Crossley v English
[2020] WASC 118
•9 APRIL 2020
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: CROSSLEY -v- ENGLISH [2020] WASC 118
CORAM: SMITH J
HEARD: 13 MARCH 2020
DELIVERED : 9 APRIL 2020
FILE NO/S: CIV 1457 of 2019
BETWEEN: WILLIAM EDMUND CROSSLEY
First Plaintiff
PATRICIA MARGARET CROSSLEY
Second Plaintiff
AND
PAUL CHRISTOPHER ENGLISH
Defendant
Catchwords:
Practice and procedure - Interlocutory application for inspection of dams and watercourse on defendant's land and the taking of samples
Rights to use water - Riparian owners of land - Rights to take water in a watercourse
Practice and procedure - Application for further and better particulars of defence - No new principle
Legislation:
Rights in Water and Irrigation Act 1914 (WA), s 2(1), s 3, s 5A, s 5B, s 5C, s 5C(1)(c)(i), s 5E, s 20
Rules of the Supreme Court 1971 (WA), O 52 r 3, O 52 r 3(1), O 52 r 3(2)
Result:
Application for inspection of property and to take samples granted
Application for further and better particulars of defence dismissed
Category: B
Representation:
Counsel:
| First Plaintiff | : | Mr P A Kyle |
| Second Plaintiff | : | Mr P A Kyle |
| Defendant | : | Mr T J Carmady |
Solicitors:
| First Plaintiff | : | Kyle & Company |
| Second Plaintiff | : | Kyle & Company |
| Defendant | : | Williams & Hughes |
Case(s) referred to in decision(s):
Evans Deakin Pty Ltd v Orekinetics Pty Ltd [2002] QSC 42; [2002] 2 Qd R 345
H Jones & Co Pty Ltd v Kingborough Corporation [1950] HCA 11; (1950) 82 CLR 282
ICM Agriculture Pty Ltd v The Commonwealth [2009] HCA 51; (2009) 240 CLR 140
Process Minerals International Pty Ltd v Consolidated Minerals Pty Ltd [2012] WASC 254
SMITH J:
The interlocutory application
The plaintiffs filed a chamber summons on 13 November 2019 seeking orders that the defendant file further and better particulars of the amended defence and inspection of the defendant's land by their legal practitioners and experts.
After hearing counsel on 13 March 2020, the plaintiffs pressed for orders that:
(a)the defendant file and serve further and better particulars of [3.1(a)] of the amended defence by providing particulars of the course of the watercourse (otherwise described in [3.1(a)] as the stream) across the defendant's property, as it was on the date when the defendant became the registered proprietor of the property, by drawing the course on a copy of an aerial map;
(b)the plaintiffs have leave to inspect the defendant's property on the following terms and conditions:
(i)The plaintiffs, their solicitors, agents and expert witnesses have leave to inspect the defendant's property on a date to be agreed, no later than 30 days after the date of these orders, for the purpose of examining the watercourse and dams referred to in the pleadings and equipment associated therewith, the springs alleged by the defendant to be flowing into the dams, and the leaks and seepage alleged by the plaintiffs.
(ii)During the inspection, the plaintiffs and their expert witnesses be permitted to take such measurements, samples, photographs and video recordings as they consider necessary.
(iii)In order to allow a full inspection of the north eastern wall of the third dam pleaded in [10] of the statement of claim, subject to first obtaining the approval of the Shire of Denmark:
(A)in the area between the bottom of the wall and the boundary between the plaintiffs' and the defendant's properties, such parts of that wall and the area be cleared of vegetation to the extent considered by the plaintiffs' expert witness to be necessary for the inspection; and
(B)the clearing to be carried out on the inspection date by an appropriate person chosen by and overseen by the expert witness;
(c)the parties have leave to adduce expert evidence at the trial.
Other than an order that the parties have leave to adduce expert evidence at the trial, the orders sought by the plaintiffs are opposed.
Assessment of the claims raised in the plaintiffs' and defendant's pleadings
Background
The plaintiffs and the defendant both own rural properties in the Shire of Denmark and are neighbours. The plaintiffs reside in a property of approximately 2 ha in size and share a common boundary on the western side of their property with the defendant's property. The defendant is a marron farmer. His property is approximately 26 ha in size.
The defendant purchased his property in 2004 with the intention of farming marron on the property. Prior to purchasing the property in 2004, the previous owner had constructed a dam of approximately 5,000 m2 over a watercourse (the original dam) that ran from upstream into the western boundary of the land through a culvert under a road where it ran through the land to the eastern boundary of the property and downstream into and across the plaintiffs' property.
Since purchasing his property, the defendant has extended the original dam and constructed two further dams. In about 2006, the defendant built a dam over the watercourse to the eastern side of the original dam of approximately 18,000 m2 in size. In 2009, the defendant increased the size of the original dam to approximately 10,000 m.2 In 2011, the defendant constructed a further dam on the watercourse of approximately 22,000 m2 in area on the eastern side of his property. The eastern wall of the third dam runs almost perpendicular and close to the boundary of the plaintiffs' land.
In these reasons, the original dam as extended in 2009 is referred to as the first dam. The dam constructed by the defendant in or about 2006 is referred to as the second dam and the dam constructed by the defendant in 2011 is referred to as the third dam.
Each of the defendant's three dams are used by him to farm marron.
Annexed to these reasons for decision and marked with the letter A is an aerial map showing, each of the three dams on the defendant's land, the boundaries of each of the properties, and what are said to be an approximate indication of the watercourse that runs through and across both properties.[1]
[1] The aerial map was created from images available from Google Earth by Brian Humphries, a licenced surveyor; affidavit of Brian Humphries, sworn 14 November 2019, annexure A, 'Exhibit F13'.
On 30 June 2014, the defendant obtained retrospective planning consent to construct the third dam.[2]
The pleadings
The plaintiffs' claims
[2] Affidavit of Paul Christopher English, sworn 17 December 2019, annexure PCE1, pages 9 - 13.
The plaintiffs raise two claims against the defendant. These are:
(a)a breach of the plaintiffs' rights pursuant to the Rights in Water and Irrigation Act 1914 (the Act) by blocking and destroying the watercourse and thereby depriving the plaintiffs of the benefit of water flowing through the watercourse into the plaintiffs' land or, alternatively, by sensibly diminishing the flow of water in the watercourse;[3]
(b)by negligently constructing the third dam, in that:[4]
(i)water is leaking and seeping from the defendant's land into the plaintiffs' land, and
(ii)there is a risk of catastrophic damage to the plaintiffs' land and improvements thereon as the wall of the third dam alongside the plaintiffs' land is unsafe and liable to collapse.
[3] Statement of claim [11].
[4] Statement of claim [13] - [14].
The particulars of negligence are pleaded as:[5]
(a)The defendant constructed the dam without any advice or certification from a qualified engineer;
(b)The dam was constructed over the watercourse;
(c)The wall of the dam was constructed of sandy peat soil which was not suitable for the construction, which was not adequately compacted and which contained quantities of vegetation;
(d)Parts of the dam are situated within 3 metres of the boundary between the Plaintiffs' land and the Defendant's land in breach of the requirement of the Shire of Denmark that it should be set back no less than 15 metres from the boundary;
(e)The wall of the dam has a slope that is too steep to avoid erosion; and
(f)The Third dam is constructed without an adequate emergency spillway.
[5] Statement of claim [13](a) - (f).
Relevant to the breach of statutory duty, in respect of the claim that the defendant has 'sensibly diminished the flow of water in the watercourse', the plaintiffs also plead that from approximately 2007:
(a)effluent from the marron in the dams and other dams on the defendant's land has had a significant adverse effect on the quality of water in the dams;[6] and
(b)the defendant has caused water affected by the marron effluent to flow from the third dam and onto the plaintiffs' land, thereby damaging the plaintiffs' land.[7]
The defence
[6] Statement of claim [15].
[7] Statement of claim [16].
The defendant in his amended defence admits that each of the three dams are constructed on the watercourse,[8] but pleads that:[9]
(a)the watercourse is seasonal and does not commence flowing on the property until sufficient winter rains have fallen, and typically ceases flowing on the property by November or December each year, depending upon the weather; and
(b)the downstream flow of the watercourse is augmented by multiple springs on the property which discharge (or feed) groundwater into each of the dams.
[8] Amended defence [6.3], [7.2], [8.4].
[9] Amended defence [4.3] - [4.5] and [16.3].
The defendant denies that as a result of the construction of each of the three dams, the flow of water in the watercourse is 'sensibly diminished'.[10]
[10] Amended defence [7.4], [8.5], [9.4] and [16.2].
The defendant does not deny that water is leaking from the third dam into the plaintiffs' property, or seeping from his property into the plaintiffs' property, but says that no 'material quantity' of water is leaking or seeping.[11]
[11] Amended defence [13.1] - [13.2].
The defendant denies that the wall of the third dam alongside the plaintiffs' property is unsafe and/or liable to collapse.[12]
[12] Amended defence [13.6].
The defendant also denies that marron effluent has had a significant adverse effect on the quality of the water in each of the dams, and claims that the quality of the water in the watercourse has not been sensibly diminished as a result of the defendant's marron farming activities on the property.[13]
[13] Amended defence [14.2] and [14.7].
The defendant pleads that in or about April 2018, he constructed an emergency spillway on the south eastern side of the third dam.[14]
[14] Amended defence [9.6].
The defendant also pleads that if, which is denied, the plaintiffs have any cause of action against the defendant, then to the extent they accrued more than six years prior to the commencement of the action, those causes of action are statute barred.[15]
[15] Amended defence [21].
Rights inWater and Irrigation Act 1914 (WA) - civil liability
On 13 May 2019, the defendant filed a request for further and better particulars of the statement of claim. One of the requests required further and better particulars of the 'plaintiffs' rights' pleaded in [11] of the statement of claim filed on 15 May 2019, and requested that the plaintiffs identify the particular sections of the Act that they allege to have been breached. In answer, the plaintiffs stated 'Division 1A'.[16]
[16] Further and better particulars of statement of claim, filed 15 May 2019 [2.4].
Although the plaintiffs, in their written submissions, have not identified specifically the provisions of the Act upon which they rely, as the defendant points out, the claim made by the plaintiffs can be understood as a claim under s 5E of the Act in relation to a breach of the statutory duty imposed by s 5C(1)(c)(i) of the Act of a right conferred by s 20 of the Act. However, the plaintiffs also contend that their case relies upon s 5A and s 5B of the Act. Their argument is that s 5B prohibits an owner of property from building a dam on a watercourse on their land.
Sections 5A, 5B, 5C and s 5E are contained within pt III of div 1A of the Act.
Section 5A provides:
5A. Natural waters vest in Crown
The right to the use and flow, and to the control, of the water at any time in any ‑
(a)watercourse; or
(b)wetland; or
(c)underground water source,
vests in the Crown except as allocated under this Act or another written law.
Section 5B provides:
5B. Landowner etc. may carry out certain drainage and storage work
(1)The operation of section 5A does not prevent the owner or occupier of land ‑
(a)subject to any relevant local by‑laws, from ‑
(i)draining the land; or
(ii)making any dam or tank on the land, not on a watercourse or wetland,
if as a result of doing so ‑
(iii)the flow of water in a watercourse, or the amount of water in a wetland, is not diminished; or
(iv)there is no significant adverse effect on the quality of water, or any ecosystem, in a watercourse, or a wetland; or
(b)from making any dam or tank on the land, not on a watercourse or wetland, for watering cattle or other stock, other than those being raised under intensive conditions as defined in section 21(4).
(2)In subsection (1) ‑
diminished means ‑
(a)sensibly diminished; or
(b)if local by‑laws prescribe a greater diminution of the flow or amount of water for the purposes of this section, diminished to a greater extent than is so prescribed.
Section 5C(1) of the Act provides:
5C. Taking of certain water without right or licence, offence
(1)A person must not ‑
(a)take water from any watercourse, wetland or underground water source to which this section applies; or
(b)cause or permit any of those things to be done,
except under and in accordance with ‑
(c)a right conferred by ‑
(i)section 9, 10, 20, 21, 22 or 25A; or
(ii)a local by-law of the kind referred to in section 26L(3)(d); or
(iii)another written law;
or
(d)a licence under this section granted by the Minister in accordance with Schedule 1.
Penalty: $10 000 and a daily penalty of $1 000.
Section 5E of the Act provides:
5E.Breach of s. 5C or degradation of water resource, civil remedy for
(1)Subsection (2) applies if ‑
(a)a person contravenes section 5C and the contravention affects ‑
(i)the exercise by a person of a right referred to in section 5C(1)(c); or
(ii)the taking of water by a person under a licence under section 5C;
or
(b)a person taking or using water from a water resource does not take all reasonable steps to minimise the degradation of the water resource.
(2)The contravention is a breach of statutory duty that is actionable at the suit of ‑
(a)in respect of subsection (1)(a), a person referred to in subsection (1)(a)(i) or (ii); or
(b)in respect of subsection (1)(b), a person directly affected by the degradation of the water resource referred to in that subsection.
(3)Subsection (2) has effect subject to the defences and other incidents applying to actions for breach of statutory duty.
Section 20 of the Act provides:
20. Riparian owners etc., rights of
(1)The owner or occupier of any land (riparian land) alienated from the Crown through or contiguous to which runs any watercourse, or contiguous to which, or partly within which, is situate any wetland, has the right, as such owner or occupier, to take water in that watercourse or wetland free of charge ‑
(a)for the domestic and ordinary use of himself and of his family and servants; and
(b)for watering cattle or other stock, other than those being raised under intensive conditions as defined in section 21(4); and
(c)to the extent that the flow of water in the watercourse or the amount of water in the wetland, as the case may be, is not thereby sensibly diminished, for any other purpose,
but the right described in paragraph (c) may be made inapplicable to, or be restricted in relation to, any riparian land by the provisions of local by-laws that apply to the land, and that paragraph is to be read subject to any such provisions.
(2)Every owner of riparian land that was ‑
(a)alienated from the Crown before the commencement of this Act; or
(b)in the process of alienation at that commencement,
has the right, in addition to the rights conferred by subsection (1), to take water described in that subsection for the irrigation of a garden not exceeding 2 ha if no produce is sold from the garden and the garden ‑
(c)is part of that land; and
(d)is used in connection with a dwelling.
(3)The owner of riparian land also has the right conferred by subsection (2) in relation to a watercourse or wetland where, although paragraph (a) or (b) of that subsection does not apply ‑
(a)Division 1B has ceased to apply to the watercourse or wetland; and
(b)immediately before that cessation a right of the kind described in subsection (2), in relation to that watercourse or wetland, was appurtenant to the land by virtue of section 9(1).
(4)The operation of this section does not prevent the owner or occupier of land from making any dam or tank on the land as long as the owner or occupier is taking water in accordance with this section.
(5)This section has effect subject to Division 3A.
Legal principles - inspection and sampling of property - O 52 r 3 of the Rules of the Supreme Court 1971 (WA)
Order 52 r 3(1) of the Rules of the Supreme Court 1971 (WA) (the Rules) provides that the court may for the purpose of enabling the proper determination of any cause or matter or of any question arising therein, make orders on terms for:
(a)the taking of samples on any property;
(b)the making of any observation of any property;
(c)the trying of any experiment on or with any property; or
(d)the observation of any process.
Pursuant to O 52 r 3(2) of the Rules, such an order may authorise any person to enter upon or into any land in the possession of any party, or to do any other thing for the purpose of getting access to the property.
In Process Minerals International Pty Ltd v Consolidated Minerals Pty Ltd, Kenneth Martin J considered the discretion to order inspection of the defendants' property and sampling conferred by O 52 r 3.[17] His Honour in Process Minerals International Pty Ltd,[18] adopted the following observations of Chesterman J in Evans Deakin Pty Ltd v Orekinetics Pty Ltd:[19]
The question is whether the court should exercise its discretion in favour of inspection. I think the true principle is that explained by Whitford J in Wahl:
'One must look at the evidence to see … whether or not it would be appropriate to make an order for inspection … One does not make orders for inspection save … where … it would be appropriate …'
The discretion conferred by the rule is a wide one. It should not be limited by the superimposition of conditions not found in the rule itself. The order should not be made unless, on the material before the court, it is proper to do so. It must be remembered that the rule exists to promote the efficient and economical conduct of litigation. If the result of an inspection would tend to bring about such a result the discretion should, I apprehend, ordinarily be exercised in favour of inspection subject to there being some countervailing circumstance. To say that there must be formidable grounds for alleging an infringement before inspection will be ordered is to say only that there must be sufficient grounds for making the order. I do not think there is any benefit in using any more particular or pejorative adjective. It is no doubt true that an order for inspection of property will not be made unless there is some evidence that the plaintiff's rights are being infringed and that an inspection will facilitate proof of the claim. This, I expect, is all that is meant by saying there must be a substantial and genuine dispute. There are, of course, degrees of suspicion as well as of proof. It is pointless to resort to semantic differences and refuse inspection where there is 'mere suspicion' of an infringement, but allow it where there is 'strong suspicion' or 'proof' of it, even if the proof be weak. The discretion conferred … should be addressed by considering whether in all the circumstances of a particular case the plaintiff has shown sufficient grounds for intruding on the defendant's property.
[17] Process Minerals International Pty Ltd v Consolidated Minerals Pty Ltd [2012] WASC 254.
[18] Process Minerals International Pty Ltd v Consolidated Minerals Pty Ltd [2012] WASC 254 [56].
[19] Evans Deakin Pty Ltd v Orekinetics Pty Ltd [2002] QSC 42; [2002] 2 Qd R 345 [19].
Importantly, Kenneth Martin J also adopted the observation[20] made by Chesterman J in Evans Deakin Pty Ltd v Orekinetics Pty Ltd that it is relevant to consider whether an inspection is likely to save time and costs in the long run.[21]
[20] Process Minerals International Pty Ltd v Consolidated Minerals Pty Ltd [2012] WASC 254 [57].
[21] Evans Deakin Pty Ltd v Orekinetics Pty Ltd [2002] QSC 42; [2002] 2 Qd R 345 [20].
After applying these principles, Kenneth Martin J went on to test the veracity of the applicants pleaded case by assessing not only the matters pleaded, but also the terms of the contractual agreements between the parties, and evaluated extensive affidavit evidence containing complex technical information. In that matter, the task of inspection and sampling was of some magnitude. Unlike this matter, the parties were trade rivals, the inspection and sampling, if allowed by the court, may have required the shutdown of a processing plant for up to four hours, and there were legitimate occupational health and safety concerns to weigh. Importantly, the defendant had offered an off-site inspection of new and used screens, which his Honour found would be a more efficient and proportionate utilisation of resources.
Whilst the issues relevant to his Honour's discretion in Process Minerals International Pty Ltd are of little assistance in the determination of this application, when regard is had to his Honour's approach in that matter to assess the parties' pleaded cases, together with the observations made by Chesterman J in Evans Deakin Pty Ltd v Orekinetics Pty Ltd, the following questions arise in determining whether the discretion to order inspection of the defendant's property by the plaintiffs' experts and sampling by them should be exercised:
(a)whether inspection and/or sampling would assist in determining the plaintiffs' claim for breach of the Act, and/or their claim in negligence as pleaded in the statement of claim, or put another way as stated by Chesterman J, whether there is some evidence that the plaintiffs' rights are being infringed and that an inspection will facilitate proof of the claim; and
(b)whether an inspection is likely to save time and costs in the long run.
Legal principles - riparian rights in water - meaning of 'sensibly diminished'
In respect of the plaintiffs' claim pursuant to s 5E of the Act, a significant issue raised on the pleadings is whether the defendant in building two dams and extending the original dam on the watercourse has sensibly diminished the flow of the water in the watercourse.
The term 'sensibly diminished' in s 20 of the Act is not defined. However, it should be noted that the civil remedy created by s 5E of the Act creates an actionable breach of statutory duty by a person directly affected by the degradation of a water resource, and that the term 'degradation' is defined in s 2(1) of the Act to include the 'sensible diminishing' of the quality or quantity of water. 'Water resources' are defined in s 2(1) to include watercourses, and a 'watercourse' is defined in s 3 (to include among other things):
(a)any river, creek, stream or brook in which water flows, and including a flow that is only that intermittent or occasional;
(b)a river, creek, stream or brook includes a conduit that wholly or partially diverts it from its natural course and forms part of the river, creek, stream or brook; and
(c)it is immaterial that a river, creek, stream or brook may have been artificially improved or altered.
Although the term 'sensibly diminished' is not defined in the Act, the authorities establish that the term focuses on the upstream and downstream user and the amount or the quality of water available to those users. It appears plain that what may constitute sensible diminishment in one case may not be in another. It is a question of degree and appears to constitute a prohibition (at least at a bare minimum) on the cessation of a watercourse either upstream or downstream resulting from (caused by) taking water from the watercourse.
In H Jones & Co Pty Ltd v Kingborough Corporation, Latham CJ observed in the context of an owner of property who wished to take water for irrigation:[22]
On the one hand, it could not be permitted that the owner of a tract of many thousand acres of porous soil, abutting on one part of the stream, could be permitted to irrigate them continually by canals and drains, and so cause a serious diminution of the quantity of water, though there was no other loss to the natural stream than that arising from the necessary absorption and evaporation of the water employed for that purpose; on the other hand, one's common sense would be shocked by supposing that a riparian owner could not dip a watering-pot into the stream, in order to water his garden, or allow his family or his cattle to drink it. It is entirely a question of degree, and it is very difficult, indeed impossible, to define precisely the limits which separate the reasonable and permitted use of the stream from its wrongful application; but there is often no difficulty in deciding whether a particular case falls within the permitted limits or not …
[22] H Jones & Co Pty Ltd v Kingborough Corporation [1950] HCA 11; (1950) 82 CLR 282, 300.
More recently, in ICM Agriculture Pty Ltd v The Commonwealth, Hayne, Kiefel and Bell JJ said when considering whether any proprietary rights could exist in water:[23]
[23] ICM Agriculture Pty Ltd v The Commonwealth [2009] HCA 51; (2009) 240 CLR 140 [109], [113] and [145]. (footnotes omitted)
Common law riparian doctrine regarding natural surface streams was settled in Embrey v Owen after full consideration of not only earlier English decisions but also Roman, American and French law. Embrey v Owen held that a riparian owner could make reasonable use of the water in a stream and that what was reasonable depended upon whether the natural flow of the stream was diminished. The underlying proposition which informed these principles was that water, like light and air, is common property (for the common benefit of man). Although the right to have the stream flow in its natural state without diminution or alteration was held to be an incident in the property in the land through which the stream flows, flowing water was held to be:
'publici juris, not in the sense that it is a bonum vacans, to which the first occupant may acquire an exclusive right, but that it is public and common in this sense only, that all may reasonably use it who have a right of access to it, that none can have any property in the water itself, except in the particular portion which he may choose to abstract from the stream and take into his possession, and that during the time of his possession only.'
(Emphasis added.)
…
In Embrey v Owen, Parke B spoke of water flowing in a stream (like air and light) as 'bestowed by Providence for the common benefit of man' (emphasis added). And James Kent in his Commentaries on American Law (quoted at length in Embrey v Owen) made the same point when he said that: 'Streams of water are intended for the use and comfort of man.' It was upon this footing that he formulated the principle (taken up and applied in Embrey v Owen) that a person, by or over whose land a stream passes, must use the water 'in a reasonable manner, and so as not to destroy, or render useless, or materially diminish, or affect the application of the water by the proprietors below on the stream'.
…
Water in the ground is a replaceable but fugitive resource. As was said in the passage from Embrey v Owen that is set out earlier in these reasons, in connection with riparian rights, flowing surface water is 'publici juris, not in the sense that it is a bonum vacans … but that it is public and common'. No one has, or can have, property in it until it is reduced to possession. Or as Blackstone had put the same point, much earlier, 'water is a moveable, wandering thing, and must of necessity continue common by the law of nature; so that I can only have a temporary, transient, usufructuary property therein.'
The plaintiffs' arguments as to why inspection of the defendant's land and sampling should be ordered
The plaintiffs say their case concerns a number of aspects that relate to the geography of the defendant's property and the changes to the watercourse as a result of the construction of the three dams and the use of the dams by the defendant to farm marron.
The plaintiffs claim that the defendant has breached the Act relies upon their claim in [11] of the statement of claim that the defendant has constructed three dams on his land and thereby blocked and destroyed the watercourse, and thereby prevented a water stream running through his land, and onto the plaintiffs' land (contrary to s 5C(1)(c)(i) and s 20 of the Act). The plaintiffs point out that in [10] of the amended defence, the defendant denies that the dams have blocked or destroyed the watercourse and the stream running through it, but in [11] of the amended defence the defendant admits that the dams were constructed on the watercourse.
In the alternative, the plaintiffs claim in [11] of the statement of claim that the defendant has sensibly diminished the flow of water in the watercourse.
During 2019, one of the plaintiffs' experts, a licenced surveyor, Mr Humphries, with the assistance of Mr Crossley, observed and measured the flow rate of water passing through the watercourse into the defendant's land from Hazelvale Road (on the western side of the defendant's property) to the point of exit of the watercourse into the plaintiffs' property from 1 March 2019 to 8 November 2019.[24]
[24] Affidavit of Brian Humphries, sworn 14 November 2019 [12] - [16] and annexure C.
The observations and measurements show that for the period from 1 March 2019 to 12 June 2019, there was a constant flow in water, upstream from the watercourse, into the defendant's land, but there was no flow out of the watercourse into the plaintiffs' property.[25] When the chart created by Mr Humphries of the observations and measurements is analysed it shows that during that period there was an average of 0.5 litres per second flow of water into the defendant's land from the watercourse during that period, which equates to 3 litres a minute, or 180 litres an hour being a total of 4.32 kl a day.[26] The observations and measurements show that for the period from 12 June 2019 to 8 November 2019, the flow of water in the watercourse into the defendant's land and out from the defendant's land into the plaintiffs' land has largely been the same, varying between approximately 4 litres and 5 litres per second, and that fluctuations in the flow rate has generally correlated with periods of rain.[27]
[25] Affidavit of Brian Humphries, sworn 14 November 2019 [16(a)].
[26] Affidavit of Brian Humphries, sworn 14 November 2019, annexure C.
[27] Affidavit of Brian Humphries, sworn 14 November 2019 [16(b)].
Consequently, the plaintiffs are able to show there is evidence that the flow of water into their property from the watercourse, for at least a part of the year of 2019, was reduced to the point that there was no flow.
In respect of their claim that the defendant has breached the Act, the plaintiffs claim that the following issues emerge from their pleaded case:
(a)what changes have been made to the watercourse as a result of the extension of the original dam and the construction of the second and third dams, and whether these changes have prevented the watercourse from running into the plaintiffs' land; and
(b)what is the cause of the diminishment of the flow of the water from the watercourse into the plaintiffs' land from the defendant's land.
The plaintiffs seek an order for inspection by its experts of the defendant's property, not to establish diminishment as they have evidence of that, but to establish that the diminishment has been caused by the defendant. Further, the plaintiffs contend that inspection of the property is necessary to determine whether the construction of the connecting pipes and other infrastructure between the original dam (first dam) and the second and third dams have either caused the blocking or destruction of the watercourse, or for it to be sensibly diminished. In particular, the plaintiffs suspect that the outflow from one dam and inflow into another dam consists of pipes that have been artificially created to allow flow from one dam to another, and that those pipes may be or may not be on the watercourse.
In any event, the plaintiffs argue that they should be entitled to inspect the watercourse to ascertain how it has been altered by the extension of the original dam and the construction of two more dams. In raising this point, the plaintiffs state they do not rely upon their argument that pursuant to s 5A and s 5B of the Act an owner of land is not authorised to build a dam on a watercourse.
The plaintiffs contend that they should be able to inspect the inflow and outflow between the three dams to ascertain what is left of the watercourse on the defendant's property.
The plaintiffs point to evidence that because the third dam has been built up substantially from the natural ground level, a proper inspection of the watercourse cannot be undertaken from the plaintiffs' land. In the affidavit of Mr Humphries, he states:[28]
Although the Plaintiffs' property and the Defendant's property have a common boundary it is impossible to see any of the Defendant's property from the Plaintiffs' property because the Third Dam's embankment is variously about 3 to 4 metres in height and completely blocks the view of the Defendant's property at ground level. In addition, trees and thick vegetation have grown up over the wall of the Third Dam and between the toe of that wall and the boundary which makes it impossible from the Plaintiff's property to see the wall and that area from ground level.
However, by positioning a ladder near the fence between the two properties I am just able to see over the top of the embankment wall of the Third Dam and can see the surface of the Third dam.
I am able to see on the surface of the Third Dam twin poly pipes each of an estimated 300mm diameter through which surface water flows when the surface reaches the level of the top of the pipes. It appears from the position of those pipes and the position of the end of horizontal pipes in the side of the dam wall and near the bottom of the wall that the water that flows down the vertical pipes then flows into the horizontal outlet pipes and exits into the Defendant's property at the bottom of the wall. The water then diverts at right angles for approximately 8 metres before it then enters the Plaintiff's property and re-joins the channel of the original watercourse running through the Plaintiffs' property.
I produce a photograph of the surface of the water of the Third Dam taken by the Plaintiff dated 24 October 2016 which shows the tops of the twin vertical pipes as well as six protective poly pipes each of smaller diameter and a second photograph of the same date showing the horizontal outlet pipes extruding from the bottom of the wall of the Third Dam. The documents marked 'B' and annexed hereto are copies of those photographs.
It is clear that with this arrangement of pipes there can only ever be a flow from the Third Dam into the Plaintiffs' property when the water level in the Third Dam reaches the top of the vertical overflow pipes.
From my examination of the boundary between the properties the Third Dam is the only source of water flowing into the watercourse on the Plaintiffs' property.
…
I do not know how the dams on the Defendant's property have affected the watercourse in his property. I believe that the construction of each dam has progressively and effectively destroyed the watercourse beds and banks and blocked the flow of the water in the watercourse but without inspecting them on the ground I cannot be sure what effect they have had. I also cannot be sure what, if anything, of the watercourse as it crossed the Defendant's property now remains. Furthermore, without inspecting them on the ground I have no means of knowing how the water flows between the dams, what mechanisms exist which have an effect on that flow and how significant the varying levels of the dams are to the water flow.
[28] Affidavit of Brian Humphries, sworn 14 November 2019 [6] - [11], [21].
The plaintiffs say they seek to inspect the third dam to obtain informed evidence about the following issues which go to their claim in negligence:
(a)whether the defendant constructed the wall of the third dam of sandy peat soil containing quantities of vegetation and failed to adequately compact the soil;
(b)how far the third dam is from the boundary between the plaintiffs' land and the defendant's land;
(c)whether the wall of the third dam is too steep to avoid erosion;
(d)whether the third dam has an adequate emergency spillway;
(e)whether water is leaking from the third dam into the plaintiffs' land;
(f)whether water is seeping from the defendant's land into the plaintiffs' land; and
(g)whether the wall of the third dam is unsafe and liable to collapse.
The plaintiffs also seek to inspect the dams to ascertain whether effluent from the marron farmed by the defendant in the dams, has had a significant adverse effect on the quality of the water in the dams, and whether that water has flowed from the third dam onto the plaintiffs' land. This issue is said to be relevant to the matters pleaded in [16] and [17](d) of the statement of claim and relates to the plaintiffs' rights under the Act.
The gist of the plaintiffs' submissions in respect of these points appear to go to two issues. First, whether water from the third dam is leaking or seeping and causing an excessive flow of water (and perhaps excessive effluent from the marron) from the third dam (not into the watercourse but into a small part of the plaintiffs' land) causing a growth of excessive weed on that part of the plaintiffs' land (which relates to the plaintiffs' claim of breach of the Act). Second, whether the third dam is unsafe and at risk of failing and causing flood damage to the plaintiffs' land (which relates to the plaintiffs' claim in negligence).
In support of the plaintiffs' application for inspection of the third dam by experts to obtain evidence as to the matters enumerated in [51] of these reasons, the plaintiffs rely upon the following affidavit evidence:
(1)The evidence of Mr Crossley that he has observed leaks from the wall of the third dam which are not coming from the outlet pipes of the dam into the watercourse.[29]
[29] Affidavit of William Edmund Crossley, sworn 12 November 2019 [16].
(2)The evidence of Mr Humphries is that at the times when he examined the flow of the watercourse he also examined the wall of the third dam (which is about 5 m from the boundary of the properties) and that he:
(a)observed the wall and the area between the wall and the boundary were covered in thick vegetation which makes it extremely difficult to see the wall from the plaintiffs' property;
(b)observed a steady, and apparently increasing flow of water which appears to be coming from the mid-section height of the wall of the third dam at a point separated horizontally by about 8 m from the horizontal outlet pipes; and
(c)is aware a civil engineer, Mr Joubert, assessed the third dam in 2017.
(3)Whilst the report by Mr Joubert (prepared for the Shire of Denmark) referred to by Mr Humphries in his affidavit, assessed that the embankments of the third dam are stable and the risk of failure is very low, Mr Joubert also made the following assessments and recommendations:
(a)there was a risk to public safety and other interests of the community due to the absence of an overflow spillway on the third dam;[30] and
[30] Affidavit of Brian Humphries, sworn 14 November 2019; annexure D, executive summary of Wave International Report, page iii; an overflow spillway on the third dam was subsequently constructed by the defendant following Mr Joubert's report.
(b)the embankments of all the dams appear firm and stable. The crests of the embankments are approximately 3 m wide. The average vertical height of the main dam embankment is approximately 2.5 m. The defendant confirmed that the inner parts of the dam embankments were constructed from clayey material and the embankments were keyed into the natural ground. The embankment of the main dam is densely vegetated. The toe of the embankment could therefore not be inspected for seepage. Vegetation should not be allowed on the embankments as roots can cause piping failures. The vegetation should be removed from the embankment to reduce the risk of piping and to allow inspections for monitoring and maintenance;[31]
[31] Affidavit of Brian Humphries, sworn 14 November 2019; annexure D, Wave International Report, page 9.
(4)Mr Crossley's evidence is that he has instructed a civil chartered engineer, Mr John Phillips, who has conducted a preliminary view of the defendant's property from the plaintiffs' land. In a note addressed to the plaintiffs' solicitor, Mr Phillips states that:[32]
[32] Affidavit of William Edmund Crossley, sworn 12 November 2019; annexure A pages 6 ‑ 7.
I understand that the issues in the proceedings concern a watercourse and dams situated on the Defendant's land and access to the watercourse and those dams requires either the consent of the Defendant or an order by the Court. You have told me that the Defendant may not grant his consent to the extent that may be necessary for a proper inspection and that the Court may require to be informed by me of my reasons for needing an inspection and the extent of the inspection.
In my opinion I would not be able to properly report on issues in the action without having full access to:
1.The watercourse and any springs that feed into the watercourse;
2.The dams situated on the Defendant's property and all equipment, pipes, spillways etc associated with the dams;
3.All available plans, specifications and other information in respect of the design and method of construction and operation of the dam closest to the Plaintiffs' property, described as the 'third dam';
4.The land lying between the third dam and the boundary between the Defendant's and the Plaintiffs' properties.
In addition I would need to be able to test the materials with which the third dam was constructed for their suitability for the construction of a dam.
I have conducted a preliminary view of the situation as far as one can see it from the Plaintiffs' property. However it is impossible to see much from that vantage point because the area between the boundary and the third dam wall is completely overgrown with trees and other vegetation. This particular area is of particular significance for my investigation because of the allegations by the Plaintiffs that the dam wall is leaking and the dam is seeping. My preliminary inspection suggests to me that the dam may well be leaking and seeping and in my opinion it would be vital for the integrity of my report on the issues for me to determine the extent of leaking and seepage. Leaks from a dam wall are often indicative of serious issues regarding the integrity of the wall and may sometimes indicate the possibility of serious risk of collapse of the wall over time.
I believe that the areas that need inspection in this respect are not large and localised clearing of the vegetation could be done by hand held equipment without doing unnecessary damage and without compromising the overall growth of vegetation on the dam wall, which, I am informed, was mandated by the Shire of Denmark when granting retrospective approval of the dam in 2014.
If, as I understand is proposed, the Defendant is also proposing to appoint an expert engineer to report on the issues in the action, then in my opinion it would be sensible and practical for me and that expert to work together to plan and oversee the necessary clearing of vegetation so that only as much as is required to be cleared for a proper inspection is actually cleared. It would also be essential for no earthmoving or other machine clearing to be carried out as it is quite possible that the area is quite vulnerable to even minor disturbance by reason of the possible leaks and seepage.
My preliminary opinion is that my inspection overall would not take more than one day to complete and that, if properly organised with a contractor, the clearing could also be done on the same day and still be properly inspected that day.
The plaintiffs do not accept Mr Joubert's opinion that the dam is safe, but they do agree that the safety of the dam can only properly be considered after independent inspection of the third dam and that if they are able to prove a negligence claim, they will have to show that the dam was not built in accordance with accepted standards of construction.
The defendant's grounds of opposing the inspection and sampling application
The defendant argues that:
(1)There is no prohibition under the Act, or otherwise, on the defendant constructing a dam on the watercourse. Accordingly, he submits that, on the proper construction of s 20 of the Act, he is able to build a dam or dams on the watercourse so long as the flow of the water in the watercourse is not sensibly diminished.
(2)On a proper construction, s 5A and s 5B of the Act have no application. In any event, the construction of a dam on a watercourse is not, of itself, a breach of any provision of the Act. Section 5B of the Act only operates to exclude certain activities from the operation of s 5A. It does not impose a prohibition on any other activity, including constructing a dam on a watercourse. Even if (which it does not) s 5B imposes a separate statutory duty than that imposed by s 5C, the plaintiffs would have no cause of action in relation to it as the only private cause of action provided for in div 1A of the Act is contained in s 5E.
(3)The plaintiffs' case proceeds on a false premise. Their focus is on the construction of the three dams when it should be on whether the flow of water in the watercourse has been sensibly diminished, and whether they can establish that the exercise by them of a relevant right under the Act has been affected. The construction of the dams only has legal consequences under the Act at their suit to the extent that this can be established.
(4)The plaintiffs' action turns on whether the defendant is taking water from the stream in accordance with a right conferred by s 20 of the Act and, if he is not, there are two limbs to s 20 which must be satisfied by the plaintiffs. The first is whether the plaintiffs can establish that any contravention has affected the exercise by them of a relevant right conferred by the Act. However, no material facts are pleaded by the plaintiffs detailing how the alleged contravention has affected any relevant right held by the plaintiffs under the Act. Nor is any evidence advanced on this issue. The second is whether the plaintiffs can establish that the quantity and/or quality of the flow of the water in the watercourse has been sensibly diminished from the point it enters on the defendant's property compared to the point that it exits the defendant's property and enters the plaintiffs' property.
(5)The application (and the proceedings) relate to a seasonal stream that runs through each of the parties' properties.
(6)The quantity and/or quality of the water flow can be measured and/or inspected without the need to enter onto the defendant's property. The stream enters onto the defendant's property from Hazelvale Road (which is public land) and exits the defendant's property onto the plaintiffs' property. The plaintiffs have obtained the evidence necessary to establish these facts. These measurements have been undertaken by Mr Humphries without the need to enter onto the defendant's property.
(7)The third dam was constructed in 2011. It is alleged that the third dam was constructed negligently. Damage is the gist of the tort of negligence. No material facts are pleaded to provide any temporal context to the alleged damages suffered by the plaintiffs. The court has no way of knowing whether it was suffered in 2011 or 2019. To the extent damage was first suffered prior to 2013 (six years prior to issue of the writ) limitation issues arise.
(8)Six matters are relied upon by the plaintiffs in support of the allegation the third dam was negligently constructed in 2011. They are set out in the particulars to [13] of the statement of claim. They are:
(a)the defendant constructed the dam without any advice or certification from a qualified engineer, to which the defendant says this is a question of fact and is not relevant to whether an inspection of the third dam should be conducted;
(b)the dam was constructed over the watercourse, to which the defendant says is not in dispute on the pleadings, and in any event, the determination of this fact does not require access to the defendant's property. Most importantly, the construction of a dam on the watercourse cannot, of itself, be negligent;
(c)the wall of the dam was constructed of sandy peat soil which was not suitable for the construction, which was not adequately compacted and which contained quantities of vegetation, is denied, but the defendant accepts that expert evidence might be required in relation to the material used to construct the dam wall, its level of compaction and vegetation content;
(d)parts of the dam are situated within 3 m of the boundary between the defendant's property and the plaintiffs' property in breach of the requirement of the Shire of Denmark that it should be set back no less than 15 m from the boundary, is admitted, but the defendant points out in his affidavit that construction was approved by the Shire of Denmark.[33] In any event, the determination of this issue does not require access to the defendant's property;
[33] Affidavit of Paul Christopher English, sworn 17 December 2019 [21].
(e)the wall of the dam has a slope that is too steep to avoid erosion, is denied, but the defendant accepts that it might require expert evidence in relation to the slope of the dam wall; and
(f)the third dam is constructed without an adequate emergency spillway, is denied, but the defendant accepts that it might require expert evidence in relation to the adequacy of the emergency spillway constructed for the third dam.
(9)Importantly, the plaintiffs advance no evidence in support of the averments said to give rise to the negligence. This points to the speculative nature of the claim. The plaintiffs have no factual basis and advance no evidence to support the claim of negligence. The absence of any evidence advanced in support of the alleged negligence is a material factor in the disposition of the application.
(10)In [14] of the statement of claim, the plaintiffs plead the consequences of the alleged negligent construction of the third dam. In particular, they plead water is leaking and seeping from the third dam into their property, the wall of the third dam alongside their property is unsafe and liable to collapse, with the risk of catastrophic damage to their property and the improvements thereon. No facts are pleaded that provide any temporal context in relation to when the consequence pleaded at [14] of the statement of claim is alleged to have first occurred. Further, no inspection of the defendant's property is necessary as whether water is leaking or seeping into the plaintiffs' property can be measured from their land. Whether the wall is unsafe is a statement of a conclusion rather than material fact, and depends on the matters raised in the particulars subjoined to [13] of the statement of claim.
(11)The affidavits of Mr Crossley and Mr Humphries disclose the speculative nature of the negligence action. It is apparent that the plaintiffs' claims are based on: a limited physical view of the property; and correspondence between the defendant and the Shire of Denmark and statements said to have been made by officers regarding the materials used in the construction of the dams and the method of construction thereof. None of these matters are pleaded as material facts or form a proper basis for the commencement of the negligence proceedings.
(12)The reliance the plaintiffs placed on the report of Mr Joubert of Wave Engineering is misplaced. While Mr Joubert prepared his report for a purpose unrelated to this proceeding, his finding that the dams posed a low risk of failure is not insignificant and is an independent analysis of the risk of failure of the third dam.
(13)Mr Crossley annexes a letter to his affidavit in support of the application from an engineer, Mr John Phillips. The letter should be given no weight because:
(a)no letter of instruction is provided;
(b)Mr Phillips does not disclose any reasoning process, he merely states conclusions;
(c)Mr Phillips proceeds on a misunderstanding of the issues properly arising in the proceedings;
(d)there is no attempt to address the findings of Mr Joubert in his report or to identify any possible errors in these findings; and
(e)Mr Phillips' opinion that the third dam '… may well be leaking …' is speculative. It is apparent that he sees his role as conducting a general investigation of the defendant's property unconfined by the issues properly arising on the pleadings.
Conclusion - plaintiffs' interlocutory application seeking inspection and sampling orders
As the defendant points out, the evidentiary onus is on the plaintiffs to establish that an order for inspection of the defendant's property, and the taking of samples, should be made.
Whilst the basis of the plaintiffs' contention that the watercourse has been blocked or destroyed by each of the three dams is not entirely clear, one argument raised by the plaintiffs is that this has occurred because the path of the original watercourse has been altered. The defendant contends whether the path or the course of the watercourse has been altered by the extension of the original dam, and construction of the further two dams is irrelevant to the plaintiffs' claims, and there is no prohibition in the Act that prohibits a dam being built on a watercourse. There appears to be substantial merit to the defendant's arguments on at least the latter point. However, this latter point must be left to another day as it was not a matter that was the subject of substantial submissions as to the effect of the provisions of the Act. Nor do the plaintiffs rely upon the argument that the Act prohibits a dam being built on a watercourse to support their application for inspection and the taking of samples.
It may be the case that part of the plaintiffs' claim going to the flow of marron effluent from the third dam pleaded in [16] and [17] of the statement of claim may be out of time in respect of the cost incurred by the plaintiffs in repairing damage to their land (that was incurred more than six years prior to the filing of the writ) pleaded in their particulars of damage in [18(c)] of the statement of claim. However, the plaintiffs' claim in respect of this aspect of breach of the Act, does not appear relevant to the order sought for inspection and sampling, as their two experts are a chartered engineer and a land surveyor.
Whilst in other matters, issues such as health and safety, and whether there is any inconvenience or direct or incidental cost to the party resisting the claim, may be relevant, the defendant raises none of these issues. In particular, the defendant raises no issue of inconvenience or disruption to his marron farming activities if an order for inspection and sampling is made by the court, or if an order is made allowing for clearing of part of the wall and/or embankment of the third dam.
I do not agree that the plaintiffs' case for breach of the Act, or in negligence, is speculative.
Turning first to the plaintiffs' claim for breach of div 1A of the Act, I do not agree that evidence is necessary to advance the issue of whether the plaintiffs can establish that any contravention has affected the exercise by them of a relevant right conferred by the Act. As a downstream owner of land over which a watercourse flows from the defendant's land into their land, the plaintiffs are entitled to the benefit of the water flowing through the watercourse into their land. This is a matter pleaded by them in [11] of the statement of claim, that is, they have been deprived of the benefit of the water flowing through the watercourse. In their further and better particulars of the statement of claim, the plaintiffs state that the water stream has been blocked from running into the plaintiffs' land and that if any water stream passes through all of the dams it has done so at a reduced rate of flow partly by reason of the water being diverted by the defendant, and partly by reason of evaporation of water in the dams. Whilst the plaintiffs have simply identified their rights under the Act (that are said to have been breached) as div 1A (in their further and better particulars of statement of claim), I am satisfied it appears that it is open to them to claim a right conferred by s 20(1) of the Act by operation of s 5C(1)(c)(i) of the Act.[34]
[34] Whilst it is a general principle that it is not necessary to plead a conclusion of law if the material facts supporting it are pleaded, where a cause of action relies upon a statutory provision, a provision of the statute may be taken as a special matter to be pleaded if omitting it would cause surprise at trial: See discussion by BC Cairns in Australian Civil Procedure (12 ed, 2020) [6.210] Law Book Co.
Section 20(1) confers on an owner or occupier of any land, through or contiguous to which runs any watercourse, riparian rights to take water, from the watercourse, free of charge. In this matter, such a right is conferred by s 20(1) respectively on the plaintiffs and the defendant. In both cases, the right to take water from the watercourse is subject to the conditions specified in s 20(1)(a) to s 20(1)(c), which include the right to take water to the extent that the flow of water in the watercourse is not thereby sensibly diminished, for any other purpose (s 20(1)(c)).
As the plaintiffs point out, there is evidence that the flow of water into their property from the watercourse from 1 March 2019 to 12 June 2019 was reduced to the point that there was no flow of water. The plaintiffs are entitled to investigate whether reduction in the flow of water has been caused by the defendant. On the pleadings, the issue is squarely raised as to whether a loss of flow is seasonal or not. The plaintiffs plead that the flow of water usually only ceases during the height of summer. The defendant agrees that the flow of water is seasonal, but pleads that the flow of water only commences to rerun following sufficient rainfall. The defendant also pleads that the water stream is supplemented from springs on his property.
In [5] of the statement of claim, the plaintiffs plead that the watercourse, at its point of entry onto the defendant's land, has at all material times, had a water stream running through it from west to east except when, during the height of summer in most years, the water flow has temporarily stopped. In [6] of the statement of claim, the plaintiffs plead that until about 2004 the watercourse, at its point of exit from the defendant's land and entry onto and through the plaintiffs' land, had a water stream running through it at the same times and in approximately the same volumes as it was running at its point of entry onto the defendant's land. The defendant does not admit the allegations in [5] and pleads in his amended defence, among other matters, that:
(a)the stream is seasonal and does not commence flowing on the property until sufficient winter rains have fallen;[35]
(b)the stream typically ceases flowing on the property by November or December each year, depending on the weather;[36] and
(c)the downstream flow of the stream is augmented by multiple springs on the property which discharge groundwater into the first dam, the second dam and the third dam.[37]
[35] Amended defence [4.3].
[36] Amended defence [4.4].
[37] Amended defence [4.5].
In response to [6] of the statement of claim the defendant pleads that at the time he became a registered proprietor of the property in 2004 the flow of water in the stream passed through the original dam (as the first dam was originally constructed) before it exited the property.
There is at least some evidence that during the period from 1 March 2019 until 12 June 2019 there may have been sufficient rainfall for the watercourse to flow into the plaintiffs' property as the measurements taken by Mr Humphries and Mr Crossley during that period indicate that there was a flow of water through the watercourse into the defendant's land (but not through to the plaintiffs' land).
In his affidavit, the defendant claims that the plaintiffs' complaints have been investigated by the Department of Water who have determined that the complaint did not describe a breach of the Act. Annexed to his affidavit is a letter dated 23 September 2016, from Mr Brett Ward, the regional manager for the South Coast Region of the Department of Water. Whilst the statements made in that letter cannot be construed as a determination by any officer of the Department of Water that the defendant has breached the Act, Mr Ward states that:[38]
We conclude from our reassessment that it is reasonable to expect that following the development of the present dams on your property, there is likely to have been a reduction in stream flow and the causation or extension of existing periods of no‑flow in summer, when compared with the flow that would have occurred at the time the downstream landowners (the Crossley's) purchased their property.
Therefore, we remind you of your obligation under the section 20 of the Rights in Water and Irrigation Act 1914 to ensure that the capture, storage and use of the water is done without sensibly diminishing the flow downstream.
To ensure this, we recommend you bypass some of the flow when water is flowing in the stream on your property, in some cases releasing all of the flow in drier times of the year. This still allows you to capture and store the majority of the winter flow into your dams.
In order to help define a reasonable flow to bypass, the Department has applied the sustainable diversion limit methodology. This defines a minimum flow threshold to guide flow releases from farm dams to avoid impacts on a downstream user or to maintain the downstream environment.
…
Using this method, we estimate that the stream at your property has a minimum flow threshold of 267 kilolitres per day (kL/day).
That means when flow is greater than 267 kL/day it is recommended you can take water (the water over and above the 267 kL/day) and when it is equal to or less than 267 kL/day you should bypass all of the water.
[38] Affidavit of Paul Christopher English, sworn 17 December 2019, letter received from the Department of Water, dated 23 September 2016.
Whilst the parties did not address the substance of statements made in this letter in submissions, when the direction given in the letter is considered, and taken at its highest, together with the evidence of Mr Humphries that there was a flow of water into the defendant's land from the watercourse from 1 March 2019 until 12 June 2019 and no flow of water from the watercourse from the defendant's land into the plaintiffs' land, it cannot be said that the plaintiffs' claims of breach of the Act, at least by sensibly diminishing the flow of water in the watercourse, have no substance. Further, that when regard is had to the pleading by the defendant that the watercourse is supplemented by various springs on the defendant's property, I am satisfied that the plaintiffs are able to show that there is material before the court that it is proper to make an order for inspection of the defendant's property to investigate the causes of the diminution in flow of water from the defendant's property into the plaintiffs' property. Notwithstanding this finding, I make no judgment, nor would it be appropriate that I make a judgment, as to whether the loss of flow of water to the plaintiffs' land during the period from 1 March 2019 to 12 June 2019 constitutes 'sensibly diminished' within the meaning of s 20 of the Act.
Nor do I agree that the plaintiffs' claim in negligence is speculative. Having said that, however, I agree that the following matters are not relevant to whether an inspection of the third dam should be conducted:
(a)whether the defendant constructed the dam without any advice or certification from an engineer; and
(b)whether parts of the third dam are situated within 3 m of the boundary of the plaintiffs' property.
In circumstances when it is not in dispute that the plaintiffs and their experts only have a very limited view of the part of the dam wall which is said to be leaking or seeping, I do not agree that the plaintiffs' allegation that water is leaking or seeping onto the plaintiffs' property, rendering the wall of the third dam on the side of plaintiffs' boundary unsafe, can be properly investigated from the plaintiffs' property. As Chesterman J remarked in Evans Deakin Pty Ltd v Orekinetics Pty Ltd, the discretion conferred by the rule is to promote the efficient and economical conduct of litigation where there is a substantial and genuine dispute.[39] In particular, I am satisfied that an inspection would assist in advancing or disposing of the plaintiffs' claim in negligence.
[39] Evans Deakin Pty Ltd v Orekinetics Pty Ltd [2002] QSC 42; [2002] 2 Qd R 345 [19].
The material facts relied upon by the plaintiffs that the dam wall of the third dam is unsafe, are pleaded in the particulars in [13(c)], [13(e)] and [13(f)] of the statement of claim, that is, the wall of the dam was constructed of sandy peat soil which was not suitable for construction, which was not adequately compacted and which contained quantities of vegetation, the wall of the dam has a slope that is too steep to avoid erosion and is constructed without an adequate emergency spillway. The consequence of these allegations of fact are pleaded as twofold in [14] of the statement of claim. First, that water is leaking and seeping from the third dam into the plaintiffs' land, and secondly, the wall of the third dam alongside the plaintiffs' land is unsafe and liable to collapse, with the risk of catastrophic damage to the plaintiffs' land and improvements thereon. It is also stated in the plaintiffs' further and better particulars of the statement of claim that the wall of the third dam is unsafe and liable to collapse because of a combination of:
(a)the leakage from the dam wall;
(b)its inadequate slope;
(c)the use of sandy peat soil as construction material;
(d)the inadequate compaction methods used in building it;
(e)The inadequate emergency spillway
(f)The installation of pipes in the wall after its construction;
is causing the wall to erode and rendering it of insufficient strength to support the weight of water in the dam.
In light of the evidence of Mr Humphries and Mr Crossley in their affidavits that they have observed an area of the wall of the third dam to be leaking or seeping that is not from pipes that feed into the watercourse and into the plaintiffs' land, I am satisfied that there is some evidence, if accepted, at its highest could establish that the wall of the third dam is leaking or seeping. Whether that is so and whether the extent of any leaking or seeping is affecting the structural integrity of the dam wall is a matter that, in my view, the plaintiffs are entitled to investigate through an inspection by their expert of the wall of the third dam, and if necessary to take samples associated with such inspection.
In light of:
(a)the fact that it is not in dispute that only a limited view of the wall of the third dam can be seen from the plaintiffs' property; and
(b)the fact that both Mr Phillips and the expert opinion given by Mr Joubert (that is pleaded in the defendant's amended defence in reliance on the pleading that the third dam had been assessed as a very low risk of failure),[40] that to properly inspect the area of the defendant's property between the third dam and the boundaries of the plaintiffs' property and the defendant's property to ascertain if the third dam wall is leaking at all, it would be necessary to clear some vegetation from that area;
I do not accept the defendant's criticisms of the statements made by Mr Phillips in his letter to the plaintiffs.
[40] Amended defence [13.11].
For these reasons, I am of the opinion that an order should be made to grant leave to allow the plaintiffs, their solicitors, and their experts with any necessary assistants, to inspect the defendant's property as follows:
(a)an inspection by a land surveyor and an engineer of the watercourse and any springs that flow or feed into the watercourse on the defendant's land, including an inspection of any equipment or mechanisms on the defendant's land that may affect the flow of water through the watercourse into the defendant's land, through the defendant's land and out into the plaintiffs' land, including but not limited to any pipes and conduits affecting the watercourse, and overflow pipes and spillways;
(b)an inspection of the third dam by an engineer, to ascertain whether the wall of the third dam alongside the plaintiffs' land is unsafe and liable to collapse, which inspection is to include but is not limited to whether water is leaking or seeping from the third dam, the type of soil used to construct the wall of the dam, the compaction of material, including any vegetation used in the construction of the wall of the dam, the slope of the dam wall, the emergency spillway and pipes in the wall of the third dam; and
(c)during the inspections the plaintiffs and their expert witnesses be permitted to take such samples, photographs and video recordings as they consider necessary.
I am also satisfied that an order should be made to grant leave, subject obtaining the prior approval of the Shire of Denmark, to clear vegetation between an area of the bottom of the wall of the third dam and the boundary between the plaintiffs' land and the defendant's land. I will hear the parties further as to when the inspections should occur and whether the area and the extent that should be cleared should be agreed between an expert nominated by the plaintiffs and an expert nominated by the defendant.
Plaintiffs' application for further and better particulars of the course of the watercourse pleaded in [3.1(a)] of the amended defence
The plaintiffs seek that the defendant give particulars of the course of the watercourse (otherwise described as the stream in [13.1(a)] of the amended defence) across the defendant's property as it was on the date when the defendant became the registered proprietor of the property, by drawing the course on a copy of an aerial map.
The defendant purchased the property as a joint tenant in 2004. At that time only the original dam had been constructed and had not been extended.
In circumstances where it is admitted by the defendant that each of the three dams are built on the course of the watercourse, and in circumstances where what is sought by the plaintiffs in this request is in effect a matter to be determined by expert evidence by an inspection, and perhaps by an analysis of historical aerial photographs and maps, I am not satisfied that the request is a proper request for particulars.
Further, I agree that there is merit in the defendant's submission that, in any event, the request is a request for evidence which by its nature would be irrelevant and inadmissible as it could not be evidence of the watercourse as it was in 2004, and could only, at best, be evidence of the defendant's current memory of the watercourse as it was in 2004.
For these reasons, the plaintiffs' application for further and better particulars of the amended defence should be dismissed.
Orders
I will hear the parties further as to the precise orders that should be made to reflect the findings I have made. I will also hear the parties as to costs.
Annexure A
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
NM
Research Orderly to the Honourable Justice Smith
9 APRIL 2020
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