A developer whose townhouses slid down a hill towards neighbouring properties is seeking more than $10 million damages.
A developer whose townhouses slid down a hill towards neighbouring properties is seeking more than $10 million damages.

$10m legal battle after home slides away

A BURLEIGH developer, whose townhouses have slid down a hill towards neighbouring properties, is seeking more than $10 million damages from the council, engineers, a builder, property agents, a deceased estate and insurers over the costly disaster.

With a majority of those being sued planning to defend the claims, residents affected by the landslips, which began in 2016, could be waiting much longer for a resolution.

In documents lodged with the Supreme Court, Double RKR, a company owned by Burleigh locals Daniel, Mark and Michael Russell, said it purchased land at 30 Sapphire Dr, Elanora, for $2 million in 2015.

It built 18 townhouses there for its Palm Beach Heights development the following year. The developer claims the property is now worthless and that it doesn't yet know how much it will cost to fix.

The Palm Beach Heights townhouse development which has been impacted by landslides at Nollamara Drive and Sapphire Drive, Elanora, behind KP McGrath Drive. Picture: Scott Powick.
The Palm Beach Heights townhouse development which has been impacted by landslides at Nollamara Drive and Sapphire Drive, Elanora, behind KP McGrath Drive. Picture: Scott Powick.

In its statement of claim, Double RKR said it bought the site from Beacon Builders, a company run by Peter Beaconsfield that was deregistered in February 2018. Mr Beaconsfield is named as a defendant in the case, and has indicated he will be defending the claims.

Commercial property agency CBRE, which sold the site to Double RKR, is also a defendant in the complex court action, along with two of its former agents, Lachlan Harris and Mason Kidman.

CBRE and Beacon's insurer QBE have each filed notices that they intend to defend the case.

Double RKR claimed it relied on engineering reports carried out during a previous development application for the site, when it was owned by Beacon.

Its statement of claim said there were "inferred representations" by the engineers that the site "was suitable for the construction of residential facilities" and "there was no landslip risk from the proposed development".

Soil Surveys Engineering is a defendant in the case, along with engineer Peter Elkington, who no longer works for the company.

The claim said the reports inferred earthworks designed for the previous development application would be suitable for multi-level dwellings and that an adjoining site, now council-owned open space, was stable enough to support it.

28th January 2021 – Elanora, Gold Coast, Gold Coast City Council inspectors at the site of a land slip on public land behind a townhouse development. Photo: Scott Powick NEWSCORP
28th January 2021 – Elanora, Gold Coast, Gold Coast City Council inspectors at the site of a land slip on public land behind a townhouse development. Photo: Scott Powick NEWSCORP

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The developer's claim says another engineer, Andrew Darrell Wilkins, through company Andrew Wilkins Consulting, had certified the design of a retaining wall, and that it was built in October 2014.

Double RKR's statement said Mr Elkington had prepared a report after the retaining wall was built, finding the site could withstand the load from "construction of townhouse-style buildings".

The report recommended a specific slab footing foundation be used for the project, the developer's statement said.

After the council raised concerns of the structural stability of the retaining wall that December, Mr Wilkins wrote a letter reaffirming the wall's safety.

But the slope began to move in May 2016, the court documents said, and the retaining wall collapsed in July 2016.

28th January 2021 – Elanora, Gold Coast, local Elanora residents are sick of no action being taken at the site of a land slip building after problems resulting from a landslide five years ago have not been fixed. Photo: Scott Powick NEWSCORP
28th January 2021 – Elanora, Gold Coast, local Elanora residents are sick of no action being taken at the site of a land slip building after problems resulting from a landslide five years ago have not been fixed. Photo: Scott Powick NEWSCORP

 

 

After the retaining wall failed, the court claim says Mr Elkington prepared a report on its failure and recommended a 4m replacement wall, downslope from the failed wall.

At that point, the developer alleged, the site "contained visual evidence of a slip failure" and claimed Mr Elkington's report was "misleading or deceptive" because it inferred there was no slope stability issues and that the property was suitable for construction of a replacement wall.

Mr Wilkins went on to certify a replacement wall, despite noting that "global stability has not been considered" and was "to be assessed by others".

The development company is suing the estate of Mr Wilkins, who died in October 2019, and his former company.

Later in 2016, the slope of council-owned adjoining site slipped further, the documents said, and the council agreed to engage a geotechnical engineer to find a way to prevent it getting worse.

20th January 2021, Palm Beach Heights townhouse development which has been impacted by landslides at Nollamara Drive, Elanora, behind KP McGrath Drive. Photo Scott Powick Newscorp
20th January 2021, Palm Beach Heights townhouse development which has been impacted by landslides at Nollamara Drive, Elanora, behind KP McGrath Drive. Photo Scott Powick Newscorp

The court documents allege the council conceded on March 15, 2017, that it had an obligation to stabilise the slope and said it planned to install sheet piling on April 17 to prevent any further landslip.

But on March 30, before the work was completed, the slope slid another metre, taking the replacement retaining wall with it.

The developer claims the work by the property's former owner did not comply with the development conditions as the slope was not constructed to a suitable safety level for building.

The statement claims a "real and tangible risk of land slip on the slope existed at all relevant times" and the footing foundation recommended by Mr Elkington was not suitable for the development.

It said the council should never have approved the original development applications and should not have accepted the first retaining wall and slope were compliant.

The developer said the council was also negligent and had breached its duties of care as owner of the adjoining land, by not failing to prevent it from slipping.

The public path that’s been closed almost five years since a landslip. Photo: Scott Powick NEWSCORP
The public path that’s been closed almost five years since a landslip. Photo: Scott Powick NEWSCORP

The developer said the property was marketed as suitable for multi-residential development, and that agents were provided engineering and development documents to assist with the sale.

The court documents say CBRE and the seller, Beacon, were "misleading or deceptive" in marketing the property as suitable for a multi-residential lot.

Both agents declined to comment on the case.

Certain underwriters at Lloyd's, which the documents claim were insurers for Andrew Wilkins Consulting, are also defendants in the case.

The developer is seeking damages of $10.15 million from the 11 defendants, an amount made up of construction, legal and maintenance costs, lost rent and holding costs.

A spokesman for Soil Surveys said the company intended to file a defence to the claims.

Lawyers for Double RKR did not return the Bulletin's calls and Mr Elkington declined to comment.

The council's media department said "Council will be responding to the claim in accordance with court processes, and it is inappropriate to comment further at this time".

Originally published as $10m legal battle over suburban landslide



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