Lord v McMahon [2015] NSWSC 1619

Supreme Court New South Wales

Medium Neutral Citation: Lord v McMahon [2015] NSWSC 1619 Hearing dates: 12, 13, 17 November & 1, 12 December 2014 Date of orders: 24 November 2015 Decision date: 24 November 2015 Jurisdiction: Equity Before: Slattery J Decision: On the plaintiff's summons no trespass or continuing trespass found. Claims for flooding nuisance at the dam and the table drains upheld. A relief hearing ordered. Part of nuisance case fails with respect to dam wall leakage. Plaintiff's case in relation to the encroachment of table drains also fails. On the cross claim the claims in proprietary estoppel and under the Encroachment of Buildings Act dismissed. Catchwords: TRESPASS - from dam construction - large dam built on land close to the boundary of lower lying rural neighbouring property - batter from dam construction placed onto lower-side neighbour's land - whether a trespass - whether a continuing trespass - where defendant's conduct permanently altered the plaintiff's land - defence to trespass - whether adjoining lower-side neighbour gave permission for dam to be built and batter to be placed on lower-side neighbour's land - what amounts to consent – where injunctive relief sought to prevent trespass to land.

TRESPASS - from table drain construction - table drains built near boundary along the "battle-axe handle" of two subdivided rural properties - whether the table drains concentrate surface water into channels causing erosion of the plaintiff's property.

NUISANCE - from dam leaking water onto lower land of neighbour - whether leakage amounts to a nuisance - from table drain - whether leakage causes nuisance to plaintiff's land by erosion.