Neighbors and our fights for water – Civil Law

It’s rare for developers to build on completely flat land where everyone is equally affected by the waterfall falling from the sky. More often than not, a neighbor will be higher or lower than its neighbors and this inevitably brings into play the immutable law of gravity.

Suppose we buy land below another person’s property. In this case, we should expect some water flow onto our property, and good building practice will ensure that as a low side neighbor we will include adequate measures in our own court to make sure we are not too hard hit by this inevitable flow.

It is not always the case, however, that as a lower neighbor one must accept water as it comes and when an upper neighbor does something on their land that alters the natural flow of the water, which causes the water to flow in a more concentrated manner.

This neighbor may become liable for any loss or damage caused by these concentrations.

The High Court of Gartner vs. Kidman considered this situation and said:

The upper owner: He is not responsible for the mere fact that surface water naturally flows from his land to the lower land.

He can be held responsible if this water is caused to flow in a more concentrated form than it naturally would have.

It flows in a more concentrated form than it would naturally if, by the perceptible work of man, the levels or conformations of the land have been altered and therefore the flow of surface waters is increased in a particular point.

If a more concentrated flow occurs simply when the result of “natural” use of his land by the superior owner, he is generally not responsible.

What is meant by “natural land use”?

The question here is what is considered “natural land use”. In a recent decision of the Queensland District Court of Graham & Anor vs. Alic & Anor [2022]QDC 106, the court had to consider precisely this point.

The plaintiffs were lower neighbors of the respondents in a residential neighborhood by way of background. The street was originally a reasonably steep but steady incline.

Before the Plaintiffs purchased their property, the Respondents built their house and in doing so cut a flat slab on the high side of their yard to build the house on. They took all the soil they had cut, around 800 m3, and placed it along the edge of their property to create a stepped effect from their house. They then built a wooden retaining wall partially running along the property from the front boundary to hold in the ground.

The applicants then moved into their property.

The flat level of land which the respondents had created, just below the house platform, was an effluent treatment area, which had a ridge running along its edge (“the dyke”) before that the land then descends towards the retaining wall and the applicants’ property.

The respondents then decided to move the effluent treatment area to the rear of their property. In doing so, they leveled the bund and increased the gradient of the slope between the flat landing and the retaining wall. They also placed topsoil and grass seed along the slope.

The following rain saw the claimants’ land flooded with topsoil and grass seeds. What also began to become apparent over time was that water began flowing over, through and under the retaining wall in concentrated flows and up to several days after the rain.

The trial

During the trial, it turned out that all the soil that the respondents had dumped along the border acted like a sponge, absorbing much of the rainwater that would normally have flowed down the hill and over the plaintiffs’ land. It was also evident that there were several flaws in the retaining wall, primarily related to the drainage pipe at the base of the retaining wall. This underground drain has been designed to collect the extra water that accumulates behind the wall and direct it to the front of the property and onto the road.

During the trial, the plaintiffs arranged for a plumber to stick a camera down the drain, and it was later revealed that the pipe was blocked at both ends, it bent in the middle so that the low point of the drain was actually half way up the wall, not the front end of the wall and the pipe had a large crack about a third of the way, unsurprisingly, right where some of that concentrated flow was observed and caused cuts in the ground of the applicants.

In presenting their request to put an end to the nuisance, the applicants relied on the testimony of a hydrologist, who compared what the water flow would have been with the respondents’ house in place but before the retaining wall and the earthworks have been completed, with -current water flow was.

In making their submissions, the respondents relied heavily on the word “natural” in the Gartner and argued that because claimants’ experts only considered flow after a house had been put in place (which they argued had been reduced by building it with drains etc. the natural capture of rainwater and, therefore, the volume of water crossing the border), the petitioners could not prove that the flow of water was currently worse than it would have been in the state ” natural” of the land. Essentially, they were trying to say that the courts must take into account the pristine state of the land and the flow of the water for comparison purposes.

This seems like a difficult concept to consider given the ever-changing nature of natural lands due to weather, erosion, and time itself. How far should we go back then, if this test was fair? The Jurassic period?

The result

Fortunately, this is a matter that was considered by the Queensland Court of Appeal in State of Queensland v Baker Superannuation Fund Pty Ltd [2019] 2 Qd R 146, where the court found that what to consider in the flow of water which results from the natural and reasonable use of the land. In considering this, Justice McMurdo said [at 200]:

[200] “Natural” land use may therefore imply land use as it has been improved by a structure. Whether the use of a defendant’s land is a natural use must be determined by reference to the nature of that use, understood in the context of the relevant circumstances, including the locality of the land, and the manner in which the land is used for this purpose. At least in this second respect, a constraint of reasonableness must be employed.

[201] The question of whether a use is “natural” in this sense must be assessed in the light of the circumstances which existed at the time of the defendant’s act or omission giving rise to its alleged liability, and more particularly, by reference to the nature and manner of use of the defendant’s land at that time.

Thus, in this case, the appropriate consideration was a comparison of the characteristics of the water flows on the respondents’ land at a time of reasonable use of their land being the approved construction of their house, but before the earthworks and the retaining wall are in place. location and current status of these flows.

In finding that there was indeed a nuisance, Judge Rowan Jackson concluded that the defects in the retaining wall were not a natural use of the respondents’ land and caused concentrated flows. As such, the respondents were ordered to remove the retaining wall and have an independent expert design a reasonable recycling wall in its place with adequate drainage.

Thus, in terms of “natural” flow, when it comes to considering the nuisance caused by the change in surface flow, the consideration is the flow when the ground is in a state resulting from a reasonable use. nature of it and not having to consider obtaining survey data from a time before the extinction of the dinosaurs.

The content of this article is intended to provide a general guide on the subject. Specialist advice should be sought regarding your particular situation.

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