The wide frontage and extensive outdoor areas of the Palm Beach canal front home created a strong attraction for the young family who took up residence there in November 2012.
It was the dream environment for Matthew and Tina Davies to bring up their four children then aged 2 yrs to 14 yrs given its open floor plan, five bedrooms, swimming pool, sandy beach and its location within the catchment area of the kids’ school.
They were the only second owner of the home on the lot in Dogwood Drive created in a 1977 subdivision. They intended to “fully modernise” the residence to establish it as a home to which their children would remain attached as they grew through their teens and as young adults.
Soon after moving in, sinkholes and subsidence appeared in the vicinity of a 4m wide stormwater easement running along the eastern boundary through which a 675mm diameter concrete pipe runs to the canal to discharge stormwater.
The resulting poor state of the yard, safety issues and their embarrassment at the disarray put a stop to family entertainment and moved the children’s much-reduced play activity to the street side of the house which required constant parental supervision.
It was while mowing the backyard in January 2015 when Mr Davies put his foot through the grass into a sinkhole that they realised the defects were potentially life-threatening.
The family made regular complaints but were frustrated by the fact that while the easement document required the council to maintain the pipe, it did not record who was responsible for the maintenance of the easement area itself.
The council responded with a show-cause notice against Mr. Davies alleging that an 800 mm high retaining wall – to which the canal front revetment wall abutted – had been illegally constructed.
As the years passed and their children grew older without experiencing all that the spectacular location could have provided, the family became emotionally drained.
In November 2019 they filed proceedings in the District Court against the Gold Coast City Council for damages and an injunction or alternatively an additional $450k for the loss in value of the property resulting from its degradation.
The dispute came before Judge Nathan Jarro who heard 8 days of evidence and submissions in August and October 2020.
Three engineers provided reports to assist the court: Dr Philip Shaw (Geotechnical), Kelvin Borkowsky (Structural) and Eric Fox (Structural & Geotechnical). In addition to their individual reports, two joint reports were prepared, one for each of the two specialities meaning that the opinions of Mr Fox – wearing two hats – featured in both.
The experts were largely in agreement on the three mechanisms that contributed to the sinkholes and subsidence: loss of fill and resulting voids in the bedding and around the pipe itself; loss of fill from marine agitation at the pipe outlet “headwall”; and cracks in the pipe resulting from the degraded bedding support caused by those two things.
The council contended the retaining wall had damaged the discharge pipe so as to cause the subsidence and that it was “illegal” because its records contained no entry that evidenced its construction had been approved.
His Honour was however content to conclude – by relying on the evidence of a neighbour who had built the wall in 1982 and swore that he had done so by reference to a stamped “APPROVED” construction drawing and that council personnel had inspected the works on at least two occasions during construction – that it had been approved.
“Just because no approved plans were produced at trial does not preclude me from finding the retaining wall was approved,” he reasoned. “The [council] records are inconclusive such that [they] could have been misplaced or lost”.
Having found it to have been approved, the court rejected the council’s assertion that the construction of the retaining wall was a breach of the easement terms. Neither did the court accept that the wall was the source of damage to the pipe.
Not to be outdone the GCCC also argued that the “headwall” – the vertical section of the concrete installation through which the pipe emerges at the canal – was part of the revetment wall and thus came within the homeowner’s responsibility including in relation to swirling canal water that undermined the fill it was responsible for holding in place.
Not so ruled the court. The “headwall” was, Judge Jarro wrote in his 52-page reasons, owned by the council – regardless of who constructed by it – and was just as much its responsibility for maintenance as was the pipe itself.
That was enough to lead to a ruling that the council was responsible for all of the deterioration of the Davies’ land. More than a mere inconvenience, the sinkholes and subsidence “caused and continue to cause substantial and unreasonable interference with the use of the property by the plaintiffs”.
The tort of “nuisance” was made out and an injunction was ordered against the council to fix the mess because damages were considered to be an inadequate remedy given the issues were ongoing.
Despite the obvious turmoil, disappointment and genuine emotional distress the family had endured over the nine-year period to judgment, the court ordered a mere $50k for loss of use and enjoyment of their dream residence.
The Davies’ claim for special nuisance damages of $110k for the cost of removal and replacement of a brick wall and boundary fence along the eastern boundary where the pipe was to be dug up to effect the remediation, was also allowed.