VIC Can I Make a Claim Against Council for Negligence?

Australia's #1 for Law
Join 150,000 Australians every month. Ask a question, respond to a question and better understand the law today!
FREE - Join Now

BOBFRED

Member
16 April 2017
2
0
1
I'm seeking some tips regarding whether I can make a claim against a Council for negligence in the assessment of engineering and planning permit plans. Note that building permit was issued by a private building surveyor but levels of the house were determined through the planning process.

My new house build was complete, except for landscaping, late 2016, following a planning permit for multi-lot subdivision and construction of a new dwelling that of course involved engineering plan approval.

The house was flooded in recent storms when overland flows from the street ran through my property. My house is on the lower side of the street. It is a 1950s subdivision and the original houses are on stumps. A few other newly developed houses on slabs also flooded (opportunity for others to join in?).

Whilst I haven't had the landscaping done yet, there was only 1 strip drain identified on the plans - that wouldn't have done a thing. There was practically a river running between my house and the next door house, and rapids. It pushed the fence over. This is not something that a couple of strip drains would fix.

The Council had full flood mapping done prior to the approval of my engineering plans. I've got my hands on it and it shows that there is an overland flow path through my site even in a 1 in 5 year event, let alone a 100 year event. But - the flood levels were not deemed high enough to warrant a Special Building Overlay.

Even in the short term I'm concerned it will happen again - according to the flood mapping the 1 in 100 year floods have occurred 3 times in the last 7 or so years.

I am insured, so the damage to the house this time was covered, and the house dried out quickly because of the hot weather after.

I was there while it happened and got quite ill following due to the stress of it all. Four months later I still get highly stressed when it rains, I can't sleep at all during the rain when once upon a time the sound of rain was soothing! Anxiety is not something I have experienced before. I am not out for personal damages but this all has come at a high personal cost and I need to have it resolved ASAP.

I've no doubt the value of my house is also affected by this.

My primary objective is for the Council to upgrade the Council drainage system. Without this my own site drainage system does not work (my Legal Point of Discharge is in the road that flooded, with flows from my site being pumped up to it. $17 K of useless works. If all of those works are done, then my current drainage system and landscape plans will be fine. If not it all needs to be redone/redesigned/reengineered/new building permits, retaining walls to divert flows away from the house, and a hell of a lot of plumbing works.

I'm actually in the development industry so I know all too well that this was all avoidable. Had the engineers advised the house was in an overland flow path, the development - site works, house design, drainage system - all would have been designed and constructed appropriately. As it stands, I have a brand new house subject to flooding.

One thing I do want to get an answer to is about where the responsibility lies between my consultant engineer to identify flooding from outside the site, and Council. My understanding is that my engineer only looks at drainage issues from within the site boundary but please clarify/confirm where the various responsibilities lie.

I've no idea where to start in terms of looking up case law, etc. I'll be seeking legal advice and representation but I would appreciate help on how to get started and navigate this, and any other thoughts about my chances or strategy.

Cheers and thanks for your time,
 

Rod

Lawyer
LawConnect (LawTap) Verified
27 May 2014
7,726
1,056
2,894
www.hutchinsonlegal.com.au
You may have a negligence claim against the council and building surveyor. You may also have a nuisance claim against the council but it is not clear cut one way or the other.

For something like this you will need your lawyer to go through all the agreements, correspondence, facts and evidence to see if a claim can be substantiated.
 

Tripe

Well-Known Member
22 May 2017
229
14
619
I don't reckon the building surveyor would be at fault, as long as the building didn't fall down. The building surveyor only issues the building permit or the right to start work, not the planning permit.

The council is liable for issuing the approvals (planning permit) for the development and surely a 1 in 5 flood event should of triggered a design requirement of your house to mitigate flooding