New South Wales Supreme Court CITATION : Micallef v Galea [2001] NSWSC 984 CURRENT JURISDICTION: Equity FILE NUMBER(S) : SC 2073/00 HEARING DATE(S) : 23, 24, 26 & 30 April, 8 June 2001 JUDGMENT DATE : 5 November 2001 PARTIES : John Micallef and Vicki Micallef (P) Frank Galea and Violet Galea (D) JUDGMENT OF : Austin J COUNSEL : J Armfield (P) M Gorrick (D) SOLICITORS : Shaddick Baker & Paull, Richmond (P) John J Paine Ross & Co, Windsor (D) CATCHWORDS : TORT - nuisance - negligence - plaintiffs alter use and contour of land, affecting water flow to defendants' land - defendants build up their driveway thereby preventing water flow to their land - whether defendants' action a reasonable measure for protection of their land Comserv (No.1877) Pty Ltd & Anor v Wollongong City Council [2001] NSWSC 302 Elston v Dore (1982) 149 CLR 480 CASES CITED : Furness v Clark (1971) 1 SASR 359 Gartner v Kidman (1962) 108 CLR 12 Sedleigh-Denfield v O'Callaghan [1940] AC 880 DECISION : Proceedings dismissed IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION AUSTIN J MONDAY 5 NOVEMBER 2001 2073/00 JOHN MICALLEF AND VICKI MICALLEF V FRANK GALEA AND VIOLET GALEA Judgment HIS HONOUR : The properties 1 The plaintiffs are the owners of a property known as "Alandale", 148 Yarramundi Lane, Agnes Banks. They purchased it from Mr and Mrs Wilson in 1988. The property was used principally as a citrus orchard, with some pecan trees, until 1998. The plaintiffs now carry on business principally as market gardeners there. Most of the citrus trees and the pecan trees were removed in 1998, in circumstances that I shall describe. 2 The defendants are the owners of the adjoining land, 128 (sometimes called 123) Yarramundi Lane. They acquired their property in 1986, and shortly afterwards they cleared the land of citrus trees and established a market garden. Subsequently they reached an agreement with their neighbour on the opposite side to the plaintiffs' land with respect to drainage, and they constructed drainage channels on their land and their neighbour's, causing rainwater to flow towards Yarramundi Lane just below their common boundary. 3 The plaintiffs' and defendants' properties are approximately rectangular, although the rear boundaries, near the river frontage, are irregular. Yarramundi Lane runs along the south-eastern boundary of each of the two properties, and the Hawkesbury River is roughly parallel to the Lane, at the back of the two properties. No 148, the plaintiffs' property, is to the southwest of No 128, the defendants' property. The land slopes generally from the south-west to the north-east. Care must be taking into evaluating the evidence of some of the witnesses, and the evidence observed during the view on 23 April 2001, because imprecise compass directions have been used from time to time. 4 There is an unsealed driveway running parallel to the boundary between the plaintiffs' and the defendants' land, on the defendants' side, from Yarramundi Lane to the defendants' house. It is about 200 metres long. 5 The parties agree that the plaintiffs' land is generally higher than the defendants' land. During storms, surface water passes in a north-easterly direction through the plaintiffs' and defendants' properties, along a natural drainage depression. Some run-off is collected in a collection pond on the plaintiffs' land, which the plaintiffs constructed after they converted the main use of the land to a market garden. 6 Mr McKinlay, a registered surveyor engaged by the plaintiffs, undertook a survey of levels and details at the two properties in July 2000 and prepared a plan, showing an area of inundation on the plaintiffs' property. It is an area of approximately 4,200 sq m, of roughly triangular shape, widest at the boundary, jutting into the plaintiffs' land roughly one-quarter of the way along the boundary from Yarramundi Lane. The proceedings 7 It is evident that Mr Micallef and Mr Galea dislike one another intensely. They are both strong-minded, even stubborn men. Mrs Micallef strongly supports her husband's stance. No evidence was given by Mrs Galea, but there is nothing to indicate that she would wish or be able to take the role of peacemaker. In these circumstances, since they are neighbours, conflict between the Micallefs and the Galeas was probably inevitable. 8 In October 1999, the defendants deposited four to six truckloads of roadbase on their driveway, which runs along part of the boundary between the defendants' land and the plaintiffs' land. The plaintiffs commenced the present proceedings, contending that the deposit of the roadbase had the effect of raising the level of the defendants' land and altering the natural water flow between the two properties. Consequently, they say, stormwater, which had previously drained from the plaintiffs' land onto the defendants' land, instead forms ponds on the plaintiffs' land and inundates it in times of wet weather. 9 The plaintiffs assert that by depositing the roadbase on the driveway, the defendants committed an actionable nuisance, or a breach of their duty to exercise reasonable care to ensure that any works that they might carry out on their land would not cause damage to the plaintiffs' land. They were negligent, according to the plaintiffs, in failing to construct a pipe under the driveway, or a depression in the driveway, to enable water to flow from the plaintiffs' land onto the defendants' land, and in failing to take any other steps to make provision for the water to continue to flow from the plaintiffs' land onto the defendants' land, and in ignoring demands by the plaintiffs to remove the roadbase and to restore the level of the driveway to its natural level. 10 The plaintiffs claim a mandatory injunction to require the defendants to carry out such works as may be necessary, or those the Court may specify, in order that the driveway and defendants' land ceases to constitute a nuisance, an injunction to restrain the defendants from placing any more roadbase or other material on their driveway, and damages (principally for damage to their crops). I should note immediately that the evidence of damage was very sketchy, and the case proceeded on the basis that it would be necessary to conduct an inquiry as to damages if the plaintiffs were successful in establishing liability. I should also note that the cost of carrying out work to remedy the problem, if a mandatory injunction were granted, would probably be less than $1000, for all that would be needed would be the lowering of section of the driveway some 15 m wide, by either 80 mm (according to the defendants' expert) or 200 mm (according to the plaintiffs' expert). 11 The defendants claim that, during the period 1996 to 1999, the plaintiffs made extensive changes to the uses of their land. They undertook major excavation work, including work to level and change the contours of their land and to establish open drains. The defendants say that in 1998/1999 the plaintiffs levelled and filled a hollow of about 2-3 acres in their land, the hollow previously having been below the level of the defendants' land. Further, the defendants say that in 1998 the plaintiffs demolished an embankment which ran along the boundary between the plaintiffs' and the defendants' land. 12 According to the defendants, the effect of these various activities has been to alter the way in which the water flowed and drained from the plaintiffs' land. The defendants admit to having place roadbase on their driveway, raising the level of their land accordingly. They say that the effect of placing roadbase along the driveway was to restore the level of the driveway to the level of the embankment which had previously run along the boundary, in effect restoring the embankment that had been removed by the plaintiffs in 1999. They say that the water flow from the plaintiffs' to the defendants' land is not a natural watercourse because the water flows through the drains constructed by the plaintiffs. They say that water, which naturally flowed into the hollow on the plaintiffs' land, cannot now do so because the plaintiffs have filled it in. In the circumstances, they contend that the placement of the roadbase on their driveway was a reasonable step taken by them to protect their enjoyment of their own land. The law 13 The issues between the parties are issues of fact. There is no significant dispute as to the applicable principles of law. So far as the law of nuisance is concerned, the relevant principles were summarised by Windeyer J (with whom Dixon CJ agreed) in Gartner v Kidman (1962) 108 CLR 12, at 47-49 (see also Furness v Clark (1971) 1 SASR 359). I am content to proceed on the principle which counsel for the plaintiffs formulated as follows: "If the plaintiff proves that he has suffered damage by increased flooding of his land brought about by an action of the defendant, he is entitled to succeed in an action for nuisance unless the defendant proves that his action amounted to a natural or a reasonable use of his own land or a reasonable measure of protection of it." 14 The plaintiffs do not, as I understand their case, assert rights in the nature of riparian rights, and the evidence does not suggest that the flow of water from the plaintiffs' to the defendants' land was a "watercourse" or "natural watercourse" (cf Gartner's case at 26-27 per Windeyer J). This case is about stormwater run-off collected in drainage depressions, rather than water flowing through a channel consisting of a bed, banks and a stream. Clearly stormwater run-off is a serious problem for market gardeners, and a particularly difficult one for the plaintiffs and the defendants because of the natural drainage depression affecting their respective properties. 15 In Gartner's case Windeyer J made it clear (at 47-49) that where landholders are the owners of contiguous properties, one of which is on a higher level than the other, the lower landholder is not subject to any "natural servitude" to receive surplus water from the higher landholder without obstruction. The question is whether the lower landholder has engaged in some conduct which has caused damage (typically by flooding) to the higher landholder, which was not a natural or reasonable use of the lower landholder's land or a reasonable measure of protection of it: see also Knezovic v Shire of Swan Gilford (1968) 118 CLR 495; and generally, Derham, D, "Interference with Surface Waters by Lower Landholders," (1958) 74 LQR 361. 16 It is unnecessary, for the purpose of deciding the present case, to analyse the facts and decisions of reported cases. Although counsel bravely made some submissions based upon the facts of such cases as Elston v Dore (1982) 149 CLR 480 and Sedleigh-Denfield v O'Callaghan [1940] AC 880, and also Comserv (No 1877) Pty Ltd v Wollongong City Council [2001] NSWSC 302, I find the factual determinations in those cases of no direct assistance to me here. The principal question for me is whether the defendants' action was reasonable in the circumstances of the present case, in the sense explained by the authorities. 17 The defendants claim that it was reasonable for them to build up the roadbase on their driveway to stem the excessive flow of stormwater onto their land, so as to minimise the adverse impact of the water on their crops. In Elston v Dore the majority of the High Court (at 488) adopted, as "the proper test to apply in most cases", the following statement by Lord Wright in Sedleigh-Denfield v O'Callaghan (at 903): "It is impossible to give any precise and universal formula, but it may broadly be said that a useful test is perhaps what is reasonable according to the ordinary uses of mankind living in society, or more correctly in a particular society." Their Honours continued: "although the wide and uncertain boundaries of the law of nuisance include cases in which negligence in the narrow sense is not essential, fault of some kind is almost always necessary. In the present case the action of the respondent was deliberate, but in our opinion it will only have been wrongful if it was not reasonable in the sense to which Lord Wright refers." Agreement as to factual issues 18 The parties have reached a limited agreement as to the factual issues that need to be determined. In their agreed statement of issues, they formulated the following questions: 19 Have the acts of the plaintiffs had the effect of concentrating the flow of surface water from the plaintiffs' land onto the defendants' land? · Did the deposit of road fill alter the level of the plaintiffs' land so as to stop the surface water coming onto the defendants' land with the consequence that the plaintiffs' land has suffered increased flooding? · Did the alleged embankment or driveway alter the natural flow of surface water so as to stop surface water coming from the plaintiffs' land onto the defendants' land with the consequence that the plaintiffs' land suffered increased flooding? · Was the action of the defendants in either maintaining the embankment or alternatively placing the road fill a natural or reasonable use of the defendants' land or reasonable measure of protection so as to absolve them from responsibility for any damage caused to the plaintiffs? 20 I accept that these questions must be answered, but I have not found the presentation of them to be helpful, in terms of systematically determining the factual issues. It will be clearer, I think, if I proceed historically, by · considering the state of the two properties prior to 1997, and the nature of the water flow up to that year; · identifying the work done by the plaintiffs to their property in 1997-99 and its effect on water flow; · deciding whether the plaintiffs demolished an existing "embankment", or part of it, in 1998; and · ascertaining the effect of the laying of roadbase by the defendants on the water flow. 21 I shall then return to the agreed statement of issues for determination, and set out my answers to the questions raised by the parties, and reach my conclusions accordingly. 22 It is appropriate to note, before commencing the factual analysis, that a feature of this case has been the conflicting evidence of experts. There is no dispute about the evidence of Mr McKinlay, a surveyor engaged by the plaintiffs. But the defendants and their expert hydrologist, Dr Webb, challenge the geotechnical and hydrological evidence given on behalf of the plaintiffs by Mr Blinman and Mr Downes respectively. Having considered their reports and having observed them both in the witness box, I find myself generally favouring the evidence of Dr Webb over the evidence of Mr Downes. Dr Webb's evidence was clear and logical, and covered all relevant issues. I thought that Mr Downes did not deal adequately with the defendants' contention that additional water flow was caused by the plaintiffs' actions in 1997-99. I shall deal with their evidence in more detail later. 23 There was a meeting between Dr Webb and Mr Downes on 8 November 2000, leading to a statement of issues, matters agreed upon and matters not agreed upon. I shall refer to the statement, where appropriate, as the "Experts' Statement of Issues". The state of the properties before 1997 24 In his first affidavit, made on 1 June 2000, Mr Galea said there was an embankment about two feet high and about three feet wide running the entire length of the boundary between the two properties. His son Charlie, in his affidavit dated 20 June 2000, described a "levy bank" running from Yarramundi Lane all the way to the old farmhouse on the property, the height of which varied from approximately one metre to approximately half a metre. 25 Both of them said, in those affidavits, that there was a waterhole in a depression in the plaintiffs' land, estimated by Mr Galea to be about two to three acres in size, and by Charlie to be about three to four acres in size. Mr Galea did not regard the waterhole as permanent, but only as a pond holding excess water during times of heavy rain, which would eventually drain away. Charlie said the waterhole was to a depth of one to one and a half metres and, I infer, he regarded it as a permanent feature of the plaintiffs' land. 26 Mr Galea said that at times of light to moderate rainfall, rainwater would usually drain very quickly into the ground, but if rainfall was heavier than usual, water on the plaintiffs' land would be contained by the embankment and would run into the pond. According to his evidence, it was only during periods of very heavy rainfall exceeding about four inches (on average two or three times per year), that water gathering on the plaintiffs' land would breach the embankment and run onto the defendants' land. 27 In his affidavit of 22 April 2001, and his oral evidence, Mr Galea qualified his earlier evidence by saying that what he had described as an embankment two feet high and three feet wide may have been in various places less than that, and that by using the word "embankment" in his earlier affidavit he meant to describe a raised mound of earth. I found Mr Galea's oral evidence on this point quite unconvincing, but nevertheless the picture emerges from his evidence as a whole that there was a mound of earth of variable width along the boundary, quite low at one point and higher at other points. In my opinion the word "embankment" suggests a more substantial structure, and it would be better not to use the word here. 28 In his affidavit of 18 July 2000, Mr Micallef said that for about one-third of the distance along the common boundary, there was no embankment but the plaintiffs' property was about six inches higher than the defendants'. He said that about one-third of the way along the boundary from the Lane, the common boundary was flat for a distance of approximately 10 metres. As to the presence of a waterhole or pond, Mr Micallef said that water would pond on his land only for a few hours after heavy rain. Mrs Micallef said, in her affidavit of 17 April 2001, that there was no embankment at all along the boundary, and that she had never observed any ponding of water on the plaintiffs' property until the defendants raised the level of the driveway. Mr Camilleri, Mrs Micallef's brother, who worked as a market gardener in the area between 1988 in 1998, gave evidence that there was never an embankment on or near the boundary except for a raised area near the defendants' house, and he said that water would run off the plaintiffs' property within a day. 29 In my opinion, the photographic evidence annexed to Mr Galea's affidavit of 22 April 2001, which I accept as having been taken before the plaintiffs converted their property into a market garden, shows that there was a mound of earth running along the boundary, parallel to the driveway. It was at its lowest, but still visible, at the point where the water streamed across from the plaintiffs' land to flood the driveway, in photographs FG 1 and 2. The mound was a little higher back towards the Lane, and considerably higher further along the Lane towards the house. 30 I have reached this conclusion by observation of the photographs, with the assistance of the written and oral evidence as a whole, and in particular the evidence of Dr Webb in his report of 8 November 2000, which he bases upon his analysis of survey evidence. 31 This conclusion implies that I accept Mr Galea's revised evidence on the question of the "embankment", while rejecting his earlier evidence and the evidence of his son, and also rejecting the evidence of Mr and Mrs Micallef and Mr Camilleri. 32 As to the question whether there was a pond or waterhole in the drainage depression, I am not prepared to accept the evidence of Mrs Micallef and Mr Camilleri, which seems to me too categorical to be plausible, especially given the photographic evidence of the amount of water on the defendants' land in the 1989 flood. Mr Micallef's evidence was more plausible but I found him to be an unreliable witness, because he disclosed some relevant and important evidence only in the course of cross-examination. I refer to the facts that the plaintiffs constructed a collection pond on their land, and that Mr Micallef obtained a licence to draw water from the Hawkesbury River for irrigation on 18 May 1999, subject to various conditions including the condition that the licensee must not allow tailwater drainage to discharge onto any other person's land. Neither of these matters was mentioned by Mr Micallef in any of his affidavits. 33 The expert evidence to which I shall refer (including the 1982 photograph and the interpretation of it by all experts) leads me to conclude that there was a drainage depression on the plaintiffs' land, further away from the Lane than the collection pond which Mr Micallef later constructed, and that water flowed into that drainage depression at times of heavy rain, in all probability ponding there. Ponding also occurred, at times of heavy rain, adjacent to the low mound of earth that can be observed in photographs FG 1 and 2, since ponding can be observed in those photographs. 34 Neither Mr and Mrs Micallef, nor Mr Galea and his son, were able to give evidence as to the state of the properties before 1986. However, evidence on that subject was given by Mr Daryl Schofield. Mr Schofield has been, since 1968, part owner with his brother of the property adjacent to the plaintiffs' property, to the south-west - that is, on the opposite side to the defendants' land. From 1949 to about 1985 he also farmed property owned by his father, north-east of the plaintiffs' and defendants' land, several blocks away. In 1951 his father purchased a second block, and Mr Schofield lived there with his parents until he married in 1964. He said he regularly walked and rode a pushbike across the defendants' land during the period from 1950 to the early 1960s, when visiting a girlfriend who lived on the defendants land, and also a friend who lived on land further upstream. Since 1962, he said, he has travelled along Yarramundi Lane at least four times a week (though it emerged in cross-examination that he has not been on the defendants' driveway since 1986). He said that, therefore, he is familiar with conditions affecting properties along Yarramundi Lane as a result of rainfall, and has been for a long time. 35 He claimed that as long as he has owned his property, he has observed that during periods of heavy or frequent rainfall, water flows from a property situated two properties away from his property on the south-western side, through the property next-door to his, owned by Mr Gardiner, then sequentially through his property to the properties owned by the plaintiffs and the defendants, and Mr and Mrs Bugeja, who own the property adjacent to the defendants' to the north-east. He said that when the water reaches Mr and Mrs Bugeja's land, it changes course and flows onto Yarramundi Lane. 36 Mr Schofield said that he has never observed any embankment running along the boundary line between the plaintiffs' and the defendants' land immediately adjacent to the defendants' dirt driveway. He has observed a mound of dirt further along the driveway, between defendants' house and a shed, nowhere near the area where the present pooling of water occurs. 37 Mr Schofield also said that he has never seen ponding on the plaintiffs' land, prior to October 1999. He denied the defendants' claim that there was a large pond, two or three acres in size, near the eastern corner of the plaintiffs' land. He said that the area in question was occupied by citrus trees when the property was owned by the Wilsons, and if there had been continuous ponding the trees would not have been able to survive. 38 I have decided not to accept Mr Schofield's evidence, where it is contradicted by the evidence of Mr Galea. I formed the impression from observing him in the witness box that Mr Schofield is a supporter of the plaintiffs against the defendants, determined to give an account favourable to the plaintiffs. Earlier this year he sold them the property he owned with his brother, adjacent to the plaintiffs' property to the north-east. He is in the plaintiffs' camp. 39 Mr Schofield was cross-examined about some photographs taken by Mr Galea of the defendants' driveway and property. Evidently they were taken during heavy rain and flooding in 1989. Photograph FG 3 shows the defendants' property taken from the driveway, the photographer's back being turned to the plaintiffs' property. It clearly shows relatively deep ponding in the foreground, near the driveway, ponding interrupted by clods of earth in the middle distance, suggesting that the water was less deep, and in the distance, earth and greenery before the tree-line. Mr Schofield claimed that the flooding was caused by a back-up of water from Pugh's lagoon, a lagoon located beyond Yarramundi Lane, some distance from the tree line at the rear of the picture. That evidence is inconsistent with the observable facts, namely that the water is deepest in the foreground, shallower in the middle ground, and in the distance, between the flooding and Pugh's lagoon, there is greenery. It is also inconsistent with Mr Schofield's admission, later in cross-examination, that water flowed from the high properties across the plaintiffs' land and onto the defendants' land. 40 Mr Schofield initially said in evidence that there was no strip of green between the tree line and the flooded area in FG 3, although he acknowledged a strip of green at the top right corner of the photograph along Yarramundi Lane, which he suggested might be corn. Then he changed his evidence to say that there was a strip of green in front of the trees and to suggest it was the top of a corn crop. The overall impression was unconvincing. 41 Photographs FG 1 and 2 show water ponding on the plaintiffs' side of the driveway, overflowing over a low mound of earth in the middle distance, but not overflowing further along the driveway where the mound of earth parallel to the driveway is higher. Mr Schofield's evidence was that in the middle distance there was no mound of earth at all, only tufts of grass protruding through the water. In my opinion that is contradicted by what is observable from the photographs. 42 Mr Schofield also denied that the fixed watering system now used by the plaintiffs for their market garden uses more water than the travelling irrigator that had been used when the property was largely a citrus orchard. That is inherently implausible, in light of the other evidence in case. He said he did not know whether the plaintiffs had constructed any form of catchment to collect irrigation or tailwater after they converted the property from an orchard to a market garden (a fact admitted by Mr Micallef in cross-examination), and yet he claimed that he was able to observe other matters of considerable detail over the years. 43 Mr Schofield admitted that along the boundary lines between rural properties it is common for earth and grass and vegetation to build up and form a mound, but he claimed that he had never observed anything of that kind along the boundary line between the plaintiffs' and the defendants' properties. That evidence is contrary to what I observed during the Court's view of the property, which took place on 23 April 2001, when a mound was visible along part of the boundary line, but there was no mound along the part of the boundary line adjacent to the area where the defendants had built up their driveway by adding roadbase. 44 The defendants' expert, Dr Webb, attached to his report of June 2000 a series of historical aerial photographs. One of them shows the land in 1982. Dr Webb said that it was clear from this photograph that there has been a drainage depression running through the plaintiffs' and defendants' properties and further downstream since at least 1982. He said it was evident from the photograph that the low point was located further toward the river than the present low point. He drew attention to an area of sparsely distributed orchard trees, which he identified as the drainage depression. Mr Downes, the plaintiffs' expert, responded in his report of August 2000. He overlaid the contours from the 1982 aerial photograph on the most recent aerial photograph, and concluded that the present earth drain through the plaintiffs' property and the overflow path from the collection pond to the defendants' property were located approximately in the same position as the original drainage depression, and that the collection pond was approximately 16 m from the original drainage depression, towards the Lane. Dr Webb did not challenge these conclusions in his response of November 2000. I infer that the earthworks carried out by the plaintiffs in 1997-98 did not substantially re-locate the drainage depression, but rather they "formalised" it to the extent of constructing an open drain there. 45 In my opinion the true condition of the properties during the period from 1988 to 1996 is shown in photographs FG 1, 2 and 3. Citrus trees on the plaintiffs' land grew up to a few metres from the boundary. There was a mound of earth and vegetation approximately along the boundary line parallel to the defendants' driveway. In 1989 the mound was quite low at the point shown in the photographs, but the mound was still there, sufficient to retain water on the plaintiffs' land except at times of heavy rain. In the flood of 1989, water ponded on the plaintiffs' land under the citrus trees and between them and the mound at the boundary, where shown in the photographs, but there was so much flooding that the water flowed over the mound, across the defendants' driveway and onto the defendants' land, flooding it extensively. The work done by the plaintiffs in 1997-99 46 In 1997 the plaintiffs removed 35 acres of orange trees and 14 pecan trees from their property. They then used a tractor-like machine called a "scraper", to level the land and prepare it for growing vegetables. At the same time, they constructed open drains, to facilitate the growing vegetables. Mr Galea's evidence was that the plaintiffs undertook "major excavation work", and in particular that they deposited sand and soil in the depression in their land that had previously formed the waterhole or pond at times of high rainfall. In his affidavit evidence Mr Micallef denied this, and said that the machine simply cleared up the mess left by the removal of the trees. 47 It seems to me plain, even from the plaintiffs' written and oral evidence, that the earthworks undertaken after removal of the citrus trees were quite extensive. The levelling out the land after removal of mature trees would itself be a significant undertaking, requiring the moving of earth to fill the holes left by the trees. The construction of a new system of open drains would also be a substantial undertaking. The scale of the work was observable during the Court's view of the property on 23 April 2001. The photographs annexed to Mr Galea's affidavit of 1 June 2000 show the land totally flattened, something that would be achieved, after removal of trees, only by substantial earthworks. Mr Micallef's affidavit of 17 April 2001 also annexes some photographs, including one that shows his land, ploughed in furrows for growing market vegetables. 48 It seems to me a reasonable inference that in the course of those earthworks, any natural depression in the land would have been removed, and replaced by the "artificial" depression constituted by the open drain. But there is evidence on this subject, which should be considered before inferences are drawn. Mr Blinman, the plaintiffs' geotechnical expert, conducted some tests on the plaintiffs' land, after discussions with Mr Galea relating to the area of the plaintiffs' land which he claimed to have been filled. Mr Blinman dug six test pits within the area defined by Mr Galea. After analysing earth from the test pits, he concluded that the soils present across the plaintiffs' property were consistent and there was no evidence of filling in the area of the original drainage depression. 49 As Dr Webb pointed out in his report of November 2000, Mr Blinman's conclusion is consistent with Mr Galea's evidence that the drainage depression was filled by earth moved by the scraper from other parts of the plaintiffs' property. Mr Galea did not suggest that filling material was moved in from another place. It is therefore not surprising that sub-surface investigations did not reveal any significant differences in soil characteristics. 50 In my opinion, the evidence as a whole establishes that the drainage depression that had existed on the plaintiffs' land while it was an orchard was removed by the earthworks, and replaced by "artificial" drainage in the form of the open drain constructed at approximately the same place. 51 I turn next to the question whether the earthworks, and conversion of the plaintiffs' property from a citrus orchard to a market garden, increased the water flow from the plaintiffs' to the defendants' land. This is a controversial issue, between the parties and their respective experts. 52 Mr Blinman recognised the possibility that the change in land use may have contributed to the increased surface water at the site, but he dismissed this possibility on the ground that a similar problem would have been encountered on the other side of the defendants' property, but in his view no such problem had arisen. Apparently Mr Blinman was not informed that the drainage problem on the other side of the defendants' property was addressed by agreement between the neighbours, leading to the construction of drains to cause the water to run off towards Yarramundi Lane. Mr Blinman also said that Dr Webb had overstated the effect of the change in land use on increased run-off, though it seems to me that Mr Blinman's calculation still pointed towards a substantial increase. Mr Blinman appears to have been dismissive of the theory that change in land use had led to an increase in run-off because of his belief that no evidence had been given that extensive earthworks had taken place, nor that there was an increase in irrigation. Evidence on these matters is now before the court, and therefore the foundation of Mr Blinman's reasoning has been partly undermined. 53 In my opinion, the earthworks and the plaintiffs' new use of the land did increase the water flow at times of heavy rain. The plaintiffs urged me to give weight to the fact that the defendants did not complain about excess stormwater passing onto their land after the plaintiffs completed the earthworks and changed the use of their property, but before the laying of the roadbase. I do not believe it would be appropriate to place emphasis on that fact. As I have said, the relationship between the parties was already bad. Mr Galea is not highly literate and from my observation of him, he would not readily instruct solicitors to lodge a complaint of this kind. 54 Dr Webb and Mr Downes agreed that there was likely to be some increase in the volume of stormwater run-off from the plaintiffs' property as a result of changes to the land use, but whereas Mr Downes considered that the changes would not be significant, Dr Webb considered that they would be the primary cause of the drainage problem apparent at the property boundary. The issue is not easy one, but I have decided that I agree with Dr Webb's conclusion. Three factors lead me to this view. 55 First, the new drainage system facilitated the water flow down towards the defendants' property. In this respect I accept the evidence of Dr Webb, having observed him in the witness box and having listened to his answers in cross-examination. He described a "careful grading of the roads/drains to the low point near the defendants' boundary", which in his view resulted in water being collected and concentrated and hence conveyed downstream faster, with less chance to soak into the ground. He said that the concentration of the flow into these carefully graded paths had reduced the natural ponding in the small irregular depressions over the whole property that would have existed before. 56 Dr Webb's analysis was rejected by Mr Downes. Mr Downes pointed out that furrows had replaced the natural ponding that may have existed in the orchard, and since the furrows were perpendicular to the flow direction they would intercept and store surface run-off before allowing it to flow into the collection drains. He conceded that the drains might concentrate sheet flows and speed the flow of run-off, but he said that since the drains had flat gradients, flow velocities were slow. 57 In his response of November 2000, Dr Webb said that the furrows were themselves flow paths in many locations, directing water to the main drains. That statement corresponds with my observations during the Court's view. Dr Webb's conclusion on this point is plausible and I accept it. 58 Secondly, having converted to use of their property to a market garden, the plaintiffs installed a fixed watering system that watered the vegetables and, necessarily, the furrows between them, and used water more extensively than the travelling irrigator that was used while the property was a citrus orchard. Since the plaintiffs' property is now more extensively watered, there is less scope for absorption of excess rainwater. 59 Again, there was conflicting expert evidence on these matters. Dr Webb regarded it as a significant factor, drawing attention to the extent of the irrigation infrastructure on the plaintiffs' land, and asserting that a wetting of the soil horizon by 10 mm before heavy rain would increase run-off volumes by 30 percent. 60 Mr Downes said that to apply 10 mm of irrigation water to the plaintiffs' property would require the plaintiffs' irrigation pump to operate continuously for 8.8 hours, and therefore the assumption made by Dr Webb was unrealistic. 61 In response, using irrigation schedules supplied by the plaintiffs, and Dr Webb calculated that an average depth of 24 mm of rainfall was applied across the plaintiffs' property once a week in winter, and three times a week in summer, by irrigation. He concluded that the moisture content of the upper soil layer would typically be saturated and the potential for direct run-off during rainwater events would be high. He said that the excess irrigation water would gradually drain through the soil profile leading to a build-up of water in the lower depression area of the property, as could be observed on site. I accept this evidence. 62 Thirdly, the change of use the property from orchard trees to a market garden would affect the absorption of surface water. As Dr Webb observed, the orchard trees would have removed a lot of moisture by evapotranspiration. That evidence was not plausibly contradicted by expert evidence on behalf of the plaintiffs. 63 Finally I should mention two other things that happened before the defendants added roadbase to the driveway in October 1999. One was that the plaintiffs constructed a collection pond in the lower corner of their property near the boundary with the defendants' property, behind the remaining citrus trees that abutted the Yarramundi Lane boundary. As I have mentioned, it is a matter is some concern to me that the collection pond was not mentioned in the plaintiffs' affidavits, but only in cross-examination. Counsel for the defendants also criticised Mr Downes, for not mentioning the collection pond in his original affidavit. However, he dealt with it adequately in his longer report, and I therefore reject that criticism of him. The significance of the collection pond is that it tends to confirm that the plaintiffs found it necessary to deal with excess water on their land, before the defendants elevated the driveway. 64 Secondly, on 18 May 1999 Mr Micallef was informed that his application for a licence to draw water from the Hawkesbury River for irrigation had been successful. He said in cross-examination that he had used this licence to irrigate the plaintiffs' market garden. One of the conditions of the licence was that the licensee must not allow any tailwater drainage to discharge into any other person's land. It is hard to see how that licence condition would be satisfied if water were allowed to flow freely onto the defendants' land during rain, since there would at least be a risk that both stormwater and tailwater would flow across the boundary. On this point I prefer the evidence of Dr Webb to the evidence of Mr Downes, whose assertion that the collection pond would cope with all excess irrigation water did not properly take into account the effect of heavy rain. 65 The relevance of this is to reinforce my conclusion that the plaintiffs' altered use of their land has changed the circumstances under which water flowed across the boundary at previous times. That the elevation of the driveway prevented tailwater from river irrigation from flowing onto the defendants' land, in breach of a condition of Mr Micallef's licence, is relevant to the reasonableness of the defendants' conduct in altering the elevation of the driveway. Did the plaintiffs demolish an existing embankment in 1998? 66 In his affidavit of 1 June 2000 Mr Galea said that, one or two months after completion of the earthworks, he saw Mr Micallef in a tractor, to which a grader blade was attached, levelling the "embankment" on the boundary by pushing the raised earth back across the plaintiffs' land. Mr Micallef, in his affidavit of 18 July 2000, denied having demolished or levelled any embankment, while admitting that when he was using a tractor with a grader blade to prepare his land to plant crops, the tractor encroached onto the defendants' property by a few inches during a turn. 67 It was apparent from inspection of the property on 23 April 2001 that there was, at that time, no mound along the boundary adjacent to the area where the defendants had laid roadbase to raise the level of the driveway. The photographs taken during the 1989 flood show a low mound, substantial enough to affect water flow, along the boundary in that area. Something must have happened to remove that low mound. In response to Mr Galea's allegation that Mr Micallef flattened the low mound by using a tractor with a grader blade, Mr Micallef admitted that the tractor with a grader blade encroached onto the defendants' property, evidently in the same area. It seems to me a reasonable inference, taking the evidence (including my observations of the witnesses in the witness box) a whole, that Mr Micallef did in fact flatten the low mound of earth in that area by using a tractor with a grader blade, although this may have occurred while he was executing turns during the preparation of his property for planting. 68 Clearly the levelling of the low mound facilitated the flow of water from the plaintiffs' to the defendants' property. It must have been obvious to the plaintiffs as well as the defendants that, given the increased flow of water consequent upon the plaintiffs' earthworks, removal of the low mound of earth would ensure that water would career from the plaintiffs' to the defendants' land, as soon as there was heavy rain. The effect of the laying of roadbase on water flow 69 Mr Galea says that shortly after he saw Mr Micallef demolish the "embankment", he built a post and wire fence along the boundary. There is evidence, conflicting to some extent, about an argument between Mr Galea and Mr Micallef, while Mr Galea and his son were building the fence. I doubt that either of the competing versions of the conversation is completely accurate, but it is unnecessary for me to resolve the matter. 70 Shortly after the fencing had been completed, in October 1999, Mr Galea arranged for about four to six 15-tonne loads of roadbase to be distributed along the driveway, and he then levelled it. Mr Galea said in evidence that, after the roadbase had been laid, the driveway was the same height as the embankment had been before it was demolished by Mr Micallef. 71 Mr Blinman inspected the site and interviewed Mr Galea, as well as Mr Micallef, in July 2000. He reported that the driveway had a rutted surface, and that the first 82 m of the driveway, measured from Yarramundi Lane, had a soil surface, and the following 118 m had a roadbase gravel surface consisting of rotor-milled asphalt and basalt roadbase gravels. For the first 110 metres from the Lane, the driveway surface was about 300 mm below the surface of the plaintiffs' land immediately adjacent to it, and was about 300 mm above the defendants' land on the opposite side of the driveway. At a point about 110 metres from the Lane, the surface of the driveway became level with the plaintiffs' land but remained higher than the defendants' land. At about 116 metres from the Lane the driveway rose to be about 300 to 400 mm above the plaintiffs' ground level. This level was maintained until about 188 m from the Lane, where the driveway surface against fell to be about 300 mm below that of the plaintiffs' land. 72 Mr Blinman excavated six test pits, to ascertain the depth of the roadbase on the driveway. He found that in one of the test pits, and located about 143 m from the Lane, the depth of the roadbase was 410 mm, with an additional 70 mm of gravelly soil fill, although at other points the depth of roadbase ranged from 60 to 180 mm. He saw this data as pointing to "the infill of a broad depression along the driveway alignment with road imported base gravels". 73 There can be no doubt that the raising of the driveway has affected the flow of water. Dr Webb and Mr Downes agree that over a period of 30 m (chainages 60 and 90 m in Mr McKinlay's survey plan) the driveway constitutes a constraint to flow across the boundary, whereas the level of the fence line is a constraint at other places. They also agree that the maximum possible depth of ponding on the plaintiffs' property that could have been caused by the placement of roadbase on the driveway is 200 mm. But it would be overly hasty to conclude, as Mr Blinman did, that the flooding problem on the plaintiffs' property was directly caused by the raising of the driveway. It is relevant to inquire whether, as Mr Galea says, the water gathered on the plaintiffs' land and ran across onto the defendants' land to the same extent, after the raising of the driveway, as during the period 1986 to 1996, or whether the raised driveway now causes more ponding to the plaintiffs' land than occurred before 1996. 74 The most important evidence on the subject was the evidence of Dr Webb. He used the survey information provided by Mr McKinlay to prepare graphs of surface profiles and possible fence line profiles. He concluded that the driveway (on its southern side) may now be up to 40 mm (upper profile) or 80 mm (lower profile) higher than the previous level of the "embankment" which ran along the fence line, although he said that the work on the driveway may not have raised of the level at all. I accept this evidence. Answers to the agreed statement of issues 75 Having made my findings of fact on the principal issues in contention, I shall now answer the questions raised in the agreed statement of issues. 76 Have the acts of the plaintiffs had the effect of concentrating the flow of surface water from the plaintiffs' land onto the defendants' land? 77 I have given an affirmative answer this question. 78 Did the deposit of road fill alter the level of the plaintiffs' land so as to stop the surface water coming onto the defendants' land with the consequence that the plaintiffs' land has suffered increased flooding? 79 The deposit of road fill did not alter the level of the plaintiffs' land, but it did stop surface water coming onto the defendants' land, causing increased flooding on the plaintiffs' land. 80 Did the alleged embankment or driveway alter the natural flow of surface water so as to stop surface water coming from the plaintiffs' land onto the defendants' land with the consequence that the plaintiffs' land suffered increased flooding? 81 The "embankment" that existed until Mr Micallef levelled it altered the natural flow of surface water so as to create ponding, to a limited degree, on the plaintiffs' land. The driveway also did so, particularly after it was elevated by the deposit of roadbase. 82 Was the action of the defendants in either maintaining the embankment or alternatively placing the road fill a natural or reasonable use of the defendants' land or reasonable measure of protection so as to absolve them from responsibility for any damage caused to the plaintiffs? 83 This is the central remaining question. The defendants did not maintain the "embankment", which was levelled by Mr Micallef, but instead they elevated their driveway in a position adjacent to where the "embankment" had been levelled. The question is whether their action was a natural or reasonable use of their own land, or a reasonable measure of protection of it. 84 The elevation of the roadway was not a natural use of the land. The defendants' case is that it was a reasonable measure for protection of their land. By elevating the driveway they prevented, to a significant degree, water flowing from the plaintiffs' land to their land in times of heavy rain. By doing so they certainly protected their land, by avoiding or limiting the risk of damage to the their crops from flooding. In my opinion, their conduct amounted to reasonable protection of their land. 85 Several factors made it reasonable for the defendants to act as they did. Over the previous two years the plaintiffs had substantially changed the use of their land and in doing so they conducted substantial earthworks which had the effect of increasing the water flow to the defendants' land during periods of heavy rain. Their new irrigation system also contributed to this outcome. And, after the earthworks had been completed, Mr Micallef demolished the low mound, along that part of the boundary where the water was most likely to flow onto the defendants' land, which had given the defendants some limited protection from water flow. It was reasonable for the defendants to take an appropriate measure to protect their property from the risk of increased flooding caused by the combination of the steps taken by the plaintiffs. Given the very poor relationship between the parties, it was not unreasonable for the defendants to act without consultation. 86 In my view, it would not have been reasonable for the defendants to construct an obstacle to water flow which would put the plaintiffs in a worse position than they had been in before they had undertaken the conduct which justified a response by the defendants. This raises the question whether the defendants have gone too far, by building up their driveway to a height "quite possibly" 40 mm higher than the "embankment", and "possibly" 80 mm higher. 87 I find it impossible, on the evidence before me, to decide between the various possibilities presented by Dr Webb's evidence, which I have accepted on this point. In my opinion, however, is unnecessary to do so. I have formed the view that because the plaintiffs' earthworks, change of use and irrigation had increased the water flow onto the defendants' land during times of heavy rain, quite apart from the levelling of the "embankment", the reasonableness of the defendants' response is not to be gauged solely by comparing the height of the driveway with the height of the "embankment". Taking into account the expert and lay evidence and my own observations, I cannot say that the driveway was elevated so high that the defendants' response was disproportionate to the threat to their land posed by the totality of the plaintiffs' conduct. In my opinion, the defendants have taken no more than a reasonable measure to protect their land. 88 The plaintiffs drew attention to the small cost of remedial work, balanced against the extent of the flooding caused by the elevated driveway to the plaintiffs' land, and they contended that the existence of the raised driveway did not confer a benefit on the defendants' property. I disagree with this submission. The question is whether it was reasonable for the defendants to respond in the way they did, and the value of the remedial work (which would need to be carried out only if the defendants had been unreasonable) is not relevant to that question. Further, there is evidence that the elevation to the driveway has prevented surface water from flowing onto the defendants' land, and that in itself is a benefit to the defendants. Conclusions 89 I have decided that the defendants have established a complete defence to the plaintiffs' action for nuisance. Since, in my view, they have acted reasonably in the circumstances, having regard to the plaintiffs' conduct, there is no ground in all the circumstances for liability in negligence. It follows that the proceedings should be dismissed. *********************************** Last Modified: 11/14/2001 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.