Reported Decision : 131 LGERA 350 New South Wales Court of Appeal CITATION : MUCKLE v ANDERSON & ANOR [2002] NSWCA 283 FILE NUMBER(S) : CA 41018/01 HEARING DATE(S) : 21 August 2002, 22 August 2002 JUDGMENT DATE : 9 September 2002 PARTIES : Lester John Muckle - Appellant Donald Anderson and Frances Anderson - Respondents JUDGMENT OF : Sheller JA at 1; Giles JA at 41; Davies AJA at 42 LOWER COURT JURISDICTION : Land & Environment Court LOWER COURT 40069/00 FILE NUMBER(S) : LOWER COURT Cowdroy J JUDICIAL OFFICER : COUNSEL : J E Sexton SC/T G Howard - Appellant M Fraser - Respondents SOLICITORS : Harris Wheeler - Appellant P J Donnellan & Co - Respondents CATCHWORDS : LAND & ENVIRONMENT - development application - interpretation of condition in consent - meaning of "water drainage system" - flow of surface water obstructed by land fill - distinction between watercourse and surface water - application of Gartner v Kidman - whether order entered by trial Judge served any purpose LEGISLATION CITED : Land and Environment Court Act 1979 Environmental Planning and Assessment Act 1979 CASES CITED: Gartner v Kidman (1962) 108 CLR 12 Nield v London & N W Railway (1874) LR 10 Ex DECISION : 1. Appeal allowed; 2. Set aside orders 1 and 2 made by Cowdroy J on 30 November 2001; 3. In lieu thereof order that the proceedings be dismissed with costs; 4. The respondents to pay the appellant's costs of this appeal but to have a certificate under the Suitors' Fund Act 1951 if so qualified. IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 41018/01 L & E 40069/00 SHELLER JA GILES JA DAVIES AJA MUCKLE v ANDERSON & ANOR The appellant (defendant at first instance) appealed from the decisions given in the Land and Environment Court by Cowdroy J on 25 October and 30 November 2001. The appellant was the neighbour of the respondents, the appellant's land lying on the east of the respondents' boundary. The land was naturally flat and prone to flooding. The appellant made a development application to his local council to fill his block of land so as to raise the level by approximately one metre. The council gave consent subject to conditions specified in the notice. The condition at issue (condition 3) stipulated that earthworks shall not "obstruct any water drainage system". The respondents complained to the council that the appellant had failed to comply with the terms of condition 3 because surface water which had a flow path generally in an easterly direction from the respondents' to the appellant's land had been obstructed by the placement of the fill. As a consequence of this complaint the appellant approached the council to modify the development consent by constructing a boundary drain along the appellant's land on its boundary with the respondent's land. The construction of this drain did not adequately resolve the surface water problems. The expert evidence presented at first instance was conflicting in terms of the direction of the flow of the surface water. Independent lay witnesses also presented differing observations about water flow. The trial Judge ultimately found that the surface water on the respondents' land could move in an easterly direction across the appellant's land. The trial Judge also found, in reliance on expert evidence, that on the balance of probabilities the presence of fill affected the drainage of water from the respondents' land by impairing and obstructing the natural flow of surface water in a general direction. The trial Judge accepted that condition 3 was intended to impose an obligation on the appellant to maintain the existing manner of water drainage for the surrounding land. On 25 October 2001, the trial Judge declared that the appellant had failed to comply with condition 3 and ordered that the proceedings be adjourned for the purpose of a view and submissions relating to the restoration of the drainage to the respondents' land. On 30 November 2001, the trial Judge ordered that the appellant cause the drain between the lots to be deepened by a further 200mm and widened and extended along the northern and southern boundaries. His Honour considered that this was a more practical solution than the removal of the fill. The appellant argued that the evidence established that the constraint on the effectiveness of the boundary drain was not its depth or dimensions but the capacity of the down stream drains. As such the order entered by the trial Judge would serve no purpose and accordingly should not have been made. The principal ground of appeal was that the trial Judge ought to have found that, on its proper construction, the expression "water drainage system" in condition 3 did not include surface flow of water. HELD (per Sheller JA, Giles JA and Davies JA concurring) 1. No basis was shown for interfering with the trial Judge's preference for the evidence of one lay witness over another. Similarly, there was no ground shown as to why the Court should interfere with the findings that surface water on the respondents' land could move in an easterly direction across the appellant's land or that the fill would affect the drainage of such water by impairing and obstructing the natural flow of water. 2. Condition 3 must be understood in the context of the Environmental Planning and Assessment Act 1979 and the common law. By force of s76 of that Act, the appellant was prohibited from carrying out development by way of filling his land without the consent of the council. Ignoring the conditions, the effect of the grant of consent was to enable the appellant in a particular way to do something which the common law (see Gartner v Kidman (1962) 108 CLR 12) would have permitted him to do even though the filling created a barrier to and penned back surface water coming on to his land from the respondents' land. 3. A distinction must be drawn between a natural watercourse and surface water in order to determine the proper meaning of the term "water drainage system". 4. If the meaning of surface water and the commonplace fact that water tends to move from any level at one point to a lower level at another point, such movement of surface water is not comprehended by the term "water drainage system". Condition 3 was concerned with natural or artificial watercourses used for the purpose of the drainage of water including surface water. Such an interpretation acknowledges the appellant's common law rights to obstruct the flow of surface water for the purpose of improving the use of his land, subject only to obtaining the consent of the council. 5. While it was unnecessary to pass on the issue given the finding that condition 3 had not been breached, the Court was not persuaded that the trial Judge's order for work to be done to alter the boundary drain would have served any purpose in dealing with the problem the respondents complained of. Legislation cited: Land and Environment Court Act 1979 Environmental Planning and Assessment Act 1979 Cases cited: Gartner v Kidman (1962) 108 CLR 12 Nield v London & N W Railway (1874) LR 10 Ex 4 ORDERS 1. Appeal allowed; 2. Set aside orders 1 and 2 made by Cowdroy J on 30 November 2001; 3. In lieu thereof order that the proceedings be dismissed with costs; 4. The respondents to pay the appellant's costs of this appeal but to have a certificate under the Suitors' Fund Act 1951 if so qualified. ********** IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 41018/01 L & E 40069/00 SHELLER JA GILES JA DAVIES AJA Monday, 9 September 2002 MUCKLE v ANDERSON & ANOR Judgment 1 SHELLER JA: Introduction The appellant, Lester John Muckle, appeals from decisions given in the Land and Environment Court of New South Wales by Cowdroy J on 25 October and 30 November 2001. The appellant is the neighbour of the respondents, Donald and Frances Anderson. The appellant's house is on Lot 8, the respondents' house on Lot 9, two blocks each of an area of less than one hectare part of a sub-division in the Salt Ash district between what are now Salt Ash Drive and Richardson Road, which run roughly from the west to join up with Nelson Bay Road. The parties' lots stretch from Richardson Road in the south to Salt Ash Drive on their northern boundary and abut each other, Mr Muckle's land lying on the east of the respondents' boundary. The land is naturally flat and prone to flooding. 2 On 8 February 1996 Mr Muckle made a development and building application to Port Stephens Council to fill his block of land, Lot 8, so as to raise the level by 1.2 metres. Mr Muckle completed the appropriate form himself and in giving a detailed description of the proposed development stated "to be able to walk around on land without walking in water". On 5 March 1996 the Council gave notice of granting consent subject to conditions specified in the notice. Amongst conditions of approval were: "3 Earthworks shall not obstruct any water drainage system, nor shall the fill encroach any adjoining property boundary or have any batter slopes steeper than 1 vertical to 4 horizontal. … 7 The toe of the batter adjacent to Lot 7 and Lot 9 shall not encroach within 3 metres of the common boundary unless written permission is submitted to Council from the adjoining owners of Lots 7 & 9 raising no objection to filling to the boundary. 8 The fill, generally, is restricted to a level of 2.2 metres AHD [Australian Height Datum] providing a fill depth of approximately 900mm. Higher fill depths will be permitted upon application for a localised raised pad for dwelling construction." The meaning of the expression "not obstruct any water drainage system" in condition 3 is an important question for consideration in this appeal. 3 In July and August 1996 Port Stephens Council began what were called the Richardson Road Deviation Works which ultimately produced Richardson Road on the southern boundary of the parties' lots. In the course of this operation the Council delivered to Mr Muckle's property overburden from the roadworks which he used to fill Lot 8 in reliance on the development consent. In August 1996 Mr and Mrs Anderson submitted a development application and on 13 September 1996 the Council issued a development consent to them for the filling of Lot 9. However, they had been informed, in answer to a request they made to the Council, that overburden from the Richardson Road Deviation Works would not be available as fill for Lot 9. 4 On 12 May 2000 Mr and Mrs Anderson brought the proceedings, the subject of this appeal, in the Land and Environment Court, which were proceedings in Class 4 of the Court's jurisdiction under s20 of the Land and Environment Court Act 1979. The allegation in the application was that Mr Muckle had failed to comply with the terms of condition 3 of the development consent in that earthworks had been carried out on Lot 8 in such a way as to obstruct a water drainage system. On 19 May 2000 Mr Muckle wrote to the Council seeking "urgent clarification" and in particular a statement that condition 3 had been complied with as far as the approval was concerned. Thereafter he had a meeting at the Council's offices with its development manager and discussed putting a drain down the side of his property close to the boundary of the Andersons' land. He engaged a hydrological expert, Mr Martin Connor, to design a drain to run the full length of his property along that boundary. On 13 June 2000 Mr Muckle sought the Council's permission to construct the boundary drain to drain water off both blocks out to Richardson Road and Salt Ash Drive. He wrote: "We will endeavour to rectify Mr Anderson's water problem by creating this drain. I am hopeful of a commonsense resolution to this problem." On 16 June 2000 the Council's subdivision engineer wrote to Mr Muckle: "Whilst it has not been established that a watercourse through your property, existed prior to filling, it is Council's opinion that the satisfactory completion of an approved drain will satisfy condition No 3 of your consent." 5 On 20 June 2000 Mr Muckle completed an application to modify the development consent by constructing the boundary drain along Mr Muckle's land on its boundary with Mr and Mrs Anderson's land in a way designed to carry water at the northern end of that boundary north towards Salt Ash Drive and to the southern end of that boundary south towards Richardson Road. On 11 July 2000 the Council granted the modification by amending condition 1 of the development consent to provide that development should take place in accordance with the plans and documentation submitted with the application and "dated 10 July 2000 as amended in red". All other conditions of consent remained unchanged. Following the consent to the modification the boundary drain was constructed. 6 On 10 November 2000 the Land and Environment Court granted Mr and Mrs Anderson leave to amend their Class 4 application so as to join the Council as a party to the proceedings and challenge the validity of the modification pursuant to s96 of the Environmental Planning and Assessment Act 1979 (EP & A Act) which permitted the construction by Mr Muckle of the boundary drain, allege that the Council had breached its own development consent for the Richardson Road Deviation Works by causing acid sulphate soil to be delivered to Mr Muckle's property for fill and seek consequential relief against Mr Muckle and the Council. 7 The proceedings began before Cowdroy J on 26 September 2001. On 27 September 2001, the second day of the hearing, Mr and Mrs Anderson settled their claim against the Council and withdrew all allegations added by the amendment to the application. The effect was that the claim reverted to its original form before the joinder of the Council and amendments made in November 2000. The proceedings against Mr Muckle continued until 3 October 2001 when judgment was reserved. 8 On 25 October 2001 Cowdroy J delivered judgment declaring that Mr Muckle had failed to comply with condition 3 of the development consent and ordered that the proceedings be adjourned for the purpose of a view and submissions relating to restoration of the drainage to Lot 9. On 15 November 2001 Cowdroy J viewed Lot 8 and Lot 9 and the surrounding area and took submissions on the question of relief. On 30 November 2001 his Honour published his second judgment in which he made the following orders: "1 Within three (3) months from the date of this judgment the Respondent cause the drain between Lot 8 and Lot 9 to be deepened by a further 200mm and widened as shown in Exhibit G and extended along the northern and southern boundaries of Lot 8 as shown in Exhibit G. 2 The Respondent to pay the costs of the Applicant of the proceedings excluding any costs relating to the Notice of Motion joining the Port Stephens council as a party and excluding any costs of the Applicant relating to its claims against the Port Stephens Council." 9 Exhibit G was a plan of inter alia lots 9 and 8 upon which the boundary drain and the proposed extensions along the northern and southern boundaries of lot 8 had been marked in blue by one of the expert witnesses, Dr Ian Joliffe. Reasons for judgment 10 Mr and Mrs Anderson's claim was that surface water which had a flow path generally in an easterly direction from Lot 9 onto Lot 8 had been obstructed as a consequence of the placement of fill in breach of condition 3 of the consent. Mr Anderson gave evidence that before the placement of the fill on Lot 8 surface water on Lot 9 drained from that lot to Lot 8. Since the placement of the fill on Lot 8, surface water accumulating on Lot 9 had been unable to drain from that lot towards Mr Muckle's land. He said that water ponded over approximately three-quarters of Lot 9, at times to a depth of 45cm and remained for prolonged periods. He alleged that Lot 9 had become so water logged that it could not be used for the grazing of horses nor growing of vegetables, trees or other plants. He claimed that most of the ponding occurred in the southern portion of his land where a natural depression extended across the southern boundary into Lot 8. He said that before the placement of the fill on Lot 8 surface water would pond in this depression and in other low depressions on Lot 9 and then flow across Lot 8 in a north east direction into Lot 7 which abutted the eastern boundary of Lot 8. Mr Muckle refuted the assertion that water flowed from Lot 9 across Lot 8 and into Lot 7. He alleged that there were other possible causes for the ponding on Lot 9 such as backflow from a drain known as Moors drain which was to the west of Lot 9. 11 Expert evidence was given on behalf of Mr and Mrs Anderson by Robert Neil Staniland, an engineer with substantial experience in hydrological projects. Dr David Keith Robinson, a civil engineer, who also had substantial experience in hydrological issues and projects, and Dr Joliffe, a water resources engineer, who had originally provided expert evidence for the Council, were called on behalf of Mr Muckle. The respondents called Donald Begg, a Council surveyor. Five lay witnesses provided affidavit evidence but were not required for cross-examination. There was also survey evidence relied upon by the expert engineers. 12 Cowdroy J under the heading "Findings" said: "41 Despite the inadequacies of the survey evidence as pointed out by Dr Robinson and Mr Begg, the Court accepts the evidence of Dr Joliffe and Mr Staniland relating to the ability of surface water on Lot 9 to move in an easterly direction across Lot 8. 42 The Court adopts the conclusions of Mr Staniland since he is the only expert who has made an inspection of the site during inundation which enabled him to observe the movement of surface water from Lot 9 across Lot 8. Mr Staniland said that no accurate conclusions could be drawn by Dr Robinson. Mr Staniland agreed with Dr Robinson that there was no discernible slope at the site. Nevertheless, Mr Staniland observed that Dr Robinson was able to conclude that there was a surface drainage flow towards the south. 43 The Court therefore concludes that on the balance of probabilities the presence of fill on Lot 8 has affected the drainage of water from Lot 9 by impairing and obstructing the natural flow of surface water in a general direction across Lot 8 to Lot 7. 44 Such conclusion is consistent with the evidence given by the lay witnesses Mr Cox and Mr Hutchison. The Court accepts that their observations corroborate those of Mr Anderson. The Court prefers these observations to the observations of witnesses called by the respondents since they emanate from the previous owner of the land and the personal observations of fifty years." 13 His Honour next turned to consider the meaning of condition 3 and in particular the meaning of the expression "water drainage system". "45 The expert evidence suggests that the term 'system' as an element of the phrase 'water drainage system' implies an organised method of drainage and would not include the surface flow of water as part of a water drainage system. 46 However, it is the function of the Court to construe the terms of the consent, which does not require the application of specialist terminology. Accordingly, the construction of the term 'water drainage system' in the consent is not a matter for opinion evidence because an 'over-technical approach to the meaning of the language used in conditions attached to permits and approvals is, as a general rule, not called for' (see Wollongong City Council v Australian Iron & Steel Pty Ltd (1988) 67 LGRA 51 at 56 per Holland J and the authorities referred to therein: see also Willoughby City Council v Sydney Water Corporation [1999] NSWLEC 131 at par [10] and Leichhardt Municipal Council v Gillespies Cranes Nominees Pty Ltd [1998] NSWLEC 71 at par [18] per Lloyd J). 47 The Court accepts the observations of Dr Joliffe that the term 'water drainage system' is not necessarily confined to a narrow channel and that the interpretation of the term 'water drainage system' should be construed according to the circumstances in which it is used. The Court accepts the submission of the applicant that condition 3 was intended to impose an obligation on the respondent to maintain the existing manner of water drainage for the surrounding land. The Court finds that the south-easterly flow of surface water as a means of drainage of Lot 9 is part of a 'water drainage system' within the meaning of condition 3. 48 Since the evidence establishes that the fill has altered, and therefore interfered with the system of water drainage, the Court finds that condition 3 has been breached. The breach is both present and continuing for the purposes of relief pursuant to s124 of the EP&A Act (see Winn v Director General of National Parks and Wildlife and Ors [2001] NSWCA 17 at par [99] and par [101] per Spigelman CJ)." 14 When he came to determine in his first judgment what relief should be granted, Cowdroy J in para 50 said he accepted a course Dr Joliffe suggested that the boundary drain be deepened and widened and the Council drain "on the southern side of Lot 8" also deepened and widened to restore the drainage of water from the area. This was a more practical solution than removal of all of the fill on Lot 8. 15 In his second judgment of 30 November 2001, his Honour dealt with relief as follows: "2 The Court was assisted by the view. Fill had been introduced onto Lot 9 to establish the house and a substantial shed on Lot 9, and small piles existed near the boundary. Despite the introduction of such areas of fill on Lot 9 there appeared to be a general slope from the southern portions of that lot which would cause overland flow towards the north and north east as was observed by Mr Staniland and confirmed by Dr Joliffe. The view also explained the evidence that fill on Lot 8 ('the fill') would act as a dam and cause overland water flow draining to the north east from Lot 9 towards Lot 8 to bank up against such fill and cause a greater level of inundation on Lot 9 than hitherto existed. 3 The applicant maintains that a substantial portion of the fill should be removed as recommended by Mr Robert Neil Staniland. If implemented, his recommendation would result in a small portion of fill remaining on Lot 8 which would occupy less than one third of the site in the northern portion of such lot. 4 The respondent submits that no order should be made requiring the removal of any fill from Lot 8. The respondent relies upon the fact that Lot 9 was always flood prone and subject to periodic inundation. The respondent claims that the placement of fill has only had the effect of delaying the drainage of water from Lot 9 rather than creating a flood condition upon the site. 5 Dr Joliffe did not consider it necessary to remove most of the fill from Lot 8. He believed that the flooding experienced on Lot 9 would be alleviated if, as stated in para [50] of the Court's judgment delivered on 25 October 2001, the existing drain between Lots 8 and 9 were deepened by 200mm and widened by 5m, and extended along the northern and southern boundaries of Lot 8. Dr Joliffe marked his proposal on a plan of the site which was tendered in evidence as Exhibit 'G'. 6 The Court considers that Dr Joliffe's proposal should be implemented. In this way the exacerbation of inundation affecting Lot 9 caused by the fill will be alleviated and the development on Lot 8 rendered compliant with condition 3 of Development Consent D14/96 issued by the council. 7 The Port Stephens Council is not a party to these proceedings and accordingly the Court can make no orders affecting it. However, the Court observes that the site, being low-lying and flood prone, is sensitive to water drainage. The problems experienced by the parties would be alleviated if the existing drainage system comprising of culverts and drains in the vicinity of Salt Ash Avenue and Richardson Road is maintained in a viable state or improved." 16 The respondents concede that Cowdroy J's suggestion in para 5 of the second judgment that Dr Joliffe believed that to alleviate the flooding the boundary drain should be deepened by 200mm was mistaken. 17 Dealing with costs his Honour said: "8 The Court has heard each of the parties submissions on costs. The Court considers that the usual principle should apply, namely that the successful party be compensated for the costs it has incurred in the proceedings (see Oshlack v Richmond River Council (1998) 193 CLR 72 at 87 per Gaudron and Gummow JJ; at 120-122 per Kirby J). There are no reasons for the Court to exercise its discretion otherwise than in accordance with such principle, except for the costs of the motion to join the Port Stephens Council and any costs incurred by the applicant in its claim against the Port Stephens Council which was abandoned during the hearing. Such costs are to be borne by the applicant." Evidence 18 The hearing before Cowdroy J ran initially for five days of which four were devoted to oral evidence from the parties and expert witnesses. Cowdroy J summarised the expert evidence. That summary demonstrates that whereas Mr Staniland thought that surface water drained from Lot 9 to the east across Lot 8 to Lot 7 and that fill on Lot 8 had the effect of damming the natural flow path which was the cause of ponding on Lot 9, Dr Robinson considered that the flow of surface water across Lot 8 was from north to south and the flow of water across Lot 9 was southerly in the general direction of the south-east corner of Lot 9 and Dr Joliffe concluded that there would most probably have been surface water flow from Lot 9 across Lot 8 towards the north east where water would have ponded. Mr Staniland's evidence was challenged because his conclusions were based upon spot levels measured, on Lot 9, in a survey undertaken by Council staff in about April 1997 and, on Lot 8, in a survey prepared in 1992 by a firm called Geospectrum using aerial photography. 19 Mr Begg supervised the 1997 Council survey of the respondents' land. Under cross-examination by Mr Muckle's counsel, Mr Begg said that the main purpose of the detailed survey was to identify physical features on the ground and show the relationship between those physical features and property boundaries. Usually spot levels are deduced from observation at the same time as the position of the feature is located. Mr Begg agreed that if he had been asked to prepare a survey for the purpose of determining flow lines there probably would need to be additional pieces of information. He agreed that the survey was inadequate for the purpose of determining detailed flow lines. He also said that there would not be a great deal of flow over Lots 9 and 8 and a small variation could cause localised differences in where water would flow. He was asked whether he agreed that on land which was as flat as the land in question very small variations in levels would change the height relationship between any two given points. Mr Begg said that each point that was taken was taken at a very precise point on the ground and within a very small radius of a matter of a metre. There could be variations in what the level would be within that small radius. He further said that if he had been asked to prepare a survey for the purpose of being able to determine flow lines, he would have prepared a proper contour survey. Under further cross-examination Mr Begg said that on any given point of the survey there would be a margin of error of plus or minus 5 cms. 20 Dr Robinson said that the site was virtually level and that survey data relied upon by Mr Staniland was inadequate to enable any conclusion to be drawn that there was a flow of water from west to east across Lot 9 into Lot 8. Further, he did not consider that the survey data showed any drainage system across Lot 9 onto Lot 8. 21 Dr Joliffe relied upon a survey plan annexed to an affidavit prepared by Martin Alexander Connor on 14 July 2000. That would seem to be the report of Mr Connor submitted with Mr Muckle's application to modify the development consent in July 2000, but this is not clear. In the body of his report Dr Joliffe refers to a survey plan attached to the affidavit of Mr Connor, "reportedly pre-filling", which was not otherwise identified. Dr Joliffe said: "These levels tend to suggest that surface water probably found its way across Lot 8 from the western boundary, toward the north eastern corner of the lot. Water discharge from this location would have been by way of evaporation, infiltration and surface flow through the culvert through Salt Ash Avenue. Therefore we conclude that there would most probably have been surface water flow from Lot 9 across Lot 8 toward the north east where water would have ponded." 22 What was significant was the evidence of the lay witnesses, Mr Cox and Mr Hutchison, whose observations his Honour accepted as corroborating the observations of Mr Anderson. As I have said none of the five independent lay witnesses who made affidavits which went into evidence was required for cross-examination. The parties were content to leave it to the trial Judge to determine, in the case of inconsistency, which of those witnesses he would accept, without hearing them give evidence. No basis has been shown for interfering with his Honour's preference. That being so, there is no basis upon which it is open to this Court to interfere with the finding that surface water on Lot 9 could move in an easterly direction across Lot 8 or that the fill on Lot 8 would affect the drainage of such water from Lot 9 by impairing and obstructing the natural flow of the water in a general direction across Lot 8 and Lot 7. 23 Cowdroy J referred to Mr Begg's evidence that the adjustments made of the Council survey by Mr Staniland was inappropriate and accepted that such adjustments could not be relied upon for the preparation of an accurate survey of Lots 9, 8 and 7. "However the Court notes that such adjustments were made by Mr Staniland only for the limited purpose of Exhibit A and that the survey readings remain valid, even though no contour survey exists. The Court is satisfied that adjustments to the survey data shown on Exhibit A do not detract from Mr Staniland's conclusions." 24 His Honour also observed that whilst Dr Joliffe was "cautious to say" that the survey points did not show any discernible flow channels he was nevertheless satisfied that there was sufficient evidence to support the conclusion that a flow of water did exist from Lot 9 to Lot 7 prior to the introduction of fill on Lot 8. Relief 25 In the first judgment, Cowdroy J accepted Dr Joliffe's proposal that by deepening the boundary drain by 200mm and widening it by 5m and deepening the Council drain on the southern side of Lot 8 and widening it by the same dimensions, the drainage of water from the area would be restored. 26 As I have already pointed out the respondents concede that, properly understood, it was not part of Dr Joliffe's proposal that the boundary drain be deepened by 200mm. 27 Mr J E Sexton SC, who appeared for Mr Muckle on the appeal, pointed to evidence which shows that the constraint on the effectiveness of the boundary drain was not its depth or dimensions but the capacity of the downstream drains in Salt Ash Avenue and Richardson Road. As Cowdroy J acknowledged, in the absence of the Council as a party, no order could be made requiring any change of the dimension of Council drains. To avoid this problem Dr Joliffe marked Exhibit G to show the proposed drains on the north and south but within Lot 8 and running east from the boundary drain as the solution. But the argument went that such drains take the water no further than their length and therefore achieve nothing. Dr Joliffe, shown photographs, said in evidence that it would appear that the common boundary drain was substantially assisting water to drain away from Lot 9. 28 In re-examination, Dr Joliffe gave the following evidence: "Q. Is it or is it not the case in your opinion Doctor Joliffe that it is possible that the drainage of ponded water from lot 9 comprising drainage along the boundary drain and then to table drains along Salt Ash and Richardson Roads, may in fact amount to a drainage system with more of a capacity than – or a drainage system which has more of a capacity than what overland flow there might previously have been across lot 8? …. A. Yes I can. Under certain conditions, namely that water can discharge through the pipe under Salt Ash Avenue, I would expect that provision, and assuming that the 5 metre wide area I showed before was excavated to approximately 200 mills [sic] deep, the same depth as existing common boundary drain, then I would expect that it is possible under some conditions that the drainage system could be improved from what it was prior to filling of lot 8. Q. So your answer is predicated on those measures being taken which you've indicated? A. Yes your Honour and also that water can discharge from the north – the drain on the north side of Salt Ash Avenue into Moor's drain. If that cannot occur, then I don't believe that there's any substantial betterment that can be achieved for lot 9." 29 The long and the short of this is, so it is urged on behalf of Mr Muckle, that the order proposed by Cowdroy J even if, as the respondents agree, amended so as not to require any deepening of the boundary drain would serve no purpose and accordingly should not have been made. Mr Fraser of counsel, who appeared for the respondents, could do no more than suggest that the additional drains along the north and south boundary on Mr Muckle's land might provide some additional damming facility. But this was not Dr Joliffe's intention. Grounds of appeal Ground 3 of Mr Muckle's grounds of appeal was that the trial Judge ought to have found that, upon its proper construction, the expression "water drainage system" in condition 3 of the development consent did not include the surface flow of water. A good starting point to considering this ground of appeal is Gartner v Kidman (1962) 108 CLR 12, a case apparently not brought to Cowdroy J's attention by either party. In that case the defendant erected on his land barriers that prevented the escape of water from the plaintiff's land with the consequence that a considerable area of the plaintiff's land remained under water in wet seasons. In his judgment at 49 Windeyer J, with whose reasons and conclusion Dixon CJ agreed, [the third member of the Court, McTiernan J, came to the same conclusion but expressed his own reasons], stated the following propositions about surface waters which have come naturally upon the land from which they flow. He said that although the lower proprietor had no action against the higher proprietor because of the natural unconcentrated flow of water from his land, the lower proprietor was 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." 30 On the other hand, the lower proprietor must not act for the purpose of injuring his neighbour. Whether or not the lower proprietor has used reasonable care and skill and does no more than is reasonably necessary to protect his enjoyment of his own land depends upon the circumstances of the case. 31 By force of s76 of the EP & A Act in its then form, Mr Muckle was prohibited from carrying out development by way of filling his land without the consent of the Council. Ignoring the conditions, the effect of the grant of consent was to enable Mr Muckle in a particular way to do something which the common law would have permitted him to do even though the filling created a barrier to and penned back surface water coming on to his land from Lot 9. It is in this context that condition 3 must be understood. 32 In Gartner Windeyer J distinguished between a natural watercourse and the movement of water not so confined. In doing so, his Honour referred at 36-37 to Farnham on the Law of Waters and Water Rights (1904) [an American text] Vol III, pp 2556, 2554 and 2555. He quoted these passages: "It has been seen that a watercourse is a stream of water of such well-defined existence as to make its flow valuable to the owners of land along its course. A pond or lake is a permanent body of water located on the surface of the earth, and having no current or other characteristics of a watercourse. To these bodies of water riparian rights attach. But when water appears upon the surface in a diffused state, with no permanent source of supply or regular course, and then disappears by percolation or evaporation, its flow is valuable to no one, and it must be regarded as surface water, and dealt with as such." "It has been seen in a former chapter that the owners of land bordering on flowing streams and on permanent ponds and lakes have certain rights because of their location, which constitute a species of property, and which cannot be interfered with by other individuals, or the public. These rights do not attach to water known as surface water; and the primary reason for distinguishing between the two classes of water is to determine whether or not the riparian rights have attached to the particular water in question. If the water is found to be surface water, the question may arise as to the right of the person on whose property it is found to get rid of it. This raises the question of drainage, which is entirely distinct from any of the questions arising with respect to ponds and living streams. With the exception of a few states, the principal rules with respect to drainage of surface water from the land are uniform and well-settled. There is no right on the part of one landowner to drain the water from his land over that of his neighbour without the latter's consent. This rule prevents the gathering of water into a body and casting it onto the lower owner, or collecting it in artificial ditches for that purpose, or changing the course of drainage. There is one point, however, at which there is a sharp conflict between the courts of the respective states, and that is upon the question whether the natural depressions along which the water has been accustomed to flow must be kept open to permit the continued flow of the water, or any landowner may ignore and close them at his pleasure." 33 These passages explain what is meant by surface water, that is to say, water which appears on the surface of the earth in a diffused state with no permanent source or regular course and then disappears by percolation and evaporation. It has been elsewhere described as "water which flows over the ground discontinuously without reference to a defined channel and with no visible banks or margins"; A S Wisdom, Water Rights (1969), Oyez Publications at 27. See also, A S Wisdom, The Law of Rivers and Watercourses 4th ed (1979), Shaw & Sons Ltd at 5-6 where there is reference to "water which squanders itself over an undefined area, such as surface water the supply of which is casual and its flow following no regular or definite course". 34 Windeyer J dealt with an argument that the defendants had no right to defend themselves against a flood which flowed from their land on to the plaintiff's land by quoting from Baron Bramwell's observation in Nield v London & N W Railway (1874) LR 10 Ex 4 at 7: "That is an argument which I cannot understand; the flood is a common enemy against which every man has a right to defend himself." 35 Mr Anderson gave evidence that the last time the respondents were flooded he could see the water running from west to east into the depression. However before Mr Muckle's land was filled he saw "sheet water" which used to travel from west to east. Movement of surface water in such a way is the antithesis of a natural watercourse and, more importantly, a "water drainage system". "System" denotes "1 a whole composed of parts in orderly arrangement according to some scheme or plan"; The Shorter Oxford English Dictionary (1973). The order may be a natural order such as a river system but it must have a degree of orderly arrangement. 36 There was no common ground about the nature of the flows in the present case. None of the experts called was able to delineate a flow pattern except in the most general way, such as "towards the north east", the result in some cases of attempts to find in the flat land, levels that differed by a few centimetres and draw contours from such material. Some of the levels relied on were only accurate within tolerances of plus or minus 5cms. If one takes account of the meaning, in this context, of surface water and the commonplace fact that water tends to move from any level at one point to a lower level at another point, such movement of surface water is not comprehended by the expression "water drainage system". In my opinion, the person who drafted condition 3 was concerned with natural or artificial watercourses used for the purpose of the drainage of water including surface water. 37 Mr Muckle carried out the work approved by the 1996 consent. Inevitably filling his flat land to a depth of approximately 900mm would obstruct any surface water which tended to flow from Lot 9 across Lot 8 towards Lot 7. It was Mr Muckle's common law right to obstruct that flow for the purpose of improving the use of his land subject only to obtaining the consent of the Council. This he obtained on conditions which included condition 3. It would be surprising if, by carrying on the extensive filling work consented to, he would be in breach of a condition of the consent simply because the work resulted in the obvious, namely some obstruction of the flow of surface water. With respect the submissions put by the respondents which conform with the trial Judge's conclusion tend to ignore the place of the word "system" in condition 3 and would have the condition read as a prohibition on obstructing any water drainage. "System" is a significant part of the condition and works sensibly. Furthermore, it acknowledges Mr Muckle's common law rights. 38 In my opinion, to the extent that the placement by Mr Muckle of fill on Lot 8 obstructed the flow of surface water from Lot 9 it did not obstruct "any water drainage system" within the meaning of condition 3. Accordingly, the appeal must be upheld, Cowdroy J's orders set aside and the proceedings before him dismissed with costs. Other grounds of appeal 39 What I have said upholds grounds 1 to 3 of Mr Muckle's notice of appeal. The remaining grounds are concerned with his Honour's findings of fact in relation to the flow of water from Lot 9. It is, I think, unnecessary for me to say more about this than I have already said. This Court cannot interfere with his Honour's findings based upon the observations of Mr Anderson and two lay witnesses. If this be so, it is not necessary to pass upon the problems faced by experts in measuring or calculating the nature of the flow. Those grounds of appeal which deal with the relief granted need not be determined. However, I am not at present persuaded that the trial Judge's order for work to be done even in its agreed amended form would have served any purpose in dealing with the problem the respondents complained of. Orders 40 I propose the following orders: 1. Appeal allowed; 2. Set aside orders 1 and 2 made by Cowdroy J on 30 November 2001; 3. In lieu thereof order that the proceedings be dismissed with costs; 4. The respondents to pay the appellant's costs of this appeal but to have a certificate under the Suitors' Fund Act 1951 if so qualified. 41 GILES JA: I agree with Sheller JA. 42 DAVIES AJA: I agree with Sheller JA. ********** 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.