The idea in brief
- The Property Law Act 2023 (Qld) commenced on 1 August 2025, marking the first major reform of Queensland’s property laws in over 50 years. One of the most significant, yet underappreciated reforms relate to the right of landowners in Queensland to the continued physical support of their land from neighbouring land.
- Section 179 of the Property Law Act 1974 (Qld) previously imposed strict liability upon any person who did anything on or below land that withdrew support from any other land or from any other building or structure placed on that other land.
- The 2023 Act replaces this by imposing a negligence-based duty of care on each landowner (including the owner of the supported land) to take reasonable care to not do anything, or omit to do anything, that adversely affects support provided.
- The reform adopts and expands upon aspects of the approach taken in New South Wales and prioritises the perceived fairness of a negligence test, however this comes at the cost of the simplicity and certainty the strict liability regime provided.
- Why it matters – practical implications for risk management in the construction and infrastructure sectors in Queensland:
- A new risk of no compensation in ‘edge cases’: Landowners may now face a material risk of unrecoverable loss in situations where subsidence occurs despite the exercise of reasonable care by all involved, or where negligence cannot be proved.
- More complex disputes and evidentiary battles: plaintiffs must now prove not only that support was withdrawn from their land but also that the other landowner failed to exercise reasonable care. This introduces the likelihood of more technical, expert-driven litigation about what was done versus what should have been done by the neighbouring landowner and their consultants and contractors, which was unnecessary under the old strict liability regime.
- Insurance coverage gaps for potential catastrophic uninsured loss: Many property and liability policies only respond to legal liability (negligence or strict statutory liability) or defined perils (e.g. storm, flood) and a number include subsidence/land movement exclusions. Insureds and insurers may now need to review their policy coverage and insurance products in light of potential insurance gaps created by this reform in those harder edge cases where serious loss/damage is caused from a loss of support/subsidence damage to land, but no negligence can be proven.
- Unlike New South Wales, Queensland lacks a dedicated strict-liability safety net for landowners above major tunnelling projects. To ensure landowners adjacent and above major tunnelling projects carried out in cities in Queensland are entitled to compensation for any damage done to their land due to subsidence where reasonable care may have been taken but damage nonetheless results, legislative protections imposing strict liability, similar to those that exist in NSW, may now be necessary given the abolition of strict liability under section 179.
Key Takeaways
- Developers, contractors and design consultants should carefully document risk assessment and precautionary measures taken to preserve neighbouring land support to objectively demonstrate ‘reasonable care’ was taken in response to the loss of support risk, and ensure their contracts allocate responsibility for potential loss of support claims. Where a material risk exists, bespoke agreements with neighbouring landowners (registered as an easement, if binding successors in title is important) that exclude or modify the operation of section 179 of the Property Law Act may be prudent to explore.
- Adjoining landowners should proactively monitor neighbouring works that pose a risk of loss of support, gather evidence of any failure to take reasonable care, obtain expert advice early if damage does arise, and review insurance coverage for any gaps in cover. Care should be taken to review any agreements proposed by neighbouring developers which seek to exclude or modify the s 179 duty. Legal advice should be sought before entry into any such agreement.
- Insurers and brokers should revisit current policy wordings and exclusions in the Queensland market for loss of support damage caused in those edge cases where loss is suffered “despite reasonable care” being taken, which may otherwise leave innocent landowners uninsured for catastrophic loss and damage.
- Policymakers should consider further statutory reform to provide a clearer statutory safety net for landowners that reside above major tunnelling projects on terms similar to section 62 Land Acquisition (Just Terms Compensation) Act 1991 (NSW). As major tunnelling projects like Cross River Rail become more prevalent in Queensland due to the densification of living in South-East Queensland, landowners should be clearly protected by a statutory regime that provides, in effect a strict liability compensation entitlement for any damage caused to their properties by the major tunnelling works beneath those properties.
The idea in detail
The commencement of the new Property Law Act 2023 (Qld) on 1 August 2025, represented the first significant reform of Queensland’s property law framework in over 50 years. This change was intended to modernise and simplify the existing property laws and address previous legal ambiguity.
A number of these reforms respond directly to issues and recommendations which were identified during a comprehensive review of the existing Property Law Act conducted by the Commercial and Property Law Research Centre of QUT in 2019 (the Committee). In making its recommendations, the Committee consulted with wider stakeholders including the Queensland Law Society, and considered comparative law in other Australian jurisdictions.
While the new amendments were intended to address the criticisms of the preceding legislation, one change in particular may have unexpected consequences for landowners, developers/project owners and contractors in the construction industry. This change concerns the right of continued support for land (and buildings on land) from adjoining land in Queensland, and may create uninsured liability risk and markedly shift how major and mega projects are to assess contractual risk allocation concerning land and property damage during major construction work in Queensland.
The previous position: s 179 of the Property Law Act 1974 (Qld)
Section 179 of the Property Law Act 1974 (Qld) previously imposed strict liability on any person who did anything on or below land which caused a loss of support for other land or a building or structure on or below that other land, regardless of fault or reasonableness of the person’s actions. The obligation was not limited to landowners but applied to all persons whose actions resulted in support being withdrawn. For example, assume during excavation of a basement carpark, subsidence damage was caused to the neighbouring land and buildings. In that case the builder (and likely the developer who authorised the work) would be strictly liable to the neighbouring landowner to make good all damage caused under the old legislation.
The policy justification for this strict liability position was clarity and efficiency. Disputes rarely reached court because liability was almost automatic, and public liability insurance held by the person performing the activity generally responded (provided it did not contain a subsidence property damage exclusion) given strict liability for the damage was imposed by the statute and there was little scope to argue otherwise.
However, in hard cases, strict liability can sometimes produce unfair outcomes.
The NSW case of Fennell v Robson Excavations Pty Ltd [1977] 2 NSWLR 486 (which concerned a claim in nuisance) illustrates the potential uncompromising nature of strict liability. In that case an excavator contractor was held liable for damage caused to a neighbouring property through a loss of support to that land even though he had performed his work competently, in accordance with the directions of the developer, and reasonably expected the developer would install a retaining wall. The developer subsequently went into liquidation and failed to install the retaining wall. Six months later after heavy rainfall the property lost support. The excavator was held liable for the damage caused, (despite his engagement with the developer being properly performed) because it was the excavator’s actions which removed the support.
The Committee referred to the Fennell v Robson Excavations Pty Ltd decision and considered it a useful illustration of how strict liability for loss of support can, in some circumstances, produce harsh results, justifying the need for reform. It acknowledged, however, that the former section 179 was rarely litigated in Queensland, noting only one reported Queensland decision had examined the old provision in detail at the time of authoring their report. That decision did not produce a similarly harsh result to Fennell.
In submissions to the Committee, the Queensland Law Society emphasised that while s 179 was rarely litigated, it nevertheless had important practical utility and was often relied upon in practice. The QLS took the position that the section did not require amendment, and that strict liability should be retained. The Committee ultimately took a different view. It was of the ‘firm view’ that reform was required, that a negligence-based mutual duty would provide a “fairer framework” for property owners, and recommended that the strict liability regime in the old s 179 be repealed and replaced with a negligence standard. This recommendation has now been enacted.
The new position: A negligence-based mutual duty of care
Under section 179 of the new Act, strict liability and claims in nuisance for loss of support are now abolished. Instead, each landowner now owes a duty of care not to do, or omit to do, anything that adversely affects support provided by supporting land to supported land.
Both supporting and supported landowners in Queensland are bound to this mutual duty of care, meaning contributory negligence and apportioning of liability between landowners is now a live issue if the supported land owner does something (e.g. overloads the boundary) or omits to do something (e.g. fails to maintain a retaining wall) that causes or contributes to the adverse loss of support.
Critically, liability now turns on whether or not reasonable care was taken by the landowner to prevent the loss of support, not merely whether something was done by a person that caused a loss of support for land. This means that in some “edge cases” where loss of support results despite all parties having exercised reasonable care, the innocent affected landowner may find that no party bears legal liability for the loss suffered. While negligence claims directly against contractors or builders by the damaged property owner remain available in principle, such claims will only succeed where a breach of the standard of reasonable care is established. Where damage occurs despite reasonable care having been taken, and with nuisance now abolished, the affected landowner may be left to bear the cost of remediation despite not having caused it.
This issue was alive to the Committee recommending the change in law. The Committee noted that if a party took all reasonable steps in relation to addressing the issue of support when undertaking works on his or her land, then it is possible that they may not have breached a duty of care and noted ‘the plaintiff will then have limited options and may bear the cost of remediation alone’.[1]
The reform now enacted in Queensland mirrors the approach taken to land support duties in NSW under the Conveyancing Act 1919 (NSW), but with some important differences:
- the new Qld position applies the duty to supported land owners and supporting land owners only, whereas the NSW approach imposes a duty of care on all persons not to do anything on or in relation to land that removes support provided by the supporting land to any other land; and
- the new Qld position extends the landowner duty of care to omissions, as well as acts. The NSW parliament decided against doing so citing a concern that the Crown and other landowners may find it difficult to be aware of physical events occurring on all parts of vast land and then take action to stop those physical events from leading to a lack of support for other land.[2] The Queensland position has not acceded to that same concern and the duty of care of landowners now extends to omissions/failing to do something (in addition to positive acts).
Practical implications for risk management
The new section 179 now raises a number of additional technical legal issues that need to be proven or complicate actions for loss of support of land in Queensland that previously did not exist under the former strict liability regime. This must be properly understood by industry stakeholders in order to revise risk management practices in light of the new laws now in place – noting a risk of subsidence can amount to a catastrophic risk.
Establishing negligence
Under the new regime, it is now necessary to prove that:
- the defendant has done or omitted to do anything on or in relation to land;
- that what the defendant did, or omitted to do, in fact removed the support for the supported land; and
- that the defendant failed to exercise reasonable care in doing or omitting to do that particular thing.
Previously, only (a) and (b) was necessary to prove under the strict liability regime.
The NSW case of Shalhoub v Johnson serves as a useful illustration of the burden of proof a plaintiff/damaged property owner will now need to meet in Queensland (applying the analogous NSW law) when proving a loss of support case under the new laws. The NSW Court of Appeal dismissed a claim for loss of support because the plaintiff had not proven that the defendant had not taken reasonable care when performing landscaping works near a retaining wall and had not proven that the landscaping works (as opposed to pre-existing conditions) caused the damage. The Court emphasised that it was not enough for the supported land owner to establish that loss of support had occurred or that something had been done to remove support. Instead, it must be established that the supporting land owner failed to take reasonable care which resulted in a loss of support. The Court was also critical of the fact that the plaintiff did not produce any evidence concerning industry standards and practices of builders in similar circumstances, including as to any precautions that might be expected to have been taken by a reasonably competent builder. Given the requirements for a negligence claim were not satisfied, the supported land owner’s claim was dismissed.
What this illustrates is that it will now become necessary in cases involving loss of support for land in Queensland for the affected party to produce evidence (likely expert evidence) as to what was done (or not done), why that caused a loss of support and why what was done (or not done) amounted to a failure to take reasonable care in accordance with the principles for establishing a breach of duty set out in sections 9 and 10 of the Civil Liability Act 2003 (Qld), likely adducing evidence of what were the appropriate industry standards and practices applicable in the same circumstances and reasonable precautions that should have been taken in the circumstances to avoid the damage. That is not an insignificant evidentiary burden, particularly for parties who may not be technically familiar with the engineering and construction principles and standards applicable to the alleged acts or omissions that have caused the damage. It suggests that a more costly and time-consuming litigation process than that which would have been applicable under the old strict liability regime (if litigation was necessary at all) will, in the hard cases, be required. Technically dense disputes will be more common, as will complex legal debate that may now ensue about allegations of contributory negligence given the mutual duty of care now held by the affected landowner.
Contributory negligence
Because the new duty is mutually imposed on both supported and supporting land owners, contributory negligence and apportionment of liability is now a live issue where the supported land owner’s actions or omissions contribute to the damage resulting from the supporting land owner’s breach of their duty of care. In practice, this could include actions by the supported land owner such as their own excavation, dewatering, or installation of a heavy structure overloading a boundary retaining wall or other structure, or omissions such as the failure to maintain a retaining wall or structure properly that has then failed after works done on or below the adjoining land. While this change was directed at pursuing greater fairness, the ability to now debate contribution between landowner alleged acts and omissions complicates the legal landscape and scope for technical legal debates, with the potential for prolonged litigation and delayed outcomes.
Land owner liability for acts/omission of contractors
The duty of care imposed under the new section 179 applies only to land owners, rather than all persons. This is a material departure from the previous section 179 in Queensland, and the NSW position where the relevant duty applied to all persons.
By now confining the duty to land owners (rather than all persons), the new section 179 creates legal uncertainty in Queensland as to whether a loss of support caused by acts or omissions of contractors engaged by the land owner, and the contractor’s subcontractors, will be properly attributable to the land owner as a breach of duty held by the land owner under section 179.
There is some case law support for the proposition that a general duty to not withdraw support for neighbouring land is a ‘non-delegable duty’, meaning the person who holds the duty cannot avoid responsibility for any act or omission that breaches the duty by virtue of the fact that the relevant conduct was performed by an appropriately qualified independent contractor engaged by them.[3]
Notwithstanding this, until a decision concerning this issue is made by a Queensland court, interstate authority casts some doubt about how those lines will be drawn particularly around whether a land owner will be held to have breached the duty if a subcontractor to a head contractor appointed by the land owner causes the damage. For example, Cohen v Double Bay Bowling Club (No 2)[4], concerned property damage caused by a piling contractor engaged by the head contractor appointed by a bowling club to do work on the property. The court expressed reservation about how it could be said the Club had delegated responsibility to the subcontractor and was therefore responsible for the subcontractor’s action, noting however that this analysis occurred against backdrop of section 5Q of the Civil Liability Act 2002 (NSW), which deals with liability of a person for breach of a non-delegable duty for work or a task entrusted or delegated to another person. No such equivalent provision exists in Queensland’s Civil Liability Act. If and when the question is litigated in Queensland it will likely ultimately turn on a Queensland court’s interpretation of the relevant common law concerning non-delegable tortious duties. Practically, if the land owner is sued for a breach of the duty, it is likely the land owner will join contractors involved to the proceeding for contribution.
The QUT Committee report[5] recommending the move to the new negligence based section 179 noted in relation to this, referring again to the Fennell v Robson Excavations Pty Ltd case example noted above, that: “In the Centre’s view, applying the law of negligence to this fact scenario would likely have resulted in the developer being vicariously liable for the actions of the excavation operator”. However, importantly a footnote to this quote in the Committee’s report noted: “This is subject to a finding the excavator operator is not a contractor…”. However, in practice, it will almost always be the case that a landowner engages works contractors as independent contractors, not employees.
Industry will need to await a Queensland court decision for clarity on this issue to understand the scope of land owner liability under the new duty of care for acts and omissions of parties down the contractual hierarchy involved in major projects the land owner commissions on its land.
Queensland’s choice to confine the duty to land owners only creates scope for litigation, insurance disputes, and inconsistent outcomes until the courts squarely address whether section 179 is a non-delegable duty, and if so, whether the land owner is vicariously liable for acts of the builder the land owner engaged only, or those subcontractors down the contractual chain who may have been retained by the builder.
Of course, it remains the case that a damaged land owner may also have direct rights at common law in negligence against a building contractor or subcontractor that does something that withdraws support for its land. However, those rights will only arise if negligence can be proven, and not if ‘reasonable care’ was taken, but damage otherwise results. The damaged land owner will now not have any right of action in nuisance to pursue the building contractor, or subcontractor, as all claims in nuisance for loss of support of land are now abolished under the new section 179. In those hard ‘edge cases’ where damage results despite the application of reasonable care, the reforms appear to leave a gap that may expose innocent parties to non-relief for damage caused to their land, ironically creating the potential for harsh outcomes of a different kind under the now reformed position.
Contracting out
Section 179 permits the duty of care to be excluded or modified by express agreement between the person on whom the duty lies and a person to whom the duty is owed. The agreement may be registered as an easement to bind successors in title also.
Given this, care should be taken to review any documentation executed with neighbouring properties to understand the implications of modifying or excluding the duty of care imposed by section 179.
Implications for High-Density and Mega-Projects
While this reform applies universally, its application is not limited to small or medium scale urban development projects, but may also be felt in Queensland’s densifying urban centres in mega-projects involving tunnelling and deep excavation beneath properties. In these settings, the risk of withdrawing support from adjoining land is not theoretical, it is real. The most recent notorious example being the stalled $3.1bn M6 project sinkhole in NSW.
The M6 sinkhole has been reportedly described by the contractor as arising from unprecedented and unforeseeable ground conditions ‘never seen before in the Sydney basin’ and which ‘could not have been anticipated by anyone’ with the contractor reported as stating it now apparent that ‘a compliant design solution cannot be achieved to overcome these challenging ground conditions’[6].
For public confidence, it is important that innocent landowners are protected from this type of loss and damage. Major tunnelling projects in Queensland, such as Cross River Rail, typically proceed by the volumetric resumption or compulsory acquisition of land beneath the surface to create a new tunnel corridor.
Under the former strict liability regime in Queensland, risk allocation was predictable: liability attached automatically where loss of support was caused, irrespective of negligence. Disputes were rare, and recovery proceeded without the need to establish fault.
With the abolition of strict liability and the removal of nuisance actions for loss of support under the new s 179, there is now greater uncertainty. While injurious affection compensation under the Acquisition of Land Act 1967 (Qld) may capture some construction-related damage, this is valuation-driven and subject to common law interpretation. Industry, financiers and landowners would take greater comfort from a clear, express entitlement to compensation if subsidence damage is caused to surface landowners following volumetric resumption or the imposition of an easement, including where the subsidence damage occurs even in the absence of negligence.
NSW has already addressed this concern. Section 62 of the Land Acquisition (Just Terms Compensation) Act 1991 (NSW) entitles landowners residing above land resumed or the subject of a tunnelling easement to compensation for any physical damage caused to their land by the works. This operates in effect as a strict liability compensation entitlement, avoiding any debate concerning negligence or the scope of injurious affection, broadly analogous to the former s 179 regime.
Further reform should now be considered to incorporate an equivalent provision into the Acquisition of Land Act 1967 (Qld), to ensure that as Queensland’s pipeline of megaprojects grows, landowners and other industry stakeholders are afforded the same statutory certainty and protection concerning key risk allocation as their counterparts in New South Wales.
Conclusion – Practical steps moving forward
The reforms to the Property Law Act 2023 (Qld) significantly alter how responsibility for land support is allocated between neighbours. While the new negligence-based duty of care is intended to provide a fairer framework, it introduces uncertainty and new evidentiary burdens for property owners.
In practice, this means:
- Developers, contractors and design consultants: Land owner/developers, their contractors and design consultants should carefully document risk assessment and precautionary measures taken to preserve neighbouring land support to objectively demonstrate ‘reasonable care’ was taken in response to the loss of support risk, and ensure their contracts allocate responsibility for potential loss of support claims. Where a material risk exists, bespoke agreements with neighbouring landowners (registered as an easement, if binding successors in title is important) that excludes or modifies the operation of section 179 of the Property Law Act may be prudent to explore.
- Adjoining landowners: should proactively monitor neighbouring works that pose a risk of loss of support, gather evidence of any failure to take reasonable care, obtain expert advice early if damage does arise, and review insurance coverage for any gaps in cover. Care should be taken to review any agreements proposed by neighbouring developers which seek to exclude or modify the section 179 duty. Legal advice should be sought before entry into any such agreement.
- Insurers and brokers: should revisit current policy wordings and exclusions in the Queensland market for loss of support damage caused in those edge cases where loss is suffered “despite reasonable care” being taken, which may otherwise leave innocent landowners uninsured for catastrophic loss and damage.
- Policymakers: should consider further statutory reform to provide a clearer statutory safety net for landowners that reside above major tunnelling projects on terms similar to section 62 Land Acquisition (Just Terms Compensation) Act 1991 (NSW). As major tunnelling projects like Cross River Rail become more prevalent in Queensland due to the densification of living in South-East Queensland, landowners should be clearly protected by a statutory regime that provides, in effect a strict liability compensation entitlement for any damage caused to their properties by the major tunnelling works beneath those properties.
Ultimately, while this reform modernises Queensland’s property law, it shifts risk in ways that may not be fully appreciated by industry stakeholders and government. Stakeholders should take steps now to understand their new obligations, manage risk exposures, and protect their position in the event of disputes or loss of support cases.
Contributing authors: Adam Merlehan, Ashleigh Taplin, Caitlin Gillatt, Felina Dinh
Disclaimer: the information presented in this article constitutes a general commentary and should not be construed as legal advice. Given the unique circumstances which are inherent in each matter, readers are advised to seek specific legal counsel to ensure responsive advice which is tailored for their particular matter.
[1] Property Law Review Final Report Property Law Act 1974 (Qld), Commercial and Property Law Research Centre QUT Law, page 803.
[2] Property Law Review Final Report Property Law Act 1974 (Qld), Commercial and Property Law Research Centre QUT Law, page 802.
[3] Cohen v Double Bay Bowling Club (No 4) [2021] NSWSC 872 at [30]; John Llavero v Brett Anthony Shearer [2014] NSWSC 1336 at [45] and [110]; Burnie Port Authority v General Jones Pty Ltd [1994] HCA 13
[4] [2021] NSWSC 872.
[5] https://www.justice.qld.gov.au/__data/assets/pdf_file/0009/568179/qut-pla-final-report.pdf
[6] https://www.buildaustralia.com.au/news_article/sydney-m6-motorway-halted-over-tunnelling-crisis/
