Water ingress and Water Act claims at VCAT

One of the most common causes of action I deal with in relation to Property damage and defects in buildings (in particular apartments) are water flow claims under the Victorian legislation - section 16 and section 157 of the Water Act 1989 (Vic).

For respondents, you need to understand these claims are real, damages can be significant and as can legal costs which can be awarded for or against you!

The legislation is drafted very simply and effectively says in relation to claiming for property damage:

• 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

• damage to that property ?
• or economic loss ?

the person who caused the flow is liable to pay damages.

In addition, an injunction to stop the flow is commonly sought as relief.

Now, as a simple as that provision is under section 16, in practice it’s a lot more difficult to prove and defend.

For one parties should expect to obtain high quality expert evidence from forensic plumbers and forensic engineers specialised in the giving of evidence at the Tribunal in this field. Likely both.

That means, the opinion of your local Plumber is probably not going to cut the mustard!

In these cases, I almost always require a diagram in relation to the plan of subdivision which identifies exactly where the water began and where it flowed.

For apartments, building consultants may also be needed to identify the specific point of cause and if this is in common property an issue to the owners corporation, if not it may be specific to a lot owner.

This is one type of proceeding where getting the respondent correct is critical.

The reality is water ingress claims are not simple, and they are one of many disputes that often takes many years at VCAT due to delays and the susceptibility to slippage in orders for inexperienced parties.

If you are defending a water claim, you need to treat it seriously and report to insurance asap.

If you’re making a water claim you’ve got to understand the critical importance of expert evidence.

Further, the making of early offers at the VCAT under section 109 of the VCAT Act can attract cost consequences on an indemnity basis!

This article is a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

Tagged as:

• building disputes