Hanson v Jammalamadaka (Appeal) - [2025] ACAT 9

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:

Appeal dismissed.

………………………………..
Acting Presidential Member G Curtin SC

REASONS FOR DECISION

Introduction

The appellant and the respondents own adjoining residential properties in the Australian Capital Territory.
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.
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.
The Original Tribunal dismissed the appellant’s claim, essentially finding that the appellant had not proved his case.
I am not satisfied there was any error in the Original Tribunal’s decision. It follows that the appeal must be dismissed.

Background

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.
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.
The respondent’s dwelling was constructed in 2004. The respondents leased that property in 2021 and then purchased it in the second half of 2022.
The long axis of the appellant’s and respondents’ properties lies slightly east of due north, but it will simplify these reasons to describe that long axis as lying due north-south.
The appellant’s land is to the east of the respondents’ land.
Originally, the area where the parties now reside was vacant land.
The respondents’ land was and is slightly higher than the appellant’s land.
A pre-development contour diagram indicated that there was a slight decline from the northern half of the respondent’s land in a generally north-easterly direction towards the appellant’s land. The diagram also shows that there is slight decline from the southern half of the respondent’s land in a generally easterly direction towards the appellant’s land.
The boundary between the two properties may conveniently be divided up into four sections.
Below is a survey plan of the two properties which was in evidence. Identifying information has been redacted. The survey plan is oriented so that the top of the page indicates due north.
The vertical line on the left of the plan has been added by me and shows sections A, B, C and D as I will describe below.
Sections C and D are the problematic sections.

Travelling north to south along the properties’ boundaries, there is first a common wall between the parties’ existing dwellings. I will call this part of the boundary section A.
This is followed by a boundary fence with a small courtyard on the respondents’ land, and a concrete paved passageway on the appellant’s land and which extends to the northern exterior wall of bedroom 3 in the appellant’s dwelling. I shall call this length of the boundary, section B. Doing the best I can from the contour diagram, the decline in this area is predominantly west to east.
After section B, and moving south, the westerly, exterior wall of the appellant’s home (that facing the respondents’ land) is about 150 mm on the appellant’s side of the boundary. There is no boundary fence in this area. The exact dimensions are not readable in the material, but the western wall of bedroom 3 extends for about 3–4 m south from the end of section B. I shall call that part of the boundary section C. The decline in this area is west to east together with a slight southerly component.
On the respondents’ side of section C is a narrow passageway leading to the street at the rear. It has a few pavers set into the ground, but the pavers are separated by natural ground cover.
At the southern end of section C are two concrete steps leading up to the rear, part of the respondent’s property. Those steps extend from the respondents’ land across the appellant’s land, and end at the appellant’s westerly wall.
What I will call section D starts at the beginning of those two concrete steps and extends south to the end of the appellant’s dwelling. South of the appellant’s bedroom 3 is his garage. Section D starts at about the point where the appellant’s bedroom 3 adjoins his garage. Section D is interrupted only by an east/west timber fence and gate. The decline in this area is west to east together with a slight southerly component.
As I mentioned earlier, sections C and D are the problematic sections.
The appellant was unaware of any water problems until the respondents sent him a photograph showing ponding in section C in about August 2022.
The following photograph is a copy of that photograph. It looks south to north from the top of the two concrete steps. In the mid-ground can be seen water ponding in section C.
At the time that that photograph was sent, the respondents had not constructed in section B the three structures the appellant complains about, namely a timber deck, a small block-paved area and a vegetable garden.
What did exist at that time, which was the fourth structure the subject of the appellant’s complaints, was a concrete pathway in section B running along the western edge of the respondents’ courtyard and against the eastern edge of their dwelling. This pathway led to the passageway in section C. That concrete paving was present when the respondents purchased their house.
The appellant said that the photograph above proved the existence of the nuisance (in relation to section C) prior to the respondents’ purchase of the property (and therefore before they constructed their three structures mentioned above). The appellant submitted that the concrete walkway was the primary cause of the water being channelled to section C, enhanced by the block-paving and vegetable garden.
The ponding occurs at the southern end of section C, leading up to and stopping at the two concrete steps.
The following photograph shows part of section D, looking south from the top of the two concrete steps. It shows how the respondents’ land is higher than in section C, and shows that for the approximate 150 mm of the appellant’s land between the boundary and his garage wall, the soil is at the same level as the respondents’ land, although the photograph shows some excavation next to the appellant’s garage wall. That was done so that a waterproof paint could be applied in an attempt to prevent further moisture ingress to the garage. That attempt was not successful.
What can be seen of those features, that is the soil abutting the appellant’s garage wall, extends south beyond the timber fence to the southern end of the garage wall.
Turning to the three structures constructed by the respondents, they are all in section B.
In the north-eastern corner of section B the respondents had constructed a paved area of about 2 m by 3 m, with pavers installed on a sand base. Just south of that construction they had installed several large plantar boxes for the growing of vegetables, underneath which was placed weed-proof matting on top of the existing soil. Over the concrete pathway the respondents’ constructed a timber deck.
Video evidence showed that during the very heavy rain shown in the videos, water would flow from section B towards the appellant’s property and into section C where it would then pond between the parties’ respective dwellings and the two concrete steps.

The appellant’s case before the Original Tribunal

There was no doubt that ponding would occur in section C after heavy rainfall. Section C was adjacent to the appellant’s bedroom 3, but there had been no observed damage to either the exterior or interior walls of bedroom 3.
Whilst the appellant accepted there was no damage in that area of his home, he said that there was the potential for damage because the site classification for his property showed it to have moderately reactive clay soil which is subject to swelling and shrinkage when saturated and drying out, and which can cause movement in the foundations of buildings.
The expert evidence led by the appellant was to the effect that some damage had been occasioned to the interior garage wall and floor of his property because the soil abutting it on the western side was above the damp-proof course installed at floor level in the garage.
The photographic and video evidence did show that, during the occurrence of heavy rain, water would flow from part of the respondents’ courtyard toward section C and ending with the two concrete steps. It also showed water flowing in a generally easterly direction in section D from the respondents’ land towards the appellant’s land.
The appellant’s case, as summarised by the Original Tribunal, was that water runoff concentrated in section C because of changes made to the flow of water on the respondents' land. The appellant identified the construction of the four structures I have previously identified as the causes of the altered the water flow.
The respondents’ case was that the runoff of water after heavy rain was natural and was not more concentrated than it naturally would have been without the structures.

The Original Tribunal’s Reasons

The Original Tribunal said that the relevant principles were those set out in Gartner v Kidman [1962] HCA 27. The Original Tribunal said:
[9] The situation where water flows onto a property from neighbouring land was considered in Gartner v Kidman, in which the High Court set out the following key principles concerning the flow of surface water:
(a) The occupier on the higher side is not liable merely because water flows naturally from his land onto lower land.
(b) "He may be liable if such water is caused to flow in a more concentrated form than it naturally would."
(c)It flows in a more concentrated form than it normally would if the occupier has acted to alter the conformation of the land and, as a result, the flow of surface water is concentrated at a particular point.
[10] Where it is established that a nuisance has arisen from changes to the natural use of land, the owner may be liable for any damage arising from changes he has made, and also for continuing a nuisance that already exists. That is to say, if the purchaser of a prope1ty becomes aware of a nuisance that already exists (or a reasonable person in his position would recognise the need for the nuisance to be addressed) and fails within a reasonable timeframe to take reasonable action to eliminate the nuisance, he may be held liable for adopting or continuing the nuisance.
Neither party contested those principles.
The Original Tribunal correctly said that the appellant bore the onus of proof. That is, that the appellant bore the onus of proving that there had been some alteration in the natural flow of water from the respondents’ land onto his own. The Original Tribunal said, correctly with respect:
It is necessary for the applicant to establish, on the balance of probabilities, that the flow or percolation of surface water from the respondents' land has been altered or increased by some act on the respondents' part or on the part of a previous occupier.
The Original Tribunal held that the appellant had not proved his case. The Original Tribunal said that whilst the appellant had proved water flowed onto his property from that of the respondents, and that he had occasioned some damage, he had not proved that anything done by the respondents or their predecessors in title had altered or concentrated the natural flow of water that had existed before any construction had taken place on the respondents’ land.
In relation to the timber deck, block-paved area and the vegetable garden, the Original Tribunal said that the evidence that those improvements had altered natural water flows was inconclusive.

Decision

The appellant sought to tender fresh evidence consisting of videos, photographs and a historical title search.
I do not accept that evidence for two reasons. First, it doesn’t go to the issues in the appeal. Second, no exceptional reason exists for its admission into evidence.
The videos were additional videos to those tendered before the Original Tribunal and are not relevant to why the Original Tribunal found that the appellant had not proved his case. That is, they did not go to the question whether any improvements on the respondents’ land had altered natural water flows.
The photographs were said to have shown the natural slope of the respondents’ land, but those photographs do not show anything different to how I have described it.
The historical title search is not relevant to the issues on the appeal.
Secondly, all of that evidence could have been obtained previously and tendered to the Original Tribunal. In Pye v Registrar, Domestic Animals Act 2000 [2022] ACAT 102, the Appeal Tribunal held that there needs to be some exceptional reason to admit fresh evidence on an appeal, and no exceptional reason existed in this case.
Turning to the evidence that was tendered, the appellant’s appeal point, in short, is that, contrary to the Original Tribunal’s decision, there was in fact sufficient evidence to satisfy his onus of proof.
The appellant submitted that the four structures identified above were at fault. Three had been constructed by the respondents. Those were the timber deck, the block-paved area and the vegetable garden, and they had been constructed “without the installation of any drainage” to deal with surface water flows. The appellant also submitted that the concrete paving installed by the respondents’ predecessors were also a contributing factor. Those alterations in conformation of the land, the appellant submitted, concentrated the surface water in section C.
As to the three structures constructed by the respondents, the allegation was that the respondents created the nuisance. As to the fourth structure, the concrete pathway, the allegation was that the respondents continued the nuisance.
The reference to “without the installation of any drainage” two paragraphs above is a reference to a defence available in a claim in nuisance where a defendant may say that their alteration of their land was a natural use of their land. If so, a defendant may escape liability. In essence, the appellant was submitting, in contemplation that the respondents would submit their structures amounted to natural use of their land, that construction of the four structures described above without drainage was an unnatural use of their land.
The appellant cited Graham v Alice [2022] QDC 106 and directed my attention to [95] in which Jackson QC DCJ said:
I am not satisfied that this concentrated flow results simply from the natural use of the respondents’ land. In particular, I do not consider that the undertaking of work such as the introduction of the close steep slope and the construction of the retaining wall without appropriate or approved drainage and in a way which is not structurally sound is a natural and reasonable use of the respondents’ land given the way it which it has contributed to an increase in the concentration of the flow of water.
The appellant’s point was that a party may be guilty of nuisance in relation to surface water flows if that party undertakes certain construction work which increases or concentrates natural water flow without also constructing or installing some form of drainage to deal with that increased or concentrated flow.
I should add at this point that the appellant is not required to prove material physical damage in order to succeed in a claim in nuisance. Having said that, in order to succeed in his case, the appellant was required to prove that the interference to his land was and is both substantial and unreasonable: see Halsbury’s Laws of Australia, online edition, at [415–650] and [415–670].
The appellant was also required to prove that the alleged altered water flow interfered with his use of his land. The interference must be more than a mere trifling inconvenience. There must be an inconvenience materially interfering with the ordinary physical comfort of human existence. In Riverman Orchards Pty Ltd v Hayden [2017] VSC 379, John Dixon J said (citations omitted):
[178] In Walter v Selfe, Knight-Bruce VC described the need for alleged interference to be substantial as follows, a position later affirmed in the Victorian case Haddon v Lynch:
The inconvenience which the Court will protect against must not be one of mere delicacy and fastidiousness, but must be an inconvenience materially interfering with the ordinary comfort physically of human existence, not merely according to elegant or dainty modes and habits of living, but according to plain, sober, and simple notions among English people.
What is substantial and unreasonable is a question of fact, is assessed objectively and is a matter of degree. Matters like the nature and extent of harm or interference, the hypersensitivity (if any) of the user or use of the plaintiff’s land, whether all reasonable precautions were taken to minimise any interference and the type of damage suffered are matters that may be taken into account.
In assessing interreference a balance must be maintained between the right of one landowner to use their land freely and the right of the other to use his land without interference: see Halsbury’s Laws of Australia, online edition, at [415–655].
As explained by Rosengren DCJ in Turner v Kubiak [2020] QDC 223 (citations omitted) (a water flow nuisance case):
[60] There is little dispute between the parties regarding the elements of the tort of nuisance. A mere interference that causes damage does not constitute a nuisance. A balance has to be achieved between the right of an occupier to do as they desire with their own land and the right of their neighbour not to be interfered with. The plaintiffs plead that the excess water has caused an unreasonable interference. However, to be actionable as a nuisance, the interference with the plaintiffs’ use and enjoyment of the property must be both substantial and unreasonable.
[61] Whether there has been a substantial interference is a question of fact. Whether the interference is also unreasonable involves weighing the respective rights of the parties in the use of their properties. It calls for consideration of a variety of factors including:
… the nature and extent of the harm or interference; the social or public interest value in the defendant’s activity; the hypersensitivity (if any) of the user or use of the claimant’s land; the nature of established uses in the locality (eg residential, industrial, rural); whether all reasonable precautions were taken to minimise any interference; and the type of damage suffered.

I shall return to those issue later in these reasons.
It is necessary to consider the complaints about sections C and D separately. The water flows in section C and D are separate and distinct. The four structures said to have caused the nuisance all relate to the ponding in section C, and the section C water is not alleged to have caused the damage to the section D garage wall. The damage to the garage, in section D, was not caused by those four structures.

Section C

It is important to note that the direction of those water flows is generally consistent with what one would expect to be the natural water flow indicated by the contour diagram. The appellant submitted that that was not the case. He submitted that the pre-development contour diagram showed a secondary slope specifically on the respondents’ property running south to north. However, the contour diagram is not sufficiently precise to accept that submission. That is because the diagram is rather small and does not show the slop relative to the subsequent construction of the two dwellings. The northern portion of the parties’ dwellings appear to be where this south-to-north slope appears in the contour diagram, and it is not possible to tell whether the block-paved area constructed by the respondents occupied part of that slope or not.
As I have said earlier, the fact of ponding in section C after heavy rainfall is not in dispute. The question is whether the flow of water from the respondents’ land to the appellants has been altered.
Of course, had the appellant’s dwelling not been constructed, that water would have continued to flow over the appellant’s land. That fact illustrates that the cause of the ponding is not the precise issue because the appellant’s dwelling is one cause of the ponding. If the appellant’s dwelling was not there, the water would not pond, but would continue its natural path west to east over the appellant’s land.
Rather, the issue is whether the natural water flow from west to east, from the respondents’ land towards the appellant’s land, had been altered by something done by the respondents or their predecessors.
Whilst there is much evidence of water flowing toward section C when there was heavy rainfall, the appellant did not prove how much water would have flowed in that direction without any of the four structures in place. That is, he did not prove what was the natural water flow before the construction of the structures he identified, and whether that natural water flow was different to what is now seen in the evidence.
At one point I was tempted to assume that the concrete walkway would have altered the natural water flow, and perhaps the block-paved area, on the superficially logical basis that concrete and paving blocks are more impervious to water absorption than natural soil. However, on reflection it would be erroneous to make those assumptions when there was no evidence of what the natural ground conditions were before the construction of the four structures.
Perhaps those natural conditions consisted of a large percentage of rock, or some reasonably impermeable soil, so that there was no significant difference in permeability between those natural conditions and that which existed after the four structures were constructed.
Alternatively, perhaps the significant amount of rain one can see in the videos would have exceeded the natural soil’s ability to absorb water and resulted in much the same runoff as is observable in the videos. I note that ponding is only alleged to have occurred after heavy rainfall.
The appellant himself said that ponding had occurred before the respondents constructed their three structures. The only possible contributor to altered natural water flow at that time was the concrete pathway, but it was relatively far removed from the boundary. That’s tends to suggest that the three structures constructed by the respondents have not altered the natural water flow.
Be that as it may, I agree with the Original Tribunal that the appellant did not prove any alteration in the conformation of the respondents’ land which resulted in the flow of surface water being concentrated in section C. There was much evidence of what has occurred in the recent past when heavy rain has fallen. But there is no evidence of what the natural water flow was before any of the four structures were constructed. Without that evidence, it is not possible to say whether the natural water flow has been altered.
Further, in terms of concentration, at least some of the water would, but for the dwelling on the appellant’s land, have continued east over his land rather than being funnelled south to section C and the two concrete steps. The ponding, or damming of the water in section C, is caused by a combination of the respondents’ eastern wall, the two concrete steps and by the appellant’s western wall. That is, one cause of the ponding is the appellant’s western wall.
Even if that conclusion is incorrect, and the appellant had proved that natural water flows had been altered, I would have held that the appellant had not proved a substantial and unreasonable interference with his land in relation to the section C water flow.
No damage has been observed resulting from those water flows.
The appellant pointed to his moderately reactive clay soil which may swell or shrink when saturated and drying out, and which may cause movement in the foundations of buildings. But no movement has been detected and there are no settlement cracks or similar which indicate any such movement in the 13 or so years the appellant has owned his house.
No other interference is claimed in relation to that part of the appellant’s land. All that is claimed is that water ponds against his bedroom 3 westerly wall, but the mere ponding of that water, in my view, does not amount to interference with the appellant’s use of his land.
Therefore, even if the appellant had proved there had been an alteration in the conformation of the respondents’ land with resultant concentration of water flow, I would have held that he had not proved any substantial and unreasonable interference with his land.

Section D

The same could not be said for section D because the appellant did prove damage to his garage wall and floor. Although damage need not indicate a nuisance, this damage would have satisfied me that there had been a substantial and unreasonable interference with the appellant’s land in section D.
One difficulty with the appellant’s case in relation to section D is that the soil which is in contact with his garage wall, and which holds the moisture against that wall above the damp-proof course, is on the appellant’s land.
The appellant’s garage wall is about 150 mm east of the boundary, so that 150 mm of soil belongs to the appellant and is under his control. His expert builder recommended that that soil be removed, and that removal would “air the damaged bricks and concrete in his garage”. Thus, the appellant is able to remove that soil, albeit he would need to install something to support the respondents’ land.
As I have said earlier, proof of damage does not mean that nuisance is proved. What the appellant needed to prove was that the natural water flow from the respondents’ property to his had been altered.
No precise evidence was given as to exactly where the garage wall started (and the bedroom 3 wall ended) in comparison to the structures on the respondents’ land, but doing the best I can from the material provided it seems that for all or a substantial portion of the length of the western garage wall, there is about 2 – 2½ m of soil immediately west of the wall, and then about 1 m of a concrete pathway between that soil and the respondents’ dwelling. That can be seen for part of section D in the photograph at [26] above.
The only possible changes in conformation which may possibly have altered water flow is the construction of the concrete pathway or perhaps the raising of the soil level on the respondents’ property. But the latter was not proved, and I cannot make any assumptions about the concrete pathway for the reasons given earlier.
Although there was proof of water flow in section D from the respondents’ land to the appellant’s land, the appellant did not prove that this was any different to the natural water flow indicated by the pre-development contour plan.
Further, it is not the water flow per se that is causing damage to the appellant’s garage wall, but the soil on the appellant’s land which remains in contact with his garage wall above the damp-proof course.
In my view the Original Tribunal was correct in finding that there was no evidence that the respondents or their predecessors had altered to the conformation of the respondents’ land and thereby concentrated water in section D.

Conclusion

It follows that the appeal should be dismissed.

Orders

I make the following order:
(1)Appeal dismissed.
………………………………..

Acting Presidential Member G Curtin SC

Date of hearing:	5 December 2024
Applicant:	In person
Respondents:	In person