Michael Vincent Baker Superannuation Pty Ltd v Aurizon Operations Ltd & Anor  QSC 26
This case restates the principles of nuisance applicable to a statutory authority and confirms that landowners cannot escape liability for interference caused by a use of their land which, even though reasonable at first instance, becomes unreasonable over time.
Read on for the analysis by Renae Carrigg and Ben Garvey.
In 1884 a precursor entity to the first defendant, Aurizon Operations Ltd (Aurizon), acquired land from the plaintiff's predecessor in title (railway land). That land was used to construct a railway line.
Two box culverts and two sets of box drains were constructed on either side of, and within, the embankment on which the railway line was built. As a result of this construction, water was carried through the rail corridor, discharged onto the land adjacent to the railway land (adjacent land) and eventually flowed into a natural gully in the adjacent land.
The railway line was closed in 1993.
In 1995, the plaintiff, Michael Vincent Baker Superannuation Pty Ltd (adjacent landowner), bought the adjacent land and used it to graze cattle and grow crops. Over time, the flow of water through the culverts led to significant erosion and subsidence of the natural gully in the adjacent land, with the result being that the adjacent landowner's director, Mr Baker, was unable to access the northern section of a paddock which bordered the railway land and adjacent land. As Mr Baker no longer had vehicular access to this paddock, he ceased using it for grazing cattle..
After being first notified of the erosion in 2000, Aurizon's precursor entity denied that it owed any liability to undertake works on the adjacent land to rectify the erosion. In 2002 the railway land was declared to be non-rail corridor land. In April 2003 it was transferred to the second defendant. In 2004 the adjacent landowner commenced proceedings in relation to the damage caused by the erosion.
Aurizon relied on the defence of statutory duty, i.e. the act alleged to have caused the nuisance was authorised by statute and was an inevitable consequence of the authorised undertaking, and not due to negligent exercise of, or failure to exercise, the statutory powers.
The court held that the adjacent landowner had proved an actionable nuisance, and awarded the adjacent landowner part of the costs of remediating the adjacent land.
Mullins J stated that the adjacent landowner had established that the erosion had resulted in a substantial or unreasonable interference with the use or enjoyment of its land. Her Honour also concluded that Aurizon had failed to establish the statutory duty defence.
In considering an actionable nuisance which arose as a result of surface waters, Mullins J noted that a landowner will not be liable merely because surface water flows naturally from his or her land onto lower land, but that the landowner may be liable if such water is caused to flow in a more concentrated form than it would naturally. The expert evidence suggested that the causes of the erosion on the adjacent land were the concentration of the flow of water resulting from the installation of the culverts, as well as the clearing of the surrounding area which led to an increased rate and volume of runoff through the culverts. Importantly, no evidence was called to show that there was no other way to disperse the surface flow of water by any means other than the culverts.
While Mullins J agreed that the placement of the culverts was reasonably necessary for the construction of the railway line at the time of its original construction, her Honour concluded that once the surrounding area was cleared and developed, causing an acceleration of the flow of water through the culverts, this should have been addressed by Aurizon, especially in circumstances where it was aware of the erosion taking place on the adjacent land.