Graham & Anor v Alic & Anor [2022] QDC 106

Andrew Orford  |  Allie Flack |  Eva Squire

Key takeout

Owners of land that is elevated above neighbouring land should take into consideration any disruption of natural water flow when planning construction works.  If building works result in an unreasonable increase in the natural flow of water to the lower land, the proprietor of the higher land may be liable in nuisance.  To avoid this situation, all building works should incorporate appropriate drainage.

Facts

The applicants (Graham ) and the respondents (Alic) were neighbours, with the Alic’s living on a higher contiguous lot.  Alic undertook a series of construction works on their land in the period from 2015 to 2019.  These developments involved cutting into the natural slope of the land to create a flat slab on which a house was built and using the resulting fill to create a flat area below the house and the swimming pool.  A timber retaining wall was constructed over a distance of 52m along the property.

Graham alleged that, as a result of these building works, an increased amount of water, mud, soil, sand and grass seed washed over the retaining wall and into their property during rain events.  An application was brought alleging that Alic had created a nuisance by disrupting the ‘natural flow’ of water from Alic’s property to Graham’s property.  Graham sought an injunction to compel the removal and reconstruction of the retaining wall as well as damages consisting of expenses incurred in performing remedial works and replacing turf. 

Decision

Jackson J found that Alic’s building works were not a reasonable and natural use of the land and had caused a more concentrated flow of water into Graham’s land.  In making this finding, Jackson J accepted expert evidence stating that the retaining wall did not have appropriate or approved drainage due to the shallow depth of its footings.

Jackson J ordered Alic to demolish and rebuild the retaining wall with appropriate drainage, in accordance with plans approved and certified by an engineer nominated by the president of the Board of Professional Engineers of Queensland.  However, Jackson J rejected Graham’s claim for damages in respect of the remedial works they undertook on their property to minimise the effects of runoff from Alic’s higher property, noting that these were merely sensible precautionary steps any land holder in the position of Graham would take and were not directly the result of the increased overland flow.