Quick v Alpine Nurseries Sales Pty Ltd - [2010] NSWSC 1248

No judgment structure available for this case.

CITATION: Quick v Alpine Nurseries Sales Pty Ltd [2010] NSWSC 1248

HEARING DATE(S): 19-22 July 2010

JUDGMENT DATE :
29 October 2010

JURISDICTION: Equity

JUDGMENT OF: Ward J

DECISION: Plaintiffs' claim dismissed with costs

CATCHWORDS: PRACTICE AND PRCEDURE - adequacy of pleadings - HELD - claim in negligence has not been properly pleaded and cannot now be maintained - claim in nuisance is limited to pleaded allegations - TORTS - nuisance - whether substantial and unreasonable interference by the defendants with the rights of or in connection with the plaintiffs’ use of their land as a result of development and use of defendants’ land as commercial nursery - HELD - no unreasonable interference with use or enjoyment of land by defendants as pleaded

LEGISLATION CITED: Civil Liability Act 2002 (NSW)
Protection of the Environment Operations Act 1997 (NSW)

CATEGORY: Principal judgment

CASES CITED: Bayliss v Lea (1961) 62 SR (NSW) 521; [1961] NSWR 1002; (1961) 79 WN (NSW) 218
Banque Commerciale SA (in liq) v Akhil Holdings Ltd (1990) 169 CLR 279; 92 ALR 53; [1990] HCA 11
Barbagallo v J & F Catelan Pty Ltd [1986] 1 Qd R 245
Bell v Pitt [1956] Tas SR 161
Bennetts v Honroth [1959] SA SR 170
Bone and Anor v Seale [1975] 1 All ER 787
Borough of Bradford v Pickles [1895] AC 587
Brand v Monks [2009] NSWSC 1454
Broadbridge Little v Holroyd (1935) LGR (NSW) 81
Brodie v Singleton Shire Council (2001) 206 CLR 512
Bruce v Odhams Press Limited [1936] 1 KB 697
Cambridge Water Co v Eastern Counties Leather [1994] 2 AC 264
Charter Carter Pty Ltd v The Shop, Distributive and Allied Employees’ Association of stern Australia (1987) 13 FCR 413
City of Richmond v Scantelbury [1991] 2 VR 38
Corbett v Pallas (1995) 86 LGERA 312
Delaware Mansions Ltd v Westminster City Council [2002] 1 AC 321
Don Brass Foundry Pty Ltd v Stead (1948) 48 SR (NSW) 482
Douglas v Swan (12 December 1950, unreported) CHECK
Elston v Dore (1982) 149 CLR 480
Gartner v Kidman [1962] HCA 27; (1962) 108 CLR 12
Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540
Greetings Oxford Koala Hotel Pty Ltd v Oxford Square Investments Pty Ltd (1989) 18 NSWLR 33
Goldman v Hargrave [1967] 1 AC 645
H 1976 Nominees Pty Limited v Galli (1979) 30 ALR 181
Hill v Van Erp (1997) 188 CLR 159
Hunter v Canary Wharf Ltd [1997] AC 655
Ingot Capital Investments Pty Limited v Macquarie Equity Capital Markets Limited (2008) 73 NSWLR 653; (2008) 252 ALR 659; (2008) 68 ACSR 595; [2008] NSWCA 206
Kernel Holdings Pty Ltd v Rothmans of Pall Mall (Australia) Pty Ltd (unreported, French J, Federal Court of Australia, 3 September 1991)
Kraemers v Attorney General (Tas) [1966] Tas SR 113
Leakey v National Trust for Places of Historic Interest or Natural Beauty [1980] QB 485
McFadzean v CFMEU [2004] VSC 289
Melaleuca Estate Pty Ltd v Port Stephens Council [2006] NSWCA 31
Michallef v Galea [2001] NSWSC 984
Montana Hotels Pty Ltd v Fasson Pty Ltd (1986) 61 ALJR 282, at 284, (1986) 62 LGERA
Nina Kung v Wang Din Shin [2005] HKCFA 54
Oldham v Lawson (No 1) [1976] VR 654
Odhams Press and Pinson v Lloyds and National Provincial Foreign Bank Limited [1941] 2 KB 72
Overseas Tankship (UK) Ltd v Miller Steamship Co Pty (The Wagon Mound (No 2)) [1967] 1 AC 617
Perre v Apand Pty Ltd (1999) 198 CLR 180
Pride of Derby V British Celanese Ltd [1953] Ch 149
Qantas Airways Ltd v Cameron (1996) 66 FCR 246
Ratcliffe v Evans (1892) 2 QB 524
Re Bega Co-operative Society Ltd & Anor v The Milk Authority of the Australian Capital Territory & Anor [1997] FCA 200
R v Commissioners of Sewers for Pagham, Sussex [1828] EngR 680; (1828) 8 B & C 355, at 361 [1828] EngR 680; 108 ER 1075
Rickard & Ors v Allianz Australia Insurance Ltd & Ors [2009] NSWSC 1115
Robson v Leischke [2008] NSWLEC 152; (2008) 72 NSWLR 98; (2008) 159 LGERA 280
Roberts v Rodier [2006] NSWSC 282
Rubenstein v Truth and Sportsman Limited [1960] VR 473
Sedleigh-Denfield v O’Callaghan [1940] AC 880
Shanmugaratnam v Strasburger Enterprises (Properties) Pty Ltd [2004] NSWCA 229
Smith v Littlewoods Organisation Ltd [1987] AC 241
Solloway v Hampshire County Council (1981) 79 LGR 449
Stockwell v Victoria [2001] VSC 497
Sutherland Shire Council v Becker [2006] NSWCA 344
Trade Practices Commission v David Jones (Australia) Pty Ltd (1985) 7 FCR 109
Travel Compensation Fund v Blair [2003] NSWSC 720
Vairy v Wyong Shire Council (2005) 223 CLR 422
Vella v Permanent Mortgagee Pty Ltd [2008] NSWSC 505
Vines v Australian Securities and Investments Commission (2007) 73 NSWLR 451; (2007) 62 ACSR 1; [2007] NSWCA 75
Xuereb v Viola (1990) Aust Torts Reports 81-012
Woods v Multi-Sport Holdings Pty Ltd (2002) 208 CLR 460
Wyong Shire Council v Shirt (1980) 146 CLR 40

TEXTS CITED: Fleming on Torts, 2nd ed, Clarendon Press, 1961
Young, Croft and Smith, On Equity, Lawbook Co, 2009

PARTIES: Clive Richard Quick (First Plaintiff)
Ceridwen Sian Quick (Second Plaintiff)
Alpine Nurseries Sales Pty Ltd (First Defendant)
Peter Wallace Knox (Second Defendant)
Kay Marilyn Knox (Third Defendant)

FILE NUMBER(S): SC 08/281163

COUNSEL: S Philips (Plaintiffs)
S A Kerr SC with S Robertson (Defendants)

SOLICITORS: Stafford Lawyers (Plaintiffs)
Brischetto & Ford (Defendants)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

WARD J

FRIDAY 29 OCTOBER 2010

08/281163 CLIVE QUICK & ANOR V ALPINE NURSERIES SALES PTY LTD & 2 ORS

JUDGMENT

1 HER HONOUR: Mr and Mrs Quick have brought proceedings against Alpine Nurseries Sales Pty Ltd (Alpine Nurseries), a company which carries on the business of a wholesale plant nursery (the Alpine Nursery) near Lismore, and against Mr and Mrs Knox, who are the registered proprietors of the land on which the business is conducted and the directors and shareholders of the company.

2 Mr and Mrs Quick own land on the northern side of Ellis Road opposite the Alpine Nursery. Broadly, their complaint is as to the adverse impact they say there has been on the use and enjoyment of their land from the operations of the commercial nursery since 2004. They contend that the flow of water from the Alpine Nursery land onto the south-western corner of their land has substantially increased, that the percolation of subsurface groundwater into their land has decreased, and that the quality of the water running onto their land has decreased, as a result of the defendants’ alteration of the conformation of the Alpine Nursery land and the use of that land as a commercial nursery.

3 In particular, they attribute the increased volume and velocity of water that they say now arrives at their property to the facts that nursery garden beds now cover a large portion of the front slope of the Alpine Nursery land and have been covered with impervious black plastic sheeting and that the internal roads around those garden beds are covered with compacted gravel, which they claim has reduced the natural absorption of rainwater by the soil and altered the flow of surface water off the Alpine Nursery property, and to the construction on the property of a water storage facility (ie, a dam), which they say artificially retains water and then overflows onto their land. They also blame the introduction of an extensive watering and irrigation system (which they say operates on an almost nightly basis) for the increased water flow onto their land during dry weather.

4 It is alleged that the construction and use of the water retention dam on the front of the Alpine Nursery property and the use of the property as a commercial nursery (with particular reference to the impervious plastic sheeting, intensive irrigation, and the use and spraying of fertilisers, pesticides and other chemicals) constitutes a non-natural use of the property (paragraph 20 of the Amended Statement of Claim). However, and this gives rise to a pleading point raised by the defendants, the basis for the complaint of nuisance (as pleaded in paragraphs 24 and 25 of the Amended Statement of Claim) is limited to the alleged increase in water flow, incidence of flooding and increased water seepage or percolation of water onto the Quick Property, to which I will refer collectively as the alleged ‘water flow interference’ (and not the other matters referred to in paragraph 20 of the pleading). Mr and Mrs Quick contend that the water flow interference amounts to a substantial and unreasonable (and ongoing) interference with their enjoyment of their land, amounting at law to nuisance.

5 Although Mr and Mrs Quick’s principal claim is in nuisance, and the relief on which they are primarily focussed is to prevent the occurrence of future nuisance, they have also brought a claim in negligence in relation to “the matters complained of” (paragraph 29 of the Amended Statement of Claim). This claim also gives rise to a pleading issue.

6 The loss and damage allegedly suffered by reason of the alleged nuisance (and negligence) is particularised in paragraph 28 of the Amended Statement of Claim as the destruction of boundary fences; silting up and pollution of a cattle dam on their property; loss of use of the cattle dam as a water supply and loss of use of the southern paddock (in which the dam is situated); loss of use of rainwater run-off from the roofs of buildings on their property due to air pollution as a result of chemical sprays on the Alpine property; cost of installing an alternative (bore) water supply; lowering of the water table under their property and reduction in volume of water available in bores; loss of enjoyment of their property (arising from pollution, spraying and increased noise and traffic); (unquantified) diminution in the value of their property; loss of (an unidentified number of) trees on the property; and (though this allegation was not ultimately pressed at hearing) personal injury to Mr and Mrs Quick.

7 The defendants deny that they are guilty of nuisance, as alleged or at all, deny the claim in negligence and deny each of the allegations in respect of loss and damage. They further say that paragraph 29 of the Amended Statement of Claim, in which the claim of negligence is made, does not plead a judiciable cause of action; is vague and embarrassing; and should be struck out.

8 In essence, the defendants’ position is that surface water has always flowed naturally through the southern paddock of the Quick Property (which is located at the lowest point of the surrounding area); that water flows onto the Quick Property not just from the Alpine Nursery land but from Ellis Road and from the other neighbouring properties; and that the natural watercourse runs from there into an ‘unmade’ or ‘paper road’ to Marom Creek. The defendants contend that Mr and Mrs Quick have failed to establish that there has been any material increase in the flow of surface water to the Quick Property or that any increase in water flow has been caused by the defendants. Apart from pointing to the potential impact of the Council’s actions in expanding the Ellis Road culvert immediately in front of the southern paddock in November 2005 (which Mr Quick conceded had been the subject of a complaint by him to the Council to the effect that it had made the water flow more quickly onto his property), it was suggested that the current state of the southern paddock (which is frankly conceded by Senior Counsel for the defendants, Mr Kerr, to be a boggy marsh) was attributable to the failure of Mr Quick properly to maintain his land (and the adjoining vegetation corridor) so as to permit the water flowing onto the Quick Property to flow (as it had previously done) off the property and to continue along its normal watercourse down to Marom Creek.

9 By way of relief, the principal focus of Mr and Mrs Quick, as noted above, is on the prevention of apprehended future nuisance (though they also seek compensation for past nuisance – T 70.20). This emerged very clearly in cross-examination, when Mr Quick said that what he was seeking was that nightly irrigation water and small amounts of rain “that would normally soak into property remain on that property as would be expected in a normal farming situation” – T 69.42 (my emphasis); for his paddock to be restored to what it was – T 70.20; and for a guarantee that the water coming onto his property is “clean reliable farm water” – T 70.38, asserting that “We are not responsible for what occurs [downstream] at Marom Creek”).

10 In their Amended Statement of Claim, Mr and Mrs Quick seek an order restraining the defendants from allowing the discharge onto the Quick Property of any water in excess of the natural flow that would ordinarily flow onto their land but for the Alpine Nursery operations and an order that, by a date to be determined, the defendants undertake such remedial or other works as are necessary to prevent the flow onto the Quick Property of any water containing levels of nutrients or chemicals which would amount to water pollution for the purposes of the Protection of the Environment Operations Act 1997 (NSW). They further seek an order that, in default of the above, the defendants cease all nursery operations on the Alpine Nursery property located within that portion of the land which is zoned 7(c) under the Ballina Local Environment Plan) (the water catchment zone). It can be seen that the relief sought in this regard is somewhat similar to that granted in MelaleucaEstate Pty Ltd v Port Stephens Council [2006] NSWCA 31 (2006) 143 LGERA 319; (2006) 12 BPR 23,743; (2006) ANZ ConvR 302 (although Mr Kerr points out that the relief there granted was in the context of an agreed regime for the nuisance to be addressed before the more draconian order for cessation of operations would come into force).

Issues

11 The issues for determination are as follows:

(i) Whether Mr and Mrs Quick can maintain the claim in negligence made in paragraph 29 of the Amended Statement of Claim and/or any claim in nuisance other than by reference to the matters alleged in paragraphs 24 and 25 of the Amended Statement of Claim (ie by reference to any matters other than the alleged water flow interference).

(a) has there been a substantial or material increase in the velocity or flow of water (or in the incidence of flooding or water seepage) onto the Quick Property than would have been the case but for the alterations in the conformation or use of the Alpine Nursery land from May 2004?

(b) does the evidence establish that water flowing from the Alpine Nursery land onto the Quick Property since May 2004 contained levels of nutrients or chemicals which would amount to water pollution, including for the purposes of the Protection of the Environment Operations Act ?

(c) have the defendants performed acts that have had the effect of reducing the amount of subsurface groundwater percolating through the Quick Property?

(iii) If the answer to any part of (ii) is in the affirmative, whether this is a result of the natural use of the Alpine Nursery land.

(iv) Whether it is likely that there will be water flow interference amounting to a nuisance in the future (or any other apprehended nuisance, which would give rise to quia timet injunctive relief).

(v) Whether, if Mr and Mrs Quick can maintain a claim in negligence, has there been a breach of any duty of care owed by the defendants to Mr and Mrs Quick and, if so, what loss or damage has resulted therefrom.

(vi) What remedy, if any, should be granted in light of the findings in respect of the above matters.

Summary

12 For the reasons set out below, I am of the view in relation to the above issues that:

(i) The claim in negligence has not been properly pleaded and cannot now be maintained. The claim in nuisance is limited to a claim based on the alleged water flow interference pleaded in paragraphs 24 and 25 of the Amended Statement of Claim and cannot be maintained in relation to any complaint as to the quality of the water flowing onto the Quick Property, the reduction in the subsurface groundwater or other matters such as the alleged air pollution, noise and increase in traffic to and from the Alpine Nursery land. Further, the claim in nuisance is as to the water flow interference allegedly caused by or as a result of the alteration to the conformation and use of the property as pleaded in the paragraphs preceding paragraphs 26 and 27 of the Amended Statement of Claim (and not as a result of any other alteration to the conformation of the land such as the creation of the ridge or levy bank along the eastern boundary of the Alpine Nursery land).

(ii) I am not satisfied that there has been a substantial and unreasonable interference by the defendants with the use or enjoyment by Mr and Mrs Quick of the Quick Property as pleaded.

(a) I am not satisfied that there has been a material or substantial increase in the velocity, flow or percolation of water from the Alpine Nursery land onto the Quick Property from that which, but for the Alpine Nursery development, would have flowed onto the Quick Property, due to the particular alterations in the use or conformation of the land that have been pleaded or otherwise.

(b) In light of my finding in (i) this question does not arise. However, had it arisen, I would not have been satisfied that the plaintiffs have established that water flowing from the Alpine Nursery onto the Quick Property since May 2004 has contained levels of nutrients or chemicals which would amount to water pollution for the purposes of the definition contained in the relevant legislation.

Borough of Bradford v Pickles

Xuereb v Viola

(d) Again, in light of my finding in (i), this issue does not arise. However, had it arisen, I would not have been satisfied that the evidence established a claim in nuisance based on air pollution, noise or other inconvenience to Mr and Mrs Quick arising from the operation of the Alpine Nursery.

(iii) While I consider that, to the extent that the reason for any increase in the velocity or flow of water to the Quick Property in intermediate or extreme rainfall events could be said to be (and this has not in my view been established) the construction of a ridge or levy bank along the eastern side of the Alpine property land (as opposed to the installation of the irrigation and drainage system on the land), this would not have been the result of the natural use of the Alpine Nursery land (for the purposes of a defence in a claim for nuisance), that alteration to the conformation of the Alpine Nursery property has not been pleaded as a cause of the alleged water flow interference. To the extent that the reason for any increase in the velocity/flow of water or water flow interference is the installation of the irrigation and drainage or water retention system which diverts rainfall around the dam to the Ellis Road culvert (or the existence of black plastic sheeting and gravel roads on the downhill or northern slope of the property, which reduces the natural absorption of rainwater into the soil), I find that this is a result of the natural use of the Alpine Nursery land.

(v) This question does not arise, given my finding in (i) above. However, even if the claim in negligence could have been maintained, I am not satisfied that there has been a breach of any duty of care owed by the defendants to Mr and Mrs Quick or that Mr and Mrs Quick have established that they have suffered loss or damage as a result of the actions of the defendants which are relied upon as constituting the breaches of duty of which complaint is made.

Topography of the area

13 Critical to an understanding of this dispute is the topography of the area in which the respective properties are located. In this regard it was of considerable assistance to me to have undertaken (on the parties’ joint application) a view of the properties on the first afternoon of the hearing. The following description of the area is drawn in part from my observations during the view. Of use also, in appreciating the location and main features of the subject properties, I attach a précis map (not to scale) which has been prepared simply as an aid to the reader’s understanding of the general topography but which is not intended as any definitive representation of the area.

14 The area of land in question forms what Mr Kerr described as a bowl, the lowest point of which is at the south-western corner of the Quick Property - a paddock fenced off from the rest of the Quick Property and referred to variously as the southern paddock, south-western paddock, cattle dam paddock or cattle paddock (and, less flatteringly but with commendable accuracy as I experienced on the view, as a bog or boggy marsh).

15 The Quick Property is on the northern side of Ellis Road, opposite the western end of the Alpine Nursery. The entrance to the Quick Property is not far from and to the west of the driveway entrance to the Alpine Nursery.

16 On the western boundary of the Quick Property is what was referred to as a ‘paper road’ or ‘unmade’ road, that being a vegetation corridor which forms part of the natural watercourse for water flowing from the higher ground on the southern side of Ellis Road, through the Ellis Road culvert, through the southern (cattle) paddock, and then into the paper road and down to Marom Creek. That area of the paper road (described, perhaps with some degree of exaggeration, by Mr Kerr as a jungle) adjacent to the Quick Property was, as I observed on the view, relatively densely vegetated. On the opposite side of Ellis Road (on the western boundary of the Alpine Nursery) is a similar ‘paper road’ (although the state of vegetation there was markedly different from that on the Quicks’ side of Ellis Road, the grass appearing to have been mown and there being little if any trees or undergrowth in that vegetation corridor).

17 Immediately in front of the southern paddock on the Quick Property is a culvert that runs under Ellis Road and carries water from the Alpine Nursery or southern side of the road to the Quick Property. The Ellis Road culvert discharges water directly at the lowest point of the southern paddock. On the afternoon of the view, which took place in dry weather, the concrete apron in front of this culvert was dry. (Mr Quick’s evidence was that there was a constant trickle of water even in dry weather. However, as I understand it this was said to relate to the flow of water first thing in the morning.) Further up Ellis Road to the west is another culvert running under the road. (On the afternoon of the view, the entrance on the Alpine Nursery side of this culvert appeared dry and was blocked with leaves and grass.) Along Ellis Road to the east, just beyond the driveway to the Alpine Nursery, is yet another culvert which drains water this time from the northern (Quick) side of the road to the Alpine Nursery side of the road (from which point water runs either down the road or along the Ellis Road frontage of the nursery into the Ellis Road culvert which opens onto the Quick Property). The properties to either side of the Quick Property are on higher ground than the southern (or cattle) paddock, though the paper road adjacent to the southern paddock appeared to be roughly the same level as the paddock.

18 The area most affected by any water run-off from the northern side of the Alpine Nursery (or, for that matter, from other properties to the south of the Quick Property) is therefore the southern or cattle paddock – the south-western corner of the Quick Property.

19 The Alpine Nursery land is 16.43ha in size and basically rectangular in shape. Its northern frontage (approximately 205m) is on Ellis Road roughly opposite the Quick Property. The Alpine Nursery land boundary at its southern point runs along Youngman’s Creek. The land is approximately 800m deep. As it faces the Quick Property, the land occupies a relatively steep downhill slope. At the highest point of the property (just above where an office and car park are located) there are now potting and treatment sheds as well as a propagation shed. Behind the potting sheds (and towards the back of the property) there is a small evaporation pond. Beyond this area there are two water retention ponds or dams (known as dams 2 and 3), which were built after the initial phase of the development of the land.

20 The Alpine Nursery land comprises two separate environmental planning zones - from the propagation sheds down towards the Quick Property, the land is largely zoned 7(c) as an environmental protection catchment area, the purpose of which is to prevent development which would adversely affect the quantity or quality of the urban water supply. Towards the back of the Alpine Nursery land, where the No’s 2 and 3 water retention dams are located, the area which leads to Youngman’s Creek is zoned 1(a) as a general agricultural zone.

21 The Alpine Nursery land also straddles two catchment areas: the Marom Creek catchment area which covers much of the northern slope of the property (water falling on which, if not otherwise absorbed by the soil, would, prior to the development of the Alpine Nursery, generally run down the front slope of the property down to the Ellis Road culvert and pass under the road to the Quick Property, where it would fill the cattle dam and then pass in an ‘S’ shaped curve through the southern paddock and out into the paper road before reaching Marom Creek); and the Youngman’s Creek catchment area at the top of the property (water falling on which runs from the back of the Alpine Nursery land to Youngman’s Creek).

22 Since the Alpine Nursery development, the course of the water falling onto the northern slope of the property has been altered. Broadly speaking, there is a distinction between the fate of water falling onto the nursery garden or production beds on the front slope of the nursery (which, to the extent not absorbed by the soil in the pots sitting on those garden beds, drains into agricultural pipes which lead down to the No 1 water retention dam at the northwestern corner of the property and is recycled in due course for irrigation) and the water falling onto the areas outside the pods (such as the internal gravel covered roads) (which flows down internal roadways and through drains under those roadways through a ‘biofilter riparian zone’ to a grass swale or culvert running parallel to Ellis Road and then to the Ellis Road culvert and across to the Quick Property). (Mr and Mrs Quick contend that the fact that the irrigation system diverts water down the internal roads means that it arrives at the bottom culvert more quickly than it otherwise would – nowhere, however, was there expert evidence as to the rate of the flow onto the Quick Property of water arriving at the Ellis Road culvert or the impact if there were any increase in the velocity of the water.)

23 Water from the properties to the east of the Alpine Nursery flows down the eastern side of the metaphorical ‘bowl’ and, through a green ‘silt curtain’ erected by the defendants (and designed to impede the passage of silt, not water), along the grass swale running parallel to Ellis Road and thence to the Ellis Road culvert and the Quick Property. Prior to the development, and in particular prior to the creation in around May 2006 of a ridge or levy bank along the eastern boundary of the Alpine Nursery land, water flowing down to Ellis Road from the property on the eastern side of the Alpine property (the Sultana property) would not have been channelled in such a fashion but, according to the irrigation and water management consultant who had responsibility in relation to the design of the irrigation and water drainage system at the Alpine Nursery (Mr Christopher Rolfe), would have flowed down the existing driveway to the Alpine Nursery and thus arrived at the grass swale in similar fashion. Indeed, Mr Rolfe suggested that the water from the eastern property or properties would have arrived at the culvert more quickly than it now does (as he says it is now slowed to some extent by the grassed area it flows down – T152.39). (This gainsays the suggestion by the plaintiffs’ hydrological expert, Mr Dey, that the water would previously have flowed across (not down) the road and across the northern slope of the Alpine Nursery land thus permitting greater absorption on the way.)

View

24 As noted, on the afternoon of the first day of the hearing, a view was conducted of the Alpine Nursery land and the southern paddock on the Quick Property. The weather was dry (a point of relevance when inspecting the Ellis Road culvert). The view commenced at the top of the Alpine Nursery property where I was shown the southern boundary and the area leading to Youngman’s Creek; the two water retention dams (Nos 2 and 3), each of which has a spillway for overflow (that overflow going down to Youngman’s Creek); a small evaporation pond (used to assess the level of irrigation needed for the nursery on a daily basis – which depends on the amount of evaporation); the treatment shed and water testing facility – where I was shown the testing equipment; and the potting and propagation sheds (the latter enclosed and kept in a humidified condition).

25 From roughly the level of the car park office facility and a shaded area of plants, the slope ran downwards towards Ellis Road. I was shown the production area or garden beds (referred to variously as pods or pads) which are lined with black plastic membrane or sheeting. On most (but not all) of those beds there were closely spaced rows of plastic pots in which were planted trees or shrubs of different heights or maturity. Some of the garden beds were empty (though also covered with black plastic), presumably awaiting the placement of pots on them. The garden beds are separated by internal gravel roads.

26 At one corner of each of these garden beds was a fixed sprinkler structure with a rotating sprinkler head to which was fixed a red plastic shield (the purpose of which is obviously to direct the angle of spray from the sprinklers towards the garden beds and thus to prevent 360 degree rotation). (On some of the lower parts of the nursery there was a track sprinkler system but this was not the focus of much discussion during the view.) I was informed that other than some drips, the water from the fixed (red shield equipped) sprinklers does not flow down the sprinkler or on the outside of the red plastic shield.

27 Some emphasis was placed by Mr Dey during the inspection on the possibility (or likelihood) of water from the sprinklers falling outside the garden beds and on the gravel walkways. Mr Dey raised questions as to the effectiveness of the red plastic shields and, at one instance, demonstrated with physical gestures the way that the angle of the flow from the sprinkler heads would spread out over the gravel walkways depending on how the sprinklers were angled. (In windy conditions, it must also be possible as a matter of commons sense that irrigation from the sprinklers would be sprayed by the force of the wind outside the garden beds.)

28 The significance of this is that water falling on the internal roadways or walkways (as explained above) ends up in the Ellis Road culvert whereas water falling on the production beds, if not absorbed by the soil in the pots, ends up in the No 1water retention dam. (The other point to note is that Mr Dey had apparently seen fit express opinions as to the irrigation system, and the extent of coverage of the black plastic for that matter, without a complete understanding at that stage of the way the sprinkler system operated or any view of the nursery other than that obtained from outside the grounds, a matter on which Mr Kerr relies as going to Mr Dey’s credit, a matter to which I will return in due course.)

29 The colour of the gravel on the pods or garden beds was different from that on the internal walkways, though it does not seem as if there is any significance to this. I observed that there was moist soil underneath some of the gravel in the walkways.

30 In each of the garden beds there is a drainage pit or grate through which water passes and from which water is piped through to the No 1 water retention dam.

31 In the middle of some of the internal walkways intersections, there are also drainage pits from which water falling on the gravel roads is drained down to the grass swale or culvert parallel to Ellis Road and thence to the Ellis Road culvert.

32 After inspection of the No 1 water retention dam (at the corner of which is a small pumphouse from which water can be pumped between the various dams and the testing facility), in the middle of which there is an aerator, and of the overflow point or spillway at the north eastern corner of the dam, I was shown the outlet of the drain from the spillway (where the soil was damp) which leads into the riparian bio-filter area. There is a grass swale running parallel to Ellis Road which leads into that area.

33 I was taken to the eastern boundary of the Alpine Nursery land at the Ellis Road end and shown the silt curtain between the Alpine Nursery land and the Sultana property. The silt curtain was made of dark green material and I observed the build up of reddish silt on the Sultana property side of the curtain. I also observed the eastern ridge or levy bank. Mr Dey made some observations as to the temporary nature or impermanence of the silt curtain and as to its inability to impede the flow of water down the swale (though, as I understand it, the purpose of the silt curtain is not to impede water flow but to impede the flow of silt – and in the absence of this silt curtain presumably a proportion of the silt caught by the curtain would end up on the Quick Property). (In response to an objection by Mr Kerr as to evidence of this kind being given by Mr Dey during the view I noted that I would listen to what was said by those at the view as being in the nature of submission.)

34 Mr Kerr pointed out the culvert on the northern side of Ellis Road to the east of the Alpine Nursery which I observed appeared to be at a higher level than the land on the Alpine Nursery side of Ellis Road. Water from that culvert also drains down to the Ellis Road culvert opposite the Quick Property and through that culvert to the Quick Property. After inspection of the riparian bio-filter (which in lay terms appeared to be an area densely populated with medium sized shrubbery and thick grass but which was not boggy underfoot) and the entrance to the Ellis Road culvert opposite the Quick Property, there was an inspection further to the west along Ellis Road of another culvert.

35 From Ellis Road, I observed the neighbouring property to the west of the Quick Property and the paper road adjacent to the southern paddock as well as the fence at the corner of the Quick Property (which appeared to be pushed back to a rakish angle). I was shown the point of discharge from the Ellis Road culvert at the southern paddock. The concrete apron of the culvert was dry, although there was water in the southern paddock itself.

36 It is no understatement to say that the southern paddock was largely waterlogged. Near the Ellis Road culvert I observed that some of the water had an oily sheen and that there was some gravel in the water. In other areas there were clumps of what seemed to be weeds. The so-called cattle dam was filled with water. I did not attempt to estimate the depth of the water in the southern paddock other than to note that there were places in which it was at least to mid-calf level and the ground did not appear to be level underfoot and that the water in places was in small ponds between the clumps of grass and weeds. The soil was muddy and reddish in colour. The boundary fence was clogged with weeds and debris. The water in the southern paddock appeared to be stagnant. It was certainly not obvious that there was any running flow of water out of the paddock.

37 The land on the Quick Property immediately adjacent to the southern paddock was damp but appeared to be well maintained. I was shown the location of the failed bore in the front yard of the Quick Property. I also observed a number of signs at the entrance to the Quick Property, the thrust of which appeared to be disclaiming responsibility on the part of Mr and Mrs Quick for the quality of the run-off water to Marom Creek with references to polluted water.

38 I should also note that during the course of the view I was informed that the most recent occasion on which water had flowed across Ellis Road (ie not just through the culvert) onto the Quick Property had been during early June around the time of the Lennox Head floods.

39 (I should also note, so that there is no confusion, that although referred to by Mr Quick as the ‘cattle’ paddock, and the dam on it as the “cattle dam’, the southern paddock does not seem to have been used by Mr and Mrs Quick for cattle agistment purposes. Rather, it seems that it was so named because a neighbouring owner’s cattle had (for a time) been able to drink water from a hole or dam that had been excavated in that corner of the Quick Property by the previous owner, Mr Robert English. (Mr English in fact referred to this as a geese dam because he said he had intended to have geese in that paddock.)

40 Mr English gave some evidence by audio-visual link as to his observations of the condition of the southern paddock during the period he owned the land. In particular, he gave evidence that the paddock had occasionally flooded and that, when it did, it took approximately three days (5 days if there was continuous heavy rain or, at its heaviest, up to 10 days) to clear. He also said that when he owned the land he took steps to maintain the southern paddock (slashing the buffalo grass around the cattle dam) and the paper road (slashing and burning lantana and roughly clearing the vegetation). Mr English said that there were no weeds in the paddock at that time, just the buffalo grass. (Mr Dey seems to attribute this to the presence of nutrients in the water allowing other species to grow but it is not clear on what he bases this other than his stated experience in flood areas.)

41 Mr English, having been shown certain photographs, was of the opinion that there was more water in the post-Alpine rainfall events than in the 12 years that he had owned the property. (Mr Kerr in submissions pointed to the similarity in certain of the particular flood photographs between the position pre-Alpine and post-Alpine, though Mr Philips noted that the one pre-Alpine flood photograph to which Mr Kerr had directed my attention was the only occasion on which Mr English said that the paddock had flooded in the twelve years that he had owned the property.)

Acquisition of respective properties

42 Mr and Mrs Quick purchased their property in December 2001. Mr Quick conceded that when he purchased the land it was a time of drought – T 70.17. Neither Mr nor Mrs Quick was a farmer by occupation. Mr and Mrs Quick acquired the land after they retired from teaching. Mr Quick had worked (many years before) part-time on his father’s farm. The relevance of Mr Quick’s experience as a farmer (about which he was cross-examined) seems marginal, at best. Its only potential relevance, as I see it, might lie in the context of the suggestion by the defendants (that emerged during the course of the concurrent expert evidence) that the present condition of the southern paddock can be attributed to a failure by Mr Quick properly to maintain his land or to do what Mr English had done and to clear the paper road of vegetation (though whether or not Mr Quick was conscious of proper farming techniques at the time seems to me to be of marginal relevance, if any, when considering the issue as to the cause of his waterlogged paddock).

43 The Alpine Nursery land was initially part of a larger property owned by the Sultana family on which a potato farm had been cultivated and irrigated by water from Youngman’s Creek. (I interpose to note that, if so, then the pre-Alpine development run-off from the land would have included, as it does post-Alpine, some water from a source additional to the catchment area per se.) The evidence of Mr Rolfe was that when the potato farm was under cultivation there were a series of ‘runs’ going downwards to Ellis Road along which rainwater would run. Up beyond the Alpine Nursery in the area around Youngman’s Creek there is a macadamia plantation, a cattle farm and another wholesale nursery (which indicates the type of natural land use common in the area).

44 In June 2004, Mr and Mrs Knox acquired the Alpine Nursery land. However, their involvement in the development of the property commenced some months before then. There was evidence as to the investigations made by Mr and Mrs Knox prior to their purchase of the land as to the conditions applicable for the operation of a commercial nursery on the land (and Mr Kerr, in his submissions, emphasised the extent to which, prior to purchase, Mr and Mrs Knox had contacted many of the relevant governmental state and local authorities and the significant amount of time care and attention given to the development of the Alpine Nursery land).

45 Objection was raised prior to the hearing to the evidence sought to be adduced for the defendants as to advice provided to them by experts in relation to the operation of the nursery. This evidence was pressed by junior Counsel for the defendants, Mr Robertson, on the basis that the defence of reasonable and natural user of the land meant that evidence of best practice user of the nursery was of relevance (such that if the irrigation and drainage management plan was in the ordinary and proper manner without negligence or wilfulness this would be relevant according to Bayliss v Lea (1961) 62 SR (NSW) 521; [1961] NSWR 1002; (1961) 79 WN (NSW) 218) and further on the basis that as the plaintiffs were in effect seeking quia timet relief they needed to show that it was likely that the defendants would commit further acts of nuisance in the future and that the irrigation and drainage management plan was relevant to that issue. (Objection was also taken to evidence as to the attitude and behaviour of the plaintiffs towards nursery staff and visitors to the nursery, which was pressed by Mr Robertson on the basis that, insofar as nuisance related to neighbourhood interactions and involved a balancing exercise between the parties’ rights in relation to use of the land, the alleged ultra-sensitivity of Mr and Mrs Quick would be of some relevance.) I accepted Mr Robertson’s submissions and admitted the evidence on the basis or bases so indicated.

46 By letter dated 31 December 2003, a development application was submitted in relation to the Alpine Nursery land. That development application submitted by Alpine Nurseries to the local Council was for the development of a ‘water storage facility’ (to which I refer as the No 1 water retention dam but which is also variously referred to in the evidence as a water retention ‘pond’) on the northern slope of the property.

47 The development application referred to the water storage facility as being the first stage of development on the land. A brief statement of environmental effects (prepared from information provided by Mr Rolfe if not indeed also prepared by him) accompanied that development application. A general description was given of the nature of the development. It indicated that production beds were to be sealed off and that run-off was to be directed into the retention storage facility by the drainage system. Run-off other than production beds was to be allowed to flow down the natural waterways. The development application also referred to grassed waterways to be constructed to carry water under Ellis Road by the existing culvert.

48 The development application distinguished between the various ways in which water falling on the property was to be treated. Consistently with the description I have given above, water falling on the production beds on the northern slope facing Ellis Road (which are lined with black plastic sheeting and on which there are many individual plants or shrubs in pots), and which is not absorbed in the pots, was to be piped to the No 1 water retention dam and retained there (in due course to be piped as necessary to irrigate the plants and treated); water falling outside the production beds (on the internal roads) was to be allowed to run down the roads and/or piped around the water retention dam and then to run off the property in three narrow channels into the grass swale, through the riparian bio-filter, into the Ellis Road culvert and eventually onto the Quick Property.

49 Mr Rolfe was adamant that the development application had been prepared in accordance with best industry practice and that account had been taken of the potential impact on downstream neighbours. His explanation as to the basis on which he formed the view that there was no adverse impact on the neighbours was in my view logical and I saw no reason not to accept it.

50 Consent to the first development application was given on 29 March 2004. Reliance is placed by Mr and Mrs Quick, particularly in the context of their claim in negligence, on the alleged non-compliance by the defendants with conditions of the consent given for the development. In submissions, Mr Philips referred to condition 1.5 (namely that discharge of water from the dam was to be undertaken in a manner that would not adversely concentrate the water into the downstream drainage system – whereas Mr and Mrs Quick say that by the nature of the design of the property the water does concentrate into the downstream drainage system in times of heavy rainfall because they contend that there has not been sufficient pervious or riparian land between the dam and the downtown drainage system); condition 1.7 (namely that the dam base be 1m above the current water table and concealed with impermeable liner – although it is not clear how it is contended that this was breached); and condition 1.8 (namely that all water other than water from the nursery beds be diverted around the water storage facility – again, it is not clear how it is said that this condition has been breached; indeed the diversion of water from around the nursery beds seems to be one of the matters on which Mr Dey relies for the conclusion that there has been an increase in the water flow to the Quick Property, on the basis that the drainage of water along internal roadways has caused water to flow more rapidly off the land).

51 Reliance was also placed on the fact that the dam is of less capacity than that specified in the application. (In that regard, there is correspondence in June 2006 with the Council in which the reason for the alteration of the specification of the dam was enunciated – it was said to have been made slightly shallower and wider compared to the original specification (due to the need to saitisy condition 1.7) – see p228ff, Exhibit D). That letter asserted that the revised size of the dam had been notified to Council in May 2005.

52 No notice was given by Mr and Mrs Knox, or their company, to Mr and Mrs Quick of the development application or of their intention to develop the property as a commercial nursery. Mr Knox gave evidence, which I accept, that he thought the Council would have given notice of the development application to Mr and Mrs Quick (presumably as owners of a neighbouring property) – T 109. For whatever reason, it appears that the Council did not do so. Mr and Mrs Quick say that the first they knew of the proposed development was when excavation works began in May 2004 for what was to become water retention dam 1. (This is consistent with the recollection of Mr Knox that when he first met with Mr and Mrs Quick they seemed mainly to be unhappy that Council had not advised them in advance of the development application – T 111.8).

53 Mr Knox and the manager of the Alpine Nursery (Mr Bruce Wilson) visited Mr and Mrs Quick at their home in May 2004. (In the witness box Mr Knox said that he had been reminded by his wife of another meeting with Mr and Mrs Quick around that time but confirmed that his recollection was that the first meeting was that which took place at the Quick Property.) Mr Quick deposed to having been assured by Mr Knox at this meeting in May 2004 that the dam would not collapse causing a dangerous torrent of water in the direction of the Quicks’ property (as opposed to overflow on some occasions). Mr Knox denied saying “the dam would never overflow” although did depose to saying that the dam would not collapse (at paragraphs 46 and 93 of his affidavit sworn 31 March 2010). It seems to me unlikely, given the considered and careful manner in which Mr Knox gave his evidence (and his ready acceptance of propositions that might have been thought to harm his case, such as the likelihood of future dam overflows), that Mr Knox would have given an assurance inconsistent with the development application consent which itself required that there be provision for a spillway to permit overflow from the dam in times of heavy rainfall (see condition 1.4 of Notice of Determination of a Development Application 2004/649, at p 96CB).

54 Mr Knox agreed that by the time he met with Mr and Mrs Quick, construction had commenced and the company was committed to the nursery – T 108.34, and that from a commercial perspective there was no alternative other than to proceed with construction of the dam in accordance with the approved plan – T 110.28, and that he had not taken any steps to change the master plan or to reduce the impact on the Quick Property after he had met with them. However, Mr Knox also said that they had not asked him to do so - T 111.25.

55 It is by no means clear to me that Mr Knox (or the other defendants) appreciated or should have appreciated that there might be an adverse impact on the Quick Property by reason of the construction of the water storage facility in accordance with the development application. Mr Rolfe’s evidence, which I accept, was that the position of neighbouring properties had been taken into account and that it was his view that the water management plan would have the effect of minimising any impact on downstream neighbours such as Mr and Mrs Quick. Accordingly, insofar as the above evidence is relied upon to suggest a wilful disregard or recklessness by the defendants at that stage in relation to the effect of the development on Mr and Mrs Quick’s use and enjoyment of their property, I would not accept that to be the case.

56 (In that regard, I note that in closing submissions Mr Philips suggested that recklessness as to interference with the plaintiffs’ rights could be inferred from three things – the fact that the dam was of lesser capacity than specified in the application for development consent; the recognition in the management plan for retention storage at the No 1 water retention dam that the capacity of the dam, as built, was of less capacity than the average likely rainfall and was thus bound to fail; and that the application in relation to the levy bank on the eastern boundary was said to have been made to prefer the defendants’ own commercial interests so as to stop silt from the adjoining property from travelling across the nursery land. It seems to me that it is only the first two matters that might go to reckless disregard of the plaintiffs’ interests and that they must be taken into account along with the fact that the property was in a flood prone area and the views (right or wrong) of the defendants’ consultants as to the minimisation of harm to the plaintiffs, to which I refer later.)

57 Construction works in relation to the No 1 water retention dam took place from around May 2004 onwards. Mr Quick gave evidence that a row of camphor laurel trees running along Ellis Road on the northern roadside of the Alpine Nursery property were removed (though there does not seem to be any suggestion that this was a cause of the alleged increased water flow onto the Quick property and, subsequently, other trees were planted along the roadside). The No 1 water retention dam is not now visible from the Quick Property.

58 The No 1 water retention dam has a 45° slope and an overflow point or spillway at the north eastern end of the dam close to the Ellis Road culvert. I observed the discharge outlet for the dam and note that water would flow from the spillway out into the so-called riparian zone and converge with water flowing down the grass swale to the Ellis Road culvert. (The riparian zone was relatively densely vegetated when I observed it on the view.)

59 Although the dam was proposed in the development application to be of a particular capacity (8.6 megalitres), the dam as built has a capacity only of around 6.3 megalitres. This is because during the construction of the dam it was found that the subsurface (or perched) water table was closer to the ground than had been thought. The development consent conditions required that the dam base be 1m above the current water table and Mr Rolfe explained that there cannot be interference with the perched water table (which he described as an underground lake the size of which varies during the different weather conditions created by reason of the effect of the construction of Ellis Road which obstructed the natural watercourse across that area – T154).

60 Therefore the dam could not be excavated to the depth originally intended and is of less capacity for that reason. However, the dam was lined, as required under the development consent conditions, and the evidence is that there is kept a minimum of about two and a half metres head space in the dam to allow for unexpected rainfall events. Mr Wilson also says that there is a capacity to pump close to a megalitre of water out of the dam in a 24 hour period (T 171) and Mr Dey seemed to accept that the pumping capacity would be effective to prevent overflow provided there was less than 75mm rainfall in any 24 hour period (though that would presumably depend on the time when the pumping commenced – if measures were taken to start pumping water from the dam when flood or heavy rain warnings were received then presumably other than in flash floods the effectiveness of this measure would be increased). In any event, there is no basis on which to find that the dam construction was in breach of the development consent conditions simply because it was shallower and wider than specified in the application.

61 Reliance is placed on the reduced capacity of the dam for the proposition that it is inevitable that the dam will overflow during the course of the year (the rainfall records showing that there are on average one or two rainfall events greater than a 6.3 megalitre storage capacity) and on Mr Rolfe’s concession that the dam does not have the storage capacity to hold all of the rainfall that is likely to fall on the property (T 148).

62 In around August 2004, construction of the No 1 water retention dam was completed. (Any problems of water flow before then cannot therefore have been due to the retention of surface water in the dam.)

63 Mr Quick's evidence is that prior to the Alpine Nursery development water only ran through the Ellis Road culvert after heavy rain. (He also gave evidence that on the Alpine Nursery land there was a small spring from which there was clear water and that it silted up only after times of heavy rain.) Mr Quick says that in the period from 2000 to 2004 there were two or three heavy rainfall events in which the water gushed through the culverts and that the soil was wet for a week or so and then drained off the property after a period of about a week and he could then mow his property. (Mr Quick in cross examination conceded that he had only attempted to mow his property once this year but said when he attempted to do so his ride-on mower became bogged. There is nothing to suggest that a hand held slasher could not be used in those circumstances but Mr Quick’s evidence was that he was not in a condition to use one.)

64 I interpose to note that, on Mr Quick’s affidavit evidence, from May 2004, the cattle paddock on his property was “constantly wet” to such an extent that it was impossible properly to mow and maintain that area of his land. If so, then this means that as soon as the excavation works commenced, and some 3 or 4 months before the dam was completed (and some 6 months or more before the earthworks occurred on the eastern ridge of the Alpine Nursery land), his property was already ‘constantly wet’. Therefore, either Mr Quick has exaggerated his evidence in this regard or, if not, the problem of constant wetness of the southern paddock is one which arose independently of and before completion of the earthworks on the eastern side of the driveway on the property (now blamed by Mr Dey for concentrating the flow of water on the property) and before the retention of water in the No 1 water retention dam (although of course the later alterations to the conformation of the land might have exacerbated that problem).

65 Mr Quick gives evidence that on 9 November 2004 the fence on the southern boundary of the Quick Property was knocked over following heavy rainfall (Mr Quick notes the rainfall on that occasion as being 62mm). Mr Quick says that on at least 12 occasions since May 2004 the cattle paddock has flooded and that on a number of occasions the fence on the boundary of his property was knocked over. When cross-examined in relation to the flooding which had occurred, Mr Wilson did not deny that the No 1 water retention dam had ‘overtopped’ on around a dozen occasions over the period. Nor is it denied that there was damage occasioned to the boundary fences on the Quick Property over the relevant period. (In cross-examination Mr Knox agreed that at one stage an offer had been made by the defendants to meet the cost of repair of the fence. That offer was apparently coupled with a condition that Mr Quick withdraw his threat of legal action and was not accepted by Mr Quick. Mr Knox agreed that no further such offer had been made.)

66 By December 2004 or early 2005, some of the nursery operations on the Alpine Nursery land had commenced. Mr Rolfe gave evidence that commencement of those operations had taken place before the completion of all aspects of the development (for cashflow purposes) and that this is what had led, at least indirectly, to the blue-green algae outbreak in May 2005.

67 Mr Quick gave evidence that in January 2005, there was further flooding of the southern or cattle paddock. (In general, there was no contest by the defendants as to the evidence given by Mr Quick in relation to the occasions on which the paddock had flooded, and I accept his evidence that it did flood on those occasions. There was, however, a contest as to whether the flooding was due to the development of the Alpine Nursery land or whether it was simply a natural consequence of the topography of the area itself.)

68 On 11 February 2005, the Council wrote to the defendants requesting an explanation as to why consent had not been obtained before the undertaking of earthworks in the 7(c) water catchment zone. That letter referred to those as being for an amenities office and a small shed. Reliance is placed by Mr and Mrs Quick on this letter (p 149 Vol 6 Ex D) as indicating non-compliance with the Council’s requirements. The defendants’ response, which is at p152ff in the same volume, explained the circumstances in which flooding had occurred in January 2005, denied non-compliance in the main with the Council’s requirements byt acknowledged a need to be more conscious of the need to maintain adequate air space in the dam to allow for any future significant rain events and confirmed that instructions had been given for this to occur at all times in the future.

69 In March 2005, four cows owned by Mr and Mrs Quick’s neighbours died. There is no evidence as to the cause of death. It seems that Mr and Mrs Quick infer that this was in some way caused by the cattle drinking polluted water from the dam and that this polluted water came from the Alpine Nursery (since otherwise its relevance to anything in the proceedings would be difficult to imagine). (Given that there was a similar algae outbreak two months later in the No 1 water retention dam, it is certainly conceivable that water containing such algae could have flowed to the Quick Property if the dam had overflowed in that period. The cattle might, however, have died from any number of contaminants from a variety of sources or otherwise.) I cannot see how any relevant inference could be drawn from the death of the cattle (there having been no testing of the water in the dam and no admissible evidence as to the cause of death of the cattle). In fairness to Counsel for Mr and Mrs Quick (Mr Philips), I should note that I was not asked to draw any such inference and I do not do so. (In any event, as discussed later, I do not consider that any claim in nuisance based on the water quality as it arrived on the Quick Property can be maintained in light of the fact that there is no pleading to that effect.)

70 On 24 March 2005, Mr Quick sank a bore on his property. It was apparently operational when first installed but then failed. Mr Quick blames the fact that it does not now operate on the activities of the defendants on the Alpine Nursery land. This was an issue considered by the two experts and I consider it later. Again, however, I do not consider that any claim in nuisance based on the reduction of subsurface water percolating through the Quick Property can be maintained in light of the fact that there is no pleading of nuisance in that regard.

71 In May 2005 there was an outbreak of blue/green algae in the area. Tests showed the presence of such algae in both the cattle dam and the No. 1 water retention dam. A notice was issued on 17 May 2005 under s 96 of the Protection of the EnvironmentOperations Act. Mr Rolfe explained the circumstances in which that algae outbreak occurred – he says it was due to the lack of available power to operate an aerator in the dam (that lack of power not having been anticipated at the time the nursery operations commenced). Mr Rolfe also explained the manner in which that outbreak was treated by ‘environmentally friendly’ pesticides. Since then the only evidence of elevated microcystis levels (indicating the presence of blue-green algae) has been in connection with dams 2 and 3 (although there was some suggestion of toxicity in April this year. There is, however, no suggestion of any further outbreak of blue-green algae in dam 1 and there was evidence of a more rigorous testing programme at least since 2009 in relation to water quality leaving the Alpine Property and on every occasion after an overflow from the dam, none of which indicated a problem with water quality.

72 It was put to the defendants’ witnesses in cross-examination that it was the direction from the Council to take preventative action in relation to the May 2005 algae outbreak that had led to the preparation of the first Irrigation and Drainage Management plan for the retention and storage of water on the nursery. That was not accepted by the defendants. According to Mr Fitzgerald, there was testing carried out prior to the implementation of the water testing regime the subject of the respective management plans but this testing seems to have been confined to the water in the No 1 dam and to be more limited than the programme that has been in place since 2009. (Of course, at the outset there was only the one water dam so it is hardly surprising that the testing regime would not have been as comprehensive at that stage.)

73 The initial Irrigation and Drainage Management Plan referred to the three main criteria that had been considered in developing the Alpine Nursery property: first that the groundwater aquifer was relatively shallow and could possibly be contaminated; secondly, the conditions and licence in relation to use of water and the way it was or could be drained off the property; and thirdly, the shallow excavation of the land was not a reliable water supply so that works had to be undertaken to ensure a reliable water supply to be used as part of the development based on the natural use which could be made of the land.

74 In November 2005, the Council caused alterations to be made to the design of the Ellis Road culvert, extending or adding concrete wings to the points at which water flows in and out of the culvert. That alteration was the subject of complaint from Mr and Mrs Quick, who asserted that it had increased the flow and concentration of water onto their property. At the very least this suggests an alternative or additional cause for the flooding of the Quick Property the subject of the present complaint (which weakens any inference that might otherwise be available as to the cause of the current state of the southern paddock on the Quick Property).

75 In the early part of 2006, earthworks were commenced for the construction of a levy bank along the eastern ridge of the property. This was apparently for the purpose of preventing silt travelling from the eastern property being deposited on the Alpine Nursery land. Objection was taken by the Council to these works (by letter of 21 April 2006 referring to a site inspection in late March 2006).

76 On 19 May 2006, a further development application was lodged by the defendants for earthworks and the construction of new growing areas to the south of the existing development (those being the areas from the top of the property and including the area in which dams 2 and 3 now stand). It was asserted in the pleading that this application acknowledged the detrimental consequences of the existing development on water flow from the property. Certainly, the development application referred in terms to “the issue has been too much water, not the reverse” and acknowledged the abundant water directed to the culvert in front of the Alpine Nursery Property bordering Ellis Road and that it had been a focal point for waters flow in times of heavy rainfall.

77 On July 2006, Council gave its consent to the second development application and the remaining nursery areas were built.

78 The ridge or levy bank on the eastern side of the Alpine Nursery (running alongside the driveway to the property) assumed some significance during the course of argument and is of some relevance for at least two reasons.

79 First, on inspection of the Alpine Nursery property during the view, it was pointed out to me that the soil under the black plastic covering the production beds on the downhill slopes of the Alpine Nursery was not of the same bright red colour as that visible on some of the DVD footage taken by Mr Quick during rainfall events but that the soil which had been trapped by the silt curtain at the bottom of the Sultana property was of that colour. Thus it seems reasonable to infer that any reddish water flowing onto the Quick Property through the Ellis Road culvert (as shown on the DVD footage) must have originated from the Sultana property or other properties to the south east of the Quick Property (not the Alpine Nursery land), which supports Mr Kerr’s submission that water from a variety of sources (not just the Alpine Nursery land) converges on the Quick Property during rainfall events.

80 Secondly, the effect of the ridge (as also evident from the DVD footage) seems to be that rainwater from the Sultana property (and perhaps others to the east or south east of the Alpine Nursery land) is channelled down the eastern side of the Alpine Nursery land (and, ultimately, through the ‘silt curtain’ into the grass swale at the bottom of the Alpine Nursery land running parallel to Ellis Road) rather than flowing either across the production pods on the Alpine Nursery land and then down the slope facing Ellis Road (as Mr Dey said it would) or down the Alpine Nursery driveway (as Mr Rolfe said it would).

81 In either case, the water would end up at the Ellis Road culvert and thus at the entrance to the southern paddock on the Quick Property. The only logical difference would seem to be the speed or concentration of the flow of water as it reached the culvert. There were conflicting views as to what effect that would have. As I understand Mr Dey’s reports, he considered that this would have the effect that there was less opportunity for water to be absorbed across the expanse of the Alpine Nursery land (though in a heavy rainfall situation the absorption capacity of the soil would be reduced in any event so that the difference in area over which the water could naturally be absorbed is of less significance). Mr Rolfe, however, gave evidence that before the construction of the levy bank water flowing from the Sultana property ran down the driveway (and would be likely to do so more quickly than down the grassed swale or depression alongside the levy bank). In the absence of evidence as to measurement of the rate or flow, it is difficult to draw any final conclusion from this. Suffice it to say that Mr Dey’s own evidence seems to suggest that there is no material adverse impact of the concentration of the water in either heavy or intermediate rainfall conditions and given the evidence of Mr Rolfe as to the pre-Alpine Nursery development flow of water from the eastern properties down the driveway rather than across the slope now covered with the nursery beds, the plaintiffs have not established any materially more concentrated flow by reason of the levy bank.

82 In any event, whatever the effect of the levy bank on the velocity or concentration with which water flowing from the Sultana property and others to the south east of the Quick Property arrives at the Ellis Road culvert, the pleading does not refer to the construction of the levy bank or ridge as part of the change in conformation of the Alpine Nursery land said to have caused the nuisance. Thus even if there has been an increase in the water flow or concentration of water referable to the construction of the levy bank or ridge, it is one about which complaint cannot now be made having regard to my findings below on the pleading points. Further, as Mr Kerr submitted in answer to the concerns I had raised as to the effect of the levy bank, there is no hydrological evidence from which I could reach a conclusion as to the effect on the Quick Property of any increase in the velocity or concentration of that water flow by reason of the construction of the levy bank (or otherwise).

83 Mr Quick gave evidence that in 2008 there were three occasions when the No 1 water retention dam overflowed (4 January, 20 April and 25 July 2008). He also gave evidence as to the occasions in 2009 when there was an overflow. Evidence as to historical rainfall records over the period was produced by Mr and Mrs Quick, including an affidavit by a neighbour (Mr John Ellison), which was not challenged by the defendants. During the hearing I gave leave, over Mr Kerr’s objection, to the filing of an affidavit by Mr Quick updating the rainfall records. On average it seems that there have been two to three occasions each year over the past five years in which the rainfall has been of a volume which is categorized as an extreme rainfall event (that description relating to the amount of rain falling during a particular time period and not referring to the frequency or rarity of the rainfall event).

84 On 25 July 2008, there was apparently some concern as to a second blue/green algae outbreak in the area around Youngman’s Creek on the southern side of the No 2 water retention dam. A letter was issued to the defendants in September 2008 from the Council (p 130 CB) foreshadowing a direction to take preventative action. Just as in relation to the first Irrigation and Drainage Management Plan, it was suggested by Mr Philips, but not accepted by the defendants, that it was this event that had led to the re-iteration of the plan into what became the 2008 Irrigation and Drainage Management Plan. That management plan was itself the subject of a ‘peer-review’ from Cardno Lawson Treloar, for the stated purposes of assisting Council to ensure that the water management plan for the nursery would achieve the objectives set out in an updated “Prevention Notice” under the Act. The findings of the peer review were admitted in evidence subject to a s 136 direction limiting the use of some of that evidence.

85 Significantly, in terms of what steps it would be reasonable and practical to expect the defendants to take in order to minimise any nuisance which it might be found they had adopted or continued, Mr Rolfe gave evidence that the requirements that this nursery had been obliged to satisfy in terms of the preparation and review of its water management plans were ones with which no other nursery in Australia, to his knowledge, had had to comply (and the Council itself has acknowledged (see letter dated 4 September 2009 (pp314ff CB) that the defendants had been the subject of a level of scrutiny “that the vast majority of other operations in the rural areas of the shire” had not – in which letter the Council congratulated the nursery for attaining accreditation under the relevant industry accreditation and environmental schemes).

86 For Mr and Mrs Quick it is contended that the latest irrigation and drainage management plan in effect acknowledges that the system will ‘fail’ in a heavy rainfall event (which I understand to be a reference to the inevitability that the No 1 water retention dam will ‘overtop’) referring to p 32 of the plan. Thus it is said that no matter how high the dam wall is or how much extra space there is in the dam, it is inevitable that it will overflow on at least one or two occasions a year. (There must be some exaggeration in that proposition – the likelihood of the dam overtopping must surely be a function of the space in the dam at the relevant time and the likely rainfall – if the dam water is kept low enough there could hardly be a suggestion of inevitability of failure.)

87 To be fair, the defendants do not dispute that it is likely that the dam will overtop on one or two occasions a year (Mr Knox seeing this, in effect, as part of the natural order of things, “it is God’s will” – T 115.7). What they do dispute is that the overtopping of the dam amounts to a nuisance.

88 Mr and Mrs Quick have been vociferous in their complaints as to the operations at the nursery (both Mr and Mrs Quick, though reluctant in the witness box to do so, ultimately accepting that they had made accusations in relation to a number of persons or bodies as to the nursery operations and had then made various complaints as to the handling of those complaints). Further, the complaints that have been raised as to the nursery operations range from complaints as to the water flowing onto their property, the noise from the nightly irrigation or aerators on the property, the spraying of chemicals on the property, the laying of black plastic and compacted gravel on the property, the erection of the silt curtain on the eastern side of the property and the construction of the earthworks on the eastern ridge (to name what seem to have been the main complaints). The blame has not been confined to the nursery operations. Although again reluctant to concede this, Mr Quick ultimately conceded that he had complained to the Council that its extension of the culvert was responsible for the increased flow and velocity of water. Mr and Mrs Quick appear to have been particularly concerned that they would bear some liability in relation to the quality of the water arriving at Marom Creek (and have erected signs at their property disclaiming in no uncertain terms any such responsibility) though there is no suggestion that they have been met with such a claim or that they would have any responsibility in relation to any polluted water emanating from the Alpine Nursery. (Surprisingly, perhaps, given the emphasis they have placed on the pollution complaints, this was not pleaded as nuisance.)

89 There is no doubt that Mr and Mrs Quick feel very strongly that the Alpine Nursery land should not be operated as a commercial nursery. Mr Quick’s references, during cross-examination, to ‘normal’ farming practice or to clean reliable ‘farm water’ (T 70) highlight the exception he takes to the size of the operation now being conducted on the Alpine Nursery land and seems to form the basis for the assertion that the use of this land is not a natural use (even though there seems to me little relevant difference in principle between agricultural use and horticultural use).

90 There is also no doubt that the southern or cattle paddock in its current state is unsightly and, for practical purposes, unusable. Mr Kerr pointed, however, to the lack of evidence that the current situation was caused by the defendants and to the fact that the southern paddock has at all relevant times been the recipient of water flowing through the Ellis Road culvert. Criticism was made of Mr and Mrs Quick in relation to the fact that the paper road has not been kept clear of vegetation (and nor has the southern paddock or its boundary fences been kept clear) so as to permit the ready outflow of water from the property along the Marom Creek watercourse. (Mr English’s evidence was revealing in this regard, in that he said that when he owned the land there was only buffalo grass around the hole he had excavated in the southern paddock, whereas on inspection during the view it seemed to me that the paddock had clumps of weeds and other undergrowth in patches across the paddock.)

91 In evidence (which I admitted over Mr Kerr’s objection) was DVD footage taken by Mr Quick at various times showing water running down the Alpine Nursery slopes, the aerial spraying, irrigation, compacting of the gravel on the internal nursery roads and the like. Prior to the hearing, objection was taken by the defendants to the admission into evidence of the commentary by Mr Quick which was audible on those DVD’s (other than insofar as it identified physical sites shown on the DVD’s). At that stage I indicated that I did not propose to watch 15 hours’ worth of DVD’s without being taken to those portions that either party said were relevant and that any audio commentary that was relied upon should be transcribed. In response to that indication, a so-called ‘highlights’ package was prepared, which comprised a number of DVD’s on which edited footage was included, and a transcript was prepared of those portions of the audio commentary on which the plaintiffs sought to rely. Objection was subsequently taken to the transcript proffered by the plaintiffs on the basis that it was not a complete commentary. In fairness to the plaintiffs, it seemed to me that the production of an incomplete transcript was simply a function of my having indicated that only commentary of which there was a transcript could be tendered. In any event, ultimately the plaintiffs did not press for the admission of the commentary into evidence (and it was of limited assistance in viewing the DVD’s, as was the digital time imprint which seemed to be incorrect).

296 I have indicated above my assessment of the respective experts. In general, I have more confidence in the analysis of Dr Bayley, which seemed to me to be balanced, logical and consistent with the objectives with which the industry expert designed the Alpine Nursery irrigation system.

297 In conclusion, therefore:

I accept the joint experts’ conclusion that in intermediate rainfall events there has been a decrease in the amount of water flowing onto the Quick Property from that which would have flowed but for the alterations in the conformation or use of the Alpine Nursery from May 2004.

In light of the evidence given by Mr Dey during the hearing, I am unable to conclude that during extreme rainfall events the water flowing onto the Quick Property is substantially or materially more than would have been the case but for the alterations in the conformation or use of the Alpine Nursery. Further, while I accept that there has been a greater incidence of flooding since 2004 than in the years 2001 to 2004 (and the defendants’ Nursery Manager, Mr Wilson, concedes that the dam is likely to overflow two or three times a year and Mr Rolfe accepts that there will be times , in heavy rainfall, where the dam will overflow – T 137.44), I am not satisfied that this is flooding that would not have occurred or would not in the future occur but for the alterations in the conformation and use of the Alpine Nursery land. I accept as logical, and consistent with Dr Bayley’s modelling, Mr Rolfe’s explanation that by the time the dam overflows all other catchments that are contributing substantial run-off would also be going to the Quick Property and that it is a natural occurrence in that regard – T137.46.

As a matter of commonsense, in dry weather conditions any amount of water flowing (or, perhaps more accurately, trickling) onto the Quick Property must represent an increase over that which would otherwise have come onto the Quick Property (unless there was always a residual trickle of water onto the property). Further, it seems probable that the source of that trickle is irrigation on the Alpine Nursery land (since in dry weather conditions the perched water table is said to be low – so presumably the trickle would not be from water seepage, although there was no evidence on this issue - and it seems to me likely that any small amounts of irrigation from other properties would be absorbed before reaching the Ellis Road culvert). However, even if the sole source of water coming onto the Quick Property in dry weather is irrigation runoff from the Alpine Nursery land, I am not satisfied that such runoff would amount to a substantial and unreasonable interference with the use or enjoyment by Mr and Mrs Quick of their land.

298 Mr Dey described the effect of the trickle and explained why he considered that even a trickle of water (if constant) in dry conditions would cause damage to the plaintiffs’ land (from T 257.7):

HER HONOUR: This issue commenced with questions relating to the observations of the water and the behaviour of the water in the boggy paddock that some of us walked through on Monday.

WITNESS DEY: Okay, thanks, I'll start with my reasons, the reasons why I think it's boggy, but I'd also like to address some of the things that Dr Bayley said.

HER HONOUR: Yes.

WITNESS DEY: I think it's boggy essentially because it's having water delivered to it on a fairly constant basis, during any time, when it would have weather conditions which would dry it out and I understand, it's my belief from having viewed the site and from descriptions of it, that there is water arriving at that particular boggy area on a daily basis and it's my belief also that that's true due to the irrigation upon the nursery.

The arrival of the water in that soil area keeps it wet and allows species to grow and also to grow to a thickness which they would not be there and the other species which would be there wouldn't grow to that thickness if the soil was allowed to dry out, generally speaking, which is what would normally happen in an area like that. Over say a one or two months period, when there's little rain, that soil would be dry and would behave in a similar fashion to the soil on the hillsides around it; in other words, it could be slashed, grasses could be kept short and it would be able to be maintained and the soil itself would dry out as a result of not being constantly wet.

If I can refer to some of what I saw Mr English talk about, he mentioned there would be a three day period when he wasn't able to get in and slash the grass and that's, if you like, the situation prior to the nursery activities and that, to me, illustrates what I'm saying.

HER HONOUR: And do you accept that if somebody were to remove the debris from the fence and slash or remove the weeds and foliage in the paddock, that would facilitate more of a flow out of that paddock than is presently possible? Leaving aside the hydraulic barriers constituted by what's in the paper road at the moment, do you accept that what's in the paddock at the moment constitutes a barrier to the water leaving the paddock?

WITNESS DAY: I accept it but I would like to put a scale on it, which is it's my view that the input of constant water has far more effect than could the removal of the existing vegetation and the clearing of any debris on the fence . (my emphasis)

KERR: Mr Dey, could I ask you have you undertaken any calculations in relation to that point that you've just made? When you say "on a scale", have you calculated what would happen if, for example, the fence line was cleared, I'll use a non-technical term, foliage on the paddock was removed or cut down to short grass length?

So I haven't made a calculation but I'm experienced in these things

299 I do not accept that (balancing the rights of both neighbours) it is unreasonable for Alpine Nurseries to irrigate its land, simply because that may lead to a trickle of water on their neighbours’ property, without more. If water were able to flow out of the Quick Property (as it seems to have done in the past) onto the Marom Creek watercourse, then commonsense seems to suggest that a trickle of water would not be the cause of a permanently waterlogged paddock. (And in this regard, I note that commonsense in the treatment of expert evidence seems to have been advocated by the former Chief Judge in Equity (Young CJ) in Vella v Permanent Mortgagee Pty Ltd [2008] NSWSC 505, at [245] – [248], citing Chan PJ in Nina Kung v Wang Din Shin [2005] HKCFA 54, although admittedly there in a very different context.)

300 I accept that, at least in some rainfall events, the velocity with which water arrives at the Quick Property may be greater than would have been the case prior to the alterations in the conformation and use of the Alpine Nursery land (or, to put it in other words, the path by which water arrives at the Quick Property in some rainfall events means that the flow of water is more concentrated than it would otherwise have been). I am not satisfied that this constitutes a substantial or unreasonable interference with the use or enjoyment of the Quick Property.

301 Therefore, I do not find that the water flow interference has been established as constituting a substantial and unreasonable interference for the purposes of establishing any nuisance.

(iii) Assuming a substantial and unreasonable interference, is this nevertheless a natural use of the Alpine Nursery land?

302 Given my finding above, again, this strictly does not arise. Had I found there to be a substantial and unreasonable interference with the use and enjoyment of the property by Mr and Mrs Quick arising from one or more of the matters said to have constituted water flow interference, then the next question would be whether this was a consequence of a ‘natural use’ of the Alpine Nursery property. Once nuisance is established, if the defendant can prove that the use of the land causing the nuisance is nonetheless a natural or reasonable use of such land, then the defendant will not be liable for nuisance.

303 Mr and Mrs Quick allege that where the nuisance alleged is damage caused by water entering their land, it is sufficient (in order to establish a prima facie case) for them to allege and prove that material damage to their property has resulted from an increase in the flow or percolation of surface water due to the defendants’ act in altering the conformation of land in the course of the defendants’ use of it and that it is not for them to allege or prove a non-natural or unreasonable use of the land by the defendants (though they have in fact alleged that the use of the land was a non-natural use – see paragraph 20 of the pleading).

304 This is consistent with what was said in Corbett v Pallas (1995) 86 LGERA 312 by Priestley JA (with whom Meagher JA agreed and Mahoney JA generally agreed):

1. Where the nuisance alleged is damage caused by water entering the plaintiff's land it is sufficient in order to establish a prima facie case for the plaintiff to allege and prove that material damage to his property has resulted from an increase in the flow or percolation of surface water due to the defendant's act in altering the conformation of land in the course of the defendant's use of it.

2. It is not for the plaintiff to allege or prove unnatural or unreasonable use of the land by the defendant.

3. So far as the conformation of the land is altered in the course of some specific use which may avoid liability, the burden of proof is on the defendant to allege and establish it as a distinct defence.

4. Unreasonable use is not an ingredient of the cause of action but certain types of user may amount to a "natural" and reasonable user of the land and afford a defence.

5. Whether a particular user of land is "natural" must be determined reasonably having regard to all the circumstances, including the purposes for which the land is being used and the manner in which the flow of water was increased.

305 As to what will constitute a natural use for the purposes of a claim in nuisance, Windeyer J in Gartner said:

acts necessary for the common and ordinary use and occupation of land and houses may be done, if conveniently done

By “conveniently done” the learned Baron meant, no doubt, done in a reasonable and proper manner

306 Whether a particular use of land is ‘natural’ must be determined reasonably having regard to all the circumstances, including the purposes for which the land is being used and, in the present case, the manner in which the flow of water was increased.

307 Reliance was placed by Mr Philips on what was said in Bayliss per Manning J at 542 to the effect that the mere fact that the operations of the defendant constitute a natural use of the land does not necessarily relieve the defendant from liability for all of the consequences of the gravitational flow of rainwater onto the lower land. It is said that a higher landlord may in some circumstances be under a duty to protect an adjoining lower land at against water which falls naturally upon and runs from the surface of its land if, by its act, the natural flow is altered resulting in damage to the lower land and such act is not necessary for the common and ordinary use and occupation of the land was done in an unreasonable manner or to an excessive degree. (my emphasis)

308 Mr Kerr places reliance on what was said in Bell v Pitt [1956] Tas SR 161 at 181 (which was quoted with approval in Gartner) per Burbury CJ and on the judgment of Priestley JA in Corbett v Palas (at 317)(there summarising the principles stated in Bell v Pitt, Gartner v Kidman and Kraemers v Attorney General (Tas) [1966] Tas SR 113) and maintains that the use of property (previously used for agricultural purposes and located in an area with farming and agricultural properties) for a plant nursery is a natural use, as is the construction of a dam and drainage system on that property.

309 In Bell v Pitt, the Court said:

The owner of a farm is entitled to establish a reasonable system of drainage on his own farm by means of artificial channels for the purpose of its better cultivation

The establishment of a reasonable system of drainage in the ordinary use of a farm for the purposes of better cultivation constitutes in my opinion the natural user of farm property within the common law principle

The right is clearly not absolute ... If the operations are carried in the ordinary use of the property and are carried out with due care and skill the adjoining owner cannot complain if, as an incident of the artificial interference with the surface of the ground, water overflows onto his property through gravitation or other natural causes in a greater concentration or quantity.

310 Mr and Mrs Quick seem to draw a distinction here between ‘normal’ farming use and use on the scale that is apparent here. However, there is nothing that suggests that the test is whether the property is used for commercial purposes or for private purposes (unless it is suggested that this is what was meant by reference to an excessive user in the authorities referred to above).

311 It seems to me that, notwithstanding the scale of the nursery operations on the Alpine Nursery land, its use as an agricultural (or, perhaps more precisely, horticultural) use, falling within the relevant zoning, is a natural use of the land in the sense of the common and ordinary use of agricultural land (just as the macadamia farm or potato farm or cattle farm of which there was evidence in the area) and that the installation of a reasonable system of drainage (as the objective assessment of the peer reviewers and the conclusion of the Council seems to be) is also a natural use.

312 In those circumstances, even if I had found that there had been a substantial or unreasonable interference amounting to nuisance on the part of the defendants, I would have been satisfied that this was a natural use and they would not have been liable for such a nuisance.

(iv) Is there apprehended nuisance, which would give rise to quia timet injunctive relief?

313 In Melaleuca, it was said that (at [24]);

Bankstown City Council v Alamdo Holdings Pty Ltd

“43. The propositions that (1) injunctions are generally directed towards requiring or preventing future events and (2) evidence of actions performed in the past by the defendant will show that which is apprehended to be reasonably probable, may be accepted. But this does not deny that the susceptibility of a defendant to suffer equitable relief quia timet may be said to be in respect of what has already been done by the defendant . That which presents the threat has already occurred.

314 I am not satisfied that there have been past acts of nuisance for the reasons set out above. As to future or apprehended nuisance, I am satisfied that the defendants have taken reasonable steps to minimise harm to their neighbour’s property and I am not satisfied that there is a basis for a reasonable apprehension of future nuisance (albeit that the risk of flooding remains).

(v) Negligence

315 For the reasons given earlier, Mr and Mrs Quick are not in a position to maintain a claim in negligence, it not having been properly pleaded. Had such a claim been able to be maintained, I would nevertheless not be satisfied that the plaintiffs had established such a claim in this case.

316 As to whether a duty of care could be said to have arisen on the part of the defendants, of the kind particularised, I note that Preston CJ in Robson v Leischke (from [93]) summarised what the plaintiff needs to prove to succeed in a cause of action in negligence and noted that in relation to the question whether a duty of care has arisen there is not yet one unifying principle describing when the existence of a duty of care will arise (Perre v Apand Pty Ltd (1999) 198 CLR 180, at 210 [76], 217 [93]).

317 In Perre v Apand, the High Court said that, at a minimum, there needs to be reasonable foreseeability: a defendant must know or ought reasonably to know that he or her conduct is likely to cause harm to the person or the tangible property of the plaintiff unless the defendant takes reasonable care to avoid that harm (at 208 [70] and see also s 5B(1)(a) of the Civil Liability Act 2002 (NSW)). As summarised by Gummow J in Perre v Apand, (at [70]):

318 The difficulty, however, is in identifying what other requirements, if any, need to be satisfied before the law will impose a duty of care. As Preston CJ noted, proximity has not been accepted as determinative of the existence of a duty of care (Hill v Van Erp (1997) 188 CLR 159, at 176-177, 210, 237-239; Perre v Apand Pty Ltd, at 198 [27], 209 [74], 283 [280], 301 [330]-[331]; and Vairy v Wyong Shire Council (2005) 223 CLR 422, at 433 [28] and 444-445 [66]). Other factors have been suggested (see Perre v Apand, at 194 [10]-195 [15], 231 [133], 254 [201], 275 [259], 303 [335], 326 [406]) but no consensus has emerged in this regard.

319 That said, the relationship between the owners or occupiers of neighbouring properties is a category where the common law frequently recognises that a duty of care to one’s neighbour will arise (Robson, at [96]).

320 Here, I have little difficulty accepting that a duty of care would have arisen on the part of the defendants to take reasonable steps to avoid damage arising from excessive water flows arising from action taken by them on their property (even if that otherwise amounted to a natural use of the property) if they knew or ought to have known that physical damage to Mr and Mrs Quick’s property was likely to result from their actions. In this sense, as recognised in Robson there is an overlap (though not a complete overlap) between the torts of nuisance and negligence.

321 Where I have difficulty with the particularised duty of care in this case is in accepting in the abstract that the defendants owed a duty of care to their neighbours to comply with the development consent conditions imposed by Council. (It might be the case that if it were reasonably foreseeable that loss and damage would be suffered if there were to be a breach of one or more of the Council’s consent conditions then a duty of care would arise to prevent the loss or damage so arising but I doubt that this would be said to be a duty of care to comply with the Council consent conditions.)

322 Assuming that a duty of care of the first mentioned kind had arisen in relation to the conduct and operations of the nursery, could it be said that a breach of that duty of care had occurred (by reason of a failure to do what was reasonable in response to that risk of loss or damage)? In Wyong Shire Council v Shirt (1980) 146 CLR 40, at 47-48 Mason CJ said:

323 This statement of principle has been repeatedly approved and applied: see, for example, Brodie v Singleton Shire Council (2001) 206 CLR 512, at 577 [151]; Woods v Multi-Sport Holdings Pty Ltd (2002) 208 CLR 460, at 472 [39], 482 [72] and [74], 502 [138]; Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540, at 585 [106]-[107], 612 [193]; Vairy v Wyong Shire Council, at 433 [27], 447 [72], 456 [105], 464 [134] and 466 [144].

324 Here, the defendants appear to have gone to extensive lengths to put in place an irrigation and drainage management scheme which will minimise the risk of harm from excessive water flows onto the Quick Property. Relevantly, even Mr Dey (who suggested that further remedial steps should be taken) was unable to say that those steps would be effective. Mr Dey, in what seems to be his typical broadbrush style, criticises the current water management plan as ineffective. That plan has, however, been subject to considerable security not just by the Council but by independent engineering experts, and has been approved. It is difficult in those circumstances to suggest that there has been any failure by the defendants to take reasonable steps in response to the risk of flooding (particularly having regard to the fact that the risk is simply that an area of land on the Quick Property that is already flood prone will continue to flood and that this may occur with a greater incidence depending on weather conditions).

325 In any event, I am not satisfied that Mr and Mrs Quick have established that the loss and damage on their property (in terms of the damage to their boundary fences or the boggy state of the paddock) was caused by any conduct on the part of the defendants which might have been said to be in breach of any duty of care. I am not satisfied that Mr and Mrs Quick have suffered loss or damage as a result of any increased velocity or flow of water caused by the defendants as a result of the alterations to the conformation of the Alpine Nursery land or the use of the nursery, as pleaded. In relation to the flooding of the paddock and the damage occasioned to the fence at the boundary of their property, I cannot be satisfied that this would not have occurred in any event as a result of water flowing through the property along the natural watercourse (or, since November 2005, as a result of the actions of the Council in extending the Ellis Road culvert). In relation to the May 2005 incident when water with elevated blue-green algae levels came onto the Quick Property no damage has been shown as a result.

326 I should note that Mr and Mrs Quick claimed to have suffered a diminution in the value of their land (by reference to the fact that the southern paddock is now permanently waterlogged). They sought to rely on evidence from the Valuer-General in which an objection they had made to the valuation of the land for land tax purposes was upheld by the Valuer-General (following an assessment of their objection by a contract valuer).

327 When the matter came before me for preliminary evidentiary rulings, prior to the hearing, objection was taken to the admission into evidence of material going to that assessment by or on behalf of the Valuer General of the Quick Property for land tax purposes. Mr Robertson, for the defendants, raised this objection on the basis that this was an attempt to use opinion or expert evidence in relation to the value of the land (or any diminution in value of the land) without compliance with the requirements for the adducing of expert or opinion evidence in this Court and in circumstances where no file from the Valuer General had been produced. Even if (which he submitted it was not), the evidence were otherwise admissible, a section 135 objection was taken by Mr Robertson. Mr Philips sought to press the admission of this evidence as being within the business records exception to the hearsay rule in order to establish not that there had been a diminution in value of any particular dollar amount but merely that, as 20 April 2009, armed with the assumptions stated in the letter, the Valuer General (having engaged an external consultant contract valuer), was prepared to accept that there had been some diminution in value of the plaintiffs' property for it the reason stated in the letter.

328 After debate on that issue I admitted that material under the business records exception as evidence of the fact that there had been a valuation for a stated purpose, which had produced a figure, but not as to the truth of any underlying opinion as to the value of the property (and subject to relevance and weight). Acceding to Mr Robertson’s application on this point, I gave a section 136 direction that this evidence (paragraphs 91 and 53 and pages 1 and 4 of tab 62 of Exhibit CQ1), was not to be used for the purpose of proving the value of the property at any particular time or that there was a diminution in value of the property at any particular time.

329 During the hearing that evidence was again sought to be tendered (documents having become available from the Valuer-General’s file). Mr Kerr maintained the objection to the admission of that evidence on the basis previously put and, due to the lateness of the evidence and its lack of probative value as I saw it, I rejected that evidence for reasons which I gave orally during the hearing.

330 The upshot of that is that there is no evidence of the value of the Quick Property at any relevant time or of any diminution in the value of that property. (For the defendants, I note that it is submitted that even if such evidence had been available, and a claim in nuisance established, there would be no entitlement to compensation in nuisance for the depreciation in value of the property relying on McKenzie v Powley [1916] SALR 1, and that the plaintiffs would have been restricted to a claim for loss of the comfort or enjoyment of their property.)

331 I am not satisfied that Mr and Mrs Quick have established actual physical damage to their land caused by any breach of a duty of care owed to them. Therefore, their claim in negligence could not have succeeded even had I allowed it to be maintained.

(vi) What remedy, if any, should be granted in light of the findings in respect of the above matters?

332 As to the question of remedy, reliance is placed on what was said by the Master of the Rolls in Pride of Derby V British Celanese Ltd [1953] Ch 149, namely that if a plaintiff proves that his or her proprietary rights are being wrongly interfered with by the defendant and that the defendant intends to continue the wrong, then the plaintiff is prima facie entitled to an injunction and will be deprived of that remedy only in special circumstances exist.

333 Nevertheless, even had I found there to be an apprehended nuisance, I would not have granted an injunction in the terms claimed (notwithstanding that I accept the degree of similarity with the relief granted in Melaleuca) because of my concern that it would be impossible for the defendants in the future to know whether they were at any time likely to be in breach of the relevant orders (Qantas Airways Ltd v Cameron (1996) 66 FCR 246; ICI v Trade Practices Commission (1992) 38 FCR 248; Greetings Oxford Koala Hotel Pty Ltd v Oxford Square Investments Pty Ltd (1989) 18 NSWLR 33, see also Young, Croft and Smith, On Equity, Lawbook Co, 2009, at [16.270]).

334 Mr Philips submits that it should not be for the plaintiffs to fashion the relief, since it is not their business venture. However, I see no reason why Mr and Mrs Quick could not have obtained expert advice as to how the problem that they contend has been caused by the defendants’ nuisance and which they apprehend will continue to occur could be remedied and to have adduced evidence of that. (In fairness to the plaintiffs’ legal representatives, it appears that they sought to do so through Mr Dey but his evidence was not sufficiently conclusive to permit me any conclusion to be drawn as to the best way to remedy the nuisance or to prevent future nuisance had I found there to be such a nuisance.) At best, therefore, I would have ordered an enquiry as to how any such nuisance could be remedied or prevented from occurring in future or sought submissions as to whether it would have been appropriate to do so.

335 As to the claim for damages, during closing submissions, Mr Philips contended that as to the claim for damages a sum of $40,000 - $50,000 would be appropriate for the interference with the loss of enjoyment of the land.

336 Nominal damages will be awarded where no actual damage is caused, but there is nevertheless an interference with the plaintiff’s rights of use and enjoyment of land. Thus, in Roberts v Rodier, Campbell J considered the relief to be granted where the plaintiff had been deprived of pedestrian access to the plaintiff’s property for a period of around 3½ years and adopted the principles set out in Bone v Seale (at 804-5) by Scarman LJ and accepted by Harris J in Oldham v Lawson (at 658) and by Gillard J in Stockwell v Victoria [2001] VSC 497 (at [483]) (noting that in Hunter v Canary Wharf Ltd [1997] AC 655 (at 698) Lord Lloyd of Berwick referred to the pages of Bone v Seale at which these remarks occur without disapproval). His Honour set out the observations of Scarman LJ in Bone v Seale, as follows:

Nuisance is a wrong to property, but it is well recognised that even when there is no physical damage to property it may cause annoyance, inconvenience and discomfort to the occupier of the property in his enjoyment of it. As Mr McGregor says in MacGregor on Damages , 13th ed (1972), para 1063, when there is a claim for damages in respect of non-pecuniary loss caused by nuisance, recovery of damages is allowable and may be regarded as part of the normal measure of damages. In such a case as this, therefore, we are thrown back to general principles.

H West & Son Ltd v Sheppard

337 In Bone v Seale, assistance of a general kind was able to be derived by reference to amounts recoverable in the area of personal injury litigation, noting the range of awards made for the element of loss of amenity, with a view to permitting consistency when dealing with analogous situations. Scarman LJ also referred to the further general principle that in attempting to measure damages for non-pecuniary loss, an element in assessing reasonableness is the fairness of the compensation to be awarded. His Lordship considered that there must be moderation and that some attention must be paid to the rights of the offending defendant as well as to the rights of the injured plaintiff.

338 Had I been satisfied that there was an actionable nuisance and that the land had been damaged as a result I would have considered it appropriate to award damages to cover the cost of repair of the fence and restoration of the paddock to its former condition. However, in the absence of evidence as to what those amounts would have been I would have been limited to nominal damages (which I would have fixed, without any pretence at a scientific assessment of the amount, in the order of somewhere between $10,000 and $20,000 to cover repair costs and general loss of enjoyment).

Conclusion

339 I appreciate that the plaintiffs feel greatly aggrieved by the nature and scale of the commercial nursery operations being carried on across the road from their property. I accept that they have a genuine apprehension that harm is being visited upon them in the form of polluted water and/or other pollution from the operations at the nursery and I accept that the state of their southern paddock is a matter of concern for them. However, I am not satisfied that they have established a claim in nuisance and I am satisfied that the defendants have taken reasonable steps to minimise any harm to the plaintiffs arising out of their nursery operations.

340 I therefore dismiss the plaintiffs’ claim with costs.

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Citations

Quick v Alpine Nurseries Sales Pty Ltd [2010] NSWSC 1248

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Cited Sections

CITATION:	Quick v Alpine Nurseries Sales Pty Ltd [2010] NSWSC 1248
HEARING DATE(S):	19-22 July 2010
JUDGMENT DATE :	29 October 2010
JURISDICTION:	Equity
JUDGMENT OF:	Ward J
DECISION:	Plaintiffs' claim dismissed with costs
CATCHWORDS:	PRACTICE AND PRCEDURE - adequacy of pleadings - HELD - claim in negligence has not been properly pleaded and cannot now be maintained - claim in nuisance is limited to pleaded allegations - TORTS - nuisance - whether substantial and unreasonable interference by the defendants with the rights of or in connection with the plaintiffs’ use of their land as a result of development and use of defendants’ land as commercial nursery - HELD - no unreasonable interference with use or enjoyment of land by defendants as pleaded
LEGISLATION CITED:	Civil Liability Act 2002 (NSW) Protection of the Environment Operations Act 1997 (NSW)
CATEGORY:	Principal judgment
CASES CITED:	Bayliss v Lea (1961) 62 SR (NSW) 521; [1961] NSWR 1002; (1961) 79 WN (NSW) 218 Banque Commerciale SA (in liq) v Akhil Holdings Ltd (1990) 169 CLR 279; 92 ALR 53; [1990] HCA 11 Barbagallo v J & F Catelan Pty Ltd [1986] 1 Qd R 245 Bell v Pitt [1956] Tas SR 161 Bennetts v Honroth [1959] SA SR 170 Bone and Anor v Seale [1975] 1 All ER 787 Borough of Bradford v Pickles [1895] AC 587 Brand v Monks [2009] NSWSC 1454 Broadbridge Little v Holroyd (1935) LGR (NSW) 81 Brodie v Singleton Shire Council (2001) 206 CLR 512 Bruce v Odhams Press Limited [1936] 1 KB 697 Cambridge Water Co v Eastern Counties Leather [1994] 2 AC 264 Charter Carter Pty Ltd v The Shop, Distributive and Allied Employees’ Association of stern Australia (1987) 13 FCR 413 City of Richmond v Scantelbury [1991] 2 VR 38 Corbett v Pallas (1995) 86 LGERA 312 Delaware Mansions Ltd v Westminster City Council [2002] 1 AC 321 Don Brass Foundry Pty Ltd v Stead (1948) 48 SR (NSW) 482 Douglas v Swan (12 December 1950, unreported) CHECK Elston v Dore (1982) 149 CLR 480 Gartner v Kidman [1962] HCA 27; (1962) 108 CLR 12 Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540 Greetings Oxford Koala Hotel Pty Ltd v Oxford Square Investments Pty Ltd (1989) 18 NSWLR 33 Goldman v Hargrave [1967] 1 AC 645 H 1976 Nominees Pty Limited v Galli (1979) 30 ALR 181 Hill v Van Erp (1997) 188 CLR 159 Hunter v Canary Wharf Ltd [1997] AC 655 Ingot Capital Investments Pty Limited v Macquarie Equity Capital Markets Limited (2008) 73 NSWLR 653; (2008) 252 ALR 659; (2008) 68 ACSR 595; [2008] NSWCA 206 Kernel Holdings Pty Ltd v Rothmans of Pall Mall (Australia) Pty Ltd (unreported, French J, Federal Court of Australia, 3 September 1991) Kraemers v Attorney General (Tas) [1966] Tas SR 113 Leakey v National Trust for Places of Historic Interest or Natural Beauty [1980] QB 485 McFadzean v CFMEU [2004] VSC 289 Melaleuca Estate Pty Ltd v Port Stephens Council [2006] NSWCA 31 Michallef v Galea [2001] NSWSC 984 Montana Hotels Pty Ltd v Fasson Pty Ltd (1986) 61 ALJR 282, at 284, (1986) 62 LGERA Nina Kung v Wang Din Shin [2005] HKCFA 54 Oldham v Lawson (No 1) [1976] VR 654 Odhams Press and Pinson v Lloyds and National Provincial Foreign Bank Limited [1941] 2 KB 72 Overseas Tankship (UK) Ltd v Miller Steamship Co Pty (The Wagon Mound (No 2)) [1967] 1 AC 617 Perre v Apand Pty Ltd (1999) 198 CLR 180 Pride of Derby V British Celanese Ltd [1953] Ch 149 Qantas Airways Ltd v Cameron (1996) 66 FCR 246 Ratcliffe v Evans (1892) 2 QB 524 Re Bega Co-operative Society Ltd & Anor v The Milk Authority of the Australian Capital Territory & Anor [1997] FCA 200 R v Commissioners of Sewers for Pagham, Sussex [1828] EngR 680; (1828) 8 B & C 355, at 361 [1828] EngR 680; 108 ER 1075 Rickard & Ors v Allianz Australia Insurance Ltd & Ors [2009] NSWSC 1115 Robson v Leischke [2008] NSWLEC 152; (2008) 72 NSWLR 98; (2008) 159 LGERA 280 Roberts v Rodier [2006] NSWSC 282 Rubenstein v Truth and Sportsman Limited [1960] VR 473 Sedleigh-Denfield v O’Callaghan [1940] AC 880 Shanmugaratnam v Strasburger Enterprises (Properties) Pty Ltd [2004] NSWCA 229 Smith v Littlewoods Organisation Ltd [1987] AC 241 Solloway v Hampshire County Council (1981) 79 LGR 449 Stockwell v Victoria [2001] VSC 497 Sutherland Shire Council v Becker [2006] NSWCA 344 Trade Practices Commission v David Jones (Australia) Pty Ltd (1985) 7 FCR 109 Travel Compensation Fund v Blair [2003] NSWSC 720 Vairy v Wyong Shire Council (2005) 223 CLR 422 Vella v Permanent Mortgagee Pty Ltd [2008] NSWSC 505 Vines v Australian Securities and Investments Commission (2007) 73 NSWLR 451; (2007) 62 ACSR 1; [2007] NSWCA 75 Xuereb v Viola (1990) Aust Torts Reports 81-012 Woods v Multi-Sport Holdings Pty Ltd (2002) 208 CLR 460 Wyong Shire Council v Shirt (1980) 146 CLR 40
TEXTS CITED:	Fleming on Torts, 2nd ed, Clarendon Press, 1961 Young, Croft and Smith, On Equity, Lawbook Co, 2009
PARTIES:	Clive Richard Quick (First Plaintiff) Ceridwen Sian Quick (Second Plaintiff) Alpine Nurseries Sales Pty Ltd (First Defendant) Peter Wallace Knox (Second Defendant) Kay Marilyn Knox (Third Defendant)
FILE NUMBER(S):	SC 08/281163
COUNSEL:	S Philips (Plaintiffs) S A Kerr SC with S Robertson (Defendants)
SOLICITORS:	Stafford Lawyers (Plaintiffs) Brischetto & Ford (Defendants)