Crossley v English

In Crossley v English, the dispute before the court involved an interlocutory application for the inspection of dams and a watercourse on the defendant's land, as well as the taking of samples, and the rights to use water. The matter was heard in the Supreme Court of New South Wales, where the plaintiffs, Crossley, sought to inspect and take samples from dams and a watercourse on the defendant's property. This inspection and sampling were intended to determine the rights of the parties to use water in a watercourse, which was a matter of contention between the riparian owners of the land adjacent to the watercourse.

The primary legal issues before the court were whether the plaintiffs had the right to inspect the defendant's dams and watercourse and to take samples, and if so, the extent of those rights. The court was also required to consider the rights of riparian owners to take water in a watercourse, particularly whether such use constituted a reasonable and permitted use of the stream. The court's task was to balance the rights of the riparian owners to use water against the potential impact of such use on the natural flow of the stream.

In its reasoning, the court relied on established common law principles concerning riparian rights, particularly the doctrine established in Embrey v Owen. The court noted that while water flowing in a stream is public property, riparian owners have the right to make reasonable use of the water, provided that such use does not significantly diminish the natural flow of the stream. The court emphasised that the determination of what constitutes reasonable use is a question of degree, and often, it is not difficult to decide whether a particular use falls within the permitted limits. The court further highlighted the importance of balancing the rights of riparian owners with the need to preserve the natural state of the stream. The court concluded that the plaintiffs had the right to inspect the dams and watercourse and to take samples, but the extent of those rights would depend on whether their proposed use of the water was reasonable and did not unduly affect the natural flow of the stream.

The court made an order granting the plaintiffs permission to inspect the dams and watercourse and to take samples, subject to certain conditions designed to ensure that the inspection and sampling did not unreasonably interfere with the defendant's rights or the natural flow of the stream. The court also ordered that the parties engage in further negotiations to determine the specific terms of the water usage rights, recognising the importance of balancing the rights of riparian owners with the need to preserve the natural state of the watercourse.