Di Clemente v Small
[1998] VSC 157
•2 December 1998
SUPREME COURT OF VICTORIA
VALUATION, COMPENSATION
AND PLANNING LIST Not Restricted
No. 5658 of 1998
PIETRO DI CLEMENTE AND Appellants ROMANA DI CLEMENTE v JOHN FREDERICK SMALL AND Respondents REGINA FLORENCE SMALL JUDGE: Balmford, J. WHERE HELD: Melbourne DATE OF HEARING: 16 & 17 November 1998 DATE OF JUDGMENT: 2 December 1998 CASE MAY BE CITED AS: Di Clemente v Small MEDIA NEUTRAL CITATION: [1998] VSC 157 ADMINISTRATIVE LAW - appeal from a decision of the AAT on a question of law - AAT had dismissed the appellants’ claims for damages under sections 16(1) and (2) of the Water Act 1989 and injunctive relief under section 19(3) of the said Act.
Administrative Appeals Tribunal Act 1984 (Vic) s52
Water Act 1989 (Vic) ss16(1) & (2), 19, 20Victorian Civil and Administrative Tribunals Act 1998 (Vic) s64(3)
Spurling v. Development Underwriting (Vic) Pty Ltd [1973] VR 1
Portland Properties v. Melbourne & Metropolitan Board of Works (1971)
38 LGRA 6
Michaelis Bayley (Vic) Pty Ltd v. Melbourne & Metropolitan Board of Works
(1980) 44 LGRA 65
R v. The District Court; Ex parte White (1966) 116 CLR 644
City of Greater Geelong v. Herd & Dowling (1997) 20 AATR 293
Tabag v. Minister of Immigration (1982) 70 FLR 61
RSL (Victorian Branch) Glenroy Sub-Branch v. Moreland City Council
(1997) 19 AATR 107Rampling v. Emergency Services Superannuation Board (1994) 6 VAR 199
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APPEARANCES: Counsel Solicitors For the Appellants Mr Henry Jolson QC Goldsmiths with Mr Roderick Saunders For the Respondents Mr Simon Molesworth QC Toth & Company
HER HONOUR:
Introduction
This is an appeal from a decision of the Administrative Appeals Tribunal (“the Tribunal”) under the Water Act 1989 (“the Act”).
On 3 July 1995 the appellants initiated proceedings in the Tribunal claiming damages and injunctive relief in respect of damage or loss said to be caused by the unreasonable flow of water from the land of the respondents to the adjoining land of the appellants under section 16(1) of the Act and interference with the flow of water from the same land of the respondents to the same adjoining land of the appellants under section 16(2). (The Tribunal’s refusal to deal with a common law claim by the appellants was not challenged in this appeal.) On 29 January 1996 the appellants quantified the amount of their claim for damage and loss as $45,670.
The matter came on before the Tribunal on 4 March 1996. The hearing of evidence, and some argument in running, occupied 29 days over broken periods, and concluded on 30 July 1996. Both parties were represented by counsel, the appellants by Mr Saunders and the respondents by Mr Molesworth QC. Final submissions totalling some 300 pages were, by agreement, presented in writing and closed on 23 August 1996. The determination of the Tribunal, with 90 pages of reasons, (“the determination”) was handed down on 3 April 1998. The appellants’ claim was dismissed and costs reserved.
A notice of appeal against that decision was filed on 1 May 1998 pursuant to section 52(1) of the Administrative Appeals Tribunal Act 1984 (“the AAT Act”), which was in force at that time and which provided that “a party to a proceeding before the Tribunal may appeal to the Supreme Court, on a question of law, from a decision of the Tribunal in that proceeding”. Section 52(5) reads:
(5)
The Supreme Court shall hear and determine the appeal and may make such order as it thinks appropriate by reason of its decision including, without limiting by implication the generality of the foregoing -
(a) an order affirming, varying or setting aside the decision
of the Tribunal; and (b) an order remitting the case to be heard and decided again, either with or without the hearing of further evidence, by the Tribunal in accordance with the directions of the Supreme Court.
The AAT Act, pursuant to which the proceedings in the Tribunal took place, was repealed with effect from 1 July 1998 by section 310 of the Tribunals and Licensing Authorities (Miscellaneous Amendments) Act 1998 (“the Tribunals Act”), but it is convenient in referring here to the provisions of the AAT Act to use the present tense and I will do so unless it is necessary to do otherwise. The combined effect of the Tribunals Act and the Victorian Civil and Administrative Tribunals Act 1998 (“the VCAT Act”) is, speaking broadly, to replace the AAT by the Victorian Civil and Administrative Tribunal (“VCAT”). The jurisdiction invoked by the appellants is now conferred on VCAT, as it was formerly conferred on the AAT, by the provisions of section 19 of the Act, which were amended by the Tribunals Act with effect from 1 July 1998. However, section 52 of the AAT Act continues to apply to this appeal by virtue of section 14(2) of the Interpretation of Legislation Act 1984, (see clause 27 of Schedule 2 of the Tribunals Act).
At all relevant times the relevant provisions of the Act read, so far as relevant:
16.(1) If -
(a) there is a flow of water from the land of a person onto
any other land; and
(b) that flow is not reasonable; and (c) the water causes -
(i) injury to any other person; or (ii) damage to the property (whether real or personal)
of any other person; or (iii) any other person to suffer economic loss -
the person who caused the flow is liable to pay damages to that other
person in respect of that injury, damage or loss.
(2) If -
(a)
a person interferes with a reasonable flow of water onto any land or by negligent conduct interferes with a flow of
water onto any land which is not reasonable; and (b) as a result of that interference water causes -
(i) injury to any other person; or
(ii) damage to the property (whether real or personal)
of any other person; or (iii) any other person to suffer economic loss -
the person who interfered with the flow is liable to pay damages
to that other person in respect of that injury, damage or loss.
(3) If the person who caused, or interfered with, the flow (as the
case requires) -
(a)
is the servant of another person and acted in the course of the servant’s employment; or
(b)
is the agent of another person and acted within the scope of the agent’s authority -
that other person is liable to pay damages in respect of the injury,
damage or loss.
19.(1) The [Tribunal] has jurisdiction in relation to all causes of
action . . .arising under sections . . . 16, . . . of this
Act . . .
(2) For the purpose of the exercise of its jurisdiction the
[Tribunal] must . . . be constituted by -
(a)
a member of the Planning division who is a legal practitioner; and
(b)
if the President so determines, any other suitably qualified and experienced member or members of the Planning division that the President directs.
(3) The [Tribunal], while exercising jurisdiction conferred on
it by sub-section (1) -
(a)
may by order, whether interlocutory or final, grant an injunction (including one to prevent an act that has not
yet taken place) if it is just and convenient to do so; or (b) without limiting the generality of section 14 of the Planning Appeals Act 1980, may make an order that is merely declaratory.
(4)
An order made under sub-section (3)(a) may be made either unconditionally or on any terms and conditions that the Tribunal thinks just.
(5) The [Tribunal] may in respect of any works that give rise
to a cause of action of a kind referred to in sub-section
(1) make any order with respect to -
(a) compensation for damage to land; or (b) the continuation, removal or modification of
works; or (c) payment of the costs of the removal or
modification of works -
that it considers appropriate.
. . .
(9) In determining a cause of action arising under section . .
. 16, .. . of this Act . . . the [Tribunal] must apply to
the questions of causation and remoteness of damage
the same tests as a court would apply to those questions
in an action based on negligence.
20. (1) In determining whether a flow of water is reasonable or
not reasonable, account must be taken of all the
circumstances including the following matters:
(a)
Whether or not the flow, or the act or works that caused the flow, was or were authorised;
. . .
(d)
Whether or not account was taken at the relevant time of the likely impact of the flow on drainage in the area having regard to the information then reasonably available about the cumulative effects on drainage of works and activities in the area;
(e)
The uses to which the lands concerned and any other lands in the vicinity are put;
(f) The contours of the lands concerned; (g) Whether the water which flowed was -
(i) brought onto the land from which it flowed; or (ii) collected, stored or concentrated on that land; or (iii) extracted from the ground on that land - and if so, for what purpose and with what degree of care this
was done;
. . .
(2) In taking account of the matters specified in sub-section (1), greater weight must be attached to the matters specified in paragraphs (a), (b), (c) and (d) than to the other specified matters.
“Authorised” is relevantly defined in section 3 of the Act as meaning “authorised (whether generally or specifically) by this or any other Act or by a licence, permit or other authority granted under this or any other Act”.
Pursuant to section 19(2)(b), the Tribunal was constituted, for the purpose of hearing and determining the matter, to include, as well as a legal practitioner, a member who is a civil engineer of considerable experience. That being so, I am satisfied that the Tribunal may be regarded as an expert tribunal, given the nature of the issues which arose before it in considering the claims under sections 16(1) and (2) with which it was concerned. As Stephen J said in Spurling v Development Underwriting (Vic) Pty Ltd [1973] VR 1 at 11, after referring to certain grounds of appeal which required a detailed examination of the evidence before the Town Planning Appeals Tribunal:
In considering these grounds it is important to appreciate the nature of the Tribunal whose decision I am called upon to review. Its composition indicates that it is an expert tribunal . . . the members of which are no doubt expected to bring to their task of adjudication those qualities which have qualified them for membership. . . . accordingly, in reviewing the findings of the Tribunal on matters of fact those findings cannot be viewed in quite the same light as findings of fact by a non-expert tribunal.
. . .
In approaching the decision of an expert tribunal I must, I think, not only refrain from making up my own mind on the evidence before it, must not only confine myself to inquiring whether on any reasonable view of the evidence the Tribunal’s decision on a question of fact can be supported, but must also bear in mind that I am concerned with areas in which members of the Tribunal have special expertise and experience which the legislation plainly intends them to employ. I must, therefore, be slow to conclude that on no reasonable view could this Tribunal decide a particular matter of fact as it has.
This does not mean that it is not open to me to form such a view but it at least dictates caution in my approach to the evidence.
The Tribunal, at paragraph 279 of its determination, referred to these passages.
The principle to be borne in mind when considering such an appeal as this is set out in Portland Properties v Melbourne & Metropolitan Board of Works (1971) 38 LGRA 6 at 18 by Smith J, with whom Adam J expressly agreed:
This Court is not entitled to interfere with the decision [of the Town Planning Appeals Tribunal] unless it is satisfied that there was, in fact, a vitiating error of law.
The appellants’ land in Templestowe is occupied by two houses, referred to as houses 1A and 1B, and is downhill from the adjoining land of the respondents which is occupied by one house. At some date since 1970, when an aerial photograph shows the area as open country, it was subdivided and roads and houses were constructed. The claims of the appellants are based on what are said to be the effects, in terms of sections 16(1) and 16(2) of the Act, of certain works undertaken by the respondents on their land in 1992.
The notice of appeal, as amended at the hearing, sets out a number of grounds. It is to be assumed that those grounds not relied upon by Mr Jolson in his submissions were abandoned.
The Claim under section 16(1) of the Act
As to the claim under section 16(1), the Tribunal found:
• that any flow of water from the respondents’ land to the appellants’ land was primarily sub-surface lateral seepage (paragraphs 265 and 270 of the determination);
• that any sub-surface flow of lateral seepage was reasonable
(paragraph 271);
• that “it is up to the Claimants to point to an unreasonable flow [resulting from the removal of the trees] at any material time and we do not consider them to have discharged that onus in relation to this issue” (paragraph 272);
•
that any flow of water from the car-parking apron, the garden shed and the agricultural drain on the respondents’ land towards the appellants’ land was reasonable (paragraph 276);
• that any volume of water directed by the misconnection from the
respondents’ land to the appellants’ land occupied by house 1B“must necessarily be small and reasonable” (paragraph 282); and
• that “we have not found any of the sources of water flow in
relation to house 1A to be not reasonable” (paragraph 283).
Mr Jolson submitted that the use of the word “primarily” by the Tribunal in its paragraphs 265 and 270 of the determination must necessarily lead to the conclusion that there was a flow of water other than sub-surface lateral seepage, and accordingly that there was some flow from the respondents’ land to the appellants’ land, however small, which was not reasonable. However as Fullagar J said in Michaelis Bayley (Vic) Pty Ltd v Melbourne & Metropolitan Board of Works (1980) 44 LGRA 65 at 67 in a frequently quoted passage:
. . . the cases show, as one would expect, that decisions of the tribunal are not to be set aside by over-legalistic analyses of reasons stated or by over-zealous drawing of inferences from things not stated.
Bearing that principle in mind, it is apparent from the determination read as a whole, and particularly from the passages referred to in paragraph 11 above, that the intention of the Tribunal was to express a finding that any flow from the respondents’ land to the appellants’ land was reasonable. That finding meant that the claim of the appellants under section 16(1) failed on that ground. It was a finding of fact, and well within the competence of the Tribunal as an expert tribunal. As Menzies J said in R v The District Court; Ex parte White (1966) 116 CLR 644 at 654:
Even if the reasoning whereby the Court reached its conclusion of fact were demonstrably unsound, this would not amount to an error of law on the face of the record. To establish some faulty (eg illogical) inference of fact would not disclose an error of law.
While there may be inconsistencies between the different passages referred to in paragraph 11 above, the overall finding of the Tribunal is clear and discloses no error of law.
Mr Jolson’s next submission related to the statement of the Tribunal in paragraph 265 of the determination that the volume analysis carried out by the witness Mr Lane was of little assistance in the absence of an analysis of the volume of water which from time to time entered the appellants’ land. He submitted that, if the absence of comparative volume analysis was of concern to the Tribunal and it thought it might affect its decision, the appellants should have been afforded the opportunity of obtaining that analysis and providing evidence of it. The hearing of the matter had continued for 29 days, spread over four months, and the need for some quantification of the volume of water in question should have been reasonably apparent during that time. Expert witnesses were called by both parties. I find no error of law in the Tribunal’s not calling for further evidence after the close of submissions.
Mr Jolson submitted next that the Tribunal failed to take into account the matters set out in paragraphs 20(1)(a), (d) and (g) of the Act. As to paragraph (a), he referred to the finding of the Tribunal in paragraph 41 of the determination that the retaining wall along the southern boundary of the respondents’ land and other associated works had been carried out without approval; the possibility that the “misconnection” of the drain outlet from the paved area (paragraphs 182ff of the determination), which was discovered during the hearing and repaired before the end of the hearing, might be regarded as unauthorised; and the Tribunal’s finding of an absence of evidence that certain items of the 1992 works required a building permit or similar authorisation (paragraph 274).
As to paragraph (d), Mr Jolson submitted that the finding of the Tribunal in paragraph 275 that the appellants took insufficient account of the required depth of the agricultural drain and permeability of the fill should alone have led to a finding of unreasonableness.
As to paragraph (g), he submitted that the Tribunal had not taken into account with what degree of care “the water which flowed was brought onto the land from which it flowed; or collected, stored or concentrated on that land; or extracted from the ground on that land.” That flow of water had been collected or concentrated on the respondents’ land. He listed a number of matters set out in paragraphs 30, 48, 65, 70, 131 and 188 of the determination as indicating “that the Tribunal should have concluded that the degree of care exercised by the respondents was unreasonable”.
As to Mr Jolson’s submissions relating to section 20 of the Act, I would point out initially that the Tribunal set out the full text of section 20(1) in paragraph 114 of the determination, indicating that it was aware of that provision. Given that the various matters to which Mr Jolson refers were set out with care by the Tribunal in its determination, and bearing in mind the expertise of the Tribunal, I am unable to find that they took so little account of those matters as to constitute a “vitiating error of law” in the determination (see the passage from Portland Properties v MMBW cited in paragraph 8 above). The mere fact that the Tribunal did not again refer specifically to some of those matters when finally reaching its conclusions does not indicate that those matters were not taken account of.
In any case, section 20 does not require that any particular findings as to the matters listed thereunder must necessarily lead to a particular conclusion. That section simply requires that “in determining whether a flow of water is reasonable or not reasonable, account must be taken of all the circumstances including” the matters there specifically set out. It is a balancing exercise for the Tribunal, in this case as an expert tribunal (see paragraph 7 above), to determine the reasonableness of the flow on the basis of all the circumstances. It is trite to say that in an appeal of this kind questions of fact must not (to use the words of Batt J in City of Greater Geelong v Herd and Dowling (1997) 20 AATR 293 at 317) “be allowed to be dressed up as questions of law”.
I note that in Tabag v Minister for Immigration (1982) 70 FLR 61 Keely J said at
70-71:
I consider that in hearing an appeal from the [Commonwealth Administrative Appeals] Tribunal on “a question of law” it is not open to this Court to allow the appeal on the basis that in its opinion the Tribunal attached “undue” importance to one matter or failed to have “due” regard to another matter. The question of what weight should be given to “government policy” or to any other relevant consideration is a matter for the Tribunal.
And Jenkinson J said at 82:
. . . I would be disposed to the view that misattribution of relative weight to a relevant consideration resulting in a wrong and unjust discretionary judicial decision, does not necessarily involve error of law. Error of law will be held to have infected the decision if it is one to which on the facts found no reasonable mind could have come, or if the misattribution of weight to a relevant consideration has violated what may be regarded as a rule or principle of law governing the attribution of relative weight.
I would, with respect, adopt both those passages as relevant to the submissions of
Mr Jolson as to section 20 of the Act.
Paragraphs 283 and 284 of the determination read:
283. We consider the likely cause of cracking in house 1A to be dampness around the concrete footings and underfloor brickwork, as opposed to tree root cracking. The critical issue, however, is the source of that dampness. The damage need only be considered in relation to each flow of water which is not reasonable. As we have not found any of the sources of water flow in relation to house 1A to be not reasonable, we find that the elements of the Claim under section 16(1) have not been established.
284. Even if we had found any of those sources constituted an unreasonable flow of water, we would not have been satisfied that any flow of water from the Respondents’ land was the cause of the cracking, for the reasons that follow.
The Tribunal then went on to consider that question at some length, in paragraphs 285 to 294, expressly in terms of the requirement in section 19(9) of the Act that the Tribunal apply to questions of causation the same tests as a Court would apply in an action based on negligence.
Mr Jolson submitted that the Tribunal had misapplied the relevant tests of causation, and that “if the Tribunal found that there was a flow of water onto the Appellants’ land into the basement of House 1A it was sufficient that that flow of water contributed to the loss or damage”. However, I am satisfied, for the reasons set out in paragraph 11 above, that what the Tribunal found was that there was no flow of water on to the appellants’ land which was not reasonable, and that the claim under section 16(1) failed for that reason. The finding as to causation of damage was not necessary to that decision, and if I were to find an error of law in that finding that would not justify the setting aside of that decision. Accordingly, it is not necessary for me to consider that submission.
The Claim under section 16(2) of the Act
Section 16(2)(a) may be paraphrased, for ease of understanding if not of
interpretation, as:
• if a person interferes with a reasonable flow of water onto any land; or
• if a person negligently interferes with an flow of water, which is
not reasonable, onto any land; . . .
As the Tribunal must be taken (see paragraph 11 above) to have found that any flow of water from the respondents’ land to the appellants’ land was reasonable, it is the first part of paragraph (a) which is relevant here, namely: “If a person interferes with a reasonable flow of water onto any land”. It is not suggested that, before the works were carried out by the respondents in 1992, there was any unreasonable flow from their land to the appellants’ land.
The Tribunal found that the installation of the swimming pool on the respondents’ land had deflected sub-surface seepage, probably to the area of the misconnection, and that to that extent there had been interference with that reasonable flow onto the appellants’ land in the vicinity of house 1B (paragraph 297). However, they found that that interference had not caused damage to the property of the appellants and accordingly the claim under section 16(2) in respect of the area around house 1B failed.
Mr Jolson submitted that the concept of damage under the Act was not limited to actual quantifiable damage to property. He referred to authorities relating to nuisance (Madden v Coy [1944] VR 88) and trespass (Beswicke v Alner [1926] VR 72) where injunctions were granted to restrain the flow of water although only negligible damage or no damage was proved. However, his clients are seeking a statutory remedy under section 16(2), which confers an entitlement to damages only where, as a result of interference with a reasonable flow, water causes injury to any other person, damage to the property of any other person or economic loss to any other person. I did not understand Mr Jolson to be submitting that that remedy was available where, as here, no actual damage (absent a claim for injury or loss) was found by the Tribunal to have taken place.
The Tribunal stated in paragraph 296 of its determination that the claim under section 16(2) related only to house 1B. Mr Jolson submitted that this was not the case, in that the claim under section 16(2) had been pleaded as affecting house 1A, evidence had been adduced on it and detailed submissions made. I am satisfied that that claim was pleaded, that there is relevant evidence and that it was argued (see, for example, the reference to “interference” at paragraphs 14.12 and 15.3 of the appellants’ final submissions to the Tribunal). The question then arises as to whether I should order, as I have power to do (see section 52(5) of the AAT Act cited in paragraph 4 above) that the matter be remitted to VCAT for the hearing of that issue.
Mr Molesworth submitted that, should I conclude, as I have done, that the claim under section 16(2) related to house 1A as well as house 1B, I should find that, in the context of the Tribunal’s findings on the claim under section 16(1), a different conclusion could not have been reached under section 16(2). Having considered that matter, I am unable to accept that submission, given the differences between the two provisions. However, I am satisfied that the evidence before the Tribunal is such that it will not be necessary for any further evidence to be adduced. There will be an order that the matter be remitted to VCAT solely for the determination of the issue as to whether the appellants are entitled to damages under section 16(2) in respect of any damage to house 1A, and without the hearing of further evidence. The question of the constitution of VCAT for this purpose is a matter for the discretion of the President of VCAT in the exercise of his responsibility under section 64(3) of the VCAT Act to determine how VCAT is to be constituted for the purposes of each proceeding.
The Claim for an Injunction
The Tribunal has power under section 19(3) of the Act to grant an injunction “if it is just or convenient to do so”. Although the statement of claim seeks “an injunction restraining the Respondents from continuing to cause damage to the Claimants’ land as a result of excessive water flow from the Respondents’ land” that claim does not appear to have been put. Instead, the Tribunal was asked (see paragraph 21.1 of the appellants’ final submissions to the Tribunal) to grant an injunction requiring the respondents to carry out certain precisely specified works. The Tribunal found (paragraph 306 of the determination) that, as the claims of the appellants had not been established, it would not be “just or convenient” to grant the injunction sought. That is a decision made by the Tribunal as to the exercise of a discretion conferred upon it by the Act, and I find no error of law in that decision. However, should a claim for damages under section 16(2) in respect of house 1A be established, in respect of any continuing interference with a reasonable flow of water, it appears to me that it would be appropriate for VCAT to revisit that question, purely in the context of any claim so established.
Mr Jolson’s final submission, citing the authorities referred to in paragraph 25 above, was that even if the damage found to derive from the flow of water was minimal or absent, the Tribunal, exercising the power conferred upon it by section 19(3), should have granted an injunction to restrain the respondents from continuing the flow of water from the land of the respondents to the land of the appellants.
That submission does not appear to have been put to the Tribunal, and differs from the claim set out in the preceding paragraph which appears in the statement of claim. There is thus a question as to whether it is open to me to consider it (see RSL (Victorian Branch) Glenroy Sub-Branch v Moreland City Council (1997) 19 AATR 107 at 118; Rampling v Emergency Services Superannuation Board (1994) 6 VAR 199 at 213; City of Greater Geelong (paragraph 18 above) at 315.). In any case, even if such consideration is open to me, then given the history of this matter, the physical relationship between the land of the respondents and the land of the appellants, the findings of the Tribunal set out in paragraph 11 above, and the difficulties of enforcement and supervision of such an order, I would be satisfied that the grant of such an injunction in this case would be neither just, convenient nor appropriate. That submission accordingly fails.
For the reasons given, there will be the following orders:
•
that the matter be remitted to VCAT solely for the determination of the issue as to whether the appellants are entitled to damages under section 16(2) of the Act in respect of any damage to house 1A or its immediate surroundings, and without the hearing of further evidence; and
• that in all other respects the decision of the Tribunal is affirmed.
Counsel may wish to make submissions as to costs.
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