his losses, the claim that he failed to mitigate his losses was not made-out.

In addition to the stayed injunction to seal the culverts, the Defendants were ordered to pay $75,000 each to the Plaintiff in damages for nuisance.

TAKEAWAYS

The damage to the land was considerable, however it was pre-existing when the Plaintiff acquired the property. According to the expert evidence the full cost of remediation would be considerably more than the amount awarded in damages. For those wishing to acquire property the adage that ‘buyer beware’ should be at the forefront of their minds.