Aisbett v City of Camberwell [1933] HCA 36

water flowed from the neighbouring land on the east.

negligence by such municipality or by virtue of this Division or an corresponding previous enactment 0 in respect to any damage or in arising out of the making or construé ing of any such works by reason that the municipality made or 00 structed the same or caused the sal to be made or constructed withou exercising any powers created or col ferred by this Division or any com ponding previous enactment. (2) Sueh works shall be deemed to have b made and constructed without n@ gence if no claim for compensation 0 account thereof is made within years from the date of the compl

This water flowed down the depression on the plaintiff's land but owing to the increased flow of water carried by the new drain which drains a larger area and to the impurities in the water which the increased flow brought with it damage was caused to the plaintifi's land, There was no evidence that the defendant municipality had been negligent in the design or construction of

the new drain, nor was there any evidence that the old drain had caused CAMBERWELL.

Held, that the Local Government Act 1928 did not authorize defendant muni- cipality to discharge on to the neighbouring land of the plaintiff water which flowed on to the plaintifi's land in greater quantities or in a condition of greater impurity than would naturally flow on to the plaintifi's land, and that the defendant was liable for any damage so caused.

Carslake v. President, d&c., of the Shire of Caulfield, (1891) 17 V.L.R. 560; 13 A.L.T. 72, and Hawthorn Corporation v. Kannuluik, (1903) 29 V.L.R. 308; 25 A.L.T. 97; (1906) A.C. 105, considered.

Decision of the Supreme Court of Victoria (Cussen A.C.J.) : (1933) V.L-R. 207, reversed.

Apprat from the Supreme Court of Victoria. William John Aisbett, the plaintiff, appellant, had since 1910 been the owner and occupier of a property known as 367 Toorak Road, _ Burwood, and situate in the municipal district of Camberwell. The southern boundary of the property abutted on to Toorak Road, to which street there was a frontage of about 500 feet, the property comprising about eight acres. The land to the east of the plaintifi's _ property was owned by one Hill. This land, which also abutted on Toorak Road, was on a higher level than the plaintiff's. On the plaintifi's property there existed a wooded gully which the plaintiff had planted with trees, shrubs and lawns. Along a small watercourse Tunning in a north-westerly direction at the bottom of this gully

• there flowed after rain the natural surface water from the catchment area of the gully which included portion of Hill's property and a _ considerable area of ground south of Toorak Road. Prior to 1931 the water in this watercourse flowed through the plaintifi's property in an unpolluted condition and the plaintiff had, prior to that date constructed a number of fish ponds where he bred for sale large _ numbers of fish. _ Prior to 1910 the defendant had constructed along the bed of the gully where it crossed to Toorak Road, a large wooden underground. drain. This drain commenced at or about the southern boundary

a subsequent statute (No. 358) containing the same provision decisions were given to the effect that the power to construct roads carried with it authority to turn water from the road on to adjoin- ing lands (Hepburn v. Mayor, &c. of Hawthorn (1); President, &c., of the Shire of Ballarat v. Beaton (2); Cameron v. President, &c., of the Shire of Mount Rouse (3) ). In the first two of these cases the

_ question appears to have been considered to be whether the existence

of the power to make drains upon private lands, paying compensation,

called upon the road authority to divert the water by such a drain and thus enabled the private land owner to obtain compensation,

In Beaton's Case (4) Stawell C.J. said: - "The . . . section

applies to cases in which it was necessary not merely to form the

toad, but also to cut drains on contiguous land to make the road drier and more efficient. If the Council, in the exercise of a sound

discretion consider it unnecessary to make those drains we cannot compel them to make them to suit the purposes of the plaintiff, and 3 afford him compensation for so doing. The power is only given over those lands contiguous to the road, but, if the plaintiff's contention be right, it may be in many instances necessary to carry the drain through other lands which are not contiguous, and the person on _ whose land not contiguous to the road, the water was ultimately _ brought would have no remedy." In Cameron's Case the com- ~ plaint was that the municipality made a drain from a road upon and i through part of the plaintiff's land and improperly omitted to extend and construct it so as to convey or lead the water to a proper outlet and thus discharged quantities of the water on the plaintiff's land.

• Stawell C.J. said (5) the words of the statute were plain. "If it is necessary to construct the drain, and if the drain is brought upon, that is a certain distance into, the land, it is a sufficient compliance

(1) (1866) 3 W.W. & a'B. (L.) 61. (4) (1872) 3 V.R. (L.), at pp. 166, (2) (1872) 3 V.R. (L.) 163. 167. ae) (1872) 3 V.R. (L.) 207; 3 AJ.R. (5) (1872) 3 V.R. (L.), at pp. 208, 5. 209.

• with the Act. It may be necessary to.cut the drain only a very fe

yards, but it would be straining the enactment to compel the Boa extend it in every case through each man's land. We the words 'Upon and through' in the . . . section decide the question." Barry J. added : - '* The word ' compensation' not limited to the cutting of the drain alone, but extends to conse quential damage arising from flooding of water running through drain when constructed."

In the consolidating Local Government Act 1874 (No. 506) power was included in a form closer to sec. 67 of the English Highway Act 1835. But the authority was to take the drain " in and throu any lands adjoining or lying near to any street or road " (sec.

"any lands" for damage arising from the exercise of the pi In Brett v. Slater (3) the Supreme Court held that the municipali had no authority under this power "to take water across a and, without any attempt to make a side drain, discharge that wate on to a man's land and leave it there." Referring to the alternative form of the provision in the earlier legislation, Higinbotham 0.) said that he was not prepared to say what would be the effect of that section if it were then in force, whether it would justify the Council in taking water upon a man's land without taking it througl the land. Next, in Carslake v. President, &c., of the Shire of Caul (4), @ Beckett, Hodges and Molesworth JJ., Higinbotham ©.J. and Hood J. dissenting, held that neither the general road making powel nor the provision under discussion enabled a municipality to make drain to the edge of a road, up to, but not into, the adjoining lands So as to pour surface water thereon. The power to make a drain! a) (1872) 3 V.R. (L.) 207; 3 ALR. (3) (1888) 14 V.L.R. 77, at p. 825

(2) (1872) 3 V.R. (L.), at pp. 166, (4) (1891) 17 V.L.R. 560; 13 AJ 167. 72. :

and through adjoining lands had clearly not been exercised in this case, because the drain was confined to the road, and the real controversy was whether the general road making powers carried with them the incidental power of discharging water from the road upon neighbouring land. One reason relied upon by the majority for denying such an incidental power was the existence of the power, subject to compensation, to make drains on private lands near roads. In his dissenting judgment, Hood J. regarded this power as directed rather to a system of drainage than to road-making merely. Through- 'out the course of these decisions, a marked tendency appears to treat the question whether water can be discharged from a road on to adjoining land as amounting to the question whether the municipality is bound to exercise the power to make a drain through the land and so expose itself to a claim for compensation from the land owners. In 1896, five years after Carslake's Case (1), a protective section based upon this view of the matter was included in Act No. 1460, an Act dealing with entirely different subjects. At that date the road-making power was contained in Division 4 of Part XVI. of the Local Government Act 1890. That Division included also the power to make drains; sec. 411. Sec. 5 of Act No. 1460 was as follows : - "5. No action shall be brought against any municipality in respect of any works made or constructed by such municipality under or by virtue of Division 4 of Part XVI. of the Local Government Act 1890 or any corresponding previous enactment or in respect to any damage or injury arising out of the making or constructing of any such works by reason only that the municipality made or constructed the same or caused the same to be made or constructed without exercising any powers created or conferred by section four hundred and eleven of the said Act or any previous corresponding enactment, _ provided that such works were made and constructed bond fide and before the first day of January One thousand eight hundred and ninety-one and were so made and constructed without negligence." I think this provision operated to bar a land owner's remedy where road making, done before the specified date bond fide and without other negligence, had resulted in a discharge of water upon his land which would have been avoided if the power to make drains

had been exercised. But I do not see how it could afford any answer to a complaint that, owing to the construction of a drain in

In the consolidation of the Local Government law of 1903 this section gave rise to what is now sec. 608 of the Local Government Act 1928. It is of general application and is not limited to works already made. It protects a municipality against actions broug by reason only that the municipality without negligence made or constructed the works without exercising any powers created or conferred by the Division or any corresponding previous enactment, In a second sub-section, the section provides that the works shall be

deemed to have been constructed without negligence if no claim for compensation on account of them is made within two years of completion. The provision is difficult to construe and there is s ue ground for the view that it does not apply except when the exe

section cannot bar a cause of action arising from the fact that the exercise or attempted exercise of the power to construct a dra upon private land water has been conducted to an unauthorized

the municipality constructed works without exercising a power. is certainly not brought only for that reason. But, no doubt,

Legislature in 1903 showed a definite inclination to the view that municipalities, often with limited revenue, should not be hamp by the possibility of large claims for damages or compensation from proceeding by gradual steps for the drainage of the district. most of the significance attached to changes in the provision standing as sec. 606 appears to me to arise from the Viel decisions I have set out. Although the dicta of Stawell C.J. in Beaton's Case (1) do support a construction of a power to make @ drain "in or through lands " which would extend it to the discharg

of water on those and on other lands and a tendency giving general support for this view is disclosed by Cameron's Case (1), it must be remembered that in Brett v. Slater (2) Higinbotham C.J. treated the question as doubtful and that the views of the majority in Carslake's Case (3) proceeded upon grounds opposed to it. On the whole I do not think that the Legislature can be taken to have adopted a form of expression which was understood to have these consequences. The limitation of the right to compensation to the owners of the lands entered appears to me to be against the view that the power gave authority to pour water, through the lands entered, on the adjoining lands. The language of sec. 608, however obscure, is certainly very restricted. Sec. 607 confers a new power, but it is confined to works on a roadway which will concentrate or divert drainage and, after doing so, will discharge it or permit it to flow through any land. In these conditions the Council may proceed to exercise the powers which the section sets out in detail. But it must pay compensation ifclaimed in time. I do not think the introduction in the legislation of this power affects the construction of sec. 606. Nor do I think it can be said that the action is brought by reason of the failure to exercise it. Conceivably such an argument might be advanced if the roadmaking power contained in sees. 534 and 535 were included in Division 3 of Part XXI., which it is not, and if the injury arose from the exercise of that power, which it does only in a very indirect, not to say incorrect, sense.

My conclusion is that the provisions of the Local Government Act 1928 do not authorize the discharge on to the appellant's land from the outlet on his neighbour's land of the respondent's drain of water in greater quantities or in a condition of greater impurity than would naturally be received.

I think the appeal should be allowed. An injunction should be granted operating as from a future date sufficiently remote to enable an alteration of the drain. The amount of damages awarded to the appellant by the judgment below should be increased by £200. The respondent should pay the costs of this appeal and of the action.

(1) (1872) 3 V.R. (L.) 207; 3 AWJ.R. 106. (2) (1888) 14 77; 9 ALT. 188. (3) (1891) 17 V.L.R. 560; 13 A.L.T. 72.

Evarr J. In this case I agree with the judgment of my brother

McTiernan J. Lam of the same opinion. The drain with reg to which the appellant confined his case was made to disch; directly into a gully at a place within the property of the appellant's adjoining neighbour. The consequence was that more water than formerly also more noxious matter which was borne by the water, debouched into the gully. Sec. 606 of the Local Government Ad 1928 of Victoria empowers the Council to make drains and other specified conduits in or through any land and for that purpose to enter upon the land. The section provides that the owner and occupier of such land must be compensated by the Council for any damage sustained through the exercise of this power. The gully into which the drain discharged continued through the appellant's land which was at a lower level than that of his neighbour. Hence more water, and more refuse borne by the water flowed into the appellant's land than it was formerly accustomed to receive. The provision in sec. 606 for the payment of compensation extends only to the owner and occupier of land in or through which the conduit. was made. Thus the appellant's neighbour was entitled by the Act to compensation but the appellant was not so entitled. It was found at the trial that the drain was constructed without negligence. Th appellant's submission is that sec. 606 did not empower the Council to make a drain with an outlet in his neighbour's land from which more water and refuse discharged than the volume which formerly flowed on to the appellant's land. The Council contends that the construction of the drain in the manner described was a due exer cise of its powers under the section and consequently there is no lawful ground for the appellant's grievance. The Council furth contends that if sec. 606 does not extend to authorize what it had done, the appellant is nevertheless prohibited by sec. 608 maintaining the action.

The principle for determining whether private rights have been lawfully impaired in the execution of a power given by statute is stated by Fry J. in Corporation of Yarmouth v. Simmons (1) in th

terms: "when the legislature clearly and distinctly authorize the doing of a thing which is physically inconsistent with the continuance of an existing right, the right is gone, because the thing cannot be done without abrogating the right." The making and opening of a drain in or through land is not physically inconsistent with the continuance of the right of the owner and occupier of adjoining property not to be injured in his possession and enjoyment of such property by having more water cast upon such land by the drain than usually flows into the land. The object of a drain or other conduit which the Council is empowered to make is to carry off and get rid of water - superfluous water I apprehend - and not merely to carry water from one place to another after the fashion of a channel in an irrigation system. Stirling J.in Croysdale v. Sunbury- on-Thames Urban Council (1) referring to secs. 67 and 68 of the

• Highway Act 1835 said with respect to the former section : " That section, however widely it be construed, only authorizes the making and keeping open of ditches and drains in and through lands adjoining a highway, and does not authorize the discharge of the contents of any ditch or drain on such lands." Continuing, he said, '' Unless, then, the pond can be treated as part of the drainage system under the control of the authorities, these sections do not empower the defendants to discharge the surface water into the plaintiff's pond." _ But whatever the nature of the outfall to which a conduit authorized _ by see. 606 should lead, the section, in my opinion, did not authorize the construction of the drain in the present case with an outlet so placed in the adjoining property that more water and refuse flowed into the appellant's land than would naturally flow there. Compare Attorney-General v. Council of Borough of Birmingham (2). lf the legislature has empowered the Council to solve the drainage question _ inone locality by making drains which discharge over the land of other tatepayers. the provision of compensation may be some solace to an owner or occupier of land " in or through " which a drain has been made. But as for the adjoining owners or occupiers for whom the Act does not expressly provide any compensation although the drain discharges the superfluous waters upon their lands, all that may be said is " Occupet extremum scabies." In these words Farwell L.J- (1) (1898) 2 Ch., at p. 520. (2) (1858) 4 K. & J. 528; 70 E.R. 220.

described the plight to which the defendant's argument in Price's

the plaintiff in that case. The absence of any provision in the Aet for the payment for compensation to the owner or occupier in the situation of the appellant is against the Council's contention in the present case. In the course of his judgment in the case which has just been mentioned Cozens-Hardy M.R. said (2) : - " Certain general principles have been laid down for our guidance in cases of this nature. In the first place, there is a presumption that a public body, whether a trading body or not, is not authorized to create a nuisan or otherwise to affect private rights unless compensation is provi

In the second place, this presumption must yield where the language of the statute is sufficiently clear to authorize the nuisance without compensation." In the present case the appellant is, in-my opinion entitled to the benefit of this presumption.

The remaining question is whether the appellant is prohibited by sec. 608 from maintaining the action. The presence of this sei tion in Part XXI. of the Act is, in view of its history, somewhat remark able. The cause of action at which the section would appear to be directed looks like that mentioned by Lord Blackburn in Geddis ¥ Proprietors of Bann Reservoir (3). But whether that precisely is the cause of action dealt with by sec. 608, it is unnecessary to decide, for it is clear, I think, that the present action is not brought by reason only that the municipality made or constructed the draii without exercising any powers created or conferred by Division 3 or any previous corresponding enactment. Sec. 608 is not, in my opinion, a bar to the appellant's action.

The appellant is entitled, in my opinion, to an award of dam: in the sum of £200 in addition to the sum awarded him at the and also to an injunction from a future date. As to the suspension

of the injunction, see Attorney-General vy. Colney Hatch Laat Asylum (4).

Appeal allowed with costs. Order of the Supreme Court Victoria varied as follows : - The amount of damages

(1) (1908) 2 Ch., at p. 538. 3) (1878) 3 App. Cas. 430, at pp. (2) (1908) 2 Ch., at pp. 543, 544. 48, PT Mabe ia

OF AUSTRALIA. 181 plaintiff, viz., £50 to be increased by the sum of £200, viz., H.C. or A. to the sum of £250. Include in the order an injunction cha

restraining the defendant its servants and agents from Arsperr continuing to discharge water from the drain in the Gtr pleadings mentioned on to the plaintiff's land. Substitute ©®==W™™- for the order as to costs an order that the plaintiff recover

the costs of the action including the costs of pleadings interrogatories discovery and shorthand notes. Stay such injunction for six months from this date. Let the defendant be at liberty to apply to the Supreme Court

to extend the period of such stay to enable it, with due diligence, to comply with the injunction and let such

period be extended for such time and upon such terms

as the Supreme Court may think right. Remit the cause

Solicitors for the appellant, Cleverdon & Hayes. Solicitors for the respondent, Percy J. Russell & Kennedy.