Aurizon Operations Limited and State of Queensland v Michael Vincent Baker Superannuation Pty Ltd

The recent Court of Appeal decision of Aurizon Operations Limited and State of Queensland v Michael Vincent Baker Superannuation Pty Ltd CA3654/17 is a timely reminder for departments to consider whether their infrastructure is causing a nuisance to adjoining land, particularly where the removal of that infrastructure would not compromise the use of the State’s land.

The plaintiff claimed damages for alleged nuisance caused by the concentrated discharge of surface water onto its land.  In the alternative, the plaintiff sought reinstatement of its land to its pre-erosion state. The plaintiff also sought an injunction restraining the defendants from discharging water onto its land.

Background

The plaintiff purchased its land in about 1995. From about 1999, the plaintiff observed significant erosion of a natural gully on his land.  The plaintiff alleged that the erosion was caused by water channeled through culverts under a rail corridor adjacent to its land (the railway land’).

The railway line and the culverts were built in about 1885 and continued to operate until 1993. In 1995 the railway land was acquired by the State and leased back to Queensland Rail (‘QR’) under the Transport Infrastructure Act 1994 until 2002, when it was declared non-rail corridor land. The railway land was transferred to the State in 2003 and since then, it has been used as a recreational walking and bike riding trail.

The farming land on the opposite side of the railway land (‘the farming land’), situated higher than the plaintiff’s land and the railway land, was cleared of its previously heavy vegetation during the late 1980s.

The plaintiff first complained about the erosion of the gully to QR, the predecessor of Aurizon Operations Limited (‘Aurizon’) in February 2000. In 2004 the plaintiff commenced proceedings initially against QR and later joined the State.  At the Supreme Court trial, Aurizon and State submitted expert evidence to the effect that:

• the clearing of the farming land resulted in increased amounts and velocity of surface water being received onto the plaintiff’s land;
• the water was received in a concentrated way through the culverts;
• given the fact that the culverts existed since about 1885 and no significant erosion was noticed on the plaintiff’s land until 1999, the predominant cause of the erosion was the clearing of the farming land.

On 13 March 2017, the Court held that both Aurizon and the State were liable for the nuisance caused to the plaintiff’s land, ordered the State to seal the culverts and ordered damages in equal amounts against each defendant.  The Court accepted that the culverts were constructed without negligence, consistent with proper engineering practice and were necessary for use of the rail corridor as a railway line. However, the Court held that, as long as the culverts were a cause of the erosion, each defendant was liable for permitting water to flow onto the plaintiff’s land in a concentrated way.

Appeal

Both the State and Aurizon appealed the Court’s decision on identical grounds. On 27 July 2018 the Court of Appeal upheld Aurizon’s appeal unanimously.  However, the Court of Appeal dismissed the State’s appeal 2:1, with Justice Jackson dissenting.

Justice McMurdo recognised that a structure, such as a culvert, on the defendant’s land which interferes with the flow of water and damages or interferes with the enjoyment of another’s land, may create an actionable nuisance, even though it was not a nuisance when originally constructed or for much of its existence.

In respect of the question of Aurizon’s liability, Justice McMurdo held that, given the railway land was to be required by the State for a non-rail transport corridor and was possibly of strategic importance, it was not reasonable to expect QR to undertake works to abate the nuisance, particularly when those works could have compromised the State’s potential use of the land.  In these circumstances, there was no failure by QR, and later Aurizon, to take reasonable measures to bring the nuisance to an end.

In respect of the question of the State’s liability, Justice McMurdo noted that the State was aware of the erosion at all relevant times and there was no evidence that the works required to abate the nuisance would have compromised the State’s use of the railway land. Since the railway land was no longer being used for a railway, there was no justification for retaining the embankment and the culverts, apart from saving costs to the State.  As the State’s appeal was unsuccessful, it was required to seal the culverts and undertake works to divert the water to Sandy Creek along the railway corridor.

Whole of Government implications

The Court of Appeal’s decision could expose the State to liability in certain situations, where the use and enjoyment of private land is adversely affected by State infrastructure, even in circumstances where that infrastructure is no longer in use.

If you require any assistance, please do not hesitate to contact Assistant Crown Solicitor of the Commercial Dispute Resolution Team Paula Freeleagus on 30068141 or by email on paula.freeleagus@crownlaw.qld.gov.au or Timea Havas, Senior Principal Lawyer of the Commercial Dispute Resolution team on 3239 3404 or by email on timea.havas@crownlaw.qld.gov.au.