Hanson v Jammalamadaka (Appeal)

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

HANSON v JAMMALAMADAKA & ANOR (Appeal) [2025] ACAT 9

AA 28/2024 (XD 1437/2023)

Catchwords:               APPEAL – civil dispute – private nuisance – water flow – proof of alteration of conformation of land so as to cause water to flow in a more concentrated form than it naturally would – sufficiency of evidence – evidence insufficient – need to establish substantial and unreasonable interference with land – no evidence of substantial and unreasonable interference with land in relation to part of land

Cases cited:Gartner v Kidman [1962] HCA 27

Graham v Alice [2022] QDC 106
Pye v Registrar, Domestic Animals Act 2000 [2022] ACAT 102
Riverman Orchards Pty Ltd v Hayden [2017] VSC 379
Turner v Kubiak [2020] QDC 223

List of

Texts/Papers cited:     Halsbury’s Laws of Australia, online edition, [415–650], [415–655], [415–670]

Tribunal:Acting Presidential Member G Curtin SC

Date of Orders:  14 February 2025

Date of Reasons for Decision:      14 February 2025

Date of Publication:  21 February 2025

AUSTRALIAN CAPITAL TERRITORY          )

CIVIL & ADMINISTRATIVE TRIBUNAL     )          AA 28/2024

BETWEEN:

ANTHONY HANSON
Appellant

AND:

LAKSHMI NARAYANA JAMMALAMADAKA
First Respondent

NAGA UDAYARKA PILLUTLA
Second Respondent

APPEAL TRIBUNAL:        Acting Presidential Member G Curtin SC

DATE:14 February 2025

ORDER

The Tribunal orders:

1. Appeal dismissed.

………………………………..

Acting Presidential Member G Curtin SC

REASONS FOR DECISION

Introduction

1. The appellant and the respondents own adjoining residential properties in the Australian Capital Territory.

2. Heavy rain results in some water flowing from the respondents’ property toward the appellant’s property. Some of the water pools against the exterior of the appellant’s bedroom 3 wall, although no damage has been observed. Some is directed against the appellant’s garage wall, although it does not pool there. The soil abutting the appellant’s garage wall is higher than the damp-proof course in the appellant’s garage wall and some water damage is apparent in that wall and the concrete garage floor. The relevant walls of the appellant’s bedroom 3 and garage are 150 mm from the boundary.

3. The appellant commenced proceedings in the Tribunal against the respondents, claiming that the water flow onto and the appellant’s land, and the ponding against his wall, constituted a nuisance. He sought orders to the effect that the respondents undertake works to prevent that water flow and ponding, and for some consequential costs orders relating to an expert building report, some fees and charges.

4. The Original Tribunal dismissed the appellant’s claim, essentially finding that the appellant had not proved his case.

5. I am not satisfied there was any error in the Original Tribunal’s decision. It follows that the appeal must be dismissed.

Background

1. The area of the suburb in which the parties’ properties were located was part of one stage of a suburb-wide development in the early 2000’s.

2. The appellant purchased his property in 2011. The evidence is silent when it was built, but I assume it was built sometime in the 2000’s.

3. The respondent’s dwelling was constructed in 2004. The respondents leased that property in 2021 and then…