Challen v The McLeod Country Golf Club
[2004] QDC 24
•27 February 2004
DISTRICT COURT OF QUEENSLAND
CITATION:
Challen v. The McLeod Country Golf Club [2004] QDC 024
PARTIES:
JILLIAN MARGARET CHALLEN
(Plaintiff)v
THE McLEOD COUNTRY GOLF CLUB
(ACN 009 773 273)
(Defendant)FILE NO/S:
5348 of 2001
DIVISION:
Civil Jurisdiction
PROCEEDING:
ORIGINATING COURT:
District Court Brisbane
DELIVERED ON:
27 February 2004
DELIVERED AT:
Brisbane
HEARING DATE:
2 and 3 February 2004
JUDGE:
Samios DCJ
ORDER:
Plaintiff’s claim dismissed
CATCHWORDS:
NUISANCE – material or substantial interference with enjoyment of premises – golf balls from adjoining golf course – “fault” requirement for actionable nuisance
Montana Hotels Pty Ltd v Fasson Pty Ltd (1986) 69 ALR 258, 261-263.
Lester-Travers v City of Frankston (1970) VR 2
Campbell-Town Golf Club Limited v Winton & Anor (1998) NSWSC 257 (23 June 1998).
Champagne View Pty Ltd v Shearwater Resort Management Pty Ltd & Anor (2000) VSC 214 (25 May 2000)
COUNSEL:
Mr C. O’Neill for the plaintiff
Mr Bowden for the defendantSOLICITORS:
Hawthorn Cuppaidge & Badgery for the plaintiff
Toogoods for the defendant
The plaintiff, Mrs Challen, claims against the defendant damages for nuisance.
Mrs Challen is the owner and occupier of premises situated at 7 Bruan Close, Middle Park in the State of Queensland (Mrs Challen’s premises).
The defendant is the owner and occupier of a golf course at Gertrude McLeod Crescent, Middle Park in the State of Queensland (the golf course).
Mrs Challen’s premises are situated adjacent to the twelfth fairway of the golf course.
As players tee off to play the twelfth hole of the golf course, Mrs Challen’s premises are on the right hand side of the twelfth hole.
The golf course commenced as a nine hole golf course in 1968. During the 1970’s a further nine holes were added. Presently there are approximately 50 houses, including Mrs Challen’s premises which share a boundary with the golf course.
Mrs Challen said prior to purchasing the vacant land she lived in a house on a street between her house and the golf course but did not actually adjoin the golf course. At that house she enjoyed the unimpeded views of the golf course. She did not have golf balls coming onto her property at that house. Vacant land adjacent to the golf course became released. Mrs Challen was looking to build her dream home. She had thought about buying a property on the river, but thought it would not be as safe as she had young children. Consequently when the vacant land became available it was purchased quickly as it was regarded a prime spot to be on the golf course. However, she did not consider it would be a problem living next to the golf course. After purchasing the vacant land she became aware that golf balls came from the golf course onto the vacant land. Therefore, she designed her house so that the swimming pool and tennis court could be between the house and golf balls coming from the golf course onto her premises. Mrs Challen said she wanted to have a harmonious relationship with her neighbours as many of her neighbours belonged to the golf club. After building the house she became aware of golf balls coming onto her premises. However, Mrs Challen said that in the early 90’s it seemed to get worse, and at one stage it became like “living in Beirut”.
The evidence shows Mrs Challen and her husband wrote letters to the golf course and received letters in return. The first letter from Mrs Challen’s husband to the golf course is dated 15 October 1991. Mrs Challen said she was under the understanding the golf course, to keep happy relationships, would pay the first $50 of any claim for damage caused to Mrs Challen’s premises. Therefore, Mrs Challen wrote to the golf course seeking reimbursement for breakages.
Mrs Challen said golf balls coming from the golf course damaged the tiles on the roof, and on some occasions golf balls would bounce off the veranda and strike the underside of the ceiling causing holes or dents in the ceiling and eave or sometimes shatter a window or go wherever. The holes were at various places to the house. Mrs Challen said golf balls came over the tennis court, over the retaining wall and bounced on the front veranda and then caused holes in the front veranda as well as the back. Photographs in evidence show damage to a plastic pool table, an ornamental bird and an ornamental bird bath. Mrs Challen said the golf course made it very clear to her that they did not have to pay for the damage but to maintain cordial relationships they were prepared to pay the excess upon any claim made by her upon her insurance company for the damage. Mrs Challen was struck once by a golf ball when she was walking into her garage. Mrs Challen said she was concerned about the safety aspect. On one occasion a ball shattered glass in the garage where her son was exercising. Mrs Challen would come home to find men in her yard seeking to retrieve a golf ball, and despite remonstrating that it was private property, the retort would be “Well, it’s my ball, lady. What do you expect, you live on a golf course”. Mrs Challen said this attitude appeared to also be the attitude of the club.
Mrs Challen said the golf course had taken steps to reduce incidents of balls coming on to her property. As a result of these alterations done by the golf course there has been a reduction in the number of balls coming on to her property. Although it is not like living in Beirut any more she still gets the odd ball coming onto her property. She is still concerned that someone may get hurt. She said she would not feel the same about her house if someone was hurt badly in her house.
Mrs Challen’s husband said when his wife purchased the land and they were standing on the land conceptualising how they might configure the property, there were occasions he found golf balls lying on the land. Therefore, they became aware that golf balls obviously were coming on to the site. Mr Challen said that he spoke to someone at the golf club. The consequence was that down the line the tee was shifted away from hard abutting the corner of the club’s land, slightly over but parallel to that tee. When doing the gardening on the weekend, Mr Challen would find between 25 and 30 golf balls which he would collect over a period of about a fortnight. In the year 2001 he collected 526 balls. Mr Challen said he raised the problem with the golf course as early as 1989 which led to the repositioning of the tee back against the back fence. Apart from repositioning the tee at that stage there were no other steps taken by the golf course to reduce the number of balls coming into the property until more recent times. In more recent times Mr Challen said the golf course repositioned a new tee and caused a mound to be placed on the fairway and grew a lot more trees. Mr Challen said he had oral discussions with representatives of the golf course. However, in those discussions he did not use the word “nuisance”. Rather, he had discussions about golf balls coming into the property. Mr Challen said that at one stage in the year 2000 he was advised by representatives of the golf course that the golf course was not going, in the future, to make any payments. Thereafter, the formal claim was put in through these court proceedings. Mr Challen said there has been further damage to Mrs Challen’s premises through golf balls in more recent times.
Mr Challen said that a letter written by Mrs Challen’s solicitors to the golf course dated 13 March 2001 accurately records his and his wife’s experience. Mr Challen said in more recent times the rate of receipt of golf balls from the golf course averages something between 2 to 3 balls a week. This is still a source of concern for him because it only takes one ball to hit somebody in the head and serious damage can occur. He is concerned for the welfare of his family and others, including himself. He said about three months ago a golf ball narrowly missed his son. Recently also he was gardening and was narrowly missed by a golf ball.
Mr Priddle has house sat Mrs Challen’s premises over the Christmas/New Year periods since 2000/2001. In the first of those periods in one day he found eight golf balls in the yard of Mrs Challen’s premises. In the second of those periods he was cleaning the pool on a Saturday morning and a golf ball hit the fence and narrowly missed striking his head. He gave evidence of other occasions golf balls entered Mrs Challen’s premises, coming in at high velocity. In the most recent period he said there was substantially less balls coming into Mrs Challen’s premises. However, one did come in and just hit in front of him one afternoon when he was watering the yard, and another one came in at the front of the house where he had been reading a newspaper. He also observed the marks under the eaves of the house which indicated the entry of golf balls at very high velocity.
Mrs Chesterman said she has been a full member of the club since 1985. She told me the club has full membership for women. Male membership is called fellow members. The balance of membership is 55% women and 45% males. She has been a member of the club since 1985. She has played the twelfth hole many times over the years. She has never hit a ball into Mrs Challen’s premises. She has never seen another woman hit a golf ball into Mrs Challen’s premises. Mrs Chesterman said that the impression she had when she came on the Board in 1997 was that there had been a couple of claims a year on average from Mrs Challen. The first notification she had of 20 balls being hit regularly into Mrs Challen’s premises or that anybody had been struck by a golf ball was when the club received the letter from Mrs Challen’s solicitors dated 13 March 2001. Mrs Chesterman understood the policy of the club was, with agreement with the neighbours which it appeared was accepted by the neighbours, that the club would pay the excess for someone’s insurance policy. She was never aware that Mrs Challen considered herself oppressed with 10 or 20 balls entering Mrs Challen’s premises. Mrs Chesterman mostly played in the women’s competition and had never witnessed a ball entering Mrs Challen’s premises after having been struck by a female player. She also played in the mixed competition on the Sunday with men which was not very regularly, and has occasionally played on a Saturday when the men and women played, but obviously not together, so therefore she had not witnessed what the men were doing on those occasions. She said obviously people are not going to run up to her as the President and say that they had struck somebody’s house. Nevertheless she was not aware that balls were going in with regularity, or the regularity that is depicted in the letter from Mrs Challen’s solicitor dated 13 March 2001 and she said that she was frankly quite shocked at that number of balls referred to in the letter. Her response to the letter was to send the letter off to the club’s solicitors on the same day. She communicated the contents of the letter to some of her fellow directors, and immediately put in place steps to obtain a quote to construct a fence on the boundary. This quote is in evidence and is dated 4 April 2001. However, Mrs Chesterman did not proceed with the fence proposal as Mrs Chesterman was anxious not to impede Mrs Challen’s view of the golf course and affect the amenity of the area in that the fence may have been constructed of orange polyurethane and would not appear attractive and would not have solved the problem. Therefore, after further discussions with relevant persons including a course designer who had been involved in the construction of the golf course in the past, a plan was developed to alter the twelfth hole. Mrs Chesterman said they also had a lot of trouble with the men about the proposed changes to the twelfth hole. She said:
“There was a lot of fuss from the fellow members about shifting them to a Par 3. In fact, I personally was abused by one of them for doing that, for making the inquiry, making them go to a Par 3.”
Nevertheless, the twelfth hole was changed. The changes include the provision of a tee for the men further to the left of the existing tee so that the men would be playing a par 3. In fact, two tees were provided, one in front of the creek and one behind the creek. In front of the creek it plays 110 metres to the green, whereas behind the creek it plays 176 metres to the green. The existing tee has remained the ladies tee and remains as a par 4. The men have the option to play on the tee on the furtherest side away from the creek on special occasions. Because of considerations regarding play on the course for pennants and generally obtaining funds, the work commenced in about November 2001 and was completed and opened in about March 2002. The cost was approximately $26,000. Mrs Chesterman said she has never heard of the suggestion that men are still using the existing tee. She said that has never been reported to her and she knows nothing about it. She said there was a sign directing people, namely the men and social players, that they must cross the creek to the other side to play that hole. Mrs Chesterman added that there were out of bounds markers on the boundary between the golf course and Mrs Challen’s premises and that a player would lose a stroke going out of bounds. This was an incentive therefore to play to the left. Further, trees had been planted which when they are fully grown should provide more of a barrier to golf balls traversing from the twelfth hole onto Mrs Challen’s premises. Mrs Chesterman considered it would have to be a very big hit to carry the distance to enter Mrs Challen’s premises. Mrs Chesterman explained that if the twelfth hole were to be restricted to a par 3 for all players, that is including women players, then the prestige of the course could be adversely affected in that golf clubs are competitive for membership. She said a golf course usually has four par 3’s and not five par 3’s.
Mr Vallis has been a fellow member of the club for 24 years. He said this is a unique golf club where the central executive and all the administration is by the lady members. However, the men have a committee of their own. The main functions of that committee is to run their competitions. There is liaison between the mens’ committee and the management committee of the club. The President of the fellow members’ committee is invited to attend the monthly Board meetings. He has regularly played on the course, including the twelfth hole. He said since the twelfth hole has become a par 3 he has not seen anyone hit a ball into Mrs Challen’s premises. He has never seen any person he has been playing with hit a golf ball into Mrs Challen’s premises. However, he has seen before the reconfiguration of the hole when playing in a group probably about 10 times golf balls entering Mrs Challen’s premises. What he had seen though of that was that they had come to rest inside Mrs Challen’s yard just after bouncing in or landing near the fence.
In Halsbury’s Laws of England 4th Edition Volume 34 at paras 307, 310 and 312 it is stated:-
“307. Private nuisance. A private nuisance is one which interferes with a person's use or enjoyment of land or of some right connected with land. It is thus a violation of a person's private rights as opposed to a violation of rights which he enjoys in common with all members of the public. The ground of the responsibility is ordinarily the possession and control of land from which the nuisance proceeds.
310. Surrounding circumstances must be considered. An act which in some circumstances is lawful may in others become actionable as a nuisance. Whether such an act does constitute a nuisance must be determined not merely by an abstract consideration of the act itself, but by reference to all the circumstances of the particular case, including, for example, the time of commission of the act complained of, the place of its commission, the manner of committing it, that is, whether it is done wantonly or in the reasonable exercise of rights, and the effects of its commission, that is, whether those effects are transitory or permanent, occasional or continuous. Thus the question of nuisance or no nuisance is one of fact.
312. Damage essential. Damage, actual, prospective or presumed, is one of the essentials of nuisance. Its existence must be proved, except in those cases in which it is presumed by law to exist. The damage need not consist of pecuniary loss, but it must be material or substantial, that is, it must not be merely sentimental, speculative or trifling, or damage that is merely temporary, fleeting or evanescent. However, nothing can be deemed fleeting or evanescent if it results in substantial damage, and therefore regard is to be had not merely to the duration of the thing complained of but to the effect of the act or omission upon the plaintiff.”
Written correspondence passing between Mr and Mrs Challen and the golf course was tendered as part of Exhibit 1 (the correspondence).
In the correspondence before the letter dated 13 March 2001 there is reference to damage to the premises (letter dated 15 October 1991), to an incident when glass shattered over one of Mr and Mrs Challen’s sons (letter dated 11 July 1992), to the continuous entry of about between twelve and twenty golf balls in the yard of the premises each week (letter dated 8 November 1994) and to “the golf ball menace appears to be increasing” (letter dated 1 December 1998).
However, the correspondence before the letter dated 13 March 2001 was not regular in its frequency nor did it seek more than reimbursement for damage caused to the premises.
Although the letter from Mrs Challen to the golf course dated 8 November 1994 stated ten roof tiles had been broken by golf balls, that letter was written about two years and three months after the previous letter from Mr Challen to the golf course dated 11 July 1992. The next letter from Mrs Challen to the golf course was two years later on 5 November 1996. Even the event when Mrs Challen was struck by a golf ball is not mentioned in the correspondence before the letter dated 13 March 2001. Further, in one letter before the letter dated 13 March 2001 there is a reference to some damage caused by golf balls for which no claim was being made (letter dated 15 October 1991) and in another letter reimbursement is claimed for some damage “as you have so kindly done in the past” (letter dated 5 November 1996). The last letter to the golf course dated 12 July 2000, before the letter dated 13 March 2001, is as follows:-
“Please find enclosed a receipt for repairs of a window which was smashed by a golf ball last Thursday afternoon.
I would appreciate prompt re-imbursement as you have done in the past.”
Even though there was a reference in the correspondence to about between twelve and twenty golf balls entering the yard of the premises each week, there was no detail of how many of those golf balls were striking the house, compared to possibly rolling in over the boundary between Mrs Challen’s premises and the golf course.
Further, apart from the correspondence, when Mr and Mrs Challen gave evidence they did not do so by reference to any written records of when certain events occurred, and how many golf balls that entered the premises struck the house as opposed to being found by them lying in the yard of the premises.
I accept golf balls struck from the twelfth tee of the golf course have entered Mrs Challen’s premises, have damaged her property including her house, on one occasion Mrs Challen was struck by a golf ball and Mrs Challen has been concerned for the safety of her family and herself for the reasons she and her husband gave when giving their evidence and contained in the correspondence.
There is no dispute the golf course did shift the tee in 1989 to the left about ten metres in response to Mr Challen’s discussions with the golf course representatives about that time. Further, the golf course did pay to Mrs Challen some compensation for damage to Mrs Challen’s property.
I accept that for some reason in the late 1990’s and in the early 2000’s there was an increase in the number of golf balls entering Mr Challen’s premises compared to the earlier years. I am satisfied the frequency with which golf balls entered Mrs Challen’s premises increased to such an extent Mrs Challen was moved in the year 2001 to have her solicitors write the letter her solicitors wrote to the golf course dated 13 March 2001.
There is no evidence to explain why the number of golf balls entering Mrs Challen’s premises increased in the late 1990’s and in the early 2000’s. Mrs Challen’s solicitors in their letter dated 13 March 2001 asserted, that with the advent of new technology golfers were able to hit golf balls with their drivers from the twelfth tee further and faster than ever before, and that was an increasing trend. I accept that could be a possible explanation for the increase in frequency of golf balls entering Mrs Challen’s premises. I consider that is consistent with Mr Challen’s evidence which I accept that he collected 526 balls in the year 2001. I consider that is also consistent with Mr Priddle’s evidence which I accept about his observations since the early 2000’s.
I am satisfied there has been a significant decrease in frequency with which golf balls enter Mrs Challen’s premises in recent times. I am satisfied that is because of the changes the golf course has made since receipt of the letter dated 13 March 2001.
I accept Mrs Chesterman’s evidence that she has not seen female players strike a golf ball that has entered Mrs Challen’s premises. I also accept Mrs Chesterman’s evidence the loss of a stroke for going out of bounds to the right towards Mrs Challen’s premises is an incentive for players to play to the left away from Mrs Challen’s premises. I also accept Mr Vallis’ evidence that since the twelfth hole became a par 3 he has not seen anyone hit a golf ball into Mrs Challen’s premises. I am satisfied the twelfth hole now plays to the left away from Mrs Challen’s premises.
However, I accept at the present time occasionally some golf balls enter Mrs Challen’s premises from the golf course. I am satisfied that is because the physical changes to the twelfth hole have not yet fully taken effect. I am satisfied that as the trees that have been planted mature fully and as there is now a mound on the right hand side of the twelfth hole and with the requirement for the men and social players to play the hole as a par 3, golf balls are much less likely to enter Mrs Challen’s premises.
The evidence does not satisfy me the interference with Mrs Challen’s enjoyment of her premises was material or substantial from about the early 1990’s until about the late 1990’s. That is because when Mr and Mrs Challen gave evidence they did not do so by reference to any written records apart from the correspondence. Further, if in the early 1990’s until the late 1990’s the interference with Mrs Challen’s enjoyment of her premises was material or substantial I would have expected the correspondence to be more regular in its frequency and to seek more than reimbursement for damage caused to the premises. Further, Mr and Mrs Challen gave evidence about matters that occurred in some respects over twelve years ago.
I am satisfied Mr and Mrs Challen were giving me their honest recollection of events. However, I am satisfied it is the more recent years about which their recollections are more accurate and reliable. Mr and Mrs Challen’s evidence is supported by the evidence of Mr Priddle, whose evidence I accept, about the early 2000’s. Further, the contemporaneous letter dated 1 December 1998 which states “the golf ball menace appears to be increasing” is a record about the late 1990’s.
Therefore, I am satisfied the interference with Mrs Challen’s enjoyment of her premises was material or substantial in the late 1990’s and in the early 2000’s. I am satisfied the interference with Mrs Challen’s enjoyment of her premises is not now material or substantial.
Counsel for Mrs Challen referred me to three authorities in support of Mrs Challen’s claim.
Firstly, Lester-Travers v City of Frankston (1970) VR 2 which was a case where Anderson J in the Supreme Court of Victoria granted an injunction restraining a defendant from permitting persons playing golf on the golf course from hitting golf balls into the plaintiff’s property. In that case His Honour found the defendant was in a position to know and should have known and appreciated the nature and extent of the intrusion of golf balls. Further, the defendant denied any nuisance was caused to the plaintiff.
Secondly, Campbell-Town Golf Club Limited v Winton & Anor (1998) NSWSC 257 (23 June 1998). That case involved an appeal against a trial judge’s award of general damages for a nuisance suffered by a homeowner whose property abutted a golf course. The principal point discussed in that case is that it was no defence to the claim that the homeowner “came to the nuisance”. I accept in the present matter it is no defence for the golf course that Mrs Challen purchased the land adjacent to the golf course.
Finally, Champagne View Pty Ltd v Shearwater Resort Management Pty Ltd & Anor (2000) VSC 214 (25 May 2000). That was a case where the plaintiff claimed relief arising out of golf balls landing on land owned by it. The primary relief sought was for an injunction. An alternative claim was made for damages. As a result of certain steps taken by the defendants after the issue of the writ, the plaintiff decided not to proceed with the claim. The defendant did not object to that course but the parties could not agree on the question of costs of the proceedings. Gillard J in the Supreme Court of Victoria held the probabilities were high that the plaintiff would have proven that the activity of golf balls being often struck into the plaintiff’s land constituted a nuisance to the plaintiff. The defendant was ordered to pay the costs of the proceedings.
However, the defendant submitted until the letter dated 13 March 2001 no complaint had been made by Mrs Challen to the effect she was suffering in the way she enjoyed her house or that the golf balls were a nuisance. Further, to that point in time all demands which had been for money had been met. Further, the letter dated 13 March 2001 put the position squarely on the line and the golf course responded immediately. I was referred to what the Privy Council said in Montana Hotels Pty Ltd v. Fasson Pty Ltd (1986) 69 ALR 258, at p.261-263:
“The principles which their Lordships should apply are well established and little reference need be made to the well known authorities. Sedleigh-Denfield v. O’Callagahn [1940] AC 880, a decision of the House of Lords, is of course the locus classicus. It is only necessary to give the following excerpt from the speech of Lord Wright (at p 904): ‘Though the rule has not been laid down by this House, it has I think been rightly established in the Court of Appeal that an occupier is not prima facie responsible for a nuisance created without his knowledge and consent. If he is to be liable a further condition is necessary, namely, that he had knowledge or means of knowledge, that he knew or should have known of the nuisance in time to correct it and obviate its mischievous effects. The liability for nuisance is not, at least in modern law, a strict or absolute liability. If the defendant by himself or those for whom he is responsible, has created what constitutes a nuisance and if it causes damage, the difficulty now being considered does not arise.
…
Mr Buckner frankly accepts that ‘fault’ is a necessary ingredient of the nuisance which the appellant alleges the respondent committed. Since it is not suggested that the respondent created the nuisance or knew of its existence prior to the receipt of the appellant’s letter in October 1981, Mr Buckner accepts that the ‘fault’ which must be established is that the respondent ought to have been aware, prior to the appellant’s letter, of the defective pipe, ie that with ordinary care in the proper management of the property he should have realised the risk of its existence.
‘Ought to have known’ cannot mean more than ‘would have known, if he had taken the precautions which a reasonable landowner would take’ (per Tucker LJ in Caminer v. Northern and London Investment Trust Ltd [1949] 1 All ER 874 at 877.
…
Once it was conceded on behalf of the appellant that it could not ‘point to anything which the respondent did or failed to do in the period before the broken drainpipe and the source of the water were identified and the attention of Fasson’s staff was drawn to those things’, ‘fault’ ceased to be a live issue and questions of onus thereupon became wholly irrelevant.”
In my opinion the question of ‘fault’ arises in these proceedings in the context of the capacity of the golf course as the occupier of the golf course. In Halsbury’s at para 365 the following is stated:-
“… An occupier of land is liable for a nuisance, even though he has not created it, if he has continued it while he is in occupation. Further, the occupier will be liable for a nuisance created after he became the occupier if he had knowledge, actual or constructive, of its existence. An occupier of land continues a nuisance if, with knowledge (actual or constructive) of its existence, he fails to take reasonable steps to bring it to an end and, if he makes use of the building or other artificial contrivance which constitutes the nuisance, he adopts it.
….
To establish liability for continuing a nuisance by failing to prevent it, the person so failing must generally be in a position to take effective steps to that end.”
It is not suggested that golf balls that have been struck on the golf course are intended by those striking the golf balls that the golf balls enter Mrs Challen’s premises. Golf balls that enter Mrs Challen’s premises do so because they are the product of a miss-hit. It is not the golf course as the occupier that strikes the golf ball but rather persons who have the permission of the golf course to use the golf course. Therefore, in my opinion this is a case of whether the golf course, accepting there has been a material or substantial interference with Mrs Challen’s enjoyment of her premises, continued or adopted the “nuisance”.
In my opinion, what Mr and Mrs Challen have deposed to in their evidence and which is supported by Mr Priddle is of an interference occurring in the late 1990’s and in the early 2000’s amounting to a material or substantial interference with Mrs Challen’s enjoyment of her premises.
I accept the golf course was put on notice in about 1989 that there was interference with Mrs Challen’s enjoyment of her premises. However, the golf course responded at that time by moving the tee.
In my opinion Mrs Challen did not before the letter dated 13 March 2001 complain in explicit terms to the golf course to bring home the nature and extent of the interference that had arisen in the late 1990’s.
When Mrs Challen gave evidence it seemed to me there were a number of considerations that Mrs Challen had regard to that might explain why Mrs Challen did not complain in explicit terms to the golf course. One such consideration early in time was that Mrs Challen knew some of her neighbours and knew some belonged to the golf club and Mrs Challen wanted to have a harmonious relationship with her neighbours. Another consideration was that she was not a litigious person and the golf club had maintained it had no liability. Another consideration was that persons retrieving their golf ball from her premises told her what could she expect living next to the golf course. Whatever was the consideration that caused Mrs Challen to send to the golf club as she said a “subtle message” that she was not really enjoying the experience (T23/50), in my opinion that message was in all the circumstances too subtle.
Therefore, although I am satisfied there was a material or substantial interference with Mrs Challen’s enjoyment of her premises in the late 1990’s and in the early 2000’s, for damages to be awarded I must be satisfied the golf course knew or ought to have known that its activities interfered with Mrs Challen’s enjoyment of her premises in that way and failed to take reasonable steps to bring it to an end.
I accept Mrs Chesterman’s evidence that the impression the golf course had up until receipt of the letter dated 13 March 2001 was that the activities of the golf course were an infrequent interference with Mrs Challen’s enjoyment of her premises. I accept Mrs Chesterman’s evidence that a player who had hit a golf ball into Mrs Challen’s premises would not report that to her as President of the club.
I am satisfied the correspondence and discussions between Mr and Mrs Challen and the golf course representatives before the letter dated 13 March 2001 did not convey to the golf course that golf balls were entering Mrs Challen’s premises in the circumstances portrayed in the letter dated 13 March 2001 and in the evidence given before me by Mr and Mrs Challen and Mr Priddle. Even though moving the tee in 1989 did not stop the interference with Mrs Challen’s enjoyment of her premises, the nature and extent of the interference described by Mrs Challen being like “living in Beirut” was not, in my opinion, notified to the golf course.
I am satisfied the golf course did not know nor ought it to have known until the letter dated 13 March 2001 that the interference with Mrs Challen’s enjoyment of her premises had been material or substantial.
Therefore in my opinion the present matter is distinguishable from the facts in the Lester-Travers case because Anderson J found the defendant in that case knew and should have known and appreciated the nature and extent of the intrusion of golf balls onto the plaintiff’s property. Further, the principles stated by Gillard J in the Champagne View Pty Ltd case are not contrary to the principles in the other authorities I have had regard to.
I am satisfied the letter dated 13 March 2001 was written at a time when Mrs Challen rightly thought something more should be done by the golf course apart from paying some compensation.
I am satisfied the golf course responded reasonably by firstly investigating the cost of the installation of a fence, and then abandoning the fence idea in favour of preserving for Mrs Challen the amenity of the area that she enjoyed and considering the fence idea might probably not work, and then engaging a course designer to redesign the course which, in my opinion, has had the desired effect, both in the short term and in the long term. I accept it was reasonable for the golf course to take some time to do this and in particular to raise the funds to direct to the works required to redesign the twelfth hole. I am satisfied the golf course has done all that could reasonably be expected of the golf course to do in the circumstances.
I am satisfied there has been no “fault” on the part of the golf course as that concept is used in the law of nuisance.
Therefore, I dismiss the plaintiff’s claim.
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