Dynamic Flooring Pty Ltd v Carter

[2000] NSWSC 992

CITATION:	DYNAMIC FLOORING PTY. LTD. V. CARTER & ANOR [2000] NSWSC 992
CURRENT JURISDICTION:	Equity Division
FILE NUMBER(S):	SC 4063/98
HEARING DATE(S):	5, 6, 7 June and 23 October 2000
JUDGMENT DATE:	23 October 2000
PARTIES :	Dynamic Flooring Pty. Limited - plaintiff James Carter - 1st defendant Triene Carter - 2nd defendant
JUDGMENT OF:	Hodgson CJinEq at 1

COUNSEL :	Mr. N. Carney for plaintiff Mr. T. Morahan for defendants
SOLICITORS:	Yandell Wright Stell, Sydney A.R. Connolly & Company, Sydney
CATCHWORDS:	COSTS - NUISANCE. Discharge of water - Reasonableness of conduct - Proof of damage - Small damages and limited injunction - Desirability of neighbours seeking a solution and making reasonable concessions - One-half costs awarded to successful party.
DECISION:	See end of judgment

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

CORAM: HODGSON, CJ in Eq.

Monday 23rd October 2000

NO. 4063 OF 1998
DYNAMIC FLOORING PTY. LTD. V. CARTER & ANOR.

JUDGMENT

1   HIS HONOUR: The plaintiff, Dynamic Flooring Pty Ltd, owns a property known as 20 Marandowie Drive, Iluka. Mr Alan Lambert, who is the second cross-defendant, or corporate entities controlled by him, own in addition the properties known as 22, 24 and 26 Marandowie Drive, Iluka. 2   In early 1998, when the plaintiff was negotiating to sell 20 Marandowie Drive, solicitors acting for the first defendant, Mr Carter, one of the owners of an adjoining property, 18 Marandowie Drive, wrote to solicitors acting for the proposed purchaser alleging that alterations made by the plaintiff to the slope of its land had resulted in the escape of water on to Mr Carter's property, and advising that Mr Carter would look to the owner of number 20 to abate the nuisance. The proposed purchaser elected not to proceed. 3   The plaintiff's solicitor sought an undertaking from Mr Carter that he would desist from such allegations, and this undertaking was not given. 4   On 29 September 1998, these proceedings were commenced by a summons against Mr Carter, seeking a declaration that there was no water nuisance and seeking also an injunction restraining Mr Carter from asserting that there was. There was subsequently an amendment to the summons to join the second defendant, Mrs Carter, wife of the first defendant, who is the other half owner of 18 Marandowie Drive. 5   By cross-claims brought against the plaintiff and its director, Mr Lambert, Mr and Mrs Carter claimed an injunction against the plaintiff and Mr Lambert from continuing the alleged nuisance to their property, and also damages. 6   I heard this case over three days in June this year, and reserved my decision. Consideration of the matter gave rise to two issues which I thought had not been fully dealt with, with the result that I sent a memorandum dated 9 June 2000 to counsel. This has resulted in further evidence being presented and a further short hearing of the case this morning.

BRIEF HISTORY

7   Marandowie Drive runs approximately north/south with the Clarence River to its west. In the vicinity of numbers 18 to 26 Marandowie Drive, this road is approximately level. The edge of the bitumen is at Australian height datum (AHD) level 1.37 metres outside numbers 18 and 20, 1.39 metres outside number 22, 1.37 metres outside number 24 and 1.39 metres outside number 26. The crown of the bitumen rises from 1.3 metres in front of number 18 to 1.7 metres in front of numbers 24 and 26. There are no houses on the western side of the road in this vicinity. Numbers 18 to 26 are all on the eastern side. Number 18 is on the corner of Loxton Avenue, which runs away from the river, rising gradually, reaching about two metres AHD at the rear boundary of number 18. 8   All of the houses referred to are single storey dwellings. It seems that numbers 18, 20, 22 and 26 were built in about the 1970's, and number 24 perhaps a little later. The floor levels of numbers 18 and 20 are respectively 1.93 metres and 1.90 metres. Those of numbers 22 and 24 are somewhat higher at about 2.35 metres and that of number 26 is 1.9 metres. 9   The general topography of the land is flat, ranging from a maximum of a little over 1.80 metres on parts of numbers 24, 22 and 18, down to about 1.09 metres towards the front of number 18. As the land is at present, number 18 is most prone to affectation by flooding. Over half its area is below 1.30 metres and about one-third of that is below 1.20 metres. The only other land associated with these houses which is below 1.30 metres are two small parts of number 20, adjoining its boundary with number 18. 10   Mr and Mrs Carter purchased number 18 in March or April of 1988. There were floods in the area in 1988 and 1990. According to Mr and Mrs Carter, their property was not badly affected, and was much less affected than number 20. 11   Mr Lambert, or a company associated with him, purchased number 22 in March 1990, number 26 in March 1991, number 24 in February 1992 and number 20 in January 1993. At various times, not clearly identified in the evidence, Mr Lambert has had soil spread on these properties. 12   The particular events which are alleged in this case to amount to the creation of a nuisance occurred in about the middle of 1993, a time most clearly identified by evidence from Mr and Mrs Finch, who were then staying in No.1 Loxton Avenue, a property adjoining the rear of numbers 18 and 20, and who took photographs of some of the events. 13   According to Mr Lambert, at this time about nine truck loads of soil totalling about 45 cubic metres were placed on these properties. He claims that of these, only about three loads were placed on number 20 and about two or three on number 22. Mr Lambert described what was done as top dressing. He says that the soil was spread to fill depressions on the land, some created by removal of trees, and to provide an even surface and turf was laid on an area of about 520 square metres at the back of number 20 and about100 square metres at the front of number 20. Mr Lambert said this did not change the slope of the land or the flow of water. 14   At the time of the work, Mr Carter complained, and arranged for an officer of the local Council to come out. It appears that an engineer from the Council, who subsequently came to the site, expressed the view that what Mr Lambert was doing was all right, and Mr Lambert completed the work. 15   Mr and Mrs Carter claim that the work has changed the flow of water. In effect, they say that before the work was done, even in heavy rain, no water was discharged from number 20 on to number 18. Water coming on to number 20 from the north and east of number 20 used to run along a shallow depression along the boundary between number 20 and number 22, to the vicinity of a garage near the boundary just behind the house on number 20, and then on into the front of number 20 and into the street. They claim that since the work, that water now runs across the back of number 20 and on to number 18. 16   In two floods since the work was done, in 1995 and 1997, the water came to a depth of up to about 600 millimetres around the house and took some days to disperse. Mr and Mrs Carter also claim that following the 1995 flood, there was damage to their house through subsidence of a section at the rear of the house.

ISSUES

17   There is before me clear survey evidence as to the current levels in the vicinity of number 18, but not as to the levels as they existed prior to the work being done in 1993. 18   The first issue concerns what were the levels on the relevant properties, particularly number 20 and to a lesser extent number 22, prior to the work being done. 19   The second issue is what work was actually done, in particular what was the depth of fill placed on the land at various points. 20   The third issue is whether this work caused any material change in water flow so as to damage Mr and Mrs Carter's property. 21   The fourth issue is whether this amounted to a nuisance. That question essentially requires an assessment of whether the conduct of Mr Lambert and the plaintiff was reasonable. 22   The final issue on the cross-claim is whether, if nuisance has been proved, what remedy should be granted. Should an injunction be granted and, if so, in what terms? Should there be an award of damages or an inquiry as to damages? If there is to be an inquiry as to damages, should that inquiry extend to damage caused to Mr and Mrs Carter's house? 23   If there is no finding of nuisance, then there is the question of whether a declaration and/or an injunction should be granted to the plaintiff as sought in the summons.

EVIDENCE

24   I will now give a very brief outline of some of the principal evidence which was called at the hearing in June this year. 25   There are a number of photographs in evidence, mainly showing the present situation. Perhaps the most significant photographs are the four photographs taken by Mr and Mrs Finch and two photographs taken by Mr Lambert, one showing work being done on a tree stump with some of the back of number 20 in the background prior to work being done, and the other showing the back of number 20 with newly laid turf. 26   Mr and Mrs Carter gave evidence along the lines outlined above. Some particular evidence given by Mr Carter included evidence that a water meter in the front yard of number 20 was about nine inches above the ground prior to the fill being introduced and was now about two inches above the ground; that filling was placed outside the property on the street verge; and that the garage of number 20 previously mentioned was raised about two feet. 27   Mr Lambert gave evidence along the lines previously mentioned. He gave evidence, in particular, that the garage in question had been raised 200 millimetres, that the filling was, at most, 50 millimetres at the rear of the garage, 75 millimetres at the front of the garage, going down to zero at the street. His evidence was that the filling over the whole property averaged about 20 to 50 millimetres, including turf. 28   Mr and Mrs Taylor, owners of number 1 Loxton Avenue, gave evidence that before the work, water from their property used to run away down an indentation between number 20 and number 22 and between the house and garage at number 20, and that this channel for the water is now blocked. There is a photograph taken in recent rains which, to some extent, illustrates this. 29   Mr Alan Simpson gave evidence that he had bought number 28 about 15 years ago. At that time, number 28 was the wettest property of those between number 18 and number 28. In heavy rain, such as might occur two to three times in one year, then perhaps not for a couple of years, there would be water over the whole front yard of number 28 to about six inches deep. His evidence was that number 20 was the next wettest and used to flood very nearly to the same extent as number 28. There was flooding in 1987 and 1988, in which number 20 filled like a lake to a foot deep under the house and in the garage extending practically down to the road. On that occasion, there was some water in number 18, but it did not take long to clear. On an occasion when fill was placed on number 20, he saw about twelve trucks bringing soil to the properties, each carrying at least about eight cubic metres. His evidence was that the fill placed across the back of number 20 went up to about 15 inches deep. 30   Other evidence in various respects supporting Mr and Mrs Carter was given by Mr and Mrs McKenna and Messrs Patterson, Tanner and O'Connell. 31   As mentioned earlier, Mr Lambert gave evidence that the garage on number 20 had been raised about 200 millimetres. Mr Webster, the builder who raised the garage, gave evidence that the garage floor had been raised 200 millimetres. He also gave evidence that he observed no depression running from the rear of number 20 to the vicinity of the garage near its boundary with number 22. Similar evidence about that matter was given by Mr Lyons and Mr Hogan. 32   Mr Hogan, the brother-in-law of Mr Lambert, gave evidence that he lived in number 22 between May and September of 1993 and he then moved to 14 Loxton Avenue where he has lived ever since. His evidence was that soil was spread on number 20 after he moved to 14 Loxton Avenue in 1994. He gave evidence in relation to floods which he said occurred in 1994 and 1998. On those occasions, he said all properties in the vicinity flooded, starting with number 18, then numbers 20, 22, 24 and 26 in that order. 33   Mr Lambert's son Brett gave evidence, in general corroborating Mr Lambert's evidence. He said water pooling on the properties was the same before and after the work was done. 34   There was also some expert evidence. A surveyor, Mr Smith, has produced plans, one showing current levels and another showing contours coloured to aid comprehension. 35   Professor Ball, an expert in water engineering, gave evidence to the effect that the water flow had been substantially affected by the works but, in that evidence, he relied partly on an incorrect datum point in a Department of Public Works' diagram which showed the level between the house and garage on number 18, which, it seems clear, is about 80 centimetres too high. 36   Mr Burridge, an expert in water engineering called for the plaintiff, and Mr Lambert pointed out this error and also gave evidence to the effect that most of the storm water run-off affecting Mr and Mrs Carter's property was from a storm water pipeline running down Loxton Avenue.

SUBMISSIONS

37   In the original submissions made in June this year, Mr Morahan for the defendants submitted that at least 45 cubic metres had been put on the land at the relevant time. Mr Lambert had produced only one record of payment for some loads, and Mr Morahan submitted that it was clear that there were additional loads. He submitted that it could be inferred that not much had gone on to number 22, but a vast amount had gone on to number 20. It was a process that could not reasonably be described as top dressing, and clearly had raised the level substantially more than the two or three inches admitted by Mr Lambert. In this submission, Mr Morahan relied on Mr Simpson's evidence. 38   Mr Morahan submitted that this work had plainly affected the natural flow of the water so as to damage the defendants' property. In particular, he submitted that damage had been caused to the defendants' house. It appeared that it had been built some time in the 1970's. No damage had occurred to it prior to 1993, and damage to the foundations was observed after the flooding in 1995. In the absence of any suggestion of any other cause, it should be inferred that the change in the water flow had materially contributed to that damage. 39   Finally, Mr Morahan submitted that the plaintiff's actions amounted to the creation of a nuisance, because they were unreasonable. It was plain that the plaintiff had put substantially more on to number 20 than Mr Lambert admitted. He submitted that for Mr Lambert to call it top dressing was an attempt to mislead the Court. It was unreasonable to act in that way, particularly where number 18 was vulnerable to affectation by changes in level on number 20. 40   Mr Morahan submitted that an injunction should be granted requiring appropriate remedial works and that damages should also be awarded. 41   For the plaintiff and Mr Lambert, Mr Carney submitted that there were indications on the ground now showing that there had not been a major change in levels. He referred to the top of a septic tank, a metal shed on the defendants' property and other items, including some trees at the back of number 20. 42   Mr Carney submitted that the levels in the area were such that water from the front of number 20 would always have flowed on to number 18, which had substantially the lowest point of all the properties. 43   He submitted that while the filling at the back of number 20 may have altered the storage capacity of number 20, the defendants had no obligation to retain a ponding area at the back so as to help neighbours and, in any event, it was not shown that the filling of the back of number 20 had increased ponding at the front of number 18. 44   Mr Carney submitted that Mr Carter was prone to exaggeration, for example in suggesting the garage had been raised two feet. He submitted that Mr Lambert had acted reasonably in indicating preparedness to accept solutions proposed by the Council to the difficulties. 45   Mr Carney submitted that in times of severe flood, such as occurred in 1995 and 1997, everyone had a problem and he submitted that there was no satisfactory evidence before the Court as to exactly what happened in heavy rain, apart from what happened in the particularly heavy floods of 1995 and 1997.

ADDITIONAL EVIDENCE AND SUBMISSIONS

46   As mentioned earlier, after I reserved my decision following the hearing in June, I sent a memorandum to Counsel, in the terms set out below.

My consideration of this case has given rise to two matters which may not have been fully dealt with at the hearing of the case.

The first is a matter that was the subject of submissions by Mr. Carney, though not developed in the detail in which I develop it below, and as I understand it, not squarely dealt with by experts.

It is plain that the work done in 1993 did not increase the total water coming onto the properties 18 to 26 Marandowie Drive. What it may have done is to affect the distribution of that water and the rate at which it discharged (and therefore the rate at which and extent to which it could build up). Distribution may have been affected by adding what might possibly have been up to 100 cubic metres of topsoil on the properties other than No.18; and the discharge may have been affected by making the ground less pervious or permeable, because turf and topsoil covered sand.

At present, I am inclined to accept Mr. Carter's evidence that in 1995 the water was around two feet deep around his house, and that in 1997 it was at least eighteen inches deep around the house. This would mean that the surface of that water in 1995 was at around 1.70 metres AHD, and in 1997 about 1.60 metres AHD. These levels are confirmed by the evidence that on these occasions the flooding spread across No.20, and across the back of No.22 and No.24, that is across land at a level of 1.50 to 1.60 metres AHD. The evidence also is that the water remained at this level for some time, so I would infer that the surface of it did become approximately level.

One way of assessing the possible impact to this flooding of about 100 cubic metres of soil having been added to Nos.20 to 26 is to calculate what area of those blocks is now 1.50 metres AHD or below (2,500 square metres); assume that the whole of the 100 cubic metres was added to areas previously below 1.50 metres AHD, and brought the surface of those areas up to no higher than 1.50 metres; and consider the effect of this on the level of a body of water whose surface is at a level higher than 1.50 metres. The effect would be to raise the surface of the water by no more than 100 cubic metres divided by 2,500 square metres, that is by no more than 4 centimetres. In fact, the effect on a body of water whose surface was at a level higher than 1.50 metres AHD would be substantially less than this, because, if the surface was higher than 1.50 metres AHD, the water could be expected to flow onto and across Marandowie Drive, the highest point of which in this area is no more than 1.47 metres AHD.

Turning to the effect of possible increased imperviousness, I have no evidence about what this could mean; but I think it is extremely unlikely that, in conditions producing a body of water at that level, it could have made more than a few centimetres difference to the highest level of the water.

I infer from those considerations that, if the same amount of water had come onto Nos.18 to 26 prior to the work being done, as came on to those properties in 1995, it would have resulted in a body of water whose surface was at a level of no less than about 1.65 metres AHD; and if the same amount of water had come on to these properties before the work as came on to them in 1997, the result would have been a body of water whose surface was at a level of no less than about 1.55 metres AHD.

Even a level of about 1.55 metres AHD would have been at least about 25 centimetres above the level of boundary between No.20 and No.18, at the front of those properties, the level of which in my opinion has not changed. In my opinion, the result would inevitably have been water to a depth of at least about 35 centimetres surrounding the house on No.18.

At present, I am inclined to accept Mr. Carter's evidence that in 1988 and 1989, his property was affected by a pool of water up to six inches deep covering three-quarters of the front yard. That evidence would put the surface level of this water at about 1.25 metres AHD at the most.

From all these matters, I would at present draw the following inferences:
1. The quantity of water which came onto the properties 18-26 Mandowrie Drive in 1988 and 1989 was very much less than the quantity which came on to those properties in 1995 and 1997.
2. Even without the work done in 1993, the result of the 1995 and 1997 rains would have been water to a depth of at least about 35 to 45 centimetres around the house No.18.
3. Accordingly, if the effect of the 1995 and 1997 rains would have been less had the 1993 work not been done, the difference would not have been very great.
4. Even if I were able to infer that the damage to the house was caused by the 1995 floods, I could not infer that it was caused by the difference to the effect of those floods due to the 1993 work.

In fact, the onus is generally on the defendants in these matters, and as matters stand, I certainly could not be satisfied that 1. to 3. are not true.

I would be prepared to receive further submissions on this matter from the defendants. If there were official figures of rainfall and flood levels that showed plainly that the 1988 and 1989 rains and/or floods were as bad as those of 1995 and 1997, I may be prepared to allow that material to be presented.

The second point was also dealt with by evidence and submissions, but again not in the way in which I now raise it. It concerns the question, how much was the floor of the garage raised?

It is clear that it was raised at least 200 millimetres. Mr. Lambert gave evidence that it was raised 100 millimetres, but I do not accept that evidence. Mr. Webster said it was raised to the extent of one besser block, by putting in 100 millimetres of fill, then 100 millimetres of concrete. However, on the evidence as it stands I would infer that it was in fact raised at least 400 millimetres, for the following reasons.

If it was raised only about 200 millimetres the previous level of the garage floor must have been around 1.30 metres (perhaps 1.35 metres at the front, and 1.25 metres at the back). However, I note that the bottom of the swale just inside the north-west corner of 1 Loxton Avenue is 1.29 metres, and it seems clear that the level of the front boundary of No.20 prior to the work being done could not have been higher than about 1.30 metres. There is evidence, which I am at present inclined to accept, that water used to flow down the swale to the vicinity of the garage; and there is also evidence from Mr. Simpson, which I am minded to accept, that on occasions there was a pool on No.20 which was up to one foot deep in the vicinity of the garage extending almost to the road. If I accept that evidence, it must mean that the garage floor could have been no higher than about 1.10 metres AHD. (Mr. Simpson could have mistaken eight inches for twelve inches, but could not I believe have mistaken one or two inches for twelve inches.)

For those reasons, on the evidence and submissions as they stand, I would find that the garage floor was raised at least 400 millimetres, not 200 millimetres. That finding could reflect very adversely on Mr. Lambert's credit. The reasoning which leads me to that view was not really examined at the hearing, and the conclusion that I reach could I believe be refuted by a very simple investigation, that is, digging down outside the garage wall to identify the previous floor level and what has been built on top of it.

I would be prepared to receive further submissions from the plaintiff on this matter; and if the plaintiff wished to conduct that investigation, in the presence of and at a location selected by a representative of the defendants, I would be prepared, subject to submissions from the defendants, to receive the agreed results of that investigation.

Unless there is some response or submission to the contrary, I will proceed to finalise my judgment after 14 days from the date of this memorandum.

That gave rise to further evidence and submissions today.

47   Excavations were undertaken in the vicinity of the garage on number 20, and they showed a concrete floor about 200 millimetres below the existing floor. They also showed some bricks and concrete about 500 millimetres further down. 48   Mr Lambert gave evidence today that when he purchased the property in January 1993, the garage had a concrete floor, and that he had only raised the floor the one time already given in evidence. The estate agent acting on the sale, Mr Robb, gave evidence corroborating Mr Lambert's evidence that, in January 1993, the garage had a concrete floor. 49   Mr O'Connell gave evidence again for the defendants. He said that he had known the prior owner of number 20 for about 20 years; that when he first visited him, the floor of the garage was dirt. Later on, the previous owner had put some concrete down on the back one-third of the garage and that that was the state of the garage floor until the day he died. 50   Further reports have been put in evidence from Professor Ball and Mr Burridge. 51   Mr Morahan submitted that I should still accept the evidence of Mr Simpson and Mr O'Connell, and find that the level of the garage had been raised substantially more than Mr Lambert admitted. At the very least, he submitted, I should find that it was raised from about 1.44 metres to its present level in the vicinity of 1.76 metres. 52   He submitted that I should not conclude that the only ponding around the house occurred in the two events of 1995 and 1997, and he referred me to paragraphs 191, 222 and 227 of Mr Carter's main affidavit. He also tendered some additional evidence from Mr Carter on that matter but, for reasons given in another judgment, I did not permit that evidence to be led. He submitted that it was understandable that the evidence called for the defendants should have focused on the two outstanding flooding events, and he submitted that I certainly should not approach the matter on the basis that they were the only times that the Carters' property was affected.

decision

53   Before dealing with the particular issues I have identified, I need to say a few words about the credibility of witnesses. 54   I have some hesitation in accepting some of Mr Lambert's evidence. I think that it was disingenuous and misleading to describe what he caused to be done in about the middle of 1993 as top dressing. In my opinion, that puts quite a wrong complexion on the scale of what was done at that time, and I think to have attempted to describe it that way, both to the Council and to the Court, is a matter that affects his credibility. 55   For reasons set out in the memorandum, I was, at that time, considering making a much more severe adverse finding about Mr Lambert's credibility. However, the additional evidence that was led as a result of the memorandum has certainly avoided that finding and, despite my previous comments, I do not think that Mr Lambert has deliberately set out to give false evidence; and although I feel I need to scrutinise his evidence with some care, in general terms, apart from the colour that he has attempted to give to his evidence by use of expressions such as "top dressing", I think his account of the events is reasonably accurate. 56   As regards Mr Carter, I think that he has given evidence accurately to the best of his ability, but I think his evidence suffers from a tendency to exaggeration. His evidence that the garage was raised two feet is, in my opinion, now shown to be plainly wrong. The garage, it now seems clear, was raised about eight inches. Similarly, I think his evidence suggesting that the level of the front yard in the vicinity of the water meter was raised about seven inches is evidence that does not fit with the whole of the evidence, and I do not think I can accept it. 57   I think the other witnesses were giving evidence to the best of their ability, and the variations in the evidence are attributable to different points of view and, to some extent, different interests and different abilities to observe and recollect. 58   The first issue that I identified was what were the levels of the relevant properties, particularly numbers 20 and 22, prior to the work. I think it is now clear that the level of the garage floor on number 20 was in the vicinity of 1.5 metres. The lower concrete floor, which has been identified by excavation, is at that level now; and it is extremely unlikely that that floor was put in either between January 1993 and July 1993 or during the events of 1993. Mr Lambert has sworn that he did not put it in, and I accept that evidence. 59   Probably it was put in much earlier than January 1993. The plan apparently associated with the building application for the garage, which was lodged, apparently, in 1974, seems to clearly show a concrete slab with the garage being built on the concrete slab. 60   It seems pretty clear that the level of the ground in the vicinity of the house number 22 was around 1.4 metres prior to the work. There does not seem to be any real issue about that, and that in turn seems to suggest that the level of the ground in this vicinity was not changed in and around July 1993. 61   I note that the bottom of the depression at the rear of 1 Loxton Street, which used to continue into number 20 near its boundary with number 22, is at present shown as 1.29 metres. Given that the level of the ground around the house is 1.4 metres and the previous floor level of the garage is 1.5 metres, it is very difficult to see how water could have flowed from this depression past the garage and to the street. These considerations, coupled with the matters set out in my memorandum, make it very difficult for me to accept literally the evidence given by Mr Simpson and Mr O'Connell. 62   I did find Mr Simpson an impressive witness and, as set out in the memorandum, it was his evidence in particular that led me to the tentative view at that time that the garage floor must have been raised at least 400 millimetres. However, I think it must follow from my acceptance that the garage floor was only raised 200 millimetres that I cannot fully accept Mr Simpson's evidence. 63   It does seem to be common ground that, prior to the work, the backyard or the back part of the rear of number 20 was swampy, and that water collected and stayed there, but it is difficult to come to a conclusion as to the levels involved, except working back from the existing levels and the amount of fill that was probably introduced in 1993. 64   The next issue that I have identified concerns what was done in 1993. As suggested earlier, but for the additional evidence, I probably would have found that Mr Lambert's evidence was very far from accurate and I probably would have inferred that the quantities involved were much larger than those he admitted. However, at present, I am inclined to accept that what was put on the back of number 20 was of the order of three truck loads, and I would put each truck load at about eight cubic metres, as suggested by Mr Simpson, and I would accept that what was put on the front was one truck load of about eight cubic metres. On that basis, I am inclined to think that on the back, something like 24 cubic metres was spread over about 520 square metres, that being the amount of turf that was put down, giving an average of around 40 to 50 millimetres. However, I think there would be parts where the fill was as much as 100 millimetres or more, going down to nearly zero in other places. 65   The next question is whether what was done made a material change to the water flow. I do not think that very much can be inferred from the 1995 and 1997 events. For reasons set out in my memorandum, I do not think the work could have done more than affect the ultimate level of the flooding around the house on number 18 in those events by two or three inches, or thereabouts. Mr Carter's evidence was that the flooding was around two feet near the house in one year, and I think something over 18 inches in another year so that, taken at its highest, the difference would only be that it would have been two or three inches lower, and perhaps would have cleared away somewhat faster. 66   However, there is general evidence both from the Carters and from their witnesses that, in general terms, number 18 is wetter and more affected by water than it was before 1993. I think it is reasonable to infer that this would be so because water that used to lie in the back of number 20, making it a boggy area, and seep into the ground at that point, no longer does so, and it seems reasonable to infer that in one way or another, that water now passes on to number 18. I think the photographs showing water coming down the depression at the back of number 1 Loxton Street, and being then blocked and diverted towards number 18 also confirm that view. 67   The next question that I raised is whether this means that the work that was done in 1993 created a nuisance. That, in turn, involves considering the detriment caused to number 18 - and I will return to that shortly - and also the reasonableness of the conduct of the plaintiff and Mr Lambert. 68   In considering the reasonableness of the conduct of the plaintiff and Mr Lambert, I think it needs to be taken into account that the land in the area is generally very flat. It is close to the river, and number 18 is particularly vulnerable because, although parts of it at the rear are higher than adjoining properties, at the front it goes down to the lowest level in the area. Because of this vulnerability, it is apparent that even small changes to the level of nearby land could severely affect it. 69   On the other hand, I think Mr Carney's submission that the plaintiff was not obliged to retain forever a boggy rear yard acting as a sump for other properties is a reasonable one. 70   I think the plaintiff was entitled to do something to try and rectify the state of the rear yard but, because of the topography and the vulnerability of number 18, it was in my opinion unreasonable, and to some extent irresponsible, to bring such a large amount of soil on to number 20 without any attempt to consult the neighbour and no real precautions being taken to prevent damage being caused. Having regard to this, and my views on the affectation of number 18, I find that a nuisance was created. 71   The next question is what, if any, remedy should be granted. In my opinion, the change in the water flow has caused damage to the amenity of number 18. This is something that I can assess only in the most general of ways, because the evidence about it is only in the most general of terms. 72   In my opinion, the defendants and cross-claimants have not proved that the damage to the house was caused by the changes in levels on number 20. The only two events of actual flooding around the house which were proved in evidence were the events of 1995 and 1997, and in my opinion, having regard to the considerations set out in my memorandum, there would have been flooding around the house in those years even if the work had not been done. That consideration, coupled with the absence of evidence as to the exact mechanism causing the damage, means, I think, that I cannot conclude that the damage was caused by the nuisance in question. 73   As to whether any injunction should be granted, what an injunction could go to, in my opinion, is an injunction which hopefully would have the effect of stopping the discharge on to number 18 of the water that used to pond in the back of number 20. It seems to me that this water is water that, to some extent, used to fall on number 20, but also water that used to discharge on to number 20 from 1 Loxton Avenue through the indentation which I have referred to earlier. If there had been consultation at the time the work was done, I think the reasonable thing would have been to try and find a solution to discharging that water in a way that did not adversely affect number 18. 74   On the material before me, it seems that the most reasonable way to do that, at least at present, would be an underground drain taking water from the end of that depression into a Council drain in Loxton Avenue. That involves a drain going across the back of number 18. I think an owner of number 18, acting reasonably, would agree to that, if it was offered and if it was paid for by the owner of number 20. If it is sought and if, having regard to the attitude of the plaintiff, it is necessary, at present I would be minded to make an order that the plaintiff do what is necessary to provide such a drain. 75   I return to the question of damages. I think some damage in the sense of loss of amenity is proved. As I have said, it is only proved in the most general sense and it is extremely difficult to quantify. Doing the very best I can, I would say that the nuisance has caused a loss of amenity which I would assess at $1,000.00 a year, continuing at least until such time as a reasonable offer is made by the owner of number 20. It may be that such a reasonable offer has already been made and refused. 76   Mr Morahan informs me that the defendants do seek an order for the provision of a drain of the kind I indicated in the judgment. It may be best to permit some consultation with the Council, rather than attempt to formulate a precise order at this stage and it may not, in the ultimate, be necessary to formulate the precise terms of an order. I simply indicate that if it becomes necessary, I would order that, provided Council approves of this course, the plaintiff provide and pay for an underground drain from the end of the depression, to which I have referred, to the Council drain in Loxton Avenue. 77   The other remaining questions are the questions of damages and costs, which I think are closely linked. I have said that I thought there should be compensation at a rate of $1,000.00 a year until there was either an appropriate offer by Mr Lambert, refused by the defendants, or, alternatively, until work of the kind I propose was done. 78   Mr Carney has drawn my attention to a letter dated 27 October 1997 from Maclean Shire Council, reporting the result of mediation between the Council and Mr Lambert, which included a proposal that the Council would install a drainage system which appears to be similar to the proposal I had in mind. That led to a response from Mr Carter in a letter dated 25 November 1997 to the effect that the proposal was unacceptable. 79   Mr Morahan has submitted that this was not an offer from Mr Lambert or the plaintiff; and that it was not clear what was involved. Indeed, he says he was instructed that Mr Carter believed that what was proposed was some kind of open drain and, in any event, there was no acknowledgment of a nuisance and certainly no suggestion of any damages being paid. 80   There is force in that submission, but this matter is a matter between neighbours and I think it does require some willingness to seek a solution and make reasonable concessions. It is unfortunate in the extreme that the matter has resulted in four days in this Court and, I should imagine, legal costs that are just completely out of all proportion to the questions in issue. 81   Although this does not amount to an offer by Mr Lambert and although Mr Lambert and the plaintiff could have, if they had wished, made without prejudice offers, and apparently did not do so, I think this letter was something that, as between neighbours in this sort of dispute, should have produced some attempt from Mr Carter to move towards a solution. 82   Doing the very best I can, having regard to those considerations and also having regard to the circumstance that the high costs of these proceedings are, to some extent, the result of allegations by Mr Carter that have not been made out, I think the appropriate course is to allow damages at $1,000.00 a year until October 1997, thereafter at $500 a year, and to order that the plaintiff pay one half of the defendants' costs of the proceedings. I would add to my oral reasons that the reduction of the rate of damages reflects my view that the Carters should have taken reasonable steps to achieve an agreed solution at this time, and my view of the chances of such a solution being found if the Carters had done so. 83   The orders I make are these. 84   I order that the plaintiff pay damages of $5,500.00 to the cross-claimants. 85   I order that the plaintiff pay one half of the defendants/cross-claimants’ costs of the proceedings. 86   I reserve leave to the parties to re-list the matter by arrangement with my Associate if it is necessary to formulate an injunction. 87   I dismiss the summons, and otherwise I dismiss the cross-claims. 88   Exhibits may be returned after 28 days if there is no appeal.

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Last Modified: 10/27/2000