Water damage – who is liable?

Case study – Bhati v Pannu [2021] VCAT 946

We are often asked to advise Owners on the best course of action when water is flowing onto their property from the neighbouring property and is causing damage (usually to their foundation). Such cases may give rise to a claim under the Water Act 1989.  In particular, section 16 of the Water Act provides that if there is a flow of water from the land of a person onto any other land, and that flow is not reasonable and the water causes injury to any other person, or damage to the property of any other person or any other person suffers economic loss, then the person who caused the flow is liable to pay damages to that other person in respect of that injury, damage or loss.

However, it is not enough to simply say that there is water flowing from an adjoining property and there is damage to another property, therefore it is a breach of section 16 of the Water Act. In a recent decision before the Tribunal, in Bhati v Pannu [2021] VCAT 946, the Tribunal needed to consider such a case. This case serves as a recent example of some of the elements VCAT will take into consideration when determining if the unreasonable water flow from the adjoining property actually caused the damage (including both the elements set out in section 20 of the Water Act and also the principles established by case law precedents), as in this case the Tribunal dismissed the Applicant’s case due to insufficient evidence to satisfy these elements.

In the case of Bhati v Pannu, the Tribunal found there was insufficient evidence to find the Respondents liable for the unreasonable flow of water which the Applicant argued was caused by works constructed or any other act done, or omitted to be done on the Respondents’ land.

The facts to this case, in general terms, are that the Applicant and Respondents both owned land with a common boundary fence that was constructed in 2016, which was about the same time as the homes were constructed.  The Respondents purchased their land in mid-December 2019, however landscaping works were undertaken in their backyard by the previous Owners. The Applicant also carried out some of their own landscaping works around December 2019/early 2020. It was around this time when the Applicant’s landscaper raised concern about the amount of water in the Applicant’s backyard.

In this case, Member Feeney accepted that there was an unreasonable flow of water from the Respondents’ land onto the Applicant’s land.  However, based on the evidence presented, Member Feeney was not satisfied that the damage to the stormwater pipe was caused by works constructed or any other act done, or omitted to be done on the Respondents’ land.

Member Feeney held that there were other acts of landscaping works carried out which could have also caused the damage.  Member Feeney further identified that the discovery of the water was noticed when the Applicant’s landscaper was engaged, however there were no photographs or videos of the status of the Applicant’s backyard at the time the water problem was discovered. The video evidence shows the flooding appears to have become worse over the period between May 2020 and March 2021 and during this time the Applicant had undertaken landscaping works on his land, including installing a retaining wall and an agricultural pipe. Even though the Applicant denies the works on his land caused the damage to the stormwater pipe, given it was the landscaper who first drew the water issues to the attention of the Applicant, the Tribunal accepted that the works on the Applicant’s land could have caused damaged stormwater pipes.

It was held that both parties offered plausible different scenarios, and that there were other acts which also could have caused the damage during the landscaping works and it was unlikely that the unreasonable flow of water was caused by the works constructed or any other act done or omitted to be done on the Respondents’ land.

This case serves as a timely reminder of the importance of evidence to demonstrate the cause of the damage arises from the unreasonable flow of water from the neighbouring property.



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