Homeowners in the Fleurieu Peninsula accuse the council of multiple Environment Protection Act breaches amid asbestos row

Residents with dream homes in some of SA’s most picturesque locations face plunging house prices after tonnes of “hazardous waste” was used on their properties, a lawsuit alleges.

Residents with dream homes in some of South Australia’s most picturesque locations face plunging house prices and rising costs after tonnes of “hazardous waste” was used on their properties, a lawsuit alleges.

More than a dozen Fleurieu Peninsula homeowners have launched legal action against a local council and bin collection agency over alleged failures to manage asbestos-riddled dirt.

But lawyers suing Alexandrina Council, and Fleurieu Peninsula Regional Waste Authority, want more residents to join the “representative” lawsuit, which is similar to a class action.

They claim while authorities have launched remediation clean-up for 150 Fleurieu properties, plans fail to provide compensation for any future property devaluations and other costs.

Authorities, which service more than 56,100 southern coast residents, deny wrongdoing and have flagged a vigorous defence of the claim.

The Environment, Resources and Development Court claim alleges the organisations broke state laws and failed due diligence by not testing “contaminated” road base materials before sale to local builders.

Jason and Amy Varacalli have told of their heartache and rising costs because of the asbestos problem. Picture: Brett Hartwig

Documents lay bare problems with 13 properties located in Goolwa, Port Elliot, Hindmarsh Island, Encounter Bay and Middleton, where owners each obtained between 16 and 730 tonnes of rubble.

The lawsuit, which is yet to go to trial, asserts almost two dozen residents face plunging house prices – homeowners must inform potential buyers of asbestos issues – expensive clean-up costs, mounting stress with building delays or expenses along with exposure fears.

Alleged victims, who have joined the civil action, are seeking undisclosed compensation for “loss and damage”.

The authority controls waste, recycling and bin collections for across the Fleurieu Peninsula and for Alexandrina, Victor Harbor, Yankalilla and Kangaroo Island councils. Picture: Supplied

An “originating application” claim, filed with the court last month, accuses the council and authority of multiple Environment Protection Act breaches.

The authority, which controls waste, recycling and bin collections for Alexandrina, Victor Harbor, Yankalilla and Kangaroo Island councils, collects and stores material at its Port Elliot, Rd, Goolwa, depot.

Workers then crush rubbish, sourced from construction sites and other building works, into “road base”, which is sold to various third parties.

In March 2021, the council notified the Environment Protection Agency of problems with more than 9,000 tonnes of sold “crushed concrete material” that was either contaminated, or potentially affected, with asbestos.

It triggered a state government watchdog “Emergency Environment Protection Order”, which shut down affected sites.

Contaminated dirt was used at Jason and Amy’s home for the foundations, shed and three water tanks, 30m-long driveway, retaining wall footings as well as for levelling of the property. Picture: Supplied

The court papers accuse the council, and authority, of breaching state law by producing the road base and then publicly selling it.

Property owners, the claim alleges, were now permanently named on a risk register and were seeking reasonable costs to mitigate harm.

“[Authorities] failed to notify the purchasers of the [base] that it contained asbestos and was therefore dangerous to human health, presented an environmental hazard and is not fit for its intended purpose,” the claim alleges.

“[Victims] are at an increased risk of adverse health effects during their lifetime as a result of being exposed to the contaminated road base.”

The Varacalli family bought at least 730 tonnes of contaminated dirt, the lawsuit alleges. Picture: Supplied

Lead claimants Jason Varacalli, 35, and his registered nurse wife Amy, 33, told of their “living nightmare” while building their dream Encounter Bay home, with breathtaking sea views.

The couple, whose two children are aged three and 20 months, say they have suffered through almost three years of building delays, which has cost at least $180,000 due to rising construction costs.

“We pictured building our house with our newborn and enjoying it together,” Ms Varacalli said.

“Our second baby is now nearly two and we still don’t have the keys.

“We’ve lost three years … fighting to get the home we dreamt of – and paid for – but our valuable family time is instead spent … fixing this financial mess.”

The couple spent more than $5100 on at least 730 tonnes of road rubble for foundations under their home, shed and three water tanks, a 30m-long driveway, retaining wall footings as well as for property levelling.

Dirt was used in their foundations under their shed. Picture: supplied

The dirt was used all over their property. Picture: supplied

But just weeks before their eldest daughter was born, friends told them on social media about the council’s asbestos alert.

The couple, who have been married eight years, claim rubble was not removed from their home, almost 90km south of Adelaide, until June 2022 – 15 months after the first alert.

A “frustrated” Mr Varacalli, a metal welder and fabricator, said mounting costs included loss of rent for their second house, possible shed removal, cleaning and missing out on a $25,000 Covid-19 home builder grant.

They fear their house is now worth less.

He said: “It has kept us awake at night. If they owned and fixed their mistakes, I’d be happy.”

DBH Lawyers partner Peter Jackson, who is leading the action, said his firm would conduct information sessions for those interested in joining the dispute before a July deadline.

He said a representative action allowed a fight with “weight of numbers”.

State law means affected properties must stay on a special EPA risk register. File Picture: Jenny Evans

“If I’m honest, I’m quite upset about what’s happened to these people,” he said.

“Two main categories of people have been affected here – first home builders and retirees who have essentially put their life savings into their forever home.”

Mr Jackson declined to speak about specific damages as various valuations had yet to be assessed.

He said even if all asbestos was removed from a property, it was legally required to stay on an EPA risk register, leaving homeowners facing up to $45,000 for audit testing to show no hazardous exposure.

Neither the council nor waste authority has lodged a defence.

DBH Lawyers partner Peter Jackson is spearheading the action. He said he was upset for his clients. Picture: Daniel Welch

Mellor Olsson Lawyers partner Anthony Kelly, who is representing Fleurieu Regional Waste Authority and Alexandrina Council has denied wrongdoing on behalf of his clients. Picture: Mellor Olsson Lawyers

But in a statement issued through Mellor Olsson Lawyers partner Anthony Kelly, they denied wrongdoing, threatened legal action and argued appropriate remediation had occurred or clean-up was planned.

“Our clients maintain that the appropriate procedures were in place in respect of its receipt and handling of any rubbish or waste materials deposited at its site,” Mr Kelly wrote.

“The level of contamination discovered was so small as to raise a real issue as to whether or not anyone could have suffered any deleterious health effects.”

He said his clients denied any decrease in valuations of “allegedly affected properties” but if any reduction in value had occurred it was “so small as to be incapable of rational calculation”.

He also said the defendants would argue some homes had sold “above reserve” prices and selling agents claimed the problem had “no negative effect on the sale prices”.

He said claims would be subject of expert evidence at trial. Mr Jackson said authorities had yet to hand over full details of affected properties.

A first hearing, before senior ERD Judge Michael Durrant, is due later this month.