Court's decision in residential property dispute highlights common law issues of nuisance26 July 2021
In Davies & Ors v Gold Coast City Council  QDC 135, the Queensland District Court (the Court) was required to determine several issues pertaining to the common law action of nuisance. In contemplating liability, the Court reiterated that, although a person does not create the source of a nuisance, they may nevertheless be found liable in circumstances where they fail to stop a nuisance.
The subject property is located on a Palm Beach canal (the Property). It is the residence of the Davies family and is jointly owned by the Davies and their relatives (the Plaintiffs).
The Property is subject to a stormwater easement in favour of the Council, which contains a pipeline for the Council’s drainage system. The pipe is in the backyard and connects to a pipe under the road at the front of the Property, which transports stormwater from the road to the canal.
The easement granted the Council a right to enter the Property, “… for all purposes incidental to the construction, use and maintenance of the drainage works and thereafter forever to use and maintain sewers, drains or pipes in connection therewith.” It did not impose an express obligation on the Council to carry out repairs and maintenance.
A retaining wall was constructed over the easement prior to the Plaintiffs’ purchase of the Property. The Council contended this was done without approval (although his Honour found against the Council in this regard). The retaining wall sank and cracked, and significant sinkholes and subsidence also occurred in the backyard, in the vicinity of the easement (the Damage).
The Plaintiffs and Council were in dispute for some years as to who was responsible for repairing the Damage.
Issues and evidence
The Plaintiffs’ claim against the Council was based in nuisance whereby they sought an injunction and damages.
The Plaintiffs argued that, although the Council had no express obligations to maintain or repair, the terms of the easement granted access to the Property to maintain the drainage works, which enabled the Council to prevent unreasonable interference with or damage to the Property. Further, the Council was not authorised to unreasonably interfere with the Plaintiffs’ use and occupancy of the Property.
The Council argued that the easement did not impose an obligation on the Council to rectify any damage to the Property, and that its obligations were limited to reasonable maintenance of the pipeline. Additionally, the Council argued that a retaining wall, which had been constructed prior to the Plaintiffs’ purchase of the Property, had never received Council approval.
The evidence before the Court demonstrated that:
Prior to the Plaintiffs’ purchase of the Property, the Council was aware of the existence of gaps in the joins of the pipe. This prompted Council employees to conduct rectification works.
The works failed to prevent the continuing sinkholes and subsidence at the Property and shortly after the Davies moved into the Property, a portion of the garden within the easement and above the pipe collapsed.
The Council was aware of significant issues with the easement and that the Property’s backyard was at risk of collapsing.
After several complaints, the Council relined the pipe, however no subsequent works were performed at the Property and the subsidence issues continued to develop.
The cost to rectify the damage to the Property, as well as the neighbouring wall and fence, was approximately $110,000.
The Court noted that a nuisance will be caused where there is an unreasonable interference with the use and enjoyment of a person’s property , necessitating application of an objective test as to whether there was “an inconvenience materially interfering with the ordinary comfort physically of human existence”. Relevant considerations include the locality, duration, frequency and extent of the interference.
The class of persons who may be liable for nuisance comprise not only those who create the nuisance, but also those who fail to stop the nuisance. According to Judge Jarro, the pertinent issue was that the existence of the nuisance was known to the Council.
Judge Jarro found in favour of the Plaintiffs and ordered an injunction, requiring the Council to remove and replace the pipe or carry out remediation works. His Honour also ordered general damages for nuisance in the sum of $50,000 and special damages of $110,000 for the cost of repair of the Property and neighbouring fence.
The Court has made clear that, although a person may not create the source of a nuisance, if they are aware of its existence but fail to stop it, they can be found liable.
With the significant growth of suburban housing developments, utility easements have become a common aspect of residential properties. This decision serves as an important reminder for councils to address landowners’ complaints with caution, as inaction may not be without consequence.
 Hargrave v Goldman (1963) 110 CLR 40 at 62.
 Don Brass Foundry Pty Ltd v Stead (1948) 48 SR (NSW) 482 at -.