District Court New South Wales Medium Neutral Citation: Heymans & Anor v Reilly & Anor [2013] NSWDC 227 Hearing dates: 6, 9, 10, 11 & 12 September 2013 Decision date: 13 September 2013 Before: Neilson DCJ Decision: I give verdict and judgment for the defendants against the plaintiffs I order the plaintiffs to pay the defendants' costs on the ordinary basis until Thursday 5 September 2013 and thereafter on an indemnity basis Catchwords: TORTS - Nuisance - Plaintiffs and defendants neighbours on rural residential properties sharing common boundaries - Defendants commenced works to improve the surface of their access road which runs parallel to boundary of the plaintiffs' land - The access road previously had a drain on its western side - The defendants had a concrete spoon drain and kerb constructed running down its length to provide a flow path for stormwater - Plaintiffs allege that new spoon drain concentrated water flow behind the kerb, leading to a deepening of a channel beside the concrete road edge Minor erosion only - No actionable nuisance for either actual damage to property (no evidence as to quantum) or substantial and unreasonable interference with plaintiffs' enjoyment of property Plaintiffs also claimed pond partly on their land and partly on defendants' land had created a nuisance - Pond existed prior to subdivision of land and no relevant change - No nuisance caused by pond Plaintiffs only pressed for injunctions in address but not available as no actionable nuisance - Seven different orders could be made but no evidence to suggest that orders sought by plaintiffs were appropriate orders Legislation Cited: District Court Act 1973 s 46 Cases Cited: Butcher v The Borough of Woollahra (1876) 14 SCR (NSW) 474 Gartner v Kidman (1962) 108 CLR 12; [1962] HCA 27 Solicitor-General v Smith (1896) 14 NZLR 681 Texts Cited: Rosalie Balkin and Jim Davis, Law of Torts (LexisNexis Butterworths, 4th ed, 2009) Martin Davies, 'Private Nuisance, Fault and Personal Injuries' (1990) 20 UWAL Rev 129 Dr David Rolph, Nuisance (9 June 2012) Halsbury's Laws of Australia Category: Principal judgment Parties: Joseph Theodore Heymans (First plaintiff) Christine May Yee (Second plaintiff) Paul Reilly (First defendant) Carol Halford (Second defendant) Representation: Mr P Batley (Plaintiffs) Ms C Smith (Defendants) Carty & Cox, Solicitors & Conveyancers (Plaintiffs) Robson & Oliver (Defendants) File Number(s): 2012/098152 Judgment 1The plaintiffs, Mr Joseph Theodore Heymans and his wife Ms Christine May Lee, have brought an action in the tort of nuisance against Mr Paul Reilly and his wife Ms Carol Halford, who are the neighbours of the plaintiffs. The plaintiffs and the defendants reside on rural residential properties which share some common boundaries. The relief claimed in the statement of claim is this: "1. Damages 2. Aggravated damages 3. Exemplary damages 4. Such injunctive relief as the Court thinks fit or that the nature of the case requires. 5. Such further or alternative relief as the Court thinks fit or the nature of the case requires. 6. Costs." The first thing to note is that it is not necessary in any pleading to claim costs. The next thing to note is that the plaintiff did not address on or ask for the award of damages or aggravated damages or exemplary damages but merely sought mandatory injunctions. 2To understand the nature of the case it is necessary to go back some way in history. A convenient starting point is 23 November 1989. On that date, Mrs Christine Margaret Bryant and her husband became the registered proprietors of lot 1 in deposited plan 793544. That is the land currently owned by and occupied by the plaintiffs. The land acquired by Mr and Mrs Bryant was formerly owned by Mr Keith Knight and his wife Mrs Margaret Knight. The evidence establishes that Mr and Mrs Knight owned what became a large number of properties in the village of Repton. At the time that Mr and Mrs Bryant purchased lot 1 the property was unimproved. 3On 8 January 1990, approval was given by the Bellingen Shire Council for the erection on lot 1 of a dwelling by Mr and Mrs Bryant. According to the evidence given by Ms Bryant, she and her husband moved onto lot 1 presumably after the construction of their new home in October 1990. Prior to moving onto lot 1 the Bryants resided at a property on Tuckers Rock Road in Repton. Ms Bryant had the hobby of raising ducks. She had on her property at Tuckers Rock Road some ponds in which to raise her ducks. One of the reasons which impelled her and her then husband to purchase lot 1 was the fact that at the bottom of the property was a pond in a creek which is an unnamed tributary of Freshwater Creek. According to Mrs Bryant, the lot had previously been used for grazing cattle and she believed that the pond had been formed by the damming of the unnamed tributary of Freshwater Creek in order to provide a water source for the stock which had been grazing on, inter alia, lot 1. An aerial photograph commissioned by Ms Bryant in the early 1990's clearly shows that at one stage lot 1 and surrounding areas had been essentially cleared of natural vegetation in order to be reduced to pasture. It can be seen, therefore, that in November 1989 there was at the bottom of lot 1 a pond having been formed by the damning of the unnamed tributary of Freshwater Creek. 4At the time that Mr and Mrs Bryant moved onto lot 1 in October 1990 there existed a driveway on the eastern side of their property down to the creek. It gave access to the south side of what is now lot 102 in deposited plan 1036970. At the time that Mr and Mrs Bryant moved into lot 1, Mr and Mrs Knight were living in a caravan on the south side of the creek on lot 102. According to Ms Bryant's evidence, in February or March 1991 construction commenced on the building of a driveway over the creek by means of putting a culvert over the creek immediately above the dam. The culvert comprised one 900 millimetre concrete pipe over which a roadway was formed. The concrete pipe was placed in concrete walls which faced both upstream and downstream of the creek. 5I do know from Council records that on 17 June 1993 there was an inspection of the culvert by officers of the Bellingen Shire Council and other interested parties, and it was then noted that the culvert had been erected and was in compliance with the Development Application that had previously been made by Mr and Mrs Knight. A file note prepared by the Bellingen Shire Council dated 13 October 1999, which is part of exhibit 8, indicated that the "culvert was installed in the water course 20 years ago in 1989 and that there was a pond at that time". However, the reference to 1989 is, in my opinion, the date of the Development Application granted by the Bellingen Shire Council to Mr and Ms Knight on 27 June 1989, and it may have been sometime after the granting of the development application that the culvert was actually erected. In other words, there is no inconsistency, in my view, between the oral evidence of Ms Bryant concerning the erection of the culvert and such documentary evidence that there is. 6Accordingly, by probably the middle of 1991 there was on the eastern boundary of lot 1 a driveway from Lyon Street, Repton, travelling north to cross the unnamed tributary of Freshwater Creek and leading onto the land which eventually became lot 100 in deposited plan 1036970. The purpose of the installation of the culvert to cross the creek was so that a building could be erected on the north side of the creek. The evidence of Ms Bryant is that after the erection of the culvert Mr and Mrs Knight commenced to build a dwelling on what became lot 100. 7I know that the dwelling had been erected by 22 January 1999 because on that date the Bellingen Shire Council found the dwelling on lot 100 to be fit for occupation. One can see that by the commencement of 1999 Mr and Mrs Bryant owned and resided on lot 1, Mr and Mrs Knight owned lot 102 and Mr and Mrs Knight owned and now resided on lot 100. Lot 1 is now known as 39 Lyon Street. Lot 100 is now known as 47 Lyon Street and lot 102 is now known as 49 Lyon Street. 8On 24 August 1999, the plaintiffs became the registered proprietors of lot 1 or No. 39. It had been transferred to them by Mr and Mrs Bryant. According to Ms Yee the plaintiffs moved into No. 39 on 13 August 1999 and that is perhaps consistent with the evidence of Ms Bryant that the conveyancing of the property was protracted because initially the plaintiffs may have been unwilling or reluctant purchasers. Whether it was on 13 August 1999 or 24 August 1999 that the plaintiffs moved into No. 39 is immaterial. It is, however, material to note that by that time there was along the eastern border of their property a driveway from Lyon Street down to the creek and then across the creek into lot 100 or No. 47, and that the pond behind the culvert was still in existence as it had been when Mr and Mrs Bryant first moved in, in 1989. 9On 23 January 2002, Mr and Mrs Knight transferred the title over lot 100 or No. 47 to "a couple from Melbourne", being the only description of those purchasers given by Mr Heymans. However, Mr Heymans thought that they did not move in until 2005 but it seems more probable than not that someone buying a rural residential property would move into it shortly after the conveyance had been completed. An endorsement on exhibit 14, a copy of deposited plan 1036970, suggests that the name of the transferees was Bucknell. The "couple from Melbourne" remained the owners of the property for some five and a half years. That Mr Heymans could not remember the name of those neighbours indicates that he may have not been particularly friendly with them or, at least, have had little to do with them. On 20 August 2007, the "couple from Melbourne" transferred title in lot 100 or No. 47 to the defendants. According to Ms Halford's evidence, they moved in in "early August 2007". That, of course, is so close to 20 August 2007 as to be of no moment. One can see, therefore, that from 20 August 2007 the plaintiffs and the defendants became neighbours. 10It is necessary to describe in a little more detail the configuration of the land. Lot 1 or No. 39 is an irregular pentagon in shape. Its southern boundary is its frontage to Lyon Street, Repton. Its northern boundary is a very short piece of land, 23.755 metres long. The western boundary runs from due south to due north and is 130.1 metres long. The eastern boundary has two separate alignments, firstly, an alignment from south to north-east measuring 30.785 metres, and then a length heading north-west for 86.66 metres to what I have earlier described as the northern boundary. 11Lot 100 or No. 47 is a battleaxe block. The northern boundary of No. 39 is the southern boundary of the axe head. The eastern boundary lengths of No. 39 are the western boundaries of the axe handle that leads from the axe head of No. 47 to Lyons Street. On the eastern side of the axe handle of No. 47 is the western boundary of lot 102, No. 49. The unnamed tributary of Freshwater Creek, which I have earlier mentioned, essentially runs south of the southern boundary of the axe head of No. 47 flowing from west to east. One might be forgiven for thinking that the southern boundary of axe head is almost on the bank of the unnamed creek. Upstream of the culvert, that is on the western side of the axe handle, is the pond which I have earlier described, which, according to exhibit B, has a high watermark at the 16.73m contour level. The vast majority of the pond lies on number 39, the plaintiffs' land. The main channel of the creek flows from the property west of No. 39, across No. 39 underneath the access way or axe head of lot 100, No. 47, and then on down through lot 102 or No. 49. There is a further channel of the tributary which runs through two other properties before joining the pond on the plaintiffs' property. 12It ought be clear that the purpose of the axe handle was to provide vehicular and pedestrian access to No. 47. It is clear that the vehicular access existed at the time that Ms Bryant and her then husband purchased lot 1, now No. 39, in November of 1989. It existed for at least ten years prior to the plaintiffs' buying No. 39 and it existed for some eighteen years before the defendants purchased No. 47. 13On 27 February 2008 the defendants commenced some works on the access road which I shall endeavour to refer to as "the driveway". A question which arises is what was the condition of the driveway prior to works carried out commencing on 27 February 2008. I have direct evidence from five sources. There is evidence from each of the plaintiffs on one hand and each of the defendants and Ms Bryant on the other hand. 14It is important to note at this stage that lot 1 can generally be described as a higher property than that part of the defendants' property which comprises the axe handle or driveway. The south-western corner of the plaintiffs' property is its highest point. It is shown in a figure in appendix C to the report of Dr Rainer Berg of 10 January 2013 as being at the 40m contour level. It then slopes away generally from south to north until reaching at its lowest level 16.73 metres, the "high watermark" of the pond, which is at the invert or bottom end of the 900 millimetre pipe that forms the culvert. The property not only drops away from south to north but also from west to east. 15The plaintiffs maintain that prior to 27 February 2008 the driveway sloped throughout its length from west to east and did not have any camber when it was not on a slope. The defendants say the opposite. So does Ms Bryant. Essentially Ms Bryant told me that the road as it is now and has been since February 2008 is the way it had been since November 1989, only with the addition of the culvert over the creek since November 1989. 16Leaving aside the contest in that evidence, the plaintiffs ask me to accept something that is highly unusual in this country; a road formed contrary to the usual way in which roads are formed. The driveway commences with a long curve to the left as one is descending the driveway from Lyon Street. Most motorists would know that the normal curve in a road for a vehicle going left is for the road to slope down from right to left. Equally, most motorists would know that for a right-turning curve one would expect an angle in the road going from left down to the right. The plaintiffs ask me to accept that this driveway, initially constructed before 1989, was until early 2008 a road constructed with the wrong slope for the curve. The plaintiffs also ask me to accept that the road, when running straight, did not have a normal camber; that is that there was no crown in the middle and it slopes from the crown to both the left and the right, but the road always ran when one was descending the road from left to right, that is from the eastern boundary of the plaintiffs' land towards the eastern boundary of the driveway. One might believe that such construction would be implausible and would be regularly washed away. 17However, courts are often faced with implausibilities, especially when administering the criminal law. Fortunately this is not a criminal case. However, I have no hesitation whatever in accepting the evidence of Ms Bryant. She was a forthright, candid and articulate witness, independent of the parties and a lady with a fairly good recollection. I accept her evidence that the road as it currently is is as it was initially, that is, that the road was formed with a normal slope in its curved section and with a normal camber when it was running straight. Ms Bryant told me that she did observe erosion along the eastern side of the property which she then occupied and which is now occupied by the plaintiffs. She told me that when it rained there was erosion along the western side of the driveway, that is, eroding into lot 1 or No. 39 now occupied by the plaintiffs. She told me of the existence throughout her occupation of No. 39 of the existence of a channel along the western side of the driveway. She told me that she did not measure the depth of the channel because it was "not an issue". She pointed out that when one owns an acre and a half, 2 centimetres on the side of the property is of no or of extremely little moment. Prior to giving evidence, Ms Bryant had last gone down the driveway a week or so previously by car. Ms Bryant's evidence confirms the evidence of the defendants and is consistent with common human experience in this country. I therefore cannot accept the assertions of either of the plaintiffs that the driveway consistently sloped throughout its length from west to east such that all rainwater ran across the driveway onto lot 102, No. 49, which has on its western boundary an easement to drain water granted to the Bellingen Shire Council and giving a benefit to certain other parcels of land but not including the parcel of land owned by the plaintiffs. I therefore accept that from their first occupation of No. 39 in August 1999 the driveway always had a "drain" or "gully" on its western side, on the eastern side of the plaintiffs' property. 18The works carried out, commencing on 27 February 2008, were carried out at the request of the defendants by a man identified as "Jamie", who was a friend of the son of one of Mr Reilly's work colleagues. There was no written quotation as such. There was no receipt given by Jamie and the defendants paid him in cash. This is very common throughout Australia. I make no adverse comment about it at all but merely observe there must be some purpose in having a GST. Jamie used what Ms Yee described as a "bobcat" and what was described by Ms Halford as a small grader. It may have been that the machine itself was a bobcat, but rather than having fitted to it the usual bobcat bucket it had fitted to it a blade. What exactly the piece of machinery was is not important. The important point is that it graded the roadway. According to the defendants, the roadway was in very poor condition when they purchased No. 47. There were long ruts caused by vehicle tyres or tracks and there were corrugations across the path of the vehicle caused by water flowing from west to east at some places but more importantly from east to west at the area of bend approaching where the driveway turned to run straight, roughly northwards. According to the defendants, Jamie graded out the ruts and corrugations and then added aggregate, which Mr Reilly described as Valla stone which was of a light hue. 19The road after the work was done by Jamie is shown in photographs in exhibit C at pages numbered 4, 5, 6, 7 and 8. Those photographs were taken by the plaintiffs. They show the road to have been constructed with a normal camber, that is, with a crown, and for the road to have been levelled out and perhaps built up. I accept, however, that the crown shown in those photographs on the road was merely a restitution of the crown of the road as it had been initially constructed. It would appear from the photographs themselves that the plaintiffs were concerned about encroachment onto the western boundary of their property by the grading and perhaps the accentuation of the gully or drain on the western side of the driveway. 20The photographs which I have just described were made on 3 March 2008. That was a Monday. According to Ms Yee, the work commenced on Wednesday 27 February 2008. Ms Yee told me that on that day she saw the bobcat on "my land" at its northern end near the culvert and the pond. Ms Yee told me that Jamie was "scraping about 5 to 6 metres onto my land". She sought to confront him. She admitted that she ran down waving her arms and telling the operator of the bobcat, clearly Jamie, to stop what he was doing. She said that he was wearing earmuffs and was not looking initially in her direction. She said that she was surprised by his presence on the property. Ms Yee went on to tell me that she told the bobcat operator to leave "my property or I'll call the police". She said that Jamie told her that unless he did the job he would not get paid for the work which he was to do and that he continued to "scrape" on her property by running the machine backwards and forwards on what would be the north-east corner of her property near the culvert and the dam. That area can be seen on exhibit C, photograph p 8, where one can see some disturbance of shrubs to the west of the driveway. The evidence of Ms Halford is that at one time on that first day Jamie came to her in an agitated state and told her something which caused her to have to go out and confront Ms Yee. 21On the second day when she gave evidence Ms Yee was asked about what steps she took to draw anyone's attention to the appearance of Jamie and the bobcat and the commencement of works to restore the driveway. She told me that she asked the "bobcat man" to leave the property. She then contacted her husband by telephone and told him what was happening. She then telephoned the police. She had a conversation with a policeman at the Coffs Harbour Police Station and he advised her to obtain photographs, which eventually led to her and her husband purchasing a camera on the weekend of 1 and 2 March 2008 for the taking of the photographs on 3 March 2008. Ms Yee also told me that she spoke to somebody at the Bellingen Shire Council and spoke to the Community Justice Centre, and she also spoke to a surveyor to find out the cost of a survey of her property to establish the boundary of the land on which she resided with her husband. The reason to contact the surveyor to establish the boundaries of the property can only be to ascertain whether trespass had been committed on the plaintiffs' land. It is clear from Ms Yee's evidence that she was greatly concerned that there was a bobcat operator on her land doing some work which was causing some damage to her property, damage which any fair and reasonable observer could only describe as minor. 22The behaviour of Ms Yee in response to the presence of Jamie and the bobcat and the performing of work on the access road is, in my judgment, a gross overreaction. According to Ms Yee, in response to her enquiry with the Bellingen Shire Council Mr Warwick Knight, an engineer from the Council, went to visit her on 10 March 2008 and gave to her a copy of the relevant deposited plan and its attachments. 23Chronologically, the next thing to happen was a telephone conversation with Mr Garry Hankinson, a senior environmental health officer with the Bellingen Shire Council. I assume that that job description is that for one who was formerly known as a health inspector, but why in modern times should we describe a job with two words when we can now employ four? Ms Yee's telephone conversation with Mr Hankinson on 11 March 2008 concerned mosquitoes at Lyon Street, Repton. On 26 March 2008 Ms Yee sent a letter to Mr Hankinson. It is instructive in a number of ways but also goes to the issue concerning the pond which is said to also be the cause of a nuisance. The body of the letter is this: "Walking alongside of Lyon Street with neighbour from [number] 35, we saw an area of vacant land at [number] 49 with for sale sign at the front, down the back it is covered by several large swamps containing muddy water. The adjacent property at [number] 63 appears to be unoccupied. We spoke to the occupant at the next house at [number] 69 about swamp water surrounding her resident [sic] and our common concern of mosquitoes infesting the swampy water. Standing at Lyon Street it is visible to us that swamps areas stretching along the back of several properties. The muddy water is not flowing at all, same is found in an established concrete drain structure under Lyon Street, which has been discharged onto reserve land adjacent to [number] 74 at the other side of Lyon Street. I have spoken to my neighbour at [number] 35 Lyon Street, in relation to the muddy swamp water collected at the back of both of our properties and problem with the biting mosquitoes. We believe the recent high rainfalls had increased the size of the swamp. We noted the natural flow of water down the landscape has been stopped by a large drainpipe which is about 1 metre in diameter, which had been positioned above the water mark, this pipe forms part of a private road erected by the neighbour at [number] 47 Lyon Street. We believe the swamp at our backyard is related to that pipe being positioned too high into the gully; unfortunately this neighbour has refused to lower the pipe during their recent road work (last month). On 11 March 2008, we have been informed by the Community Justice Centre that neighbour from [number] 47 had formally declined to participate." 24The letter then goes on to refer to conversations that Ms Yee had had with an official from the National Parks and Wildlife Service and also officers of the Catchment Management Authority and to a suggestion that had been made that the ponds of muddy water in the landscape at Repton might be natural phenomena. The important point to note is that in evidence there was no suggestion by Ms Yee or by Mr Heymans or by either of the defendants that on 27 February 2008 or any subsequent time there had been any discussion at all about lowering the pipe at the culvert. According to this letter it must have been discussed because Ms Yee was representing to the Council that the defendants had "refused to lower the pipe" during the road work carried out by Jamie. There was no suggestion that it was ever intended that he do that. It was never suggested to either of the defendants that that was the intention, or that any approach had been made to them by either of the plaintiffs to lower the pipe. In those circumstances, one might believe that this letter to the Council contained an inexactitude in that there had been no refusal by the defendants to "lower the pipe" because you can only refuse something when asked to do it. 25Mr Hankinson replied to the Ms Yee's letter on 31 March 2008 indicating that he would meet with her "onsite" at a time of Ms Yee's choosing to discuss mosquito control measures. However, it should be noted that in addition to the pond at the bottom of No. 39 Ms Yee was also referring the Council to other swampy or muddy areas in the local vicinity. The exact outcome of these communications between Ms Yee and the Bellingen Shire Council in March 2008 is unclear because of the way in which the evidence was adduced, in that it rapidly led to events of 2009 which concern a different issue. 26The reaction of Ms Yee to what occurred on 27 February 2008 and her dealings with the council concerning "mosquitoes" indicate that she has perhaps a querulous personality. The distinct impression that she gave me, and indeed anyone who was in Court, at the time that she gave evidence about seeing the man with the bobcat on her property, was that she was greatly incensed about this trespass upon her property. Indeed, learned counsel for the plaintiffs very properly described Ms Yee as a lady who was zealous about her property rights. 27The next relevant event occurred on 27 August 2008. On that day a survey was carried out of the plaintiffs' property by Tony Rose Surveying Pty Ltd. The survey report became exhibit P. Mr Rose placed two stakes along the eastern boundary of the plaintiffs' land. That length of the boundary was 86.6 metres long. When giving evidence concerning the photographs which show these stakes it was sought to identify them from exhibit B because exhibit P had not then been put into evidence. The more southerly intermediate peg was identified as being at contour 21.65m and the more northerly intermediate stake was identified as being at the contour 18.76m. On 27 August 2008, photographs that are pp 9 to 12 in exhibit C were taken. They show the two intermediate posts inserted along the plaintiffs' side of the driveway. There is some erosion but very little that I can ascertain in the photographs taken on 27 August 2008. 28The next relevant event is one that distresses me to have to describe. This was the first occasion on which the police were called by the plaintiffs to deal with the defendants. There was a branch that had come off or been taken off one of the trees on the defendants' property which was nowhere near the boundary between the lands of the plaintiffs and the defendants. Mr Reilly admitted taking it to the other side of his property to the boundary with the plaintiffs' land and then throwing it onto a pile of cuttings or garden refuse that the plaintiffs had upon their land rather than putting it on a similar pile that he had on his land. He said he did that for "a lark". For an adult man, who appears to be perhaps even older than me, this is puerile behaviour. However, the response of the defendants was equally childish. Rather than ask Mr Reilly to remove his branch from their property and put it on his own pile, or indeed exercising the self-help which the law permits allowing the plaintiffs to pick up the defendants' branch and put it on the defendants' property, the plaintiffs called the constabulary. This is a grave waste of the public resources of this State to call the police to what is a childish prank and hardly a criminal offence, nor was there any particular breach of the peace threatened. Mr Reilly admitted that Mr Heymans and Ms Yee made it very clear when the police had been called to this event that the defendants were not to trespass onto the plaintiffs' property except only to retrieve the branch which had been placed by Mr Reilly on the defendants' property. The interaction on 25 October 2008 does not do any of the parties any credit. The event of 25 October 2008 clearly indicates that there were very bad relationships between the plaintiffs and the defendants by that time. 29On 14 February 2009 there was rain. Exhibit 5 is a photograph taken on 14 February 2009 at 6.46am showing rainwater running down the ditch or gully or drain on the western side of the driveway or eastern side of the plaintiffs' property. On 17 February 2009 there was what has been described as a "flood event". It could have been called just a "flood" or merely "heavy rain". Mr Heymans admitted that it was a flood when giving evidence, as did Mr Reilly. Exhibit C p 13 is a photograph taken on 17 February 2009. In it is shown Mr Reilly wearing gumboots and a yellow raincoat. He also has in one of his hands a shovel. Mr Heymans told me in his evidence-in-chief that the photograph was taken when it was raining but after a very heavy downpour. He told me that antecedent to the taking of the photograph there had been a "couple of days of rain" in which there had been a number of periods of heavy rain. He said the photograph showed water coming down the ditch and then draining into the pond upstream of the culvert. From that photograph and other photographs and from what I observed on a view, it appeared to me that at the bottom of the drain, as the drain approached the pond, something like a small delta was forming. 30In cross-examination Mr Heymans admitted that there was significant flooding of both his property and the defendants' property on 17 February 2009. Mr Reilly admitted to the circumstances in which the photograph, namely exhibit C p 13, is taken. He went out armed with his shovel in order to try to recover from the ditch, or from sediment washed down the ditch by the rainwater, gravel that had been washed off his driveway in order that he could return the gravel to the driveway to impede erosion. He admitted that Ms Yee told him to stop. He admitted that Ms Yee became angry with him. He agreed that he adopted an unfriendly stance towards Ms Yee that can be seen in the photograph, and which is clear to anybody, but he denied that it showed him wielding his shovel in such a fashion that it could be used as a spear. It is apparent that this was the second time on which the constabulary were called out, the allegation being that Mr Reilly was "stealing" topsoil or topsoil and gravel from the plaintiffs' land. 31On the following day, 18 February 2009, further photographs were taken. They form part of exhibit C and are pp 14 and 15. They show that the drain has widened and deepened in places and clearly erosion was occurring. However, one would expect, in any unpaved area in very heavy rain which could be described as a flood event, there to be erosion along a channel formed in natural soil, clay, rock and gravel. On 20 February 2009, three days after the flood event and the calling of the police for the second time, Mr Aaron Smith, a "health and building surveyor" with the Bellingen Shire Council, visited Ms Yee. That caused Ms Yee to send to Mr Smith an email on 10 March 2009. That email thanked Mr Smith for his visit on 20 February "regarding a number of issues [associated] to next door neighbour's driveway/access road". The body of the email continues thus: "In February [2008], next door neighbour (47 Lyon Street, Repton) has rebuilt their drive way on the common boundary line. Section of it has crossed the boundary to my land. The construction has made a cutting, in section the [difference] in height is by metres. No retaining wall has been constructed. The cutting (of land) has [unstabilised] my land and vegetation. The [natural] pathway of water flow from higher to lower ground had been deliberately diverted away from a DP easement, which is only 10 metres away. Storm water has caused recent soil erosion damage to my land by flash flooding. I have spoken to another Council regarding similar problem. As a general rule, I believe the next door neighbour is responsible to pay for building of a retaining wall. Can you please [advise] me." 32I find it difficult to understand what Ms Yee meant by a "cutting" that caused a difference in height by "metres". However, clearly she complains of some erosion and destabilisation of the bank immediately west of the western edge of the driveway, the eastern boundary of the plaintiffs' land. However, one can see that, as far as Ms Yee was concerned, the defendants ought be liable to pay for the erection of a retaining wall. 33There are intervening events but it is convenient at this stage to finish off what occurred as a result of this interaction between Ms Yee and Mr Smith. Mr Smith wrote on 24 April 2009 advising Ms Yee that the Council was investigating the matter. On 24 May 2009 Ms Yee sent a further email to Mr Smith advising him of works which had commenced in very recent times. The email refers to works having been done "last week". 24 May 2009 was a Sunday. The complaint essentially concerns the pond and flooding of the plaintiffs' land. 34On 18 June 2009 Mr Smith wrote to the plaintiffs acknowledging Ms Yee's emails of 10 March and 24 May 2009. The substance of the letter is this: "As you are aware, Council has investigated and wishes to advise the following: · There are no registered easements on your property as evidenced in deposited plan 793544. · Lot 100 of DP 1036970 (known herein as "the neighbouring property") is not burdened by a registered easement to drain water along the length of the access handle. The easement is actually on lot 102 and it benefits lot 100, 101 and Bellingen Shire Council. · The maintenance works undertaken to the access road and associated culvert on the neighbouring property is not inconsistent with works approved by council and the "excavation" does not necessitate a retaining wall. · There is no substantial evidence to suggest that the neighbouring access road is encroaching onto your property. A survey from a registered surveyor would be required to confirm if it is encroaching onto your property." The letter goes on to point out that there was nothing that the Council could do about the plaintiffs' complaints and pointed out that the Council regarded the matter as a private one between the plaintiffs and the defendants and that the plaintiffs should seek their own legal advice. 35On 21 February 2009 there are photographs, exhibit C p17, of both the male plaintiff and the male defendant on the driveway. Mr Heymans is wearing a hat and Mr Reilly has a shovel, although it might be a spade. It would appear that this was another occasion on which Mr Reilly was seeking to retrieve gravel from what I have earlier referred to as the "delta", which had been washed down the drain from the roadway, the idea being to retrieve the gravel and put it back onto the road. Again, this was perhaps another time where it was suggested that there had been "stealing" of topsoil. It is clear, however, from one of the photographs taken on 21 February 2009, that the drain, gully, ditch, call it what one will, on the western side of the driveway had certainly deepened. One can clearly attribute that to the flood event of 17 February 2009. That caused the plaintiffs to lay, in certain parts of their land, bags of rocks to seek to stabilise the bank. On the other hand, the defendants sought to line a section of the western side of the driveway with a row of sandbags, perhaps in an attempt to stop gravel being washed off the driveway into the gully and down towards the delta and the pond. Although Mr Reilly thought the sandbags had been laid in perhaps April, if not May, 2009, it is clear from the photographs taken on 18 March 2009 that the sandbags were in place by that time. 36The next relevant event was a major flood. That occurred on 31 March 2009. Articles concerning it were published in the Bellingen Shire Courier-Sun and are exhibit 17. The issue of 8 April 2009 contains a photograph of a four-wheel drive utility truck being washed off a road in a street in North Bellingen. There is then a heading, "One in 100 year rain event". The article then continues thus: "Bellingen Shire is counting the cost of flooding that resulted from a one in 100 year rain event on Tuesday March 31. The valley and seaboard recorded falls around 550 millimetres in 24 hours. Lightning and thunder accompanied torrential rain for about five hours from 5pm. The rain was falling at up to 100 millimetres an hour. Falls for the week totalled around 750 millimetres (30 inches). The Bellingen and Kalang Rivers rose quickly. Lavender's Bridge in Bellingen was closed at 10am on Tuesday when the river height was at 4.86 metres. Just after 2pm it hit 6 metres, two and a half hours later it was at 7 metres. By 5.20pm it was at 8 metres and at 7.10pm the river at Lavender's Bridge peaked at 8.7 metres, which was half a metre above the peak in February." The front page for the issue dated 15 April 2009 is headed, "Big clean-up underway" and refers to the clean-up within the local shire following upon the flood of 31 March. The front pages of the issues of 25 November 2009 and 8 January 2010 were still carrying descriptions of the flooding of 31 March 2009. Indeed, the issue dated 8 January 2010 noted that 2009 was the "wettest year on record" in the Bellingen shire. 37The flooding certainly affected both the plaintiffs and the defendants. Exhibit 3 is a small album of photographs culled from a larger album of photographs by Ms Halford that was tendered into evidence, the culling clearly to minimise the amount of material before the Court. There are two photographs taken on 31 March 2009 which show flooding of lot 100, No. 47, and the flooding had covered the culvert and the road on either side of the culvert and was some eight and a half inches above the height of the roadway next to the house from which photograph numbered 4 in exhibit 3 was taken. This was a truly massive flood event. 38On the day after the massive flood Mr Reilly again went out with his shovel to try to retrieve gravel to replace it on his driveway. The response of the plaintiffs was again to call the police, their alleging that he was stealing their topsoil. I can only describe such conduct by this stage as churlish. I have no doubt, however, that much damage was done by the flood of 31 March 2009. The effects of that flooding can be seen in photographs taken after that time. For example, on 21 May 2009 photographs in exhibit C between pp 21 and 33 were taken. At that time there was obviously further heavy rain. One can see some flooding at the bottom of the driveway near the pond and some retention of water above the pond and smaller pools which had been gouged out by flooding rainwater. One can also see a deepening of the gully along the western side of the driveway in subsequent photographs. 39Part of exhibit 4 is another photograph taken on 23 May 2009 at 12.25 at the top of the driveway and appears to indicate some wheel damage to the nature strip at the front of the plaintiffs' property, perhaps by some car turning onto the driveway. Its exact significance has not been made clear to me. Some photographs were taken on 24 May 2009. One of them was tendered in the plaintiffs' case in-chief. It is p 16 of exhibit C but as exhibit C was put together it was not put in chronological order. Another photograph taken on 24 May 2009 became exhibit R. It was used in cross-examination. It shows the plaintiff, Mr Heymans, and each of the defendants, the plaintiff on his land and the defendants on their land, each near what I have referred to as the "delta" that was forming at the bottom of the driveway and where palm tree leaves and branches have been washed down or perhaps displaced. 40Exhibit R was clearly taken by Ms Yee. There was an attempt, on that occasion, to sort out something about the damage to the roadway and the erosion. It was suggested to Mr Reilly that the photograph taken by Ms Yee, which became exhibit R, showed Mr Heymans gesturing to suggest that the defendants "calm down". Mr Reilly denied that. He said that he had called out to Mr Heymans in an attempt to have a conversation with him, and that Mr Heymans had told Ms Yee to leave them so that they could have a conversation without her. He did agree, however, that the discussion that was had was quite heated. 41Earlier in his evidence-in-chief he had said that he told Mr Heymans he was going to have his driveway repaired. Mr Heymans asked about damage to the bottom of the bank, which is the eastern side of his property. Mr Reilly said that he told Mr Heymans that he was interested in erecting a spoon drain all the way down the western side of the driveway. He suggested that rubble be put down the length of drain with an underlay of fabric. He said that Mr Heymans said, "That is never going to happen." He then went on to say that Mr Heymans said that whatever was to happen had to happen on the defendants' property and that the defendants ought not touch the plaintiffs' property "whatever happened". Insofar as there is a disagreement about what occurred on that occasion, I prefer the evidence of Mr Reilly to that of Mr Heymans, consistent with my earlier acceptance of the evidence of Ms Bryant and the defendants over the state of the roadway prior to the works of February 2008. 42Photographs show work being done on the roadway between 4 and 7 June 2009. Some of those photographs are also contained in the reports of Mr Graham Knight, an engineer, which became exhibit E. The thing which intrigued me about the timing is that Ms Yee's email of Sunday 24 May 2009 refers to work which had been carried out "last week", but the works described in that email relate only to the culvert rather than to the driveway itself. It may be that the culvert work was carried out before the driveway work. In any event, the works carried out on behalf of the defendants can be summarised as they were by Dr Berg in his report of 10 January 2013. That summary is this: "(1) The roadway was graded and a base coarse [? course] was added; (2) Concrete edging was installed, which is understood to be within lot 100; (3) The western spoon drain was installed, directing flow behind (west) of the concrete edging; (4) The eastern spoon drain was installed along the eastern edge of the access road to direct runoff to the drainage easement on lot 102; (5) Some time after, the entry to the Lyon Street was mounded to direct Lyon Road runoff away from overflowing to the access road; and (6) A second culvert was installed under the access road, duplicating the existing culvert. This second culvert has an invert some 50 mm higher than the original culvert which remained in its original position. We understand the function of the culvert was to reduce flooding of the lot 100 driveway during heavier rainfall events. Photo 10 [in this report] shows discharge through the lower original culvert, while no flow occurred in the newer culvert, confirming that this culvert is raised. Photo 9 [in this report] shows the newer and original culvert as discolouration of the concrete." While this work was being done there were obviously concerns about whether the works being carried out on behalf of the defendants encroached on the plaintiffs' land. For example, exhibit 9 shows four photographs of the boundary markers out on the north-eastern boundary of the north-eastern corner of the property at its northern end, one bearing date 4 June 2009 and two bearing date 7 June 2009. The one that is undated was probably also taken on 4 June 2009. Photographs taken on 5 June 2009 suggest an excavation into the driveway to take footings for the concrete edge or concrete strip, as it has been described, and photographs taken on 7 June 2009 clearly show the concrete edge after it had been formed and the formwork removed. 43The effect of these works, as far as the driveway is concerned, is fairly clear, the only difference being in the way that the effect is described. The works were inspected by Mr John Clerke, a catchment officer from the Catchment Management Authority based in Coffs Harbour. Mr Clerke inspected the driveway and the culvert on 17 June 2010. As far as the driveway is concerned, Mr Clerke said this: "Erosion of your property, along the north eastern boundary, is caused by the concentration of stormwater runoff as a result of the design and construction of the access road for the adjacent [sic] to the adjoining property... The access road has a crowned pavement which continually directs runoff from the road surface towards and unnaturally concentrating down and along the edge of your property, just inside your boundary. The concrete edging on the south western side of this access road intercepts and diverts natural flow from your property also concentrating it in the same area. This concentrated flow has resulted in a minor erosion channel and the subsequent 'undercutting' and minor slumping of your cut batter." [My emphases] Mr David O'Meara, a consulting engineer, carried out an inspection on 7 September 2010. He described the effect thus: "The construction of the concrete spoon drain and kerb has failed to provide stable and formal flow path for stormwater from Lot 1, effectively blocking the water from reaching the drainage easement resulting in concentration of water along the eastern boundary of Lot 1. At the upper sections of the access drive, the spoon drain is effectively concentrating the water flow behind the kerb, thereby increasing the flow volume and causing greater erosion... The concentration of water along the concrete barrier is causing erosion of the exposed bank, increased flow of surface water into the watercourse above the culvert crossing at the northern end of the site, and the associated transportation of sediment into the water course." I should point out that Mr O'Meara provided his opinion on the basis of a history that I do not accept. That history was that antecedent to any of the works carried out by the defendants that water draining from lot 1 towards the driveway crossed the driveway and entered the drainage easement on lot 102. I have already indicated that, accepting the evidence of Ms Bryant as I do, I do not accept that to have been the scenario at any time since November 1989. 44I leave aside, at this stage, the question of the culvert. The works as eventually completed had the creation of a mound or hump at the entrance to the driveway to seek to prevent water in the Lyon Street catchment going down the driveway trying to direct water from the Lyon Street catchment further down Lyon Street and, perhaps, into the drainage easement on lot 102. There can be no complaint about that by the plaintiffs. 45On the eastern side of the driveway, in its upper section, was constructed what is referred to by Dr Berg in his figure 1 of appendix C the eastern spoon drain that is designed to carry water flowing from the west of the handle of lot 100 into the drainage easement on lot 102, and perhaps any water flowing off Lyon Street onto the eastern side of the handle of lot 100. Shortly before the end of the eastern spoon drain, or perhaps at the same place, there is formed a western spoon drain which ends on the western side of the concrete strip, erected on behalf of the defendants, along most of the eastern boundary of the defendants' land, being that length of the boundary which is 86.66 metres long. 46The evidence contains two plans, maps or diagrams showing relevant catchment areas. One of them is figure 1 of schedule C of Dr Berg's report. The other is drawing number 11048-001 dated September 2011, which is an annexure to the report of Mr Graham Knight of 8 September 2011, which forms one of the reports in exhibit E. The figure provided by Dr Berg is of greater use as far as I am concerned. The western spoon drain catches water from one natural catchment area which can be divided into two parts. Dr Berg has identified those two parts as the lot 1 western spoon drain catchment and the lot 100 western spoon drain catchment. 47The lot 1 western spoon drain catchment appears to me to be twice the size of the lot 100 western spoon drain catchment and learned counsel for the plaintiffs agreed with that opinion. Essentially, all water from those two catchments that runs off the soil finds its way into the western spoon drain and then is directed by the western spoon drain behind, that is, on the west side, of the concrete road edge. The point of the concrete road edge was clearly to keep on the roadway the gravel which had been placed there by the defendants in order for the defendants' access road not to erode and wash away, as had been happening antecedent to its placement and leading to the unfriendly interaction between the plaintiffs and the defendants at the delta with the allegations of the theft of topsoil and the like. 48However, the concentration of the water behind the concrete edge, whilst helping the maintenance of the driveway, does lead to the deepening of the channel of the ditch or drain. It has also led, as is clear from subsequent photographs, to undermining of the concrete edge which will eventually split and collapse in places. The allegation by the plaintiffs is that the concentration of the runoff from their property and the defendants' property into the western spoon drain amounts to a nuisance, and that the deepening of the channel by all water flow, that channel being beside the concrete road edge, also amounts to a nuisance. 49The water flowing into the channel beside the concrete road edge, besides that fed by the western spoon drain, is the runoff from what is identified by Dr Berg as the lot 1 access road catchment, from the middle of the camber of the driveway to the edge of the concrete strip, that is, half the width of the driveway. The amount of runoff water contributed by the roadway to the drain on the eastern side of the plaintiffs' property is very small compared to the runoff of water from the eastern side of the plaintiffs' property itself, which contributes the vast amount of runoff into the drain. 50There is no dispute that the works were performed on the defendants' behalf by Mr Peter Tzikas, who, I infer from the evidence given, is a local tradesmen of some sort who is known by residents of Repton to do the sort of work which he did for the defendants. This, again, was work for cash. There was no plan, as such, meaning a description by Mr Tzikas of the work that he was to perform, only the quotation of an hourly rate for the work to be performed by him. There is no suggestion that he had formal qualifications as either an engineer or hydrologist. 51Just going back a little to the commencement of the work on the defendants' driveway on 4 June 2009, it is clear from the photographic evidence that, at the same time, Mr Heymans was keen to insert star pickets immediately behind he boundary of his land and to stretch between the star pickets a pink line indicating the boundary of his land. There is no dispute that the whole of the works carried out by the defendants were carried out on the defendants' land. However, some of the erosion, but not all of it, is on the plaintiffs' land, the erosion on the defendants' land being under the concrete strip. 52Photographs taken on 19 June 2009, those numbered 30, 31, 33, 34 and 35, show erosion starting to occur; that is, starting to occur within a fortnight of the erection of the concrete strip and spoon drains. There are photographs taken on 21 June 2009 in exhibit C, that numbered 47, and a photograph in exhibit 4, which show erosion but also the washing off of road base from the defendants' driveway. 53The next event chronologically occurred on 13 October 2009, when there was inspection of the culvert and the pond by Councillor Coe of the Bellingen Shire Council, the General Manager of the Council, and Mr Charlie Hannavy of Environmental Health and Planning. That led to a memorandum bearing date 13 October 2009, in which the Council concluded that the current situation of the culvert and pond was satisfactory. 54A photograph taken on 7 November 2009, which is exhibit C, p 32, clearly shows the commencement of undermining of the concrete strip by water flowing down the drain or ditch. Photographs taken on 8 March 2010, namely exhibit 3, p 46, clearly indicate a deepening of the ditch and widening of it, as well as undermining of the concrete strip. 55On 13 April 2010 Messrs Ken Cush & Associates, Solicitors of Canberra, wrote to Mr Reilly, albeit it that they misspelt his name. It refers to a "boundary dispute" between Mr Reilly and Mr Heymans. The solicitors advised that they were acting for Mr Heymans in relation to damage to his land arising from the construction of the driveway. The body of the letter is this: "We are instructed that between approximately May to June 2009 you had upgrade works done to your driveway. In doing so, we are instructed the land of Mr Heymans was excavated without his permission and left in an unsatisfactory condition. Please note that Mr Heymans intends on seeking appropriate compensation for the damage done to his land. He is currently awaiting an expert engineer and repairer report quantifying the value of his loss which will be forwarded to you in due course. We have been instructed to put you on notice that, upon receipt of the above-mentioned expert report, Mr Heymans or his legal representative will be contacting you to discuss a settlement of the matter to mitigate the need to commence legal proceedings in your Local Court. It is Mr Heymans' hope that this early formal notice will be seen as a courtesy rather than a demand and will facilitate open negotiations at the appropriate time. If you have any objections to the proposed course, please respond to Mr Heymans within 14 days..." 56The letter then directs the attention of Mr Reilly to Mr Heymans' address, which was obviously well known to Mr Reilly in any event. I must say that this is the only document in existence and the only thing which could be seen to be, in some way, "courteous". In any event, there is no suggestion that there has been any negotiation up until the current time for the parties to seek to resolve their differences and sort out the "problem" of the driveway. Mr Reilly sought his own legal advice, not locally but from Canberra. He was told to ignore the letter. 57The next events to occur were the inspections of Mr John Clerke of the Catchment Management Authority on 17 June 2010 and the inspection by Mr O'Meara, the engineer, on 7 September 2010. On 8 May 2011, Messrs Adendorffs, Solicitors of Coffs Harbour, wrote to the defendants on behalf of the plaintiffs. That letter alleges damage to the plaintiffs' property by the works not only of 2009 but, on this occasion, also of 2008 and also of 2007, although there is no evidence there was any works done at that time. The letter states "some legal principles" and ends with this demand: "We hereby notify you that, unless you implement measures (such as) those set out above within 21 days to our clients' satisfaction, our clients will be seeking to enforce their rights to allow surface water and the creek on lot 1 to drain onto lot 100 / the relevant easement. Our clients reserve their rights, also to seek compensation for damages caused by the damming on their lot 1 and by the unnatural flow of surface water on lot 1 caused by the works. Nothing herein is intended to give your clients or their invitees any permission to access our clients' property." The letter then suggested that the defendants seek legal advice. Again, Mr Reilly advised me that he was advised to ignore that letter. 58On 21 June 2011, Mr Graham Knight, an engineer, inspected the plaintiffs' property and the defendants' property. He generated a number of reports. They bear dates 8 September 2011, 4 July 2012 (albeit that the two seem the same to me), 27 July 2012 and 20 February 2013. The latter report appears to have been made in response to the report of Dr Rainer Berg. 59On 20 July 2011, a survey was carried out by Steve Russell Conveyancing of Coffs Harbour. Why that survey was commissioned is not clear, but it may have been for the purpose of these proceedings. The only relevant thing that occurred in the year 2012 was the commencement of these proceedings at Coffs Harbour on 28 March 2012. The statement of claim was filed not by either Ken Cush & Associates nor by Adendorffs, but by Carty & Cox of Bellingen. I should also add that the evidence indicates that early in the piece - and, the way the evidence was presented, it appeared to be in 2009 - the plaintiffs obtained legal advice from Mr Campbell of Messrs Fishburn Watson & O'Brien of Coffs Harbour. 60Another event occurred on 7 November 2011. On that occasion the defendants were away on holiday. The defendants are both members of the Rural Fire Brigade at Repton; so is Ms Bryant. In July 2011 the Rural Fire Brigade at Repton went onto the defendants' property for the purpose of either training or planning. The event in question eventually led to the creation of a letter from the Rural Fire Service to Ms Yee bearing date 18 July 2011. It became exhibit T. The letter commences thus: "On the day in question, the Repton rural fire brigade was carrying out pre-incident planning (PIP) in the Repton area. PIP's are developed by rural fire brigades to enable them to develop strategies prior to a fire occurring in the area. This includes the identification of fire-fighting water sources, also known as Static Water Supplies (SWS). The brigade was showing initiative in identifying resources and hazards in the Repton area, as well as checking on the preparedness of properties in the area. As you said, the brigade was on the neighbouring property. They were there to identify the best places to access water in case a wild fire occurred." The evidence of Ms Bryant is that Ms Yee went down to the area of the pond and confronted the members of the Rural Fire Brigade and alleged that they were attempting to steal water from the pond and threatened to call the police and have the members of the Rural Fire Brigade charged. Ms Yee was called in reply, the plaintiffs clearly relying on s 46 of the Evidence Act 1995. She gave a version of events which was not as confrontational as the version of events given by Ms Bryant. However, I have no hesitation in accepting the evidence of Ms Bryant on this issue, just as I had no hesitation in accepting her evidence on other issues. However, in essence exhibit T does speak in the direction of the evidence given by Ms Bryant. The letter continues thus: "There was and is no intention to take water from the water source on your property, except perhaps in times of emergency." 61Clearly, the allegation must have been made that the Rural Fire Brigade was at the defendants' property to take the plaintiffs' water from the plaintiffs' pond. Again, it speaks, in my view, of the querulousness of Ms Yee. 62The only other evidence to which I ought advert are further photographs showing erosion damage, those photographs being taken on 28 January 2013, 10 March 2013 and 30 August 2013; however, they are not all in chronological order in exhibit C. 63It is easiest for me to deal with the issue concerning the pond first. Paragraph 12 of the statement of claim recites works carried out by the defendant on the culvert. Those works are admitted but the admission is only of the works having been carried out in 2009, whereas the pleading refers to "in or about 2007 to 2009". The exception to the admission is properly taken and the admission itself is properly made. The statement of claim continues thus: "13. The effect of the culvert works and the driveway works was to increase the volume and the duration of ponding of water on the plaintiffs' land. 14. The culvert, the culvert works and the driveway works injure the plaintiffs' land by causing part of the land to be unusable by reason of the ponding of water and the increasing of the breeding of mosquitoes having the potential to be injurious to the health of the plaintiffs. 15. The plaintiffs have asked the defendants to rectify the driveway works and the culvert and the culvert works so as to stop the interference of the plaintiffs' enjoyment of their property and the defendants have failed or refused to rectify the driveway works, the culvert or the culvert works. 16. The driveway works, and the culvert works were carried out by the defendants despite the defendants being aware and being made aware of the effect and potential effects of the works. 17. The defendants have allowed the works to remain in place and unaltered and have failed to take any steps to reduce or avert any further damage to the plaintiffs, despite the defendants being aware and being made aware of the potential for damage and of continuing damage being suffered by the plaintiffs." The following two paragraphs of the pleading contain averments of damage and a claim for relief. 64Paragraph 13 of the statement of claim is unsupportable. The initial culvert pipe was placed in early 1991. The original culvert pipe remains in place. The top level of the pond represents the bottom level of the original pipe, or what the engineers refer to as the invert of the lower 900 millimetre concrete pipe. That fixes the height of the pond at 16.73 metres above sea level. The additional pipe in the culvert is placed 50 millimetres above the invert of the original pipe. The purpose of the additional pipe is clearly to drain away floodwater and is a direct consequence of the flood of 31 March 2009. It is physically impossible for the insertion of the second culvert pipe to cause the level of the pond to rise. Once the pond level oversteps 16.73 metres above sea level, water will flow down the original culvert pipe. Water flows downhill. Such is commonsense, such is science, and there is even legal authority for the proposition in a judgment of the High Court of Australia. 65The only way the pond could increase in size, area-wise, would be for there to be a subsidence in the land upstream of the culvert. There is no evidence that there has been any such subsidence and, furthermore, no one could possibly explain, in any event, how the defendants might be liable for such subsidence. The plaintiffs maintain that the level of water in the dam has been higher since the insertion of the second concrete pipe; however, there is only their say so to provide that and I don't accept either of them as being an accurate or reliable witness. 66The report of Mr Graham Knight of 20 February 2013 raises some possibilities as to why the water level in the pond might, at the current time, be higher than it was in the past. The relevant portion of his report is this: "Regardless, the plaintiff advises that the inundation of their land has increased since 2001 to its current level by, if not before, 2009. For this to have occurred, it can only be concluded that in the past the dry weather water level upstream of the culvert was below the culvert's invert. This could only have occurred if there was [sic] seepage through the embankment, or the presence of an unknown low flow pipe. As noted in our earlier report, the topography of the embankment and the fact that it ponds water upstream suggests that the pipe was installed above the natural creek's invert, possibly by a metre or more. It is conceivable that seepage or low flow pipe was and maybe still present. The plaintiffs have advised that, between 2001 and 2004, they would occasionally complain to the previous owner that the water level was increasing. The owner would take some action involving inserting a crow bar in the embankment or culvert somehow and the water levels would recede. This gives some credence to the possibility of seepage or a low flow pipe. The claimed increase in ponding water level since 2001 may have been caused by blockage of seepage paths/low flow pipe by the accumulation of sediment and vegetation upstream. The further concreting works to the culvert in 2009 may have also impacted on the possible low flow path. It is noted that these works included additional concrete to the embankment face downstream of the culvert and possibly upstream as well, as shown on the approved plan accompanying Ref 12. It is difficult to comment on works to the upstream embankment as it is now under water. These possibilities are based solely on verbal advice offered by the plaintiff. No documented or photographic evidence has been sighted to either support or dispute this theory. It is presented here as it is in my opinion the most credible explanation as to the claims of the plaintiffs. In this regard, the testimony of the previous owner of lot 100 may be most revealing." 67Of course, there is evidence from Ms Yee of Mr Keith Knight's inserting a crowbar into the culvert or the lower section of the culvert and moving it about in some fashion and thereafter the waters receding. That is the only evidence and, as I said, I do not accept Ms Yee as a witness of truth, neither accurate nor reliable. Mr Keith Knight, the former owner who is alleged to have done that, has not been called, nor has his absence been explained. 68There is no evidence of a low-flow pipe. It is mere speculation. There is no evidence of seepage at any time through the wall of the dam/culvert into the lower section of the unnamed tributary of Freshwater Creek. Indeed, the evidence suggests that, were there such seepage, it would have made the culvert unsafe because, in heavy rain and flood, water would push itself through the seepage channels and undermine the culvert, causing it to be washed away. Such as not happened since the erection of the original culvert in 1991, over 21 years ago, and certainly did not happen in the one in 100 year event of 31 March 2009. One can easily understand the seepage channels being enlarged by heavy rain and pressure of floodwater. This is mere speculation on Mr Knight's part. The only thing that can be said is that it is likely that the pond will silt up with time. 69The other allegation, of course, is that mosquitoes breed in the pond, thereby lowering the amenity of the plaintiffs' land. Mosquitoes will breed in any stagnant water in any subtropical or tropical climate. Indeed, they even breed in stagnant water in metropolitan Sydney. Stagnant water can include a bowl left out for a dog to drink from. If this pond were a fertile source of mosquitoes breeding then one would think that those most affected by it would be the defendants, who live much closer to the pond than do the plaintiffs, and the defendants live at a much lower level near the pond than the plaintiffs, whose residence is at a much higher level. The front of the plaintiffs' residence appears to lie at contour 36 - that is, 36 metres above sea level - so that the plaintiffs' house is at least 19 metres above the level of the top of the pond. 70None of the work carried out by the defendants on the culvert could be seen as affecting the operation or use of the pond. Therefore, as par 13 of the statement of claim is not supportable by any evidence that the Court can accept, it must follow that the allegations in pars 14, 15, 16 and 17 of the statement of claim must also fail. The plaintiffs' claim for relief concerning "ponding" caused by the erection of the culvert must accordingly fail. 71I turn now to consider the case of the plaintiffs based on erosion. It is important to bear in mind some principles that are perhaps not principles of law but of fact and commonsense upon which the law is based. One of the leading decisions in this area of the law is the decision of the High Court of Australia in Gartner v Kidman (1962) 108 CLR 12; [1962] HCA 27. There was a very learned judgment written by Windeyer J with whom the then Chief Justice of the High Court, Sir Owen Dixon, concurred. At [33] his Honour pointed out that it was argued in that case that the proprietor of lower-level land may not impede the natural flow of surface water from adjacent higher land of another proprietor. His Honour then went on to say this: "34. Before examining the doctrine thus asserted it is important to consider what was meant by the natural flow, or direction of flow, of surface waters. It is not necessarily the way in which such water naturally flows in the existing condition of the land in question, for that may have been recently altered; and water naturally flows downhill. The critical question in this connexion is, does the natural course of the flow of surface water from the land of one man to that of another mean the course that it would have taken had both parcels been left wholly undisturbed by man; or, on the other hand, does it refer to the state of the whole area of land, whether natural or altered by man, immediately before its severance into separate parcels and separate ownerships? Understood in the first sense the concept is not free from difficulty. For what, one may ask, is the natural state of any part of the earth's surface? Without any aid from man's works in altering levels, gradients and contours, the forces of nature are continuously altering the conformation of land in many ways, as by floods, erosions, shifting sands and silting streams. And furthermore, without any operations by man upon a particular piece of land, the amount and course of waters coming upon it may be drastically affected by man's operations elsewhere, by ploughing fields, felling forests, making roads and gutters, and building towns. So that, when one speaks of land as nature made it and left it, it is impossible to know in the abstract at what point of time one should take one's stand." 72There are two separate torts of nuisance, private nuisance and public nuisance. I am here concerned with what is alleged to be a private nuisance. "Halsbury's Laws Of Australia" provides the following summary of the elements of the cause of action for private nuisance: "A private nuisance is a substantial and unreasonable interference with the private right to the use and enjoyment of land. To establish a cause of action in nuisance the plaintiff must demonstrate: (1) that he or she has title to sue in respect of the particular nuisance; (2) that the defendant has interfered with a property right of the plaintiff; and (3) the interference was both substantial and unreasonable. It is not an element of the cause of action in private nuisance that there be material physical damage to the plaintiff's land although a cause of action is available in respect of material damage to land. Intention or negligence are not elements of the cause of action in private nuisance." 73The work then goes on to point out the obvious; that the onus of proof to establish the cause of action in private nuisance lies on a plaintiff. The authors of this work footnote the observation that there is a cause of action available in respect of material damage to land with a reference to another section of the work. That section is this: "Where the nuisance causes material physical damage to the land, the ordinary measure of damages is the amount of diminution in the value of land caused by the nuisance, although the plaintiff may elect to recover the reasonable costs of the reinstatement and restoration where his or her desire to reinstate the property is reasonable in the circumstances and provided the cost of reinstatement is not disproportionate to the amount of the diminution of the value of the land. The value of the land is a relevant factor in determining what is the appropriate measure of damages in the circumstances." 74However, I am persuaded by the arguments of learned counsel for the plaintiffs that that is not an accurate statement of the law of private nuisance. The principles appear to differ if there has been physical injury to land as distinct with merely an interference with the enjoyment of the land. There is no library here available at Coffs Harbour. I am reliant on what can be printed out from the Internet or what I have been provided by counsel. Learned counsel for the plaintiffs has referred me to Balkin and Davis, "Law of Torts", 4th edition, LexisNexis Butterworths, 2009. Commencing at [14.8], the authors say this: "[14.8] If, for example, the defendant sets up vibrations which cause the building of the plaintiff to collapse, or if the fumes emitted from the defendant's factory destroy vegetation of the plaintiff, this might be an actionable private nuisance. There is sufficient invasion of the interest of the plaintiff on proof that his or her property has suffered a sensible material injury which is not merely trifling in its nature and which results in a diminution of the value of the property. This is the effect of the decision of the House of Lords in St Helen's Smelting Co v Tipping (1865) 11 HLC 642. This case further decides that where such injury is proved, it is not relevant to enquire whether the locality in which the defendant carried on the activity was a suitable one. So, when the plaintiff there established that his shrubs had been damaged by fumes from the copper smelting plant of the defendants and that there had been very considerable diminution in the value of his property, the House of Lords held that the requirement of interference with the land of the plaintiff was satisfied, irrespective of whether the defendants carried on their business in a fit industrial locality. Because, as is discussed in [14.15], locality is a factor to be taken into account in deciding whether acts which cannot be brought under the present head are sufficient interferences with the land, it is important to define 'sensible material injury to property'. This problem may be considered in two parts, the first of which is the meaning of 'material injury'. It has been suggested that it is enough if science can trace a deleterious physical change in the property; the better view, however, is that 'sensible' means damage visible by ordinary persons conversant with the subject matter without having recourse to scientific evidence. [14.9] The second and more difficult problem is the meaning of 'property'. In St Helen's Smelting Co v Tipping, Lord Westbury LC distinguished 'material injury to property' on the one hand, and those interferences 'producing sensible personal discomfort' on the other. Depreciation in the value of land and buildings is not in itself 'material injury to property' but damage to goods within the premises is sufficient. Uncertainties remain about the scope of the proposition that the fitness of the place where the defendant operates is immaterial in deciding whether there has been interference amounting to sensible material injury. Although judges in both Canada and New Zealand continue to state the distinction drawn by Lord Westbury, the impression is that, in practice, the courts often do consider the suitability of the locality, where the strict application of the rule under discussion would seem to preclude it. Especially is this the case where the nuisance consists of dust or soot emanating from the defendant's property. [14.10] There is another basis on which, it appears, liability for the type of nuisance presently under discussion differs from that constituted by a substantial interference with enjoyment. It has been held that in the former, as distinct from the latter, it would not avail the defendant to plead that all reasonable precautions had been taken to prevent the injury being suffered, but the true rule may be that stated in Kraemers v A-G (Tas) [1966] Tas SR 113 that the plaintiff's cause of action is complete on proof of the substantial injury to property, and that it is for the defendant to show the reasonableness of any precautions that had been taken." 75Unfortunately, no copy of Kraemers v A-G (Tas) can be accessed here in Coffs Harbour. It is not available through the Attorney-General's Department nor on any website that can be sought on the internet. My Associate has been clever enough to find an article published in the University of Western Australia Law Review in 1990 at p 129 which comments, amongst other things, on Kraemers' case. The article in question concerns "Private Nuisance, Fault and Personal Injuries". 76It is really a discussion of whether a person who is physically injured and cannot sue in negligence might be able to sue in nuisance. The example being considered is whether a person who lived near a golf course was struck in the eye while sitting at his breakfast table by an errant golf ball which had come onto his land from a wayward stroke by a golfer and cause the loss of the eye. It is postulated that, in certain circumstances, the law of negligence would not permit such a plaintiff to recover if, for example, the golf course owner had taken all reasonable precautions to guard against the escape of wayward golf balls. ADJOURNED TO FRIDAY 13 SEPTEMBER 2013 AT 9.30AM 77Yesterday evening, shortly before I adjourned, I was pointing out that a copy of Kraemers v A-G (Tas) was not available here at Coffs Harbour. I also referred to the fact that my Associate was able to find an article in 1990 UWALR 129 headed "Private Nuisance, Fault and Personal Injuries", which quoted, in part, some of what fell from the Court in Kraemers. At the foot of p 135 the article says this: "Similarly, in Kraemers v Her Majesty's Attorney-General for the State of Tasmania ("Kraemers") it was said that in cases of nuisance by material damage to property, the plaintiff's cause of action is made out solely on proof of damage of which the plaintiff complains. Chief Justice Burbury said: '[I]t is not true to say that unreasonable conduct of the defendant vis-a-vis the plaintiff is an ingredient in the cause of action for nuisance ... Where material or substantial injury to property is caused (as in the present case) nothing more need be shown by the plaintiff. The criterion the law applies to the plaintiff's entitlement to sue is material injury to his property.' However, Chief Justice Burbury went on to say that once the plaintiff had made out the cause of action in this way, the onus of proof passed to the defendant who could excuse the interference by proof of the reasonableness of the defendant's use of property. Thus Kraemers is authority for the slightly more limited proposition that the plaintiff's cause of action does not depend on any of the surrounding circumstances (including any precautions taken by the defendant) but that the defendant's liability may do so." Further, at p 139, the article quotes a dictum of Burbury CJ: "Where material or substantial injury to property is caused...nothing more need [be] shown by the plaintiff." It is unfortunate that a copy of the judgment is not available to me because the facts of that case might indicate what his Honour meant by "substantial injury to property". 78Yesterday I quoted from "Halsbury's Laws Of Australia", which said this: "Where the nuisance causes material physical damage to the land, the ordinary measure of damages is the amount of diminution in the value of the land caused by the nuisance, although the plaintiff may elect to recover the reasonable costs of reinstatement and restoration where his or her desire to reinstate the property is reasonable in the circumstances and provided the cost of reinstatement is not disproportionate to the amount of the diminution in the value of the land." 79In the present case there is not a scintilla of evidence of any diminution in the value of the plaintiffs' land caused by the installation of the western dish drain and the concrete strip. There is also no evidence of the cost of a restoration of the plaintiffs' property, and it is a moot point whether the cost of reinstatement of the plaintiffs' land would be disproportionate to the diminution of the value of the land. 80The matter can be tested in another way. Yesterday I quoted from the judgment of Sir Victor Windeyer in Gartner v Kidman. I quoted [34] of his Honour's reasons, which was preceded by his pointing out an argument advanced in that case that the proprietor of lower land may not impede the natural flow of surface water from adjacent higher land of another proprietor. Gartner v Kidman is authority for the proposition that that argument is invalid. 81His Honour went on to quote from Butcher v The Borough of Woollahra (1876) 14 SCR (NSW) 474, in which the Supreme Court of this State held that the owner of lower land has a right by erecting a dam or otherwise to pin back the surface drainage from higher land if it be not flowing in a defined channel as a natural watercourse. His Honour also went on to quote from the Solicitor-General v Smith (1896) 14 NZLR 681, in which Williams J said this: "The question of how far, by English law, the proprietor of land is bound to receive on his land surface-water coming on to it from higher land does not appear to me to be satisfactorily settled. No doubt the proprietor of the lower land has no right of action against the proprietor of the land above for simply allowing it to come, but it does not follow that the proprietor of the land below, unless the water coming in a natural stream flowing in a defined channel, cannot, by raising the level of his land, or by barriers, or otherwise, prevent the surface-water coming on to it. That the lower proprietor can do so appears to be recognised by the courts of those States of the American Union which profess to follow the common law as distinguished from the civil law. The civil law recognises the existence of a servitude which compels the lower owner to receive the surface-water. I have been unable to satisfy myself that there is any corresponding easement at common law. No doubt there are expressions to be found in the books which seem to infer that the proprietor above has this right as against the lower owner. No case, however, can be found in England where the proprietor above has recovered when mere surface-water has been retained on his land through the neighbour below doing something on his own land which prevents the water coming there." Sir Victor Windeyer went on to follow cases such as Butcher v The Borough of Woollahra and the Solicitor-General v Smith. Sir Victor went on to say this: "48. I summarize below what I take to be the law concerning the flow of surface water from the land of one man on to that of his neighbour. What I shall say is based upon the general principles set out in Maxey Drainage Board v Great Northern Railway Co. (1912) 106 LT 429 and Gerrard v Crowe (1921) 1 AC 395 and the cases there cited as well as others collected in the Australian authorities to which I have already referred, and it is written after the advantage of discussion with the Chief Justice. The propositions are general. Their application in a particular case may be affected by circumstances. They concern only surface waters, as distinct from the flow of natural watercourses to which riparian rights attach. And, for this purpose, surface waters do not include the waters of a stream or river which when periodically swollen in time of flood flows in a wider channel than ordinarily, the super-abundant waters following the general course of the stream but flowing on lands outside its ordinary bed. Such 'flood channels' are to be regarded as if they were part of the alveus of the stream. The law of natural watercourses applies, not that of surface waters. The riparian owner may not impede the flow or throw the floodwaters upon the lands of his neighbour on the opposite bank: see Menzies v Breadalbane (1828) 4 ER 1387. On the other hand waters that are the occasional overflow of lakes or ponds, not being part of a stream, are surface waters. 49. The following propositions concerning surface waters relate only to water which came naturally upon the land on which it flows as distinct from water artificially brought or concentrated there and allowed to escape as in Rylands v Fletcher (1868) LR 3 HL 330. 50. With the above limitations in mind, the rights and obligations of the proprietors of continuous closes, one on a higher level than the other, may be stated as follows: 51. The higher proprietor: He is not liable merely because surface water flows naturally from his land on to lower land. 52. He may be liable if such water is caused to flow in a more concentrated form than it naturally would. 53. It flows in a more concentrated form than it naturally would if, by the discernible work of man, the levels or conformations of land have been altered, and as a result the flow of surface water is increased at any particular point. 54. If a more concentrated flow occurs simply as the result of the 'natural' use of his land by the higher proprietor, he is, generally speaking, not liable. What is a natural use is a question to be determined reasonably having regard to all the circumstances, including the purposes for which the land is being used and the manner in which the flow of water was increased: as for example whether it is agricultural land drained in the ordinary course of agriculture, whether it is timbered land cleared for grazing, whether it is a mining tenement, or is used for buildings and so forth. 55. The proprietor of higher land is not liable for a more concentrated flow from his land if it is the result of work done outside his land by someone else, and for the doing of which he is not responsible, as for example by the paving and guttering of public roads by municipal authorities. 56. The above statements concerning the concentration of surface waters relate to cases when the increased flow results from work done when the higher land and the lower land were held by separate proprietors. Different considerations apply when the lower land receives a concentrated flow as a result of work which was done when it and the higher land were in the same ownership and possession. 57. The lower proprietor: He may recover damages from, or in appropriate cases obtain an injunction again, the proprietor of higher land who is, for any of the reasons given above, liable to an action because he has concentrated or altered the natural flow. 58. Although he has no action against the higher proprietor because of the natural unconcentrated flow of water from his land, he is not bound to receive it. He may put up barriers and pin it back, notwithstanding that doing so damages the upper proprietor's land, at all events if he uses reasonable care and skill and does no more than is reasonably necessary to protect his enjoyment of his own land. But he must not act for the purpose of injuring his neighbour. It is not possible to define what is reasonable or unreasonable in the abstract. Each case depends on its own circumstances. 59. It may be added that the proprietor's right to defend his land against water coming upon it by erecting barriers, is generally speaking restricted to pinning it back onto the higher land whence it would otherwise have naturally come. It does not entitle him to divert it onto the land of a third proprietor to which it would not have naturally gone to the damage of that proprietor." 82Here, the defendants rely in particular on [58] of his Honour's reasons for judgment. The defendants were entitled to repel water flowing naturally from the plaintiffs' land onto the defendants' land by erecting a barrier or dam or levee. The vast majority of the water which came to flow along the western side of the defendants' driveway drained from the plaintiffs' land. As I pointed out yesterday, almost all of the water flowing from the lot 1 access catchment immediately into the area beside the concrete edge or concrete strip drained from the plaintiffs' land. 83As to the water which flowed into the western spoon drain, two-thirds drained from lot 1 and only one-third drained from lot 100; that is, two-thirds of the water flowing into the western spoon drain drained from the plaintiffs' land and only one-third of the water flowing into the western spoon drain drained from the defendants' own land. It can be seen, therefore, that the vast amount of water flowing into the channel which developed on the western edge of the defendants' driveway drained from the plaintiffs' own land. The defendants were entitled to keep that water off their access road. 84In essence, that is what the concrete road edge does. The western spoon drain merely concentrates water flowing two-third from the plaintiffs' land and one-third from the defendants' land into that channel. Had no water from the defendants' land flowed into the western spoon drain, the plaintiffs' could not make any complaint whatsoever. The defendants were entitled at law to erect a barrier, for example, a wall a number of feet or a metre high, to dam waters flowing from the plaintiffs' land onto the defendants' land. The barrier actually erected was much smaller. It would then have been incumbent upon the plaintiffs to cause that water flowing on their own land not to damage their own land. 85As far as the concrete road edge is concerned, it might be validly argued that the plaintiffs were the authors of their own misfortune when they insisted that any works to be performed by the defendants be performed solely on the defendants' land, because it prevented the defendants from performing some works on the plaintiffs' land which may have drained the plaintiffs' water away from the defendants' driveway. In those circumstances, I am not satisfied that there has been any substantial or material damage to the plaintiffs' own land caused by the works carried out by the defendants. 86Most of the water causing the erosion of the bank on the eastern side of the plaintiffs' land is water draining from their own land. Furthermore, the law requires that common sense be applied. The voice of common sense in this case lies not in what was said by the plaintiffs nor, indeed, anything that was said by the defendants, but in the observation of Ms Bryant that this was a very small part of the plaintiffs' land and "live and let live" would indicate that there might be some erosion but that is something that could easily be borne. 87In the course of argument I pointed out that, at most, the ditch or drain beside the concrete road edge was no wider than 600 millimetres; sometimes it is less wide. I postulated that the entire length of the defendants' driveway was about 120 metres. However, the erosion is not over the whole of the 120 metres; it is only over part of the 86.66 metre length of one of the eastern boundaries of the plaintiffs' land. When I look at exhibit B, the survey compiled by Steve Russell Surveying, the length of the concrete strip appears to be no more than 75 metres. The total area affected by the erosion appears to be some 45 metres. That must be compared with the total area of the defendants' land, which is 6001 square metres. The area affected is less than 1% of the plaintiff's land. 88Learned counsel for the plaintiffs laid much stress upon the utility of the bank on the eastern side of the defendants' land, which the plaintiffs maintain is being undermined by the erosion. The points he made are quite valid. Since Ms Bryant was the proprietor of lot 1, revegetation of the bank has been undertaken and continues to be undertaken by the plaintiffs. That revegetation stabilises the bank. It also shades lot 1, No. 39, from dust arising from the driveway in dry weather. It provides privacy to both the residents of lot 1, No. 39, and the residents of lot 100, No. 47. It also, by being vegetated, inhibits the runoff of water, minimising the potential for erosion. 89However, the erosion itself - and I have physically inspected it - can only be described as minor. The erosion cannot be seen from the plaintiffs' house or anywhere in the proximity of their house. To see the erosion, one really needs to be on the driveway or walking along the side of the driveway. What is being eroded was referred to by Mr Heymans as the toe of the bank. It is a very thin strip of land. The argument advanced by the plaintiffs is that, along this toe of land, they could walk and maintain the bank, removing from it weeds, in particular exotic weeds such as lantana, and remove dead foliage, remove twigs and branches that had fallen from planted trees, and otherwise maintain the bank in a satisfactory condition. That is true, but walking along the toe of the bank is hardly an activity that would be undertaken by anybody other than to care for the bank itself which, in my view, would be an irregular or infrequent occurrence. If the bank became disorderly, it is the amenity of the defendants' land which would be more greatly affected then the amenity of the plaintiffs' land. I pointed out yesterday when I stated the general principles of nuisance to be gleaned from articles in "Halsbury's Laws of Australia" that for a private nuisance to be actionable, the plaintiffs must prove that the interference with the land be both "substantial and unreasonable". 90Just as I am not persuaded on the balance of probabilities that there has been substantial or material damage to the land itself, I am also not persuaded that any interference with the amenity or use of the land has been substantial. Furthermore, I am not persuaded that any such interference with the amenity of the land has been unreasonable. Once upon a time, in this country at least, it was unusual for battleaxe building blocks to be developed. The more normal course was that, in a subdivision, an easement for access would be provided over a servient tenement to allow those who did not have access to a public highway to obtain such access to land which was wholly surrounded by other residential blocks. 91Because of frequent squabbling between neighbours over rights of way and rights of access, it was developed as a policy to create battleaxe blocks so that no such squabbling could occur. The purpose of the handle of the battleaxe is clearly to provide access to the defendants' property. The defendants' use of the strip of land in question is a reasonable use and clearly the intended use which any person could ascertain who looked merely at a map or plan or inspected the property concerned. 92There is nothing, in my view, to suggest that what the defendants did was unreasonable. The plaintiffs can hardly complain if the defendants did, on their land, that which they did, bearing in mind that the plaintiffs refused to even contemplate any work being performed on the edge of their land which might amount, as they perceived it, to a trespass. The relevant principle of law requires objectivity. On this aspect, "Halsbury's Laws" discusses "unreasonable interference" in this fashion: "Whether interference with the use and enjoyment of land is unreasonable is determined by reference to the standards of reasonableness according to the ordinary usages of people living in society or in a particular society and not those of abnormal sensitivity. An interference will be considered unreasonable if it materially interferes with the ordinary physical comfort of human existence, regard being had to the character of the locality of the land, to what standard of comfort a person dwelling in that locality may reasonably expect and to the duration of the interference. When a statute prescribes reasonable standards of conduct, the terms of the provision will be highly relevant, but not determinative of whether a private nuisance has been established." 93I have not, in this case, been referred to any particular statutory enactment or any provision of any applicable subordinate legislation. However, I do know that this is rural residential land. One could call it broad acres. Ms Bryant herself referred to the land which she once owned as being an acre and a half. The plaintiffs' acre and a half has a boundary with the defendants' rural residential landholding and in particular with the length of land designed for access being provided to what would otherwise be a completely landlocked holding. One would not expect, in those circumstances, a fully kerbed and guttered road providing access to the defendants' land, and one would expect something of the nature which actually exists on the boundary between the plaintiffs' and the defendants' land. The learned counsel for the plaintiffs described Ms Yee as being zealous about enforcing her rights, but it appears to me that she fell well within the class of someone who could be described as having "abnormal sensitivity". Indeed, the behaviour of the plaintiffs could be described, in my view, as "precious", and I use that term in its pejorative sense. 94In summary, therefore, I am not satisfied that there has been any actual material or substantial physical damage to the defendants' land, and nor am I satisfied on the balance of probabilities that the use or enjoyment of the plaintiffs' land has been the subject of both substantial and unreasonable interference. Accordingly, the actions in nuisance fail. 95However, I will not leave this case without pointing out other serious defects in the plaintiffs' case. As eventually argued, the plaintiffs sought two mandatory injunctions. The first mandatory injunction was that the defendants undertake works to address erosion on the plaintiffs' land as proposed by Mr Graham Knight on p 6 of his report of 4 July 2012, being part of exhibit E. The second mandatory injunction was that the defendants undertake works to remove the pond or lagoon as proposed by Mr Graham Knight on p 9 of his report of 4 July 2012, being part of exhibit E. I can deal with the second mandatory injunction sought quickly. 96In cross-examination Mr Knight admitted that he had put in his report works designed to remove the pond, not because he, as an expert witness, recommended that the pond be removed but merely because the plaintiffs asked him to insert that in his report. There is no expert evidence that suggests that the pond must be or ought be removed. Indeed, the pond now is in the same position it was when Ms Bryant purchased the land back in 1989. There is no foundation at all for the removal of the pond. 97The problem with the other relief sought by the plaintiffs is that there are, at least as far as I can see, seven options for what is claimed as necessary remediation. The first is to place a table drain on the plaintiffs' land adjacent to the concrete road edge. The second is to remove the concrete road edge and install a table drain partly on the plaintiffs' land and partly on the defendants' land. The third alternative or option is to remove the concrete edge and place a table drain solely on the defendants' land. The fourth alternative is the installation of any one of those table drains and also to install culverts underneath the road in at least three or perhaps four places between the current western spoon drain and the culvert. The fifth alternative raised is the installation of any one of the three earlier table drains I have mentioned, together with grading of the road such that it slopes from west to east, the inclination of the road being that which the plaintiffs maintain it had prior to the works of February 2008, which inclination I do not accept it ever had. The sixth alternative is merely such grading of the driveway and remediation of the ditch which has been formed on the western side of the concrete strip. However, it appears to me, as a tribunal of fact, that that would probably not be adequate because, even with a continuous slope from west to east from the bank and over the driveway, there would still be a point where the greater gradient of the bank met the lesser gradient of the road which, in heavy rain, would cause, in my view, some furrowing leading eventually again to the formation of a drain or ditch along the western side of the driveway. The seventh and final option is the installation of kerbing and guttering wholly on the defendants' land, which is what is proposed by Mr Knight. 98He did not consider whether the kerbing and guttering should encroach in any way upon the plaintiff's land. However, it is clear from all of the expert evidence before me that the kerbing and guttering option would be the most expensive. There was an attempt made by Mr Graham Knight in his report to annexe a potential costing of the kerbing and guttering or other works. The tender of that was objected to by the defendants and that section of the report was marked for identification, the objection being as to the expertise of Mr Knight to make the assessment. When Mr Knight entered the witness box, he told me that the document which had been marked for identification, which had been extracted from his report, had not been made at all by him but by somebody else in his office who may have the requisite expertise. However, no report had been obtained from that gentleman, let alone was it served or any formal notice given about it to the defendants. The tender was, therefore, never pressed by the plaintiff. There was actually no costing of the kerbing and guttering. Indeed, there is no costing of any of the alternatives that I have discussed. 99The defendants put before me a quotation from Mr Alan Wilkins, the manager of "Dig It With a Dingo" of Boambee East. That suggests works which would cost less than $2,500. However, the works he proposed would not meet the standard generally agreed by the experts for a table drain or dish drain, namely, one that is about 1 metre wide and having a depth of between 300 millimetres and 500 millimetres with the bottom and sides of the drain formed by rock with an underlying geofabric. The works proposed by Mr Wilkins met only half of such requirements. 100There is no evidence of what would be the most reasonable or effective option to be pursued or any realistic estimate of its cost. If asked to provide injunctive relief, there must be some rational basis for preferring one form of order to another and the only basis that can be put forward for Mr Knight's proposal is that it is a proposal made at the request of the plaintiffs and for work solely on the defendants' land and work which, on the evidence before me, would be the most expensive. 101The granting of any injunction is discretionary and, in the circumstances of this case, I would not exercise any discretion to require the defendants to do more than most of the experts conceded need be done. In any event, in my view, I have no power to grant injunctive relief unless the tort in question, namely, private nuisance, has been made out. 102Section 46 of the District Court Act 1973 has a heading "Ancillary Equitable Relief: Injunctions". The heading implies that equitable relief can be provided by the Court as an adjunct to the granting of other relief. The word "ancillary" is derived from the Latin noun "ancilla", the word for a female servant, generally referred to as a handmaid. Section 46(1) is in these terms: "Without affecting the generality of Division 8, the Court shall, in any action, have power to grant any injunction (whether interlocutory or otherwise) which the Supreme Court might have granted if the action were proceedings in the Supreme Court." 103Despite the heading to the section, the subsection makes it clear that the Court could grant the injunction without any other form of relief being granted. However, the granting of an injunction must be the result of a plaintiff's succeeding in his or her action. Here, I am not satisfied that the plaintiffs have made out a valid case in the tort of private nuisance; that is, I have not found that any interference with the plaintiffs' land is actionable. Therefore, the plaintiffs' not succeeding in tort, I believe I am without any power to grant any injunction. 104Whether the Court could have granted a quia timet injunction in proceedings commenced by, for example, a summons, is a moot point, but that is not the form of action chosen by the current plaintiffs. HIS HONOUR: Any further reasons for judgment required? BATLEY: No, your Honour. OLIVER: No, your Honour. HIS HONOUR: Thank you. 105I have enquired of the counsel for the plaintiff and the solicitor for the defendant whether any further reasons for judgment are required and I am told that none are so required. For those reasons, I give verdict and judgment for the defendants against the plaintiffs. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 28 November 2013