New South Wales Supreme Court CITATION : Comserv (No.1877) Pty. Limited & Anor. v. Wollongong City Council [2001] NSWSC 302 CURRENT JURISDICTION: Equity Division FILE NUMBER(S) : SC 1914/99 HEARING DATE(S) : 28 and 29 March 2001 JUDGMENT DATE : 24 April 2001 Comserv (No.1877) Pty. Limited - 1st plaintiff PARTIES : Sovereign Motor Inns Pty. Limited - 2nd plaintiff Wollongong City Council - defendant JUDGMENT OF : Hodgson CJinEq at 1 COUNSEL : Mr. F. Donohoe for plaintiffs Mr. N. Francey for defendant SOLICITORS : Laurence & Laurence, Sydney for plaintiffs McCabes, Sydney for defendant CATCHWORDS : NUISANCE - What constitutes - Blocking of drainage pipe - Water leaking from pipe - REAL PROPERTY - Easements - Drainage pipe through land - Obligations of dominant and servient owners. Jones v. Pritchard (1908) 1 QB 630 Bland v. Levy (2000) NSWSC 161 Sedleigh-Denfield v. O'Callaghan (1940) AC 880 CASES CITED : Sutherland Shire Council v. Heyman (1985) 157 CLR 424 Gartner v. Kidman (1962) 102 CLR 12 Elston v. Dore (1982) 149 CLR 480 Prospect County Council v. Cross (1990) NSWLR 601 DECISION : See end of judgment IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION CORAM: HODGSON, J. Tuesday 24th April 2001 NO. 1914 OF 1999 COMSERV (NO.1877) PTY. LIMITED & ANOR. V. WOLLONGONG CITY COUNCIL JUDGMENT 1 The first plaintiff Comserv is the owner of land fronting Princes Highway, Figtree, upon which is erected the Figtree Motel. The second plaintiff Sovereign is a company related to the first plaintiff, and with the consent of the first plaintiff, it operates the Motel. 2 Block B of the Motel was built in about 1972 over material brought on to the land by a prior owner to fill a natural depression in that part of the land; and a large concrete pipe was installed to carry stormwater through the land under Block B, generally along the line of that natural depression, from the front of the property at Princes Highway to a creek known as American Creek at the rear of the property. 3 The plaintiffs became respectively owner and operator of the Motel in 1989. By November 1997, parts of Block B of the Motel, generally over the line of the pipe, had subsided, causing cracks in the building. On about 3rd November 1997, the plaintiffs blocked the pipe, and this subsequently caused flooding of the highway and adjoining land during periods of rainfall. 4 To alleviate this problem, the defendant Council hired a pump and retained it on a permanent standby basis from August 1998 to February 1999, in order to pump water away when flooding occurred. On 17th December 1998, the defendant compulsorily acquired an easement to drain water 1.2 metres wide over a stratum of the land, through which the pipe runs; and the Council then removed the blockage to the pipe that had been created by the plaintiffs. 5 In these proceedings, commenced by summons filed on 7th April 1999, the plaintiffs allege that the pipe is leaking and that this has caused and is continuing to cause damage to the Motel, and they seek orders that the defendant Council carry out certain remedial and restorative work, and also that there be an enquiry as to damages suffered by the plaintiffs. The basis of the plaintiffs' claim is set out in a Statement of Claim filed on 26th April 1999. 6 The defendant Council has put on a cross-claim, seeking damages in respect of costs incurred in removing the blockage to the pipe, and in making provision for dealing with the flooding caused by this blockage. OUTLINE OF FACTS 7 In about 1966, plans were submitted to the Council for the erection of the Motel. The plans showed three buildings side-by-side facing Princes Highway: an administration building in the centre, and two wings of motel units, one to the north of the administration building and one to the south. The south wing is known as Block B. The plans also showed a thirty inch concrete pipe passing under Block B between Princes Highway and American Creek. 8 An aerial photograph taken in November 1966 shows the north wing of the motel units built, and also a swimming pool, but not the administration building or Block B. 9 Installation of the pipe and the filling of the depression apparently took place between 1966 and 1969: the pipe is shown as in place by Department of Main Roads plans prepared in 1969. 10 The erection of Block B took place in 1972, and there were engineering drawings showing pier and beam foundations for this Block. On 24th July 1972, the Council served a "stop work" notice on the owner of the Motel, apparently because of concern that the foundation piers could interfere with the pipe. The notice required the owner to have Rigby & Associates Pty. Limited, Engineers, determine what action should be taken to bridge the pipe. 11 Rigby & Associates prepared a revised layout of piers in the vicinity of the pipe. The drawings of that layout showed piers on either side of the pipe, at a distance of roughly 1200 millimetres from the pipe, and carried down to below lines drawn upwards at 45 degrees from points level with the bottom of the pipe, and 6 inches (150 millimetres) to either side of the pipe. 12 Thereafter, on 28th July 1972, the stop work order was removed, and the work proceeded. 13 By October 1996, Block B had settled substantially at locations generally over the drainage pipe. This subsidence was described in 1999 as comprising a pronounced settlement dish to a maximum of about 100 millimetres, over a length of 20 to 25 metres running north/south along the building. 14 Meanwhile, as noted earlier, the plaintiffs had become owner and operator of the Motel in 1989; and on or about 3rd November 1997 they deliberately blocked the pipe. This caused flooding of the highway and adjoining land during periods of rainfall. On 17th December 1998, the Council compulsorily acquired an easement to drain water along the course of the pipe, and removed the blockage. 15 I note that the land is Real Property Act land, and that, until the Council acquired its easement, there was no encumbrance noted on the land in respect of the pipe. ISSUES 16 There were factual issues contested, essentially concerning whether there was leakage from the pipe, and whether such leakage has contributed to the subsidence of Block B, and if so to what extent. There was to some extent a factual issue relevant to the Council's responsibility for water entering the pipe, but I will consider that issue, in so far as it is necessary to do so, along with legal issues. 17 The legal issues in the case concerned essentially whether the Council, as dominant owner in relation to the easement or otherwise, was in breach or was threatening breach of any obligation in respect of the pipe; and whether the plaintiffs were in breach of any relevant obligation when they blocked the pipe and caused flooding. 18 In so far as any breach is established, it will be necessary to consider the nature and extent of any remedy, and other consequential matters. factual issues 19 There was evidence from the manager of the Motel of cracking in rendered walls and tiles of Block B occurring from the time he became manager nine years ago. He also gave evidence that doors in relevant parts of Block B, which were not sticking in late 1999, were sticking by May 2000. That evidence is not contested, and I accept it. I accept also that this means that Block B is continuing to subside, although I cannot come to any view as to the current rate of such subsidence. 20 There was evidence from the plaintiffs' expert engineer, Rodney Slater, to the effect that the pipe was leaking, causing wetting of the surrounding soil and sucking soil into the pipe; and to the effect that this has caused the subsidence of Block B that has occurred since an initial settlement period, which would have been near completion after 10 to 15 years from construction (that is, by about the mid-1980s). Mr. Slater also commented on a videotape taken of the inside of the pipe, which showed gaps in the mortar placed between sections of the pipe, and showed some small longitudinal cracks at the top of the pipes near some of the joints. Mr. Slater's evidence was to the effect that the videotape confirmed that the pipe was leaking, and that the longitudinal cracks suggested that the pipe was in some risk of deterioration and ultimately collapse. 21 There was evidence from the defendant's expert engineer Edward Rigby that the pipe under Block B was in good condition, although the joints in some areas were more open than present good practice would dictate. His evidence was that it was unlikely that significant amounts of soil were being sucked into the pipe; and that loss of material through the pipe was not a contributing factor to the subsidence of Block B. His evidence was to the effect that the subsidence was essentially because the piers had not been taken down to a sufficient depth. He accepted that wetting of the clay under the piers could contribute to settlement; but his opinion was that any wetting of the clay was more likely to be due to ground water than leaking from the pipe, because water leaking from the pipe would tend to flow away quite quickly in the porous bedding material under and around the pipe. 22 Mr. Rigby considered that the longitudinal cracks shown on the videotape did not suggest any appreciable structural problem. He recommended that any small leakage problem be dealt with by cleaning out the old mortar from the joints, and sealing them with modern semi-flexible mortar or epoxy material, and following this up with regular inspections, initially after five years. 23 Evidence was also given for the Council by a geotechnical engineer Jonathan Thompson, who took core samples from a number of bore holes in the vicinity of Block B. He expressed the opinion that the fill on which Block B was erected was of variable quality, and likely to settle; and that if the building was supported by the fill, it was likely to suffer damage from the settlement. On the other hand, if the building had been supported on deep footings extending well below the fill into natural soils, loss of soils into the pipe or softening of fill in the vicinity of the pipe should not have had any significant effect on the building. From his observation of the videotape, he was not satisfied of any leaking from the pipe. Submissions 24 Both sides provided written outlines of submissions, which I will leave with the papers. 25 Mr. Donohoe for the plaintiffs submitted that I should be satisfied that water passing down the pipe was leaking from the pipe, causing the soil around the pipe to become wet, and that this in turn caused the soil under the piers to become less able to support the piers. Furthermore, he submitted, I should find that water passing down the pipes over cracks and open joints sucked soil into the pipe, and resulted in soil being washed away from under the Motel. He submitted that the manager's evidence showed that the Motel was continuing to subside, and he submitted that I should find that this continuing subsiding of the Motel was caused in the way indicated by water passing through the pipe. 26 Mr. Francey for the Council submitted that I should not be satisfied that any leaking from the pipe was contributing significantly to the subsiding of the Motel. He submitted that the Motel was subsiding because the piers had not been taken down to sufficient depth; and that in so far as any wetting of the clay in the vicinity of the piers was contributing to continuing subsidence, this was not shown to be the result of leaking from the pipe. He submitted that, although the area of subsidence was very generally in the area of the pipe, the line of maximum subsidence did not follow the line of the pipe, and the evidence did not suggest that subsidence was associated with periods of heavy rainfall, as would have been the case if leaking from the pipe was the principle source of relevant moisture. The evidence was that other ground water would move far more slowly. Decision 27 Where the evidence of Mr. Slater conflicts with that of Mr. Rigby, I prefer the evidence of Mr. Rigby, which in my opinion also has support from the evidence of Mr. Thompson. I considered that Mr. Rigby was better qualified in relation to this particular problem, and that Mr. Slater did not give adequate reasons for his view that water leaking from the pipe was the substantial cause of the subsidence. 28 I accept that the pipe is not constructed to today's standards, and that joints in the pipe under Block B and to either side of Block B have opened up, and that mortar has come away from those joints. I accept that there is some leaking from the pipe; but I am not satisfied that, as suggested by Mr. Slater, that leaking is sufficient to cause significant amounts of material to be sucked into the pipe. I find more convincing the evidence of Mr. Rigby and Mr. Thompson, to the effect that only very small amounts of material would be drawn into the pipe, from turbulence in the vicinity of any opening. 29 I am satisfied that the subsidence of the Motel is due to sinking of the piers, because, as has now become apparent, they were not placed to sufficient depth. I believe that this may well be exacerbated by wetting of the clay in the vicinity of the piers, but I am not satisfied that the leaking of the pipe has contributed substantially to the wetting of this clay. I accept Mr. Rigby's evidence that it is more probable that this is due to other water moving through the subsoil, because any water leaking from the pipe would be quite localised and much of it would disperse quite quickly, running through porous material around the pipe towards American Creek. legal issues 30 Having regard to my decision on the facts, some of the legal issues argued do not arise; but I think it necessary in this case to reach some view on all the legal points argued. Submissions 31 Mr. Donohoe submitted that there was, at all relevant times, a pipe which passed under the plaintiffs' land. He pointed to an allegation in paragraph 9 of the Statement of Claim that the Council had caused water to flow through this pipe, and submitted that this had not been effectively denied. In any event, it was clear that the water coming into the pipe came from the Princes Highway, which was the defendant's land. 32 Next, Mr. Donohoe submitted that the concentration and direction of water onto the plaintiffs' land would be a trespass, rather like directing a hose across a fence, if not justified by some right in the Council to do this: he referred me to Jones v. Pritchard (1908) 1 QB 630 and Bland v. Levy (2000) NSWSC 161 para.25. At least, he submitted, the leaking water would amount to a nuisance; and at least from the time of its acquisition of the easement, the Council had adopted the nuisance, and having had its attention drawn to the problem, had failed to take reasonable steps to deal with it: see Sedleigh-Denfield v. O'Callaghan (1940) AC 880 at 887. Mr. Donohoe submitted that this could not be considered a case where the Council had no duty, because it was a matter of nonfeasance, since the misfeasance/nonfeasance distinction was only relevant in relation to the establishing of a council's duty: see Sutherland Shire Council v. Heyman (1985) 157 CLR 424 at 423. The Council had a duty here, being the private duty of a dominant owner of an easement to repair a pipe, so that trespass or nuisance was not committed as against the servient owner. 33 Mr. Donohoe then submitted that, even if it was not possible to quantify what damage the leaking water was causing to the Motel, it could be inferred that damage was being caused and would be caused in the future, so that an injunction should be granted to require the Council at least to carry out maintenance in accordance with the recommendations of Mr. Slater and Mr. Rigby. 34 Mr. Donohoe submitted that the plaintiffs were under no duty to receive water through the pipe, so that the blocking of the pipe did not amount to a nuisance, and certainly the plaintiffs were under no duty to repair the pipe. The depression which had been filled was not a watercourse, and therefore the plaintiffs, as lower owners, were entitled to prevent water flowing on to their land from the land of higher owners, at least so long as they did no more than reasonably necessary to protect their own land: see Gartner v. Kidman (1962) 102 CLR 12, at 26-7 and 48-9; Elston v. Dore (1982) 149 CLR 480. There could be no term implied in the easement resumed by Council, requiring the plaintiffs to keep the pipe in repair: see Prospect County Council v. Cross (1990) 21 NSWLR 601 at 608. 35 Mr. Francey for the Council submitted that, prior to the filling of the land in the 1960s, water flowed through a depression in the land from Princes Highway and land to the west of Princes Highway. In the 1960s, the then owner of the land, in order to use the land for the Motel, constructed the pipeline at the time of filling the land so that a nuisance which would otherwise have been created by the filling of the land was avoided. From that point of view, blocking the pipe cannot fairly be considered as merely protecting the lower land, in the sense in which that idea is used in Gartner v. Kidman. Since the owner had chosen to install a pipe in order to avoid creating a nuisance, the obligation to maintain this pipe remained with the owner of the land. Indeed, if there was a threat of nuisance being caused by the collapse of the pipe, the owner would be obliged to restore the pipe, and the Court might grant quia timet relief to ensure this happens. 36 Mr. Francey submitted that the acquisition of an easement by the Council did not change this situation. There was already in effect a de facto easement to permit the water to flow through the pipe; and the Council acquired the easement only to ensure it was in a position to deal with the obstruction of the pipe by the owner. 37 Mr. Francey submitted that, contrary to Mr. Donohoe's submissions, the Council did not cause the water to flow through the plaintiffs' land: only that part of the water that came from the Princes Highway would be regarded as contributed by the Council, the bulk of the water coming from the catchment to the west of Princes Highway. Decision 38 I should mention first that there was reference in the Council's written submissions to the likelihood that it had been a condition of development consent to the erection of the motel that the pipe be put in place. I think it is likely that there was a condition of this kind to some consent that was given to a previous owner; but no such consent or condition has been put into evidence, perhaps because the relevant documents have been lost. I am unable to infer the precise terms of any such condition, particularly in relation to any obligation to maintain and repair the pipe, and in any event, this Court does not have jurisdiction to enforce any such condition: that is a matter within the exclusive jurisdiction of the Land & Environment Court. Furthermore, unless the condition was imposed in relation to a consent to the use of land which the present owners still need to rely on, there could be a question as to whether that condition would bind a current owner, registered as owner under the Real Property Act, without any encumbrance relating to such condition being noted on the title. Accordingly, it is necessary for me to consider this matter without regard to any such condition, having regard to the general law of nuisance. 39 The first question I will consider is whether the blocking of the pipe by the plaintiffs in 1997 was a nuisance. 40 I am of course bound by the decision in Gartner v. Kidman, and I consider I am bound by the statements of principle made by Windeyer, J., set out at pages 48-9 of the report in 108 CLR, which relate to surface waters, as distinct from the flow of natural watercourses to which riparian rights attach, and which relate only to water coming naturally upon the land from which it flows, as distinct from water artificially brought or concentrated there: The higher proprietor: He is not liable merely because surface water flows naturally from his land on to lower land. He may be liable if such water is caused to flow in a more concentrated form than it naturally would. It flows in a more concentrated form than it naturally would if, by the discernible work of man, the levels or conformations of land have been altered, and as a result the flow of surface water is increased at any particular point. If a more concentrated flow occurs simply as the result of the "natural" use of his land by the higher proprietor, he is, generally speaking, not liable. What is a natural use is a question to be determined reasonably having regard to all the circumstances including the purposes for which the land is being used and the manner in which the flow of water was increased: as for example whether it is agricultural land drained in the ordinary course of agriculture, whether it is timbered land cleared for grazing, whether it is a mining tenement, or is used for buildings and so forth. The proprietor of higher land is not liable for a more concentrated flow from his land if it is the result of work done outside his land by someone else, and for the doing of which he is not responsible, as for example by the paving and guttering of public roads by municipal authorities. The above statements concerning the concentration of surface waters relate to cases when the increased flow results from work done when the higher land and the lower land were held by separate proprietors. Different considerations apply when the lower land receives a concentrated flow as a result of work which was done when it and the higher land were in the same ownership and possession. The lower proprietor: He may recover damages from, or in appropriate cases obtain an injunction against, the proprietor of the higher land who is, for any of the reasons given above, liable to an action because he has concentrated or altered the natural flow. Although he has no action against the higher proprietor because of the natural unconcentrated flow of water from his land, he is not bound to receive it. He may put up barriers and pen it back, notwithstanding that doing so damages the upper proprietor's land, at all events if he uses reasonable care and skill and does no more than is reasonably necessary to protect his enjoyment of his own land. But he must not act for the purpose of injuring his neighbour. It is not possible to define what is reasonable or unreasonable in the abstract. Each case depends upon its own circumstances. It may be added that the proprietor's right to defend his land against water coming upon it by erecting barriers, is generally speaking restricted to penning it back on the higher land whence it would otherwise have naturally come. It does not entitle him to diver it on to the land of a third proprietor to which it would not have naturally gone to the damage of that proprietor. 41 I am also bound by the decision in Elston v. Dore. In that case, a drain cut on the defendant's land had the effect that water, which otherwise would have stayed on the plaintiff's land, flowed along the drain onto the defendant's land. The defendant then filled that drain, causing substantial damage to the plaintiff. The High Court held that this was not a nuisance, because it merely restored the situation to what it had been prior to the digging of the drain. 42 However, in the present case, until the depression on the plaintiffs' land was filled, water flowed from the Princes Highway, and from land on the other side of Princes Highway, through the depression on the plaintiffs' land to American Creek. The effect which the filling of the depression would have had, but for the insertion of the pipe, was demonstrated by what happened when the plaintiffs blocked the pipe in 1997. This caused flooding to the Princes Highway, and to other adjoining land. In my opinion, notwithstanding what was said in Gartner v. Kidman, this would have amounted to a nuisance, not merely because of the diversion of the water to other land in addition to the land from which it flowed, but also because what was done could not fairly be described as "no more than reasonably necessary to protect [the plaintiffs'] enjoyment of [their] own land". In my opinion, the filling of this depression was a major change effected to the plaintiffs' land, not mere protection of it, so that an overall test of reasonableness would apply. In my opinion, it would have been unreasonable to make this major change to the land, such as would cause flooding to the highway and other adjoining land unless adequate provision was made for coping with the water blocked by the filling of the depression, without at the same time making that provision. In fact, nuisance was avoided at that stage by the insertion of the pipe. 43 When Comserv subsequently became the owner of the land, it acquired a property on which a potential nuisance had been created, but the actuality of nuisance had been avoided by the existence of the pipe. In those circumstances, even though the title was not encumbered by any easement for the pipe, the deliberate blocking of the pipe and consequent flooding was in my opinion unreasonable and did amount to a nuisance, both to the Council as owner of the highway, and also to other adjoining owners. 44 The next question I consider is whether either the plaintiffs or the Council were under any duty to maintain or repair the pipe, prior to the resumption of the easement by the Council. 45 It was submitted for the plaintiffs that the Council was causing the water to flow across the plaintiffs' property, so that, if the Council did not keep the pipe in repair and damage flowed, the Council would be liable in accordance with the principle applied in Jones v. Pritchard. 46 As mentioned before, Mr. Donohoe relied here on a pleading point. However, in my opinion a fair reading of the pleadings indicates that the Council did not make an unqualified admission that it was causing water to flow through the pipe on the plaintiffs' land; but rather, the Council was alleging that the water came from land to the west of Pacific Highway as well as from the Pacific Highway itself, and from there was discharged into the pipe on the plaintiffs' land. I accept that as a fair account of the situation, and I do not think those circumstances on their own would be enough to cause the Council to be liable if leakage from the pipe caused damage to the plaintiffs' land. 47 On the other hand, it was submitted for the Council that if the plaintiffs' failure to maintain and repair the pipe meant that the pipe no longer conducted water through the plaintiffs' land, the plaintiffs would be liable in the same way as if they had deliberately blocked the pipe. 48 In my opinion, there is no general duty on the plaintiffs to maintain and repair the pipe. It is conceivable that if the pipe collapsed, and if flooding was thereby caused, of the same type as was actually caused by the blocking of the pipe, that might be a nuisance by the plaintiffs. However, while in my opinion the deliberate blocking of the pipe was unreasonable and did amount to a nuisance, the question of whether a failure to prevent the pipe collapsing would be unreasonable and thus give rise to a nuisance could depend upon the detailed circumstances. It is a hypothetical question, in the circumstances of this case, which I do not need to decide. 49 Finally, I need to consider the question whether following the Council's resumption of the easement, either party has a duty to repair the pipe, or whether either party could be liable for nuisance resulting from failure of the pipe. 50 As a result of the easement, the Council now has a positive right to cause water to flow along the pipe; and in my opinion, that positive right carries with it a responsibility not to cause damage to the servient tenement by an unreasonable failure to maintain the pipe. In other words, in my opinion, the principle in Jones v. Pritchard now applies. 51 However, my finding on the facts means that the plaintiffs have not proved that damage has been caused; and in my opinion they have not proved a sufficient threat of damage to justify a quia timet injunction. 52 On the other hand, it follows that the Council would be liable if it failed to maintain the pipe and damage did ultimately ensue from this. remedy 53 The Council has established damage as a result of the nuisance which I have found, namely expense incurred in hiring a pump and in having the blockage removed from the pipe. I think the material produced by the Council does show an expense of $12,176.98 in respect of the first category, and $3,850.00 in respect of the second category. The Council has also claimed a further sum of around $4,000.00 for time spent by Council officers in operating and supervising the pump on those occasions when flooding occurred. In my opinion, the material produced by the Council is inadequate to satisfy me as to this claim. 54 For those reasons, I would give judgment for the Council for a sum of $16,026.98, to which I would add interest at Supreme Court rates from the beginning of April 1999 to judgment. 55 It follows from my reasons that the plaintiffs are not entitled to any remedy. I have found that there was no duty on the Council prior to the resumption of the easement, so that there was no possibility that the Council would be liable for damage to the motel caused prior to the resumption, even if I had come to a different decision on the facts. I have held that the Council did have a duty to maintain the pipe after resumption, in the sense that it would be liable for damage caused to the plaintiffs by water passing through the pipe, if damage was caused through a defect in the pipe. However, on this aspect my finding on the facts means that the plaintiffs are not entitled to any remedy here either. 56 However, if the pipe did in the future deteriorate so as to cause damage, the Council would then be liable; so the Council would be well advised to repair and maintain the pipe as recommended by Mr. Rigby. 57 At present, it seems to me that the Council has been largely successful in the proceedings, so that a costs order would be made in its favour. ******** Last Modified: 04/27/2001 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.