Local flooding in Gardenia Drive, Birkdale
Residents in Gardenia Drive Birkdale have been struggling for several years to get Redland City Council to resolve flooding problems caused by a subdivision, approved by the Council, which has changed overland flow of rainwater after storms.
The Redland City Bulletin has reported a local resident’s concerns that Council regulations, in relation to raising the level of a block of land, may not have been followed.
Flooding, damp walls and mould
Development of the subdivision is only partially completed so final certification is not available. Therein lies part of the problem.
The Council’s development consent process can trigger rectification as steps in the approval process are achieved. But incomplete works do not ring administrative alarm bells even if the incomplete works are causing significant damage, and community angst.
In this case, nearby properties have been adversely impacted by site works at 42 Gardenia Drive. These impacts alleged to have been caused by a three lot subdivision development include problems of muddy stormwater, flooding into and across adjacent properties, damaging at least one house, gardens, paths, pavers, fencing, internal walls and house cladding.
Damp walls, mould on furniture, paint, carpet, furnishings and a flooded patio have been some of the consequences of the unfinished development identified by neighbouring property owners.
The flooding appears to be a result of the filling of land, by about 0.8m in some locations. This filling has resulted in the redirection of “natural” overland flow into an adjacent property.
These issues have gone on for so long that the impacts are damaging the health, wellbeing and peace of mind of the nearby residents. Their lives have been turned upside down by the partially completed works and, as they see it, the Council’s failure to take responsibility for this development process.
Council’s development approval (Application No: OPW17/0022) was granted 31 October 2018.
It includes a standard clause to “pay to Council any and all costs incurred by Council for any alterations to existing public utility mains, services or installations due to building and works in relation to the proposed development. or any works required by conditions of this approval”.
This condition aims to protect the Council from damage caused by developers. But there is no such condition that protects nearby or adjacent owners from impacts of a developer’s actions.
Residents want Council to act on flooding concerns
The impacted residents have made informal enquiries, dozens of phone calls and finally formal complaints about Council processes. These actions canvas matters like poor administration, failure to take compliance action, poorly documented approvals, anomalies in approved engineering plans, allegation of lost and altered files and more.
The substance of complaints about the Council involves:
- lost street amenity
- right to information
- formal complaints
- independent engineering reports
- solicitors’ legal advice
- issuing legal notices
- complaints to the Board of Engineers
- complaints to QBCC (Queensland Building and Construction Commission)
- costs and impositions like having to obtain cost estimates for the repair of damages such as paving, landscaping, termite protection, painting, retaining walls, carpet cleaning, fencing, replacing garden plants, fertiliser, weed management, lost mulch and more.
Formal complaints about Council
A formal complaint about Council was lodged with a litany of issues, but stormwater flooding allegedly caused by site filling and failure of a retaining wall are the at the core the problems.
But the impacted residents went further and they commissioned an independent engineering report which among its conclusions stated …the alterations of the land at 42 GD have altered the direction of the overland flow paths such that the effect on neighbouring 40 GD has worsened. All of the stormwater from 42GD are now directed towards 40 … where prior to the development it was not.
The report goes on …Currently drainage measures installed along the southern boundary of 42 …appears (sic) to be ineffective…
On this specific matter, Council’s response was a lesson about how water “naturally flows to the lowest point. Property owners have to accept natural overland surface flow from neighbouring properties….goes on with condescending statements like “ the property owner must accept the consequences of gravity”.
Council’s report goes on to claim it (Council) has followed legislative requirements and concludes “this is considered to be a civil matter and not within Councils jurisdiction. The questions by residents about the changes to the drainage being a result of an approved development application and questions of compliance with approved plans is avoided. But in the end the Council found the complaints “unsubstantiated”.
Given the hiatus between the expected outcome and the Council’s position, the residents tried to arrange a meeting with the Council’s CEO. In response, officers advised “you have been provided numerous responses from Council officers and managers from various departments including the OCEO relating to operational and internal review matters. I can advise that your request has been declined by the CEO to meet with you regarding this matter.
Residents sought the assistance of their local Councillor (Tracey Huges) to arrange a meeting with the CEO, but they were told that it was not possible for her to arrange a meeting.
Finally, the Council suggested if the owners were dissatisfied they should contact the Queensland Ombudsmen. This was followed by advice warning the owners about “any unreasonable conduct” and how that will be dealt with under the Councils “Managing Unreasonable complaint/ Customer Conduct Policy (UCC”.
The complainants were offended by Council’s inference that their behaviour constituted “unreasonable conduct”.
Sandbags to mitigate flooding
In the midst of the complaints, a senior Council officer visited one property and installed about 20 full sandbags to mitigate the patio flooding.
It seems the effort may not have been official recognition of a problem, but the gesture was welcomed by one of the frustrated landowners. Sadly the bags have since deteriorated, and the sand now lies on the ground, on his patio, and in the properties, internal stormwater drains.
Legal action as high as a retaining wall
Given the ongoing angst among locals, and no visible action by Council, the local residents took the costly step of seeking their own legal remedy. Solicitors wrote to the Council and asked that it immediately undertake enforcement action against the owners of the development site.
Engagement of a solicitor by one of the affected residents appears to have brought about a change in mind by the Council about how it addresses this matter. Maybe there is an end in sight, but the complaint process has taken its toll of affected residents and it is yet to be seen if their concerns will be fully resolved in a satisfactory way.
The locals have had to document their actions over the preceding years to make their case. This included chronological records of letters, emails, file notes, meetings, phone calls and advices. Ironically, if these documents are put in pile it is about the same height (about 0.8 metres) as the increase in land elevation at 42 Gardenia Drive which appears to be the cause of the flooding experienced by nearby properties.
They told you so – in 2016
In the early stages of subdivision of one lot into 3 in Gardenia Drive, residents mounted a petition (with about 30 signatures) which was submitted to Council. A local spokeperson addressed a Council meeting in July 2016. Yet in its decision making to approve the development, the Council documents note that “there were no properly made submissions about the application”.
The efforts of ordinary people to engage in the planning and development processes rarely count in the tick and flick code assessment processes.
What a reasonable outcome might look like
In Birkdale this small group of landowners remain angry and upset that the Council can allow development outcomes but refuses to accept legitimate complaints or recognise (and compensate) the victims of development.
This saga has demonstrates how landowners can be affected by action on a neigbouring property that has been approved by a local council. Given such development applications are approved by Council, when things go wrong it is not unreasonable that Council step up so that residents are not left to their own devices.
In this case, a resolution may be on the horizon (following the residents’ costly legal action) but other actions the Council could take could include:
1. Being offered a meeting with the Council’s CEO;
2. Receiving a formal apology from the Council:
3. Re-assessment of the formal complaint made to Council (GC1531);
4. Getting a written response to an online request dated 29 January 2021 (ICCC2428);
5. Immediate action (by Council) to rectify or at least mitigate the risk of flooding from land fill and poor site works:
6. Expediting long overdue compliance action: and
7. Compensation for professional costs ratepayers incurred by neighbouring property owners in dealing with this matter.
Redlands2030 – 8 August 2021
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One Comment
Just reading the article, clearly Councils Engineers need to step in and rectify this serious issue. We feel for the Residents impacted by this development, it’s disheartening when no one is taking responsibility for the grief and stress these individuals are going through also having to engage Solicitors at their own expense. We hope they finally get a positive outcome before the wet season arrives. We are still endeavouring to navigate through all the bureaucracy for simple improvements.