Supreme Court New South Wales Medium Neutral Citation: Boyes v Thomson [2024] NSWSC 1325 Hearing dates: 8-9 October 2024 Date of orders: 24 October 2024 Decision date: 24 October 2024 Jurisdiction: Equity - Real Property List Before: Peden J Decision: At [91] Catchwords: TORTS — Private nuisance — Interference with use and enjoyment of land — Whether stormwater ingress from uphill neighbouring property a nuisance — Whether defendant has continued or adopted the nuisance TORTS — Private nuisance — Remedies — Whether loss suffered — Whether injunction should be granted preventing defendant from draining stormwater runoff onto plaintiffs' land — Whether injunction should be granted requiring the defendant to carry out works Legislation Cited: Evidence Act 1995 (NSW) s 53 Cases Cited: Aon Risk Services v Australian National University (2009) 239 CLR 175 Brown v Tasmania (2017) 261 CLR 328 Elston v Dore (1982) 149 CLR 480 Evans v Balog [1976] 1 NSWLR 36 Gales Holdings Pty Ltd v Tweed Shire Council (2013) 85 NSWLR 514 Gray v Sirtex Medical Ltd (2011) 193 FCR 1 Manchester Ship Canal Company Ltd v United Utilities Water Ltd (No 2) [2024] UKSC 22 Melaleuca Estate Pty Ltd v Port Stephens Council [2006] NSWCA 31 Rifai v Woods [2024] NSWSC 374 Seiwa Ply Ltd v Owners Strata Plan 35,042; [2006] NSWSC 1157 Transport for NSW v Hunt Leather Pty Ltd [2024] NSWCA 227 Category: Principal judgment Parties: Frank Ralph Boyes (first plaintiff) Sheena Elizabeth Boyes (second plaintiff) Shane David Thomson (defendant) Representation: Counsel: M Seymour SC and C Koikas (plaintiffs) V Bedrossian SC (defendant) Solicitors: Conditsis Lawyers (plaintiffs) File Number(s): 2022/00366174 Publication restriction: Nil Judgment 1. Mr Frank Boyes and Mrs Sheena Boyes live in Medowie NSW in a home they built in 2008 (No. 37) in a large sub-division development known as "Pacific Dunes". They complain that water emanating from their neighbour Mr Shane Thomson's higher land (No. 18) flows onto their lower lying land in excessive amounts. 2. The Boyes allege that Mr Thomson's construction of his home at No. 18 does not have sufficient drainage of run-off. They claim that water flows down to the south-western corner of his land, and then into the back of No. 37 in a volume that causes a substantial interference with the use and enjoyment of the Boyes' land and therefore amounts to a nuisance. 3. In particular, the Boyes assert that Mr Thomson knew that an interallotment drainage system (IAD) was "not capturing and disposing of stormwater runoff or overland flow" and that there was no "evidence of active steps" taken by Mr Thomson to end the occasions of excessive water. They contend that Mr Thomson is liable for having adopted a nuisance. 4. Mr Thomson denies he has caused or adopted any nuisance. He asserts that he has developed his land in accordance with development consents and has taken reasonable steps to prevent water flowing from his property to the Boyes' property. Issues in dispute 1. On 3 October 2024, the Boyes filed a notice of motion seeking to amend their pleading to agitate that Mr Thomson has "adopted" the nuisance which substantially interferes with the Boyes' enjoyment of their land. Before that, the pleading only concerned Mr Thomson "causing" a nuisance. Mr Thomson resisted leave being granted so late in circumstances where he asserts that the amended pleading is defective, because it fails to adequately plead Mr Thomson's adoption of any nuisance. 2. The parties agreed that the hearing should proceed, and I should determine whether to allow the amended pleading in this judgment. 3. I consider that the amendment ought to be allowed. The test for late amendment is well-known: Aon Risk Services v Australian National University (2009) 239 CLR 175 at [92]-[103] (Gummow, Hayne, Crennan, Kiefel and Bell JJ). Here, the Boyes did not seek to rely on any further evidence, asserting that the amendments were in line with the existing evidence. Mr Thomson did not seek to adduce further evidence, should the amendment be allowed, despite complaining that the pleading was defective in the pleading of nuisance and there being insufficient evidence for the Boyes to succeed. I do not accept that there is sufficient prejudice to Mr Thomson to disallow the amendment; in contrast, disallowing the amendment would be disproportionately disadvantageous to the Boyes. 4. The Boyes accept that Mr Thomson is not responsible for the poor design of the IAD and made no submission that he created a nuisance. In essence, what the Boyes allege is that Mr Thomson has been aware that insufficient stormwater runoff is collected on his property by the IAD, and he is liable for water flowing from his property onto the Boyes' land for failing to stop the runoff. 5. Having allowed the amended pleading, the issues in dispute are: 1. What water, if any, flows now, or did flow historically, from Mr Thomson's land to the Boyes' land? 2. Does any water flow amount to a material and unreasonable interference with the Boyes' enjoyment of their land? 3. Did Mr Thomson: 1. know of water flowing from his land because of the defective IAD, that caused a material and unreasonable interference with the Boyes' land, and 2. fail to take reasonable steps to stop that nuisance, such that he adopted it? 1. If a nuisance is found: 1. what damages, if any, ought be awarded; and/or 2. ought a quia timet injunction be granted to require Mr Thomson to carry out works to avoid the possibility of future damage to the Boyes' land? 1. For the reasons that follow, I do not consider the Boyes have proved on the balance of probabilities that Mr Thomson has adopted a nuisance and is liable for damages or should be compelled to carry out construction works. View 1. On the first day of the hearing, the Court conducted a view of the relevant properties pursuant to s 53 Evidence Act 1995 (NSW) to assist with an understanding of the evidence. The parties and parties' legal representatives attended and observed the external features of the Boyes' and Mr Thomson's properties. The view stopped where counsel sought to demonstrate various physical aspects of the evidence. The land described in the evidence is depicted in a survey dated 27 November 2023, as shown below. 1. The land slopes continuously downwards from Pinehurst Way, out the front of Mr Thomson's land, through the back of the Boyes' property to Sunningdale Circuit in the front. 2. The road kerbing in front of Mr Thomson's property on Pinehurst Way is curved, rather than boxed or squared. There are kerb drains along the road, including outside Mr Thomson's property close to the boundary with neighbouring No. 16, and also on the corner of St Andrews Parkway. Mr Cubis, an engineer, gave expert evidence that the discharge pipe in the roadside drainage pit close to No. 16 was completely blocked when he inspected it in May 2022. He considered this blockage would likely lead to water travelling over the curved kerb onto the nature strip of No. 16 and No. 18, and then towards the rear of those properties to No. 35 and No. 37. There was no evidence of the discharge pipe's current state. 3. It was noticeable that Mr Thomson has dug in the nature strip so that it is just above level with the road. He has then placed logs between the nature strip and the higher front of his property to create a step up. Mr Cubis accepted that these logs would reduce the possibility of water flowing from the road onto Mr Thomson's property. 4. Further, Mr Thomson has built a retaining wall towards the front of his property where the ground begins to slope towards the back. The lip of that retaining wall is higher than ground level, and the retaining wall extends in a westerly direction to the boundary with No. 16. Because the land slopes away to the right towards No. 16, water coming over the curved street kerb at or near No. 18 would likely flow down towards the house on No. 18 and then veer in a westerly direction downhill towards No. 16, rather than all flowing towards the rear of Mr Thomson's property and No. 37. 5. It was observed that all of Mr Thomson's land that is not concreted is turfed, which Mr Cubis accepted was an improvement and is better at absorbing water and reducing runoff. Mr Cubis did not explain how much water could be absorbed by the turf. 6. The view proceeded to the drainage pit in the south-western corner of Mr Thomson's land. The IAD pit is at the lowest part of No. 18, and is covered with a concrete lid, so that surface water does not drain into it. Water landing on Mr Thomson's home and garage roof drains to the street or into water tanks that were observed. If the water tanks overflow, the water drains through pipes to the IAD. 7. Mr Thomson also has the benefit of a drainage easement for groundwater that commences at the site of the pit and runs across neighbouring properties to the west. The drainage easement also provides for water to be drained down to the street through No. 35, next to the Boyes' property. 8. The view proceeded to the Boyes' backyard, which slopes downwards from the boundary with No. 18 to their grassed backyard and home and then further to the street out the front. After a significant weather event in September 2019, in early 2020, the Boyes constructed a swale drain that runs along the rear of their property behind the retaining wall, diverting water down either side of the property. The purpose of the swale drain was to ensure water would not pool on the grassed backyard, which is the lowest lying part of the property. Multiple drainage points could be seen in the grassed area, which were also installed by the Boyes since 2019. 9. The Boyes' yard closest to the boundary with Mr Thomson's property above the swale drain is planted with trees and plants. It rained a little during the view, however, the ground there was not observably wet. There was some moss growing, however, no more than that seen in other places in the neighbourhood. I do not accept that there was "more vibrant" moss near the boundary, as suggested by the Boyes' senior counsel. 10. Part of a retaining wall apparently intended to support the Boyes' backyard from the lower lying grassed area had collapsed. The Boyes complain that in September 2019, during a significant weather event, the retaining wall collapsed. They rebuilt it and then during a later significant weather event in October 2020, it partially collapsed again. They blame water they say flowed from Mr Thomson's land for the damage that was caused both times. No drainage behind the wall was observable. Law of private nuisance 1. In Rifai v Woods [2024] NSWSC 374 (Rifai) at [23]-[30], I summarised the principles concerning private nuisance. Neither party submitted that this summary was incorrect. Following Rifai, the NSW Court of Appeal decided Transport for NSW v Hunt Leather Pty Ltd [2024] NSWCA 227 (Hunt Leather) which discusses various aspects of the law of nuisance at [51]-[52], [118]-[121] and [137]-[152] (Bell CJ, Leeming and Mitchelmore JJA). Without intending to depart from these authorities, the propositions which are relevant for present purposes are as follows. 2. A private nuisance involves a "material and unreasonable interference with a plaintiff's use and enjoyment of their land": Rifai at [24], citing Brown v Tasmania (2017) 261 CLR 328 at [385] (Gordon J); Gales Holdings Pty Ltd v Tweed Shire Council (2013) 85 NSWLR 514 at [138] (Emmett JA, Leeming JA and Sackville AJA agreeing) (Gales). 3. In determining whether an interference is material and unreasonable, the Court is required to make a value judgment, having regard to: 1. "the character of the locality in which the inconvenience is created and the standard of comfort that those in the locality may reasonably expect", allowing some degree of "give and take" between neighbours: Rifai at [25], citing Gales at [138]; and 2. whether the "particular use of [the defendant's land] is 'reasonable according to the ordinary uses of mankind living in society, or more correctly in a particular society'": Hunt Leather at [137]; Rifai at [26], citing Elston v Dore (1982) 149 CLR 480 at 488 (Gibbs CJ, Wilson and Brennan JJ). 1. Liability in private nuisance is established if it is proved that "the defendant 'created, adopted or continued' the nuisance": Hunt Leather at [51]-[52]; Rifai at [26], citing Gales at [131]. In particular, a person is liable for having "continued a nuisance" if he or she has "knowledge or presumed knowledge of the state of affairs" giving rise to the nuisance, but has failed "to take reasonable steps to bring it to an end despite having had ample time to do so": Rifai at [30], citing Gales at [131]. 2. Where the alleged nuisance arises from the flow of water between two neighbouring properties, one of which is situated higher than the other: 1. the higher proprietor is not liable in nuisance merely because surface water flows naturally to the lower land; 2. the owner of the higher land "may be liable in respect of water artificially concentrated on its land and allowed to escape, as well as surface water which the defendant has caused to flow onto lower land in a more concentrated form than it otherwise would": Rifai at [27], citing Gales at [135]; but 3. the owner of the higher land is not liable in nuisance "if a more concentrated flow occurs simply as a result of the higher proprietor's natural use of its land", bearing in mind that "[w]hether a use is natural is determined in the light of all of the circumstances, including the purposes for which the higher land has been used and the manner in which the flow of water is increased": Gales at [135]. What water flows onto the Boyes' land? 1. The litigation has spanned several years, and the Boyes complain that there has been water flowing onto their land from Mr Thomson's land from September 2019 to present. 2. Mrs Boyes is the only witness who gave any evidence of having seen any water coming from Mr Thomson's land. I accept her as a witness of truth and accept her affidavit evidence as far as it goes, but note the limits of that evidence below. 3. Mrs Boyes asserted that "when it rained, I observed stormwater runoff from [No. 18 coming] into our home". She does not identify the quantity of water and how many times she observed it raining and the nature of the "runoff", nor how much rain there was on each occasion. 4. Mrs Boyes further states that "After [Mr Thomson] connected to the IAD, things did not improve. I noticed that when it would rain, our land would become inundated with stormwater runoff". She does not explain when and what she thought Mr Thomson connected to the IAD, how often or how much it rained, nor what "inundated" means by reference to any objective observable reference points. Further, in her affidavit, she does not describe from where she saw water coming. However, in cross-examination, she asserted that she saw the water come "through that bottom south-western aspect" of No. 18. 5. On 18 September 2019, it rained during the night and Mrs Boyes observed the retaining wall had collapsed. She does not suggest she saw it collapse. 6. Mrs Boyes continues, that "From this time [ie 18 September 2019] the stormwater runoff from [Mr Thomson's land] became unmanageable. … We now had a significant amount of clear water pouring from the IAD system down the westerly side of our home and muddy water was along our house". She does not explain what she means by water "pouring from the IAD system". For example, she does not explain whether she saw water coming from a pipe, from the ground, or somehow through the concrete lid of the IAD. There was no evidence indicating the source of the "muddy water". 7. In January 2020, the Boyes had a swale drain installed along the back of their property close to the boundary with Mr Thomson's property. In 2021 and 2022, further drains were installed on their property. 8. On 26 October 2020, Mrs Boyes took videos of "flooding", during which part of the retaining wall came down and she deposes that "water went over the top (of what) [sic]". Those videos show water flowing down the swale drain located near the boundary with No. 35, and also water pooled on the Boyes' land on the lower-lying portion of the grassed lawn and near the house. 9. I accept that Mrs Boyes saw a lot of water flowing from Mr Thomson's land during severe weather events in September 2019 and October 2020. I also accept Mr Thomson's uncontested and unchallenged evidence that those events took place when "[o]ur LGA was again impacted by unprecedented rainfall, local flooding and storm events.". 10. Mrs Boyes also took photos on 4 and 18 January 2021 and 18 March 2021 "after heavy rain" of pooled water in her yard and in the swale drain. 11. Mr Thomson gave further uncontested and unchallenged evidence that "[i]n July 2022 again our LGA was hit with unprecedented Rainfall and storm events and severe flooding. Our local LGA was again declared a natural disaster." That event may account for other water influx on dates that Mrs Boyes did not identify. 12. Mrs Boyes concludes that as at 14 December 2023, "[d]espite our efforts, the water from [Mr Thomson's land] continues to inundate our land". However, no specific dates were identified when water is said to still flow. Further, it was not explained what "inundate" means in terms of the volume of water, nor how Mrs Boyes reached the conclusion that all the water flows from Mr Thomson's land. Despite filing further evidence up to October 2024, Mrs Boyes does not mention any specific event of water influx after July 2022, nor does she attach any further photos or videos. I do not accept that Mrs Boyes' evidence demonstrates that water flowed from Mr Thomson's land to the Boyes' land in significant volumes other than during the specific heavy rain weather events identified. 13. I further do not accept that Mr Cubis' evidence demonstrates the volume or timing of the water flowing onto the Boyes' land from Mr Thomson's land. His evidence includes: 1. Some water likely entered Mr Thomson's property at the front from "possible overflow from the kerb" of Pinehurst Way due to a blocked discharge pipe in a street drainage pit. 2. Based on an analysis of the documented design of the IAD, rather than an inspection of the IAD constructed underground, he considered that the "main issue still appears to be the IAD pit in the south-west corner remaining sealed, and the interallotment drainage [system being] of inadequate size". Similarly, he concluded that "the interallotment drainage cannot support the flows" from Mr Thomson's land. However, he does not explain what volumes of water flow from Mr Thomson's land into the IAD and what volume is not supported by the IAD. 3. He notes his opinion that because the IAD does not receive surface water runoff, "overlanding flow pond[s] in the south-west corner of [Mr Thomson's] property and then stream[s] through the [the Boyes'] property". He observes that "[t]here is no overland flow path to direct drainage to the street below via the interallotment drainage easement" on No. 35. However, again, he does not specify the volume of water that allegedly flows "overland". 1. Further, Mr Cubis never witnessed any water entering the Boyes' property. Instead, he relied on Mrs Boyes' evidence and his inspections of the properties. In May 2022, he observed that the Boyes' backyard was "saturated" after "recent rains", but did not explain how much saturation there was because of rain landing on the Boyes' own land. He made no observations of the Boyes' property being wet at his inspection in June 2023, nor in his reports in September 2024. 2. Based on that evidence of Mrs Boyes and Mr Cubis, it is difficult to determine the volume of water flowing from Mr Thomson's land to the Boyes' land, except where there is photographic or video evidence, which were of severe weather events. 3. Nevertheless, the Boyes submit that the Court ought to infer that excessive amounts of water have continued to enter from Mr Thomson's property since October 2020. They contend that: 1. The photos of pooled water in October 2020 and early 2021 show "dirty" water, which is said to have likely come from Mr Thomson's land, as it had unturfed areas at that time. I accept that some water flowed from Mr Thomson's land and may have become "muddy". However, I do not accept that that is the only possible inference in circumstances where the Boyes' backyard was mulched and the "dirty" water was not analysed to determine its source. 2. From January 2020 to July 2022, the Boyes sought expert advice and constructed drains in the grassed backyard and the swale drains to deal with what they considered was excessive water continuing to enter their property. However, other than for the specific severe weather events, there is nothing to demonstrate whether the water ingress was excessive or not. 3. The video of the October 2020 extreme weather event showed that water flowed from the swale drain at the rear of the Boyes' land into the swale down the side of the property. However, Mrs Boyes accepted that some water entering her property likely came from No. 16. Mr Cubis also considered that water could flow from Pinehurst Way across No. 16's driveway down to the Boyes' land and their neighbours at No. 35. Again, it is not possible to determine the volumes of water emanating from these various sources. 1. On balance, I accept that when there were severe weather events in September 2019, October 2020, early 2021 and July 2022, a large volume of water flowed from Mr Thomson's land onto the Boyes' land. However, I also accept that some water flowed from No. 16, and also a large amount of rain would have landed on the Boyes' own land. 2. There is insufficient evidence to demonstrate the volume of water that flowed from Mr Thomson's land during non-severe weather events. The evidence does not demonstrate that water continues to enter the Boyes' land now. Material and unreasonable interference? 1. It may be accepted that the Boyes do not want any water on their land. However, to prove a nuisance, the Boyes must demonstrate objectively that a water influx amounts to a material and unreasonable interference with the enjoyment of No. 37. One event does not prove a nuisance is ongoing. As Giles JA (McColl JA and Hunt AJA agreeing) explained in Melaleuca Estate Pty Ltd v Port Stephens Council (2006) 12 BPR 23,743; [2006] NSWCA 31 at [23]: Discharge of water onto the appellant's land could be a nuisance if it was an unreasonable interference with the use and enjoyment of the land. But the nuisance would be the discharge onto the land, and each occasion on which there was a discharge would, if the respondent was liable, be a separate legal wrong. 1. There is no evidence that water presently enters the Boyes' land in volumes that amount to a material and substantial interference. 2. However, I accept that the inundation of large amounts of water from Mr Thomson's land to the Boyes' land during the particular extreme weather events in September 2019, October 2020, early 2021, and July 2022 caused a material and unreasonable interference with the Boyes' enjoyment of their land, having regard to the attractive suburban locality and what would not be accepted as reasonable. 3. Nevertheless, I do not accept that Mr Thomson is liable in nuisance for those occasions or generally for the following reasons. Did Mr Thomson adopt any nuisance? 1. The Boyes accepted that Mr Thomson did not create the nuisance pleaded, which was the water runoff by reason of the defective design of the IAD and the blocked kerb drains. Neither was it pleaded that constructing his dwelling and home amounted to Mr Thomson using his land in an "unnatural way" that concentrated the flow of water, or in a way that materially and unreasonably interfered with the plaintiffs' land at No. 37. 2. The case has been run only on the basis that Mr Thomson adopted or continued a particular nuisance, which requires proof that Mr Thomson: 1. had knowledge or presumed knowledge of excessive water flowing from his land to the Boyes' land because of the defective IAD, giving rise to a nuisance; and 2. failed to take reasonable steps to bring the nuisance to an end, having had ample time to do so: Rifai at [30]; Gales at [131], as discussed at [25] above; see also Manchester Ship Canal Company Ltd v United Utilities Water Ltd (No 2) [2024] UKSC 22 at [6]-[13] (cited with apparent approval in Hunt Leather at [52]), and particularly at [10] (Lords Reed and Hodge, Lords Lloyd-Jones, Burrows, Stephens, Lady Rose and Lord Richards agreeing). This requirement does not import a negligence standard: see Hunt Leather at [176]. What was Mr Thomson's knowledge? 1. The amended pleading somewhat confusingly identifies two dates, from which it is said that Mr Thomson knew of the inadequacy of the IAD to prevent water entering the Boyes' land. It states that: 1. he knew of the IAD's inadequacy for runoff from "his land" since September 2019; and 2. he knew of the IAD's inadequacy for runoff from the "structures" on his land since April 2024. 1. However, no submissions were made as to the difference between the two pleadings paragraphs and dates, in circumstances where there were already structures on his land in September 2019. It appears that the Boyes intended to rely on Mr Thomson's receipt of advice on drainage in April 2024 to prove his knowledge of the excessive water caused by the defective IAD. 2. Mrs Boyes gave affidavit evidence that might go towards Mr Thomson's knowledge or presumed knowledge. She said that by July 2022, she had carried out stormwater works (involving the installation of a drain across the top of No. 37 behind the swale drain and a smaller drain in front of the hedge on the back fence). At that time, there was rain and she saw Mr Thomson's partner using a mattock to "redirect the water flow" and Mrs Boyes complained to her about the water influx ruining her life. However, Mrs Boyes does not indicate where the water was being channelled, or if any water was running into her property, or the volume of the water. 3. Also in evidence are various letters that the Boyes' lawyers wrote to Mr Thomson complaining about the alleged water ingress from his property. Those letters include letters dated 9 December 2021 and 17 November 2022. 4. In the 9 December 2021 letter, the Boyes' solicitor, Mr Rodney Dawson, states: Our clients instruct us that stormwater discharge from your house, water tank and hard stand areas and the yard, travels downhill towards our clients' property and discharges into a pit which surcharges such that water enters our clients' property causing loss and damage. Our clients have sought advice as to the source of the nuisance flooding and it is plain that stormwater referred to above, emanates from your property. As a result of this nuisance flooding, our clients' land has been affected by scouring, water logging, the collapse of a retaining wall and more recently, it would appear that there has been an impact upon our clients' house foundations. This last matter is being invested further … As a result of this loss and damage, our clients have instructed us to write to you as a matter of urgency and request that you abate the nuisance forthwith. In the circumstances of this case, damages are not an adequate remedy (except that our clients reserve their rights in relation to seeking damages for the physical damage which has occurred and which Is presently being investigated) because the nuisance continues and will subsist until positive steps are taken by you to contain and/or divert the water so that it does not impact upon our clients' land ln the future … 1. In the 17 November 2022 letter, Mr Dawson asserts: We are now instructed that you have begun construction of a garage on your land adjacent to and above our clients' boundary. We put you on notice, that should you connect the stormwater line(s) from this structure, and associated hardstand areas, to the interallotment drainage system in the rear comer of your property, rather than to the streel such that the nuisance flooding from your land is further exacerbated and impacts on our clients' land, not only will the relief referred to in our letter of 14 November 2022 be sought, but also our clients will seek exemplary damages because of your conduct. 1. In his affidavit, which he prepared when he was not legally represented, Mr Thomson did not refer to his knowledge of water flowing from his property to the Boyes' property. He did refer to Mrs Boyes complaining after the extreme weather event in September 2019. However, in November 2019, he had received advice from the local council that the IAD was operating in accordance with its design. He had also received an email in May 2023 indicating that the stormwater system on his property was installed in accordance with approved plans and conveyed overflow to the street drainage system via the IAD. 2. Mr Thomson was cross-examined about his knowledge: Q. Mr Thomson, it's true, isn't it, you know that water runs from your south-west corner, across the boundary, into the plaintiff's land, don't you? A. No. I've never observed that. Q. You say that, notwithstanding you've never said that before in your affidavit. A. Yeah. Yeah, I don't have a position on that. I'm sorry. I haven't - I'm not aware that I have or haven't called that out. Q. Are you sure you're just not making that up now because it's convenient? A. I'm positive … Q. Mr Thomson, since receiving this plan, you've known that it was Mr Nixon's opinion that your stormwater structure was insufficient in the 5% AEP event; that's right, isn't it? A. Only based on, yeah, the information I was provided. Q. Sure, but that's correct, isn't it? You've known? A. I don't know that I'd interpreted it to that level to be honest. 1. Mr Nixon had provided advice to Mr Thomson in April 2024. I do not consider that Mr Thomson accepting that Mr Nixon, who was not a witness called to give evidence, held a certain opinion amounted to an acknowledgement by Mr Thomson that there was water flowing from his property to the Boyes' that created a nuisance. Further, Mr Thomson was not asked about any particular volume of water involved; some water would not be enough for a nuisance. He was also not questioned about his knowledge of the defective IAD. 2. Because of those letters and Mrs Boyes' complaints to him, I accept that Mr Thomson was aware of the Boyes' complaints about water ingress into their property, at the latest from the receipt of these letters, even though the particular events and the volume of water were not specifically identified. I also accept that Mr Thomson can be presumed to have been aware of the large volume of water flowing onto the Boyes' property during the severe weather events, of which he was aware. 3. However, I am not satisfied that Mr Thomson was aware of a repeated influx of excessive water, beyond the severe weather events. 4. I also accept that Mr Thomson was aware of alleged deficiencies of the IAD to drain all water from his land by April 2024, as pleaded. 5. Therefore, the main issue becomes whether he has taken reasonable steps to stop the nuisance, having had notice that there were water influxes during severe weather events and having known by April 2024 that the IAD may not have been draining runoff. Reasonable steps? 1. While Mr Thomson never conceded that he was responsible for any excessive water runoff entering the Boyes' property, there is no dispute that by July 2024 he had taken various steps identified by Mr Cubis in his 14 December 2023 report as effective to reduce water runoff, including the following. 2. First, Mr Cubis noted in his 2 September 2024 report that the adding of the timber logs on the nature strip at the front of No. 18 "appear[s] likely to protect #18 from receiving flows from Pinehurst Way should the drainage system be blocked or during a large stormwater event". 3. Secondly, he noted that stormwater drainage had been redirected into "twin 90mm stormwater pipes which discharge to St Andrews Parkway" away from the rainwater tank at the south-western side of No. 18, which he accepted is "likely to reduce some of the runoff from [No. 18] into [No. 37]". 4. Thirdly, Mr Cubis noted that the turfing of the "previously bare earth surface" of No. 18 "will also likely slow and attenuate some overland flows in nuisance-scale events and improve the water quality". He does not explain the magnitude of the benefit. I do not accept the Boyes' criticism of Mr Thomson's actions in turfing his yard as not being relevant to whether he has taken reasonable steps because the development consent required such landscaping. The point is that Mr Thomson did establish turf in all non-hardstand parts of his yard, which would have the effect of reducing runoff, and this amounts to a reasonable response to any knowledge of a runoff problem. 5. Mr Thomson also had made inquiries with the council in 2019 and 2023 about the IAD and understood that the council was satisfied as to its efficacy. He also carried out other work relating to water. For example, he installed a 5000 litre water tank next to the shed and also installed a 22,000 litre water tank next to the house. He was not challenged in his assertion that these measures diverted 177 square metres of household roof water away towards St Andrews Parkway, thus reducing the load placed on the IAD. 6. The Boyes' submission, as noted above, was that Mr Thomson had taken "no" active steps to stop the nuisance. I reject that submission. It does not accurately state the relevant legal test, which requires reasonable steps. Further, it does not accurately reflect the facts here. 7. I consider that Mr Thomson has taken reasonable steps, including the beneficial works identified above, which were substantial in nature. The issue was not a simple one, as demonstrated by the Boyes' engagement of various experts over time, and by the fact that the allegations of the nuisance changed in the pleading up until the hearing. Mr Thomson appears to have continually improved his property to deal with water issues. 8. Further, as noted above, Mr Cubis does not suggest that as at the date of the hearing, there is excessive water flowing from Mr Thomson's land to the Boyes' land amounting to a nuisance. For example, he does not provide any reason to assume that the present turf, retaining walls, water tanks and logs are insufficient protections against excessive water leaving Mr Thomson's land. 9. Therefore, I am not prepared to find that Mr Thomson has adopted any nuisance. Instead, he has taken reasonable steps within a reasonable time to bring the nuisance to an end. Injunction? 1. Even if I had been satisfied that there was a historical nuisance, I do not consider there is sufficient evidence to demonstrate that there is a current threat of an unreasonable interference with the Boyes' property being caused by water ingress from Mr Thomson's land, such that he ought to be ordered to carry out further works. 2. In Mr Cubis' 14 December 2023 report, he opined that work should be carried out to ensure that no discharge enters the Boyes' property from Mr Thomson's property, as opposed to only an amount of water that could be expected from the topography of the land. 3. The owner of land situated on higher ground is not liable merely because surface water flows naturally from its land to the lower land; rather, the liability of an occupier of land for continuing a nuisance hinges on him or her failing to take reasonable steps to bring the nuisance (rather than any and all ingress of water) to an end: Gales at [131] and [135]; see also [25] above. 4. In any event, the Boyes concede that various of Mr Cubis' solutions cannot be ordered by the Court because they would impact on the proprietary rights of persons who are not party to the litigation. For example, Mr Cubis' preferred solution was for the creation of a barrier wall between No. 18 and No. 37 and also No. 35 and No. 16. The Boyes also conceded that the barrier would not be permitted under the current terms of the easement. 5. Nevertheless, the Boyes contend that two of Mr Cubis' solutions could "be the subject of an order" (mistakenly referred to as an order for abatement). The first is that Mr Thomson "[c]ontain and control stormwater flow on [his land] at the south-west corner and pipe it to St Andrews Parkway". This would require an approval from the council to conduct work on the roadway. However, there is no evidence of whether such approval would be forthcoming, nor is there evidence of the likely cost of the proposed solution. Alternatively, Mr Cubis suggests that Mr Thomson install up to a 39 square metre on-site water detention tank to "contain and control stormwater before it enters the IAD". However, as noted previously, there is no requirement for Mr Thomson to ensure that "no" water enters the Boyes' land from his; rather, water cannot flow that amounts to a material and substantial interference with the Boyes' enjoyment of their land. Because there is no evidence of any amount of water entering the Boyes' land at present, it would be inappropriate to order these further engineering steps. 6. The Boyes also criticise Mr Thomson for not taking steps to seek permission to replace the concrete IAD pit lid with a grate that would collect surface runoff. I do not accept that criticism in circumstances where Mr Cubis' evidence is that the IAD is "of inadequate size" and therefore would logically not have capacity to drain further runoff water. Further, the Boyes accepted that Mr Thomson does not have the ability to unilaterally make changes to the IAD. 7. I do not consider it appropriate to order work to be carried out. Damages? 1. If the above conclusion is wrong and Mr Thomson ought to be liable for nuisance occurring before December 2023, I consider whether the Boyes have demonstrated that they are entitled to the quantum of damages claimed. 2. Damages for nuisance are recoverable only if the loss suffered by the plaintiff was reasonably foreseeable: Gales at [144] and [237]. As Bell CJ, Leeming and Mitchelmore JJA recently explained in Hunt Leather: [R]easonable foreseeability is a necessary but not a sufficient touchstone for damages in this area [ie private nuisance]. Some losses are taken as being caused by the plaintiff's own voluntary act, and some are outside the scope of liability. 1. The ordinary measure of damages for nuisance is the diminution in the value of the property attributable to the nuisance, although reasonably foreseeable consequential losses are also recoverable: Seiwa Ply Ltd v Owners Strata Plan 35,042; [2006] NSWSC 1157 at [27] (Brereton J, as the Commissioner then was). However, damages may also be measured in terms of the cost of reinstatement: see eg Evans v Balog [1976] 1 NSWLR 36. As Samuels JA explained at 39 (Moffitt P and Hutley JA agreeing), the "proper assessment is determined by the circumstances of the case and by the overriding requirements of what is reasonable". 2. The Boyes claim $54,812 in damages, which is comprised of: 1. $21,245 for the costs allegedly incurred in building additional stormwater infrastructure on No. 37 to manage the water flow from No.18 since Mr Thomson commenced construction works; 2. $8,995 for the costs allegedly incurred in reinstating the failed retaining wall at the rear yard on No. 37; 3. An estimate of $8,000 for the costs of re-establishing the rear yard and gardens to the condition they were in before they were damaged by the additional stormwater flows from No. 18; and 4. $16,572 for the costs allegedly incurred in obtaining engineering advice in relation to the nuisance flows prior to the commencement of these proceedings. 1. Even if it has been established that Mr Thomson had adopted a nuisance, I do not accept that these costs are recoverable for the following reasons. 2. For the first category of stormwater infrastructure, I do not accept on the evidence before me that the drainage works carried out on the Boyes' property were necessary because of any nuisance caused by Mr Thomson, rather than being necessary because of the natural topography of the Boyes' property and the surrounding land and the Boyes' preference for "no" water, even in severe weather events. 3. For the second category concerning the rebuilding of the retaining wall, I am not satisfied that the retaining wall would have withstood the severe weather events, even if Mr Thomson had not carried out any construction works to build his home. There is no evidence of the quality and life expectancy of the first or second wall and whether there was sufficient drainage behind it to ensure the wall did not collapse during extreme weather events from water landing on the Boyes' property. 4. For the third category concerning the re-establishment of the rear yard, the estimate of $8,000 is a bare assertion, with no explanation of how the figure is derived at or by whom. Further, it is not possible to know whether the rear yard would have been damaged by severe weather events, irrespective of whether water flowed from Mr Thomson's land. I am not satisfied that this sum accurately reflects a consequential loss suffered by the Boyes. 5. For the fourth category, the Boyes seek to recover costs for the following: 1. $440 for a preliminary investigation and report dated 20 November 2020 by Izzat Engineers; 2. $2,761 for a supplementary engineering investigation conducted on 21 March 2022 by Paul Clarke and Associates; 3. $7,563 for a civil engineering report and correspondence up to 25 July 2022 by Cubo Consulting; and 4. $5,808 for a civil engineering report and correspondence from 26 July 2022 to 24 October 2022 by Cubo Consulting. 1. I consider that the Boyes have not established that these amounts are recoverable. The particular reports or invoices for the reports were not in evidence and there is insufficient detail in the single line descriptions as to precisely what engineering advice or work was performed. Further, in respect of the work performed by Cubo Consulting, that work formed the basis of the Mr Cubis' expert reports which were prepared for the purpose of these proceedings and were in evidence. Therefore, it would appear that such expenditure would only be recoverable by way of a costs order, rather than as damages: see eg Hunt Leather at [203], quoting Gray v Sirtex Medical Ltd (2011) 193 FCR 1 at [15] (Bennett, Gilmour and Gordon JJ). Counsel for the Boyes did not suggest otherwise. 2. Therefore, the Boyes have not demonstrated that they have suffered any recoverable loss. Conclusion 1. For the reasons above, the appropriate orders are: 1. Further Amended Statement of Claim is dismissed. 2. Plaintiffs to pay the defendant's costs as agreed or assessed. ********** Amendments 25 October 2024 - Corrected party's name at [30] DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 25 October 2024