DISTRICT COURT OF QUEENSLAND

1. [1]
   The pleasant rural surrounds at the end of Peters Road, Glasshouse Mountains ironically provide the backdrop for what is clearly a decidedly unpleasant relationship between the residents of the last two properties in that street.  The plaintiffs (the Killicks) and the defendant (Mrs Jowett) reside at 44 and 40 Peters Road respectively.  The Killicks were one of the first residents of a rural subdivision along the road having resided there now for 25 years, and Mrs Jowett has resided there for 20 years.  She initially lived there with her late husband Kevin and their children.  He died approximately 20 months ago.

2. [2]
   The Killicks claim that as a result of some clearing in about August/September 2010 and some spraying a short time later of and around a drainage corridor on her land which flows across the bottom of both properties; Mrs Jowett has committed a nuisance causing damage to the drainage corridor in the dam on their property. Their money claim for damages has ranged from $35,000 in their Claim filed 22 December 2010 to $5,113 in the Amended Claim filed by leave on the first day of the hearing. The only reason the Claim is in this court is that the Killicks also seek mandatory injunctions prohibiting Mrs Jowett from “herbicide spraying or removing vegetation within 15 metres of the dam and vegetation corridor on her property”.

3. [3]
   This is not the first time that the Killicks have claimed damages for nuisance against their neighbour in this court. Some time prior to the 19December 2002, the Killicks sued Mr and Mrs Jowett for damages for nuisance.

4. [4]
   On that occasion it was alleged that the Jowetts (in 1996) had by their agent removed a large amount of clay and dirt from under their house in order to build in, and had deposited the fill in the dam or pond in about the same area as the nuisance is alleged to have occurred on this later occasion.

5. [5]
   Ultimately that claim was successfully mediated and Exhibit 2 is an unsigned copy of the agreement. It is common ground that Mrs Jowett did not attend the mediation and did not sign the agreement. It has no relevance to the dispute before me except to some limited extent to which I will later refer.

6. [6]
   Mr and Mrs Killick agreed with Mr Sinclair in cross-examination that although initially they had a good relationship with the Jowetts, either Mr Killick and/or Mrs Killick had cause over the years to make many complaints to Mr Jowett, to the Council and to the police about a variety of issues ranging from noise odour (from goats), and downpipes, to running an unlawful home business.

7. [7]
   Mrs Jowett admits frankly that she did employ a contractor to clear out her dam or pond and remove some trees in August/September 2010, and she did spray along the corridor to control the grass some short time later although the grass revegetated very quickly. She accepts that this occurred in August/September 2010. She denies however that the Killicks have proved that she has committed a nuisance or that anything she has done on her land has caused damage to theirs.

The evidence

8. [8]
   Mr and Mrs Killick first noticed the contractor working on Mrs Jowett’s dam in about August 2010 and both watched and observed over the following days and Mr Killick took photographs which are contained in a book which is Exhibit 1 in the proceedings. He observed from around about the fence line of his property and his wife also made observations. The first series of photographs (A-E), are of the machine operator working on Mrs Jowett’s dam. I have to say that all the photographs in Exhibit 1 are of fairly poor quality. This is no criticism of Mr Killick. Apparently they are copies of the originals. He says photo F shows the dam and surrounds after the clearing.

9. [9]
   The key pleading in the Amended Statement of Claim is paragraph 7 which is in the following terms:

“7. In the period between September 2010 and the date of filing these proceedings, the western edge of the drainage corridor on the defendant’s property but near to the boundary with the plaintiffs’ property, has commenced to subside, subsidence currently limited to a hole approximately 30 centimetres in diameter and 45 centimetres deep.”

10. [10]
    The Killicks say they observed this subsidence and that photographs P-T bear this out. They made no complaint to Mrs Jowett and the first complaint was to their solicitor in November and she wrote a letter to Mrs Jowett. One of the major weaknesses in the Killick’s case according to Mr Sinclair is that there is no independent expert evidence of the state of the Killick’s dam prior to the actions undertaken by Mrs Killick and no independent expert examined the actual land including the Killick’s dam until January 2011 after major flooding in the area.

11. [11]
    Mrs Jowett (or more accurately her son) also took photographs commencing on 14 January 2011, which show (a) the complete regeneration of grasses along the drainage corridor on her property; and (b) the severe flooding that occurred in the drainage corridor up to and including 14 January 2011 as a result of very heavy rain in the catchment in early January 2011.

12. [12]
    The contractor who did the work for Mrs Jowett in August 2010 was Mr Ronald Carlyon who gave evidence on behalf of Mrs Jowett. He removed about four trees, one of which was dead and contained a brown snake nest. He used a bucket on an arm to clear out the dam which was choked up with reeds. He removed reedy material from the dam and some branches that had fallen in as he removed the trees, and he cleared the banks of long grass. He used a rubber track machine and mulched the grass and some of the wood and deposited it on the bank. He denied damaging the banks or disturbing the banks and he left the roots of the grass in place. Mrs Jowett sprayed the area and an area further back from where it was cleared some short time later but gave evidence that the grass grew back within four to five weeks. I accept Mr Carlyon’s evidence and also Mrs Jowett’s evidence in this regard.

13. [13]
    Mr Bonato also gave evidence for Mrs Jowett. He lives at 51 Peters Road which is the farm that one can see to the right of and adjoining the Killick’s property in Figure 2-1 of the Covey Report (the expert evidence relied on by the Killicks).  At the time of the previous dispute over the dam between the Killicks and the Jowetts, Mr Bonato had an earth moving business and was engaged to clear the Killicks’ dam as part of the mediation agreement.  He first drained the dam of water, then took 25-30 cubic metres of slop and mud out of the dam to clear it of the sediment that had flowed from the upstream property.  As can be seen from the catchment map in the report of Mr Winders (the expert for Mrs Jowett), the Killicks’ property is at the culmination of a catchment area (including a rural residential area to the south west) of over 19 hectares.  Mr Sinclair made the good point, that accepting on the evidence that the Jowetts had deposited eight to nine cubic metres of material from the excavation under their house into the drainage corridor, and Mr Bonato to clear the Killick’s dam removed 25 to 30 cubic metres strongly suggests that only part of the sediment in the dam on the earlier occasion came about as a result of actions by the Jowetts.

14. [14]
    Mrs Jowett said she did nothing to the drainage corridor until September 2010. She says she had forgotten the mediation agreement and did not give it a thought when she engaged the contractor. I believe her. She never signed the mediation agreement. She had had no direct dealings with the Killicks since then and her husband had died not long before. In any event she is not being sued for any breach of the mediation agreement.

15. [15]
    The Killicks’ expert Mr Walker from Covey and Associates did not visit the site until 20 January 2011. Appendix C to his report shows that very heavy rain had fallen in the catchment area since 7 January 2011, with 312 millimetres falling between 10 and 11 January. The effect on the drainage corridor of this amount of rain is graphically demonstrated in photograph No. 3 in Exhibit 8. I regret to say that I think that Mr Sinclair’s trenchant criticism of Mr Walker’s evidence is justified. Mr Walker admitted that when the first report was written in around February 2011 consequent upon the one site visit on 20 January 2011, he was writing the report on behalf of the Killicks and was not aware of the requirements of r 426 of the Uniform Civil Procedure Rules 1999 (Qld), and had not prior to the hearing actually complied with the Rule.  He had never given expert evidence in court before.  That he was not aware of r 426 is a criticism of the Killicks’ lawyers not Mr Walker, but the importance of experts understanding their role by reference to the Rule is graphically demonstrated in this case upon a reading of Mr Walker’s first report, and then his response to Mr Winders’ report on 24 June 2011.  Most of the so-called “facts” on which he bases his opinion are clearly a recitation of the instructions he received from the Killicks and their lawyers as to what occurred, even to the extent of recording the Killick’s commentary in relation to the photographs taken by Mr Killick that are reproduced in his report.  An example of this (and there are many) is at page 5 where he describes the photograph in Figure 4-5 as “Erosion of bankside resulting from loss of vegetation, November 2010”.  The photographs appearing under paragraph 4.2 are photographs taken at the January inspection.  The comments by way of “opinion” under figures 4-6 on page 5-6 of the report, again demonstrate how an inexperienced expert, not aware of r 426, could (and has in my view) fall into the trap of becoming an advocate for the client rather than an independent objective observer.  Despite his opinion about the land bridge being implicated in the so called scouring he did not see fit to take a photograph of it.  A photograph of it does appear in Exhibit 8 (Photo 7) and I accept Mrs Jowett’s evidence that the “land bridge” is partly on her property and partly on the Heale property Mrs Jowett’s neighbour to the west.  I also accept her evidence that the pipe on the right of the photograph is carrying overflow from the large upstream farm dam on what is known as the Bricalli property, and the two pipes to the left carry overflow which runs into the Jowett dam from the Heale property.  Mr Walker was even prepared to go so far as to suggest, by reference to figure 4-9 (which he says shows discolouration of the Killick’s dam on 20January 2011 but which cannot be seen in the photograph), that the “reddish discoloration was … red soils and clays … likely from the land bridge …” .

16. [16]
    He made no attempt to test for sediment in the Killicks’ dam. The only evidence about this (apart from the evidence from the Killicks) comes from Mr Haldane, a drainer who has provided a quote dated 8 June 2011 to re-establish the Killick’s “pond” as he called it. It is not clear, but at some time in either February or June 2011, he did “put a stick in and measured” the sediment in the pond at about 18 inches. At a guess he thought that would represent about three cubic metres of sediment. Mr Walker took two samples of water, one from near the Jessop fence with the Bricalli property and one near the fence with the Jowett property in the drainage corridor. Mr Winders took samples later when he tested at a site visit to Mrs Jowett’s property. He took tests at points about 4 metres apart, one near the boundary downstream of the Jowett dam and one under or near a bridge over the drainage channel which is depicted in a number of the photographs e.g. photograph A in Exhibit 1. Both tests showed an increase in the suspended solids and turbidity at the downstream point i.e. at or around the drainage channel at the boundary before it runs into the Killick dam. The difficulty with the testing of both experts (acknowledged by both) is that there are no tests for water quality or, more importantly, silt and sediment levels in the Killicks’ dam prior to, or immediately at the time of, the alleged nuisance. Mr Winders compared the results of his testing with the Queensland Water Quality Guidelines and in particular 3.1.1 – South-east Queensland regional guideline values for physico-chemical indicators (slightly to moderately disturbed water) in the category of Lowland streams, and notes that although the suspended solids as measured by both experts in the defendant’s dam are above those in the guidelines, the turbidity levels are lower. He notes of the guidelines that they,

“…are representative of “median values” of measurements at selected receptor sites for these streams and, as such, do not show the extent of the natural variations in the water quality parameters which occur in all cases, principally due to rainfall, flow and seasonal changes.

Suspended solids concentrations are highly dependent upon stream flow and antecedent rainfall, as well as upon the volumes of the samples tested for values <20 mg/L.

It is likely then that the measured values of suspended solids for both sets of samples are sufficiently low that they would not cause a median indicator value for each of the locations to exceed the recommended indicator value if sampled over a typical year and that they are typical of values measured in such streams under similar conditions.

While stream flow has probably less impact upon turbidity, it is considered that the results obtained from testing both sets of samples also indicate that the turbidities of all three dams are typical of waters emanating from catchments such as the one in question and the Defendant’s alleged activities have not adversely impacted upon this aspect of the water quality in the Plaintiff’s dam”.

17. [17]
    I accept this evidence. Mr Walker agreed that in his report he makes no reference to objective studies or research to support his conclusions, and in his argumentative response to Mr Winders’ report he appears to regard these guidelines as irrelevant as “…it is unrealistic to consider the drainage line and dams on either property to be comparable to a ‘slightly to moderately’ disturbed lowland stream”. I reject his opinion. The guidelines clearly take into account urbanised areas, as well as rural residential areas such as this environment. His stubborn refusal to acknowledge the relevance of the guidelines as a relevant objective standard for comparison use by experts such as himself, is another example of the adversarial role he has clearly adopted on behalf of his clients. It follows that I do not accept Mr Wessling-Smith’s submission about the relevance of evidence of the guidelines, as I think it touches on some of the “elements” of the tort of nuisance.

18. [18]
    Mr Walker’s critical recommendation as to rectification at page 9 paragraph 5.0 first dot point is not based on any objective or scientific paper or guideline, and Mr Walker was unable to explain satisfactorily why he chose 10 to 15 metres which of course is critical evidence to the relief claimed in paragraph 2 of the Amended Claim.  He would not accept that this figure comes directly from his instructions from the Killicks set out in dot point 2 on page 2 of his report.  He thought that the Killicks had the benefit of a court injunction when they clearly do not.  Mr Winders thought that such works were not necessary.  I regret to say that yet again Mr Walker has allowed his objective opinion to be displaced by a fact that came from his clients and is unsupported by any scientific research and is in fact a term of the mediation agreement.

19. [19]
    I also prefer Mr Winders’ evidence that the various photographs taken by Mr Killick relied upon by Mr Walker to show what the plaintiffs allege is collapsing or subsiding banks, shows rather what Mr Winders described as “slumping” that occurs naturally particularly after heavy rain after a period of prolonged drought.  There is simply no evidence of the state of the banks in the Jowett dam prior to the clearing in September, and no evidence as to the silt levels (if any) in the Killick dam that might have developed for a variety of reasons in the eight years that have elapsed since the dam was cleared out by Mr Bonato consequent upon the settlement of the earlier dispute.  This is important as the catchment area that feeds ultimately into the Killicks’ dam or pond is in excess of 19 hectares.  Mr Winders made a very good point in his cross-examination at page 2-25:

“Question: Now, if grass is removed from the batters of the dam and the banks of the dam, that is, it’s taken back to effectively bare dirt, if you had a large rain event like we had in January 2011 in that area, that would tend to create more scouring and therefore movement of sediment downstream? - -

Answer: But it’s creating the same problem from the 20 hectares of catchment so, how do you say this much is due to the run-off from a very small area and occurs sort of instantaneously?

Question: Well, I’m not trying to ask you to quantify how much sediment might come out? - -

Answer: But that’s my - how can you assess impact if you don’t quantify it?

Question: What I’m asking you to do is assume that the Jowett dam was taken back to bare dirt effectively, across the batters and across the banks.  There’s a large rain event in January 2011.  If there is rain through that corridor and that dam is in that condition, it would tend to cause increased scouring in that dam and increased movement of sediment out of the dam? ..

Answer: But it has to be considered relative to the sediment load from the total catchment.  See, these days we – when we’re looking at sediment management from catchments, to get water quality right, we do load based calculations and the catchment, they’re based on all the sub-catchments added together.  Now, in this case here, the bare area around the Jowett dam, if it was there in January, would only have had a very small contribution to the total load from that catchment.”

[20]Of course it is common ground contrary to the assumption contained in Mr Wessling-Smith’s question that by January the grass on the banks and batters had grown back as can be seen from all the relevant photographs, but these responses from Mr Winders demonstrate the major difficulty in the plaintiff’s case factually.  There are no sediment and other measures prior to the alleged nuisance, and Mr Walker, the plaintiff’s only expert, never measured or tested the sediment levels in the Killicks’ dam when he was there in January 2011.  The only evidence of that (apart from the Killicks) comes from Mr Haldane which he described as a “guess”.  As to the Killicks’ evidence generally, I think they have convinced themselves that Mrs Jowett’s actions have caused damage to their property.  Their conviction is against the weight of the evidence that I have preferred and accepted.

The Law

21. [21]
    Mr Sinclair quoted from “The Law of Torts” by Professor John Fleming. I assume the quote is from a later edition but it is the same in the 9^th edition with which I have been supplied.  At page 466 the author quotes in part from Bamford v Turnley (1862) 3 B & S 66 at 83-84 and written (of the Tort of Private Nuisance):

“To constitute a legal nuisance, the annoyance or discomfort must be substantial and unreasonable. 

“Life in an organised society and especially in populous communities involves an unavoidable clash of individual interest.  Practically all human activities, unless carried on in a wilderness, interfere to some extent with others or involve some risk of interference, and these interferences range from trifling annoyances to serious harms.  It is an obvious truth that each individual in a community must put up with a certain amount of annoyance, inconvenience and interference, and must take a certain amount of risk in order that all may get on together.  The very existence of organised society depends on the principle of ‘give and take, live and let live’, so that the law of torts does not attempt to impose liability or shift the loss in every case where one person’s conduct has some detrimental effect on another.  Liability is imposed only in those cases where the harm or risk to one is greater than he ought to be required to bear under the circumstances.”

The paramount problem in the law of nuisance is therefore to strike a tolerable balance between conflicting claims of neighbours, each invoking the privilege to exploit the resources and enjoy the amenities of his property without undue subordination of the reciprocal interests of the other.”  (Citations omitted).

22. [22]
    The only recent Queensland case that either counsel could find dealing with the “elements” of the tort of private nuisance is Warne v Nolan [2001] QSC 053, a judgment of Muir J (as his Honour then was).  A reading of his Honour’s judgment which culminated after a trial that proceeded over many weeks in 2000 and which was substantially compromised as it proceeded, may explain why his Honour was prepared to accept the heavy workload of a Court of Appeal Justice some years later.  The nuisance claim arose as part of alternative injunctive relief sought by the defendant/plaintiff’s by counterclaim in relation to a levee bank built on one of the substantial rural properties upon which the parties resided in distant disharmony.

23. [23]
    His Honour wrote:

“[88] Nuisance is an ‘unlawful interference with a person’s use or enjoyment of land, or of some right over it, or in connection with it’.

[89] To establish nuisance a plaintiff must show a substantial degree of interference with the plaintiff’s enjoyment of the use of (the land) and the existence of damage, except where damage is presumed by law to exist.  What constitutes such a substantial degree of interference is to be decided according to what are reasonable standards for the enjoyment of the premises concerned.  Duration of the interference is a relevant consideration but a short lived interference may be regarded as substantial if it causes permanent damage to land.

[90] In Furness v Clark, Bray CJ, with whose reasons Sangster AJ agreed, said in respect of a claim by a higher land owner for nuisance against the lower – ‘I think that if the plaintiff shows an injury to his land from the operation of the defendant on his land then he has made out a prima facie case of nuisance and the onus passes to the defendant ‘to establish some appropriate defence’.

[91] There is a general principle of law that an owner of land cannot complain of damage caused through the natural user of land by a neighbouring owner.”

Conclusion

24. [24]
    It follows from my analysis of the evidence and my findings of fact and the application of the legal principles set out above to those findings that the plaintiff’s claim must fail. The evidence does not establish on the balance of probabilities that the silting/sediment in the plaintiff’s dam was caused by the actions of the defendant in clearing the dam/pond area of grass and trees in August/September and spraying the grass behind the banks some short time later. The plaintiffs have also failed to satisfy me that there has been any substantial degree of interference with their enjoyment of their land, nor am I satisfied that any sediment in their dam was caused by any actions of Mrs Jowett. Nor am I satisfied that the sediment (whatever the amount) was not caused by natural causes since the dam was cleared in 2002. Mr Killick said in his evidence that he uses the water in the dam to water fruit trees and his vegetable garden but that he has not used his pump for sometime because of the good rainfall. As I have said the Killicks have convinced themselves of their cause and have become over sensitive to anything done by Mrs Jowett in the drainage corridor. She said in her evidence that she only intends in future to spray at the edge of the grass (which is back from the banks) so that it does not advance as it did prior to her actions in 2010. It is clear on all the evidence that the drainage corridor was well grassed at the time of Mr Walker’s visit in January 2011 and is operating now as it should.

25. [25]
    The plaintiff’s claim is dismissed. Conventionally I assess the damages at $3133, proved through Mr Haldane. There was no evidence of the cost of obtaining an engineering report alleged to be $1980 in para 13(c) of the Amended Claim.