Nolan v Warne[2001] QCA 537

SUPREME COURT OF QUEENSLAND

1. McPHERSON JA: The respondent Mrs Warne and the appellants Mr and Mrs Nolan own adjoining properties in the Warra district northwest of Jandowae near Dalby in southern Queensland. The Nolans’ property Corella is north of Mrs Warne’s property Winya Park, which is divided by Haystack Lane into Winya Park North and Winya Park South. The appearance of the three properties can perhaps best be visualised in plan by imagining them as two square envelopes placed one (Corella) above the other (Winya Park South), with a smaller square, like a postage stamp representing Winya Park North placed unconventionally in the lower left, instead of the upper right hand, corner. The properties are used for agriculture. In evidence, the crops growing on Corella are described as including wheat, sorghum and cotton.

2. When Mrs Warne and her late husband acquired Winya Park in 1958, there was a levee bank on the property. It was -shaped and ran in an east-west direction along Haystack Lane, but inside the northern boundary of Winya Park, and roughly parallel with that boundary of Corella and of Winya Park North, to the point where Haystack Lane joins the Warra-Canaga Creek Road, which travels from north to south. That represents the east ‑west projection or arm of the levee bank, which is some 1300 metres long. Coming back to its eastern end, the bank took a right angle turn into Winya Park South, and from there ran parallel to but some distance inside the eastern boundary of Winya Park South for about 600 metres. The bank, which is for the most part only about a foot (or .3 of a metre) high, was throughout located within the boundaries of Winya Park South. There were some humps in it caused by ant hills, which at those places took its height to perhaps .6 metre, and there were also other places where the bank had either been deliberately breached or reduced over time to natural ground level. The bank is described in the past tense because it is no longer there, having been removed since these proceedings were begun.

3. Precisely when the bank was erected does not appear from the evidence and does not seem to have been known to anyone who testified at the trial. It is, however, a compelling inference that it was originally designed to prevent or reduce run-off caused by rainwater or flooding from entering cultivated areas of Winya Park South from the north. The fall of the land across the properties in that area is from north-east to south-west in a gradient which is less than .2%, or 2 millimetres in 1000, which is very slight; and the run-off is easily diverted by furrows, wheel tracks, vegetation and the like.

4. The complaint of the Nolans is that the presence of the bank, in both its east-west and its north-south projections, was to cause flooding and inundation of parts of the cultivated areas of Corella during periods of heavy rainfall, with consequent damage to crops and degradation of the Nolans’ land by erosion or otherwise. There is no doubt or dispute that, until December 1996, they had consented to the presence of the bank where it was. There was a permit of a kind for the bank issued by the local Shire Council, which was periodically renewed with the consent of the Nolans. However, in December 1996 they demanded that Mrs Warne remove both arms of the bank. The parties had, since 1981, had a share farming arrangement under which the Nolans farmed about half of Winya Park, which was extended to the whole of it after the death of Mr Warne in 1990. In about July 1996, however, Mrs Warne had given oral notice of termination of that arrangement, to take effect on the harvesting in November or December of the current wheat crop. In December 1996, Mr Nolan refused to vacate the property, and in the same month Mrs Warne by letter from her solicitors twice demanded vacant possession of the property. Possession was not given up as demanded, so Mrs Warne commenced proceedings in which she was plaintiff and the Nolans were defendants.

5. In the course of the trial, which commenced in January 2000 and after various interruptions was concluded in January 2001, Mrs Warne’s claims were settled. In the meantime, however, the Nolans had counterclaimed against Mrs Warne seeking: (b) a mandatory order or injunction that Mrs Warne remove the bank and reinstate the area and its surrounds; (c) an order that Mrs Warne make good with topsoil the land in Corella from which soil had been removed by erosion; (d), (e) and (f): damages in equity in lieu of an injunction, or alternatively damages for nuisance or negligence; and (g) exemplary or punitive damages. Their claims for damages for crop losses were abandoned when the trial resumed in June 2000, as also were their claims for negligence and for failure to comply with statutory conditions in the permit issued by the council in respect of the bank.

6. The learned trial judge delivered his reasons on 2 March 2001, although in fact judgment dismissing the Nolans’ counterclaim with costs was not given until 4 April 2001. On 2 May 2001 a notice of appeal was filed asking that the judgment be set aside and that the Nolans have judgment on their counterclaim for the following relief:

1. an injunction ordering the removal of the levee bank on Winya Park South, or those parts of it not already removed; and

2. remediation in such manner as the parties may agree, or failing agreement, as might be ordered; and

3. that the respondent pay the appellants their costs of the appeal and of the counterclaims in nuisance made in the proceedings below.

7. I have set out in some detail the counterclaims and the relief sought on appeal because of events that took place during the trial and shortly after the notice of appeal was filed. When the trial resumed in November 2000 and the damages claims had been withdrawn, counsel then representing Mrs Warne announced that Mrs Warne had removed the east-west arm of the bank and would remove the north‑south arm as soon as cropping and weather conditions permitted. In the respondent’s written outlines of agreement on this appeal, which were filed on 25 June 2001, counsel for Mrs Warne recorded that the north‑south arm had by then been removed. Letters were sent to solicitors for the Nolans asking that, for the purpose of the appeal, they acknowledge that this had been done, but without result. At the hearing of the appeal on 19 November, an affidavit sworn by Mrs Warne was read deposing that the north‑south arm of the bank had been removed in or about May 2001. In response to an inquiry from the Court, Mr Lennon QC confirmed on instructions from his clients the appellants, who were present in Court, that that had in fact taken place.

8. The result is that it is no longer necessary or possible for the Court to make the order sought in para (a) of the notice of appeal. So far as (b) is concerned, the “remediation” referred to in para (b) has not been precisely identified in terms either of the precise work to be done or the likely cost of doing it, and it is, in any event, a form of relief that is essentially dependent on the propriety of making the order sought in (a). The relief sought in (c) is confined to costs and, standing alone, would require leave before it could be made the subject of an appeal to this Court. See Supreme Court Act 1995, s 253; Re Golden Casket Art Union Office [1995] 2 Qd R 346. No such leave has been sought or obtained. The result is that, apart from the costs of this appeal, there is nothing left in the proceedings in respect of which relief could be given on the appeal. Under these conditions UCPR 683 becomes relevant. If for any reason it becomes unnecessary to continue a proceeding other than to decide who is to pay the costs, then by UCP Rule 683(1), any party may apply to the court for an order for the costs, and the court may make an order it considers just: r 683(2). Rule 683 is virtually a rescript of O 91, r 16 of the recently repealed Supreme Court Rules, which was considered in R v Gold Coast City Council, ex p Raysun Pty Ltd [1971] QWN 13. In awarding costs to the applicant in that case, Matthews J on behalf of the Full Court said that it was enough that the applicant had reasonable grounds for complaint in respect of the respondent Council and an arguable case to support the taking of proceedings up to the time when the Council acceded to the application.

9. We are concerned here not with the costs of the proceedings below, which were disposed of by the trial judge by an order that has not been made the subject of a valid appeal, but with the costs of this appeal. It is plain that, at least from the time in May 2001 on which Mrs Warne removed the remaining projection or north-south arm of the levee bank, there was no longer any justification on the part of the Nolans for continuing the appeal. They had achieved as much as they could hope to achieve on appeal. If they had gone on with it, they could not have done better. To decide whether they would, up to that point, have been entitled to their costs under UCPR 683 would not have required the appeal to be argued in full or determined in this Court. On the authority of R v Gold Coast City Council, it called for no more than a decision whether or not the appellants had reasonable grounds for complaint about the correctness of the decision at first instance, and an arguable case with which to support the institution and prosecution of the appeal up to the time at which the remaining part of the bank was removed. As to that and without considering the order for costs that was made by the primary judge or his reasons for making it, it may have been of some slight relevance that counsel for Mrs Warne had not, as he might have done, given an undertaking to remove the remainder of the bank within the time specified. That, however, ceased to be so when it was removed in May of this year shortly after the appeal was instituted.

10. As it happens, Mr Lennon QC was permitted to argue before this Court the question of law which he submitted arose in the appeal, and on which he said the decision below was incorrect. The point advanced comes down in the end to this. There is evidence, which the learned trial judge accepted, that the presence of the bank on Winya Park South had the effect of adding to the rainwater or runoff that after periods of heavy rain or flooding inundated an area of the Nolans’ land near its boundary with Mrs Warne’s property. His Honour accepted that the area of Corella affected in this way was about 1.4% or 3.8 ha of the land used for cultivation, and that the inundation lasted for some 6 to 7 hours. That at least was so in a season of heavy flooding like 1993, although the inundation was less extensive (about .4% or 1.2 ha) in other years of less serious flooding such as 1995 and 1999. At the trial, there were two witnesses, a Mr Wylie, who was an expert, and a Mr Apelt, who was a lay witness, who said that, in areas which were flooded for some periods of time, crops tended to do better in dry periods than they did elsewhere on the same land. Mr Apelt is an experienced contract farmer who worked for the Nolans on Corella and Winya Park between 1991 and 1996, and who kept diaries or notes of the work he had done. In that particular their evidence was supported by that of a Mr Taylor, who was another local farmer of experience. Mr Wylie went so far as to say that even waterlogging for more than 48 hours would not necessarily affect the yield of any land crops, and that grain sorghum in particular could sustain flooding for up to seven days without significant loss of yield.

11. Far from damaging crops on Corella, inundation or waterlogging caused by the presence of the bank had, according to those witnesses, a positively beneficial effect. This, however, Mr Lennon QC submitted, did not prevent it from being an actionable nuisance. The Nolans, he claimed, were entitled to have their land and crops kept free from flooding caused by the bank on Mrs Warne’s property whether or not it was a benefit to their land or crops. He referred to the distinction said to exist between nuisances consisting of odours and noises, and those involving intrusions of physical material into adjoining property, such as the water in this case, or the particles of dust considered in the Newfoundland case of Kent v Dominion Steel & Corporation Ltd (1964) 49 DLR (2d) 242, 248. To find a case like that, it is, however, not necessary to go as far afield as Newfoundland: see, for example, Kidman v Page [1959] Qd R 53; and the distinction between obtrusive smells and noises and other nuisances involving physical intrusions, if justifiable at all in terms of  modern physics, is reduced to vanishing point when cases of vibrations and explosions are considered: see, for example, Hollywood Silver Fox Farm Limited v Emmett [1936] 1 All ER 825 and McMahon v Cantanzaro [1961] QWN 22.

12. Based on the very ancient Case of Thorns (1466) YB 6 Ed 4, 7, pl 18 (as reported in 83 ER 244), there is reason to think that a deliberate intrusion on to land remains a trespass even though it may be beneficial to the neighbouring owner. The damages awarded in such a case would, however, almost inevitably be only nominal if not contemptuous. The Nolans’ claim in this instance was not laid in trespass but in nuisance, the “damage” here not being direct but indirect: Scott v Shepherd (1773) 2 W Bl 892; 96 ER 525. If the only result of maintaining the bank in this case was beneficial to the Nolans, it is not easy to see how they can or could ever recover compensatory damages for it. This left them with their claim for an injunction for nuisance, which the trial judge disposed of by saying that the appellants had failed to show that the bank in its condition at the time of the action and of trial caused or was likely to cause damage on Corella or to cause any substantial degree of interference with the Nolans’ enjoyment of their property. Allowing a reasonable time after notice was given in December 1996 to investigate and remove the bank, any prolongation of inundation which it occasioned was during the intervening period minimal, unlikely to cause crop damage, and more likely to be beneficial than harmful. Any interference with the Nolans’ enjoyment of their property was, his Honour therefore considered, within the range of matters “which in a rural community one neighbour ought to be expected to tolerate from another”.

13. His Honour’s reasoning was criticised by Mr Lennon QC on appeal. A plaintiff, he submitted, succeeded in establishing a prima facie case in nuisance if, through the action of the defendant on his own land, he sustained material damage to his property resulting from an increase in the flow of surface water on to his land: see Corbett v Pallas (1995) Aust Torts R 81-329, at 62-239. But the formulation includes proof of material damage, and, as regards the inundation of Corella, this was something that the Nolans failed to establish. Allowing until mid-1998 as a reasonable time within which to investigate and take action on the complaint, Mrs Warne’s potential liability for damage due to crop inundation was limited to the period from then until at latest May 2001. There is no evidence of any damage of that kind having occurred during that time, and indeed the Nolans’ claim for damages, originally calculated at $195,000, was, as I have said, withdrawn at trial. The learned trial judge found that it was not possible to say that an area of gully erosion of which they complained was occasioned by the action or presence of the bank rather than other causes, and their claim in respect of what was described as sheet erosion was never quantified or proved.

14. In all of these circumstances it would not have been a proper exercise of judicial discretion at the conclusion of the trial to grant a mandatory injunction for the removal of the remaining north-south arm of the bank which Mrs Warne, through her counsel, had said she would be removing when conditions permitted; to grant a negative injunction restraining her from leaving the bank in place. Any possible future damage or injury, if any, to the Nolans’ property would not have merited such an order. It follows that instituting the appeal would not have been justified except as an interim measure pending final removal of that part of the bank. A reasonable course to have adopted would have been to file the notice of appeal, and to arrange that, in the month or more that remained before the predicted removal of that arm of the bank, no further costs should be incurred by preparing the appeal record or the written outlines of arguments until that final step had been taken. Such a proposal could have been resisted by Mrs Warne only at the risk of incurring liability for those costs herself. Instead, six copies, containing almost 3000 pages of transcripts, photographs and plans and diagrams in nine bound volumes, were got ready, written outlines of arguments were prepared, authorities were photocopied, and a day was set aside for the hearing of an appeal which, at the time it came to a hearing before this Court, was incapable of leading to anything more tangible than the Nolans already had without it. This surely amounts to cost‑making on a large scale without any rational purpose or discernible reason.

15. On the hearing of the appeal, but with one slight qualification relating to the evidence of a Mr Abbott at the trial, the appellants refrained from challenging his Honour’s findings of primary fact. With the exception of Mr Abbott’s evidence on which the appeal was never likely to succeed, grounds 8 to 16 of the notice of appeal were abandoned. Grounds 1 to 7 raised matters of law and inferences or conclusions from primary facts which, in the light of the circumstances prevailing at the time the appeal was instituted had, for reasons already given, no reasonable prospect of success on appeal. Having regard to the UCPR 683, and the approach adopted in R v Gold Coast City Council, ex p Raysun [1971] QWN 13, the appellants should be ordered to pay the costs of and incidental to the appeal, which must be dismissed.

16. It remains to add only one further observation about this truly lamentable litigation, which at such expense occupied some 23 hearing days. According to the decision in Gartner v Kidman (1962) 108 CLR 12, 49, a lower proprietor of land, which is what Mrs Warne (if only ever so slightly) is, confronted by the natural unconcentrated flow of water coming on to his or her land from the adjoining property, is not bound to receive it. In the words of Windeyer J in that case:

“He may put up barriers and pen it back, notwithstanding that doing so damages the upper proprietor’s land, at all events if he uses reasonable skill and care and does no more than is reasonably necessary to protect his enjoyment of his own land. But he must not act for the purpose of injuring his neighbour. It is not possible to define what is reasonable or unreasonable in the abstract. Each case depends upon its own circumstances”.

In the present case, this seems to have been no more than was done by the predecessor of Mrs Warne who created the levee bank in the first place. Mrs Warne simply continued or maintained the status quo to which she and her late husband succeeded when they acquired Winya Park in 1958. On behalf of the Nolans on appeal, Mr Lennon QC expressly disavowed any suggestion that Mrs Warne’s action in doing so (or doing nothing) was malicious or done for the purpose of injuring the Nolans.

17. This being so, it is not altogether easy to see how she could in law have incurred liability through maintaining the levee bank penning back on to the Nolans’ land the water that was coming from there. The explanation given by the trial judge in his reasons for judgment is that counsel who appeared for Mrs Warne did not seek to argue that Mrs Warne had the right to turn back the Nolans’ water on to their land “no doubt because of Mr McLatchey’s opinion that the levee bank conferred no benefit on Winya Park South”. It was in consequence of the opinion of that witness that, once the claims for damages were withdrawn at the trial, Mrs Warne took the step of removing the bank altogether. The extensive and costly evidence assembled at the trial did at least serve the useful purpose of demonstrating that, contrary to what were evidently the impressions formed by earlier owners of Winya Park, the bank served no useful purpose.

18. This cannot affect the conclusions which have already been reached here. The appeal must be dismissed. The appellants must pay the costs of and incidental to it.

19. MACKENZIE J:  I agree with the reasons for judgment of McPherson JA and with the orders proposed by him.

20. MULLINS J:   I agree with the reasons for judgment of McPherson JA and that the appeal must be dismissed with costs.