Smelling sweet: Council not liable to property owners for installation of sewer main14 March 2019 | State & Local Authorities
Plaintiffs’ claim against the defendant Council for trespass, subsidence and nuisance involving a sewer line traversing their property wholly dismissed.
- Was the sewer line installed in 2005 (with the consent of the former property owners)?
- Did sewage leak from the sewer line onto the plaintiffs’ property?
- Did the installation of the sewer line result in subsidence to the plaintiffs’ house, shed slab and fencing?
Timothy and Christeen Woolnough (the plaintiffs) alleged that a public sewer line which traversed their property was installed without their consent by Nebo Shire Council. They further alleged that the unauthorised works conducted by Nebo Shire Council resulted in subsidence to their property and caused sewerage to leak at the property. They sought damages for the cost of repairs / rectification. They also sought damages for trespass whilst the works were being conducted, and ongoing trespass whilst the sewer line remained on their property. As a result of local government amalgamations Nebo Shire Council was later subsumed by the Isaac Regional Council (the defendant).
The Decision at Trial
Justice Henry found in the defendant’s favour, dismissing the plaintiffs’ claim in its entirety. The judgment considered three key components of the claim – namely, trespass, subsidence and nuisance.
With respect to trespass, his Honour noted the plaintiffs’ contention that the sewer line was installed on their property in about July 2007 without their knowledge or consent (at which time the plaintiffs owned the property) and therefore its installation and continuing presence is a trespass by the defendant. The defendant’s case, supported by voluminous documentary evidence, is that it was installed in 2005 (prior to the plaintiffs acquiring ownership of the property). After considering witness testimony (and critically the evidence of Karen Smith, the former owner of the property) his Honour concluded that the installation of the sewer line occurred in 2005, with the consent of Mrs Smith. Accordingly, the plaintiffs’ case in trespass was doomed to fail.
As to subsidence, his Honour considered whether the installation has caused subsidence to the shed, house slab or the rear fence. To this end, his Honour considered the defendant’s expert engineering evidence and ultimately concluded that the only potentially relevant subsidence was some modest sagging on the fence line. His Honour noted the expert opinion that the cost of rectification would be approximately $800. However, given the evidence that the damage would have occurred within 2 – 3 years of the sewer line installation, the plaintiffs’ cause of action in that regard was statute barred.
Lastly, his Honour considered the nuisance claim and in particular, whether the installation caused sewerage to leak at the property. His Honour noted that the plaintiffs did not deliver any expert evidence in this regard, but instead relied on lay evidence. Moreso, none of the lay witnesses called by the plaintiffs testified to witnessing repeat sewerage events at the property and the plaintiffs did not at any time arrange for scientific analysis of the suspect substances. Conversely, the defendant’s expert found that none of the samples taken by him revealed any exposure to sewerage. Accordingly, the plaintiffs failed to prove, on the balance of probabilities, that sewerage leaked from time to time from the sewer main on to their property.
Implications for you
This case highlights the importance of leading evidence in support of critical issues of fact to defend a case. In this instance, the combination of expert evidence, lay witness evidence and contemporaneous documentary evidence led by the defendant was unchallenged by the plaintiffs (who failed to adduce neither any expert evidence nor any witnesses who testified to witnessing repeat sewage events at the plaintiffs’ property).