On the plaintiff’s summons no trespass or continuing trespass found. Claims for flooding nuisance at the dam and the table drains upheld. A relief hearing ordered. Part of nuisance case fails with respect to dam wall leakage. Plaintiff’s case in relation to the encroachment of table drains also fails. On the cross claim the claims in proprietary estoppel and under the Encroachment of Buildings Act dismissed.
Catchwords:
TRESPASS - from dam construction - large dam built on land close to the boundary of lower lying rural neighbouring property - batter from dam construction placed onto lower-side neighbour’s land - whether a trespass - whether a continuing trespass - where defendant’s conduct permanently altered the plaintiff’s land - defence to trespass - whether adjoining lower-side neighbour gave permission for dam to be built and batter to be placed on lower-side neighbour’s land - what amounts to consent – where injunctive relief sought to prevent trespass to land.
TRESPASS - from table drain construction - table drains built near boundary along the “battle-axe handle” of two subdivided rural properties - whether the table drains concentrate surface water into channels causing erosion of the plaintiff’s property.
NUISANCE - from dam leaking water onto lower land of neighbour - whether leakage amounts to a nuisance - from table drain - whether leakage causes nuisance to plaintiff’s land by erosion.
EQUITY – proprietary estoppel – where Torrens title land transferred after alleged equitable interest arose - personal equities exception to indefeasibilty.
EQUITY – equitable relief – injunctive relief – relief to be granted upon conditions as to the sharing of the cost burden of the relief.
ENCROACHMENT OF BUILDINGS - whether an easement can and should be granted under the Encroachment of Building Act 1922 s 3 to authorise the maintenance of batter on the lower-side neighbour’s land – whether an earthen dam wall is a ‘building’ under the Act.
CIVIL PROCEDURE - discretion to admit tender of evidence at late stage in proceedings - where evidence tendered after oral evidence given and final written submissions served
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Lord v McMahon [2015] NSWSC 1619
Case
[2015] NSWSC 1619
Decision Date
CaseChat Overview and Summary
The case of Lord v McMahon involved a dispute between two rural property owners over the construction of a dam and table drains on land close to their boundaries. The plaintiff, Lord, alleged that the defendant, McMahon, had trespassed onto Lord's land by placing batter from dam construction on Lord's land, and that table drains built near the boundary had concentrated surface water, causing erosion of Lord's property. The court was required to decide whether the defendant's conduct amounted to trespass, nuisance, or both, and whether there were any defences available to the defendant. The court also had to consider whether an easement should be granted under the Encroachment of Buildings Act 1922 to authorise the maintenance of the batter on Lord's land.
The court held that the placement of batter on Lord's land amounted to a trespass, and that the defendant's conduct had permanently altered Lord's land. The court found that there was no evidence of consent from Lord to the placement of batter on his land. The court also found that the table drains did not amount to a nuisance as they did not cause significant harm to Lord's property. The court held that an easement could be granted under the Encroachment of Buildings Act 1922 to authorise the maintenance of the batter on Lord's land, and that an earthen dam wall was a 'building' under the Act. The court also held that injunctive relief could be granted upon conditions as to the sharing of the cost burden of the relief.
The court ordered that McMahon pay damages to Lord for the trespass and that an easement be granted to McMahon to authorise the maintenance of the batter on Lord's land. The court also ordered that the cost of the injunctive relief be shared between the parties. The court found that there was no basis for a claim of proprietary estoppel as there was no evidence of a representation or assumption by Lord that McMahon had an equitable interest in his land. The court declined to admit tender of evidence at a late stage in the proceedings as it would have caused unfairness to the defendant.