creek issues

Gidday,

back in 1977 the State Govt approved a gabion wall in the creek upstream of our place (we weren't here then) so as to stop erosion on a property. In 1997 Govt approved repairs to the gabion wall. Both approvals had conditions attached.

In floods of January 2013 the gabion wall was damaged. It needs to be repaired. New owners aren't interested, they didn't know about the wall when they bought and strangely are unconcerned about the possibility of the wall falling down and taking half their block with it.

Govt isn't interested either, they say that as of 1988 legislation changed (haven't told us what/how the change occurred) and they are no longer responsible for it. Govt says Council is now the responsible entity.

Council says waterways are State-controlled (true) so Council has no authority to do anything (besides which it would cost $$).

Where does this leave the 12+ properties downstream, which suffered flood damage in 2013 due partial blockage of creek, and will surely suffer worse in event of collapse of wall/full blockage of the creek?

Has anyone else had similar happen? There is a piece of legislation which limits the liability of govts to maintain their own infrastructure. How do others get on when this sort of thing happens? I find it odd that they can abandon responsibility for Govt-approved works in an urban area.

You might want to gather the other 12 property owners together and take out a class action? ......along the lines of the one being considered (still??) in relation to recent flooding experienced in Brisbane, caused largely by the way the Wivenhoe dam was operated.

Propertunity said:

You might want to gather the other 12 property owners together and take out a class action? ......along the lines of the one being considered (still??) in relation to recent flooding experienced in Brisbane, caused largely by the way the Wivenhoe dam was operated.

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The Wivenhoe dam class action has been lodged and is underway, though is not expected to go to trial until early 2016.

Perp said:

The Wivenhoe dam class action has been lodged and is underway, though is not expected to go to trial until early 2016.

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Yeah you would not want to be in a hurry for compensation......

Propertunity said:

Yeah you would not want to be in a hurry for compensation......

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Indeed. I thought waiting just under 3 years was bad ; people relying on this will be waiting more than 5 years!

Thanks, none of us have much money and even the $$ I've spent to date are not tax deductible. We're not looking for compensation, just to identify which govt body is responsible for enforcing the conditions so we know who to keep going back to. At the moment it's just a game of ping pong.

The young couple who bought the block with the gabion attached are just hoping it stays in place, they don't know what else to do. They at least have the option if they would take it. The rest of us hope it stays up too but none of us can do anything, we have no rights at all.

The state says council can fix it but no-one with any authority will bite the bullet.

I realise that it "shouldn't" be up to you but is it possible to get all 12 people together and discuss all putting in some cash and stabilising the wall.

If you could reach agreement, hopefully one of the owners is in the building trade who could get some expert to have a look and give a ball park figure to strengthen wall.

If it was going to cost $3000 to drive some piles or such, that would only be $250 each and may be worth it in the long run.

Perhaps get the land-owners together and send a letter to the State body summarising the above and stating you'd prefer to avoid a class action. Perhaps even get an estimate of the cost to repair, as the cost of that may be trifling in comparison to fighting it in court and risking losing.

Thanks, we've done letters and tried to get cooperation through meetings, but so far no progress. I can't believe anyone could authorise this work and then walk away.
Situation is now - land-owner has the 'right' but not the responsibility to fix it, Council also has the 'right' but not the responsibility to fix it, State says it's not their responsibility anymore.
Land-owners didn't know about it when they bought the place, State says they should have picked it up in searches when looking to buy but there was nothing on title warning them and the property search didn't turn it up as it was so long ago.
The gabion wall is 100m long, about 2m high and now collapsing in 3 places, and gets worse with each rain event. FYI, it is comprised of wire mesh baskets (ie rectangular prisms), filled with rocks, stacked brick-like in courses, and the wire is rusting away. If it were holding my land up I'd be fixing it.
To make matters worse, there's the bridge below it which clogs up 50% anyway with green waste, and will clog up 100% if this thing goes down in heavy rain.
Talk about traps for unwary players. Land-owners 400m away in another street copped water through their places last time the bridge blocked up and it will be worse when this thing goes - how does a buyer do due diligence to avoid this sort of c&*p?

Creekholme, this is messy. One option may be to have the creek surveyed or to use existing plans to see who owns what. A rough survey will give one of three results:
1 The creek is not part of a block of land; or
2 The creek is part of a block of land; or
3 It is unclear where ownership lies.

If the first or second options apply then responsibility may be clear. If the third option applies the lawyers will feast.

You could also contact the state ombudsman and complain about a lack of a clear answer. You could contact your state MP. A preliminary quotation to make good the damage should also be undertaken.

Ah it's pretty messy already.

The land holder has survey plan and does NOT include the creek. However State says the gabion wall was to protect land holder's land from erosion, and since the gabion was installed it is now considered by the State to be the creek bank. Interesting given it is not a natural feature and if it washes away in a flood it will not just be fine sediment flowing downstream.

I suspect it would be technically State-owned land if it went to court but who has that sort of $$ to throw around?

State MP is useless, we tried that. All he did was give his unexpert opinion of where water might flow, no idea of what his actual role was.

Thanks for this advice "You could also contact the state ombudsman and complain about a lack of a clear answer". I will keep it in mind for after the next State election.

I'm going to hold fire for a little while, as council *might* be starting to move on it. Thanks all.

Does the local TV station or newspaper have campaigns on incompetent bureaucracy, may be worth a letter to find out if the council does not fix it.

Try it January when news is slow, if you get a deluge and the creek is a banker take some pics and pass them on to the media

Yes, pictures are important. The media love pictures. Before, during and after an event. Moving footage if possible.
I would have thought any council in Queensland would take notice if the words 'potential for flash flooding' were thrown their way.

Creekholme, I strongly suggest that you document what has happened. I invariably use a chronological order. Copy as many supporting documents as you can, and maybe think about obtaining statements from landowners, either just signed or as a formal statement, witnessed. Print some pictures.

One point that can be raised is that as the government installed the gabion wall it is an acknowledgement that this falls under their jurisdiction. Hence, maintenance is also theirs. It's hard to say at this distance and lacking details, but this reasoning could be suggested.

Then send this to your ombudsman; you do not need to wait for an election. In the covering letter briefly state the problem, what has been done and what you want. See
http://www.ombudsman.qld.gov.au/

Note that in most jurisdictions an ombudsman cannot investigate politicians, so writing to the most senior public servant is often a good idea. This public servant can be investigated. Been there, done that. Often.

Most states have a low-cost tribunal that can look at minor matters. See
http://www.qcat.qld.gov.au/matter-types/review-of-administrative-decisions
The fees are at
http://www.qcat.qld.gov.au/applying...ions_during_internal_review_by_decision-maker
and are higher than I envisaged. Still, it may be less than paying for a wall. The ombudsman is a good place to start.

Thanks Burramys, I've been doing all that. For some years now. Not getting too far though, at least not until I started going outside Council (eg Ombudsman, Info Commissioner, etc.).

The problem is the State *licensed* the wall but did not build it. The landowner at the time built it. Then the State walked away (repealed the legislation in 1988) from further dealings and left it to the owner. Now the State is saying the landowner and the council have been given rights to do m'tce works (under a permit exemption) but of course the new landowner knew nothing about the wall til the flood and it started to collapse. And of course to council it's just another cost.

Burramys Your advice about going back to the Ombudsman to investigate the senior PS is very interesting. I'll try that early in the new year, thanks very much.

We have some beautiful photos! Took them when the creek overflowed and then developed a map off them. Helps me no end having those photos, I can answer criticisms as they come up. I agree that photos are wonderful! Keep taking them too.

Creekholme, very messy! Legislation defines many actions, Commonwealth and then state or territory. Regulations are next. It seems that you need to look at the pre-and post-1988 legislation. Regardless of the law, the case may be made that as the creek is not part of the property, responsibility lies with council and/or the state government. The precise form of words is important; even a comma can make a huge difference.

Can you please provide a link to the above pieces of legislation? I may be able to advise.

Your experiences lead me to continue to live in Victoria. We have a good balance here - government and opposition are both incompetent. I wonder if Mr Putin is busy. And what does he know about creeks?

Thanks Burramys, I will PM you. Things are happening, not all good, so I'd like to continue this discussion privately.

Creekholme, fine, quite happy to assist. Note that I am in Victoria, the place of election results most interesting. However, many legal principles hold across jurisdictions. Indeed, at COAG and at lower levels, governments exchange and adopt ideas. For example, the Electronic Transactions (Victoria) Act 2000 is very similar to Acts in other places.

Burramys said:

For example, the Electronic Transactions (Victoria) Act 2000 is very similar to Acts in other places.

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Yes, it's called "national uniform legislation" and covers a whole range of issues, e.g. civil liability, de facto relationships, consumer law, road rules, proceeds of crime, defamation, terrorism, etc.

It's a way of achieving uniformity across the jurisdictions without impinging on the independence of the states granted by the Constitution. Effectively, the states and Commonwealth agree that in some areas they want their laws to be the same, and coordinate it so that they all pass the same law in each jurisdiction, often with the laws coming into effect on the same date. (Sometimes the minor details have to differ for various political and practical reasons, but that's the goal.)

For a summary of topics that are the subject of NUL, see: Table prepared by the Australasian Parliamentary Counsel's Committee