Anderson v Muckle & Anor

The first respondent also submits that the Court could not conclude that ponding on lot 9 was attributable to any alteration of the lands on lot 8 as claimed since there were other possible causes. These were identified as backflow from Moors drain along the drain on the north side of Salt Ash Avenue and by backflow from the drain on the northern side of Richardson Road. Alleged additional causes included over capacity in council's drains and high groundwater.

The applicants relied upon the evidence of Robert Neil Staniland, an engineer and director of Stanwill Consulting Pty Limited. Mr Staniland has substantial experience in hydrological projects.

Mr Staniland found that water drainage from lot 9 generally flowed from west to east across lot 8 to lot 7 and that fill on lot 8 has had the effect of damming the natural flowpath and is the cause of the ponding of water on lot 9. The gradient of the eastward flow was estimated by him to be about 0.1%.

Mr Staniland said that it was almost impossible to discern any slope between lot 8 and lot 9 by visual observation in dry weather. Mr Staniland visited the site when it was inundated and has observed the water depths and flows. Such inspections 'confirmed that surface water is ponded on Lot 9 by the filling of Lot 8 and the recently constructed drain at the boundary of Lot 8 does not work to mitigate the blockage of the eastward natural flow path'.

All other potential causes of inundation of lot 9 as suggested by the first respondent have been dismissed by Mr Staniland. Mr Staniland noted that rainfall and peak groundwater level patterns had not differed substantially from the date of the purchase of lot 9 by the applicant to the filling of lot 8. He also observed that peak monthly rainfall from the date of the purchase of lot 9 was not substantially different in later years.

Mr Staniland concluded:- I am of the opinion that whilst high rainfall and high groundwater level will affect water ponding on properties in the area, by far the greatest impact on Lot 9 has been the blockage of the natural surface water flow path generally eastward from Lot 9 and Lot 8 caused by the filling of Lot 8. Mr Staniland was of the opinion that the fill on lot 8 should be removed ' sufficient to reinstate the natural flowpath from west to east at about the centre of the lot' .

Mr Staniland was also of the opinion that the drain on the northern side of Salt Ash Avenue permitted backflow through the culvert under that road. He observed that a flap gate reflux valve at the discharge pipe into Moors Drain was ineffective and could cause water to flow back from Moors Drain onto lot 9 and that such backflow would not be able to drain across lot 8 due to the fill placed on lot 8.

Dr David Keith Robinson, a civil engineer and principal of Robinson GRC Consulting Pty Limited provided expert evidence for the first respondent. Dr Robinson was formerly a Director of the Office of Waste Water in the New South Wales Department of Conservation and Land Management and has had substantial experience in hydrological issues and projects.

Dr Robinson considered that the flow of surface water across lot 8 was from north to south and that the flow of water across lot 9 was southerly in the general direction of the south-east corner of lot 9. He also considered that the flow of water on lot 7 was southerly in the general direction of the south-west corner of lot 7.

Dr Robinson did not agree that a conclusion could be drawn concerning the direction of surface water flow. Dr Robinson said that the site was virtually level and that survey data relied upon by Mr Staniland was inadequate to enable any conclusion to be drawn that there was a flow of water from west to east across lot 9 into lot 8.

Dr Robinson also considered that the survey data did not show any drainage system across lot 9 onto lot 8. He believed that once the general overland flow had ceased, the remaining water in the low-lying areas would dissipate through infiltration and evapo-transpiration.

Dr Robinson observed that the house on lot 9 which had been erected by the applicants had been constructed on a mound of fill that had modified the local drainage paths and concentrated surface water flows. Dr Robinson said that the construction of extensive roof areas on the house would have caused additional run-off which would exacerbate local flooding problems on lot 9. He further noted that no guttering had been provided to the house on lot 9 which he said would 'increase the quantity of run-off immediately adjacent to the house and possibly give the impression of increased ponding'.

Lastly, Dr Robinson observed that the applicants' perception of increased inundation on lot 9 could have been associated with a change in rainfall patterns. Rainfall charts from 1993 demonstrated that low rainfall occurred in the period between the acquisition of lot 9 and construction of the applicants' house, compared with rainfalls in recent years. Dr Robinson estimated rainfall in 1998 and 1999 to be 50% greater compared to the year in which lot 9 was purchased by the applicants.

As to the term 'water drainage system', Dr Robinson expressed the opinion that the term envisages 'a systematic inter-connected series of natural depressions and channels (both natural and artificial) which cause/allow water to drain from a high point to a low point'. As to the existence of such system upon lot 9, Dr Robinson said:- There is no evidence of a 'water drainage system' on either lot 8 or lot 9, nor is there any evidence that there ever was one. A flat area in any catchment, often near the catchment boundary, where there is sheet overland flow without any evidence of any rills, drainage depressions, etc., is not in my experience considered to be "a drainage system".

Dr Ian Joliffe, principal water resources engineer with Gutteridge Haskins & Davey, had provided expert evidence for the council. Although the second respondent was released from the proceedings Dr Joliffe was called by the applicants to give expert evidence.

Dr Joliffe's resport states:- Figure 2 of the July 1999 Stanwill Report indicates that Lot 9 was generally relatively flat but there was a slight depression from near the south western corner of Lot 9 toward the eastern boundary near a point approximately mid way along the common boundary with Lot 8. There also appears to have been a second discharge point off Lot 9 about one quarter way from Salt Ash Avenue along the common boundary.

It is possible to infer from the spot levels on that same Figure that there would, most probably, have been surface water ponding on Lot 9 during rainfall events. This ponding would have been exacerbated during times of high groundwater level when water cannot readily infiltrate into the soil.

Based on the levels of Lot 9, shown in Figure 2 of the July 1999 Stanwill report, Lot 7 levels shown on Survey Plan attached to Affidavit of Mr Connor in Appendices 1 and 2, one can infer that water from Lot 9 flowed to Lot 7 and ponded at that location.

Dr Joliffe made the following observation with respect to the situation before fill was placed on lot 8:- A survey plan attached to the Affidavit of Mr Connor, reportedly prefilling, only provides six spot levels. These levels tend to suggest that surface water probably found its way across Lot 8 from the western boundary, toward the north eastern corner of the lot. Water discharge from this location would have been by way of evaporation, infiltration and surface flow through the culvert under Salt Ash Avenue.

Therefore we conclude that there would most probably have been surface water flow from Lot 9 across Lot 8 toward the north east where water would have ponded. Neither party relied upon Mr Connor's evidence, but it was nevertheless relied upon by Dr Joliffe.

Dr Joliffe considered the 'Long Term Drainage Trends in the Area' and observed:- Drainage of relatively low lying areas, such as Lot 9, is primarily affected by the groundwater level, recent rainfall patterns, long term rainfall patterns and the ground slope. One would expect that there will be water ponding concerns in relatively wet periods while there should not be any problems, except potentially for very short periods, in relatively dry periods. Generally: · An increased rainfall will increase the possibility of water ponding and not being able to easily drain from low lying areas; · An increasing rainfall increases the groundwater level' · Recent rainfall (in the last few days) will increase the level in Moors Drain and potentially reduce the capacity of the drain on the northern side of Salty Ash Avenue to drain the subject land; and · The filling, without the drain along the western side of Lot 8, would have potentially impacted upon the drainage from Lot 9.

On the basis of the survey information available Dr Joliffe found it impossible to identify a flow path across lot 8. However, he did agree that the survey data suggested that overland flow of surface water would have drained to the low point on lot 9 which would have flowed into lot 8. Depressions existed in the southern portions of lot 8. Dr Joliffe was able to identify three places along the common boundary across lot 8 and lot 9 where he believed that surface water would flow from lot 9 onto lot 8. Dr Joliffe considered that water in the southern portion of lot 8 would move across lot 8 into the southern portion of lot 7 and that surface water in the northerly portions of lot 8 would drain to the north-east corner of lot 8.

Dr Joliffe provided his definition of the meaning of 'water drainage system'. Dr Joliffe said that from his perspective as a designer and engineer such term implied a confined flow path which was either natural or man-made. Dr Joliffe did not consider that a wide overland flow would accord with his definition, but acknowledged that a water drainage system could include processes such as evaporation or infiltration into the soil.

Two lay witnesses were called by the applicants. Mr Alan Cox has resided in the Salt Ash area for fifty years and owns land near lot 9. He deposed that he had never observed large ponds of water lying on lot 9 prior to fill being placed on lot 8. He acknowledged that the land in the area was very flat. He stated that in his experience water accumulating on the applicants' land had, prior to the filling of lot 8, either soaked into the soil or slowly moved from lot 9 towards lot 7.

Mr Ray Hutchinson, the former owner of lot 9, deposed that whilst he was the owner of lot 9 he observed that surface water which did not absorb into the land slowly drained from that lot and across lot 8.

Lay witnesses also provided evidence for the first respondent. Ms Barbara Kelly, the owner of lot 10, has lived in the area for several years and observed that ponding has occurred on both lot 9 and lot 8. During August 2000 she observed that lot 10 received overflow from lot 9 even though parts of her land are higher. She also deposed that water did not appear to flow off lot 9 in any particular direction. She believed that the drain which had been installed between lot 8 and lot 9 had assisted in the drainage of such land.

Mr Monte Kerry Bull, who has lived in the area for many years, noticed that after rain surface water would accumulate over the majority of lot 9 and that sometimes it would also accumulate on lot 8. He observed that water appeared to pond at the front of lot 9.

Two other witnesses who provided affidavit evidence for the first respondent, namely Marianne Rose Lewis and Ashley Slade, testified that all of the land was low-lying in that area and that water would tend to accumulate on lots 9, 8 and 7.

In reaching his conclusions Mr Staniland considered a survey of lot 9 prepared for the council in 1992 by experts known as Geo Spectrum. Numerous spot survey points were recorded over many parts of lot 9. In addition Mr Staniland relied upon survey points on lot 7 prepared by Fagan Mather Duggan Pty Ltd, a firm of registered surveyors. The sample points taken on that lot are not as extensive as those recorded on lot 9.

By drawing lines between the connecting points at the level of 1.35 m recorded on the council survey of lot 9 Mr Staniland was able to show that there was a depression on the eastern boundary of lot 9, extending down to the south eastern corner adjacent to lot 8. Similarly an examination of the survey point on lot 7 shows that the levels were reduced to 1.30 m, and 1.27 m on the eastern boundary of lot 8 at its southern end. Based on his inspection of the site whilst it was inundated, Mr Staniland determined that there was surface water flow from the eastern portion of lot 9 across lot 8 to lot 7.

Mr Donald Begg, a registered surveyor, had supervised a survey of lot 9 for the council in April 1997. Mr Begg compared the spot height levels determined in the ground survey of April 1997 with spot height and contour levels determined by photogrammetry using 1992 aerial photography conducted by Geo Spectrum. Mr Begg testified that with the exception of fill imported onto lot 9 for the purpose of construction of the applicants' house, the surface levels remained the same between the 1992 survey and the 1997 survey. He also stated:- The remainder of the property showed a general level approximately 1.3 m AHD to 1.5 m AHD rising to about 1.8 m in the north western corner of the applicant's property.

For the purposes of the hearing Mr Staniland produced a diagram which became Exhibit 'A' in the proceedings wherein he made certain adjustments to the council survey of lot 9 in order to correlate it with the only survey points known to exist for lot 7. Mr Staniland had observed that, although the council survey did not denote a datum, a level of RL 1.09 m for the pipe invert on the south side of the Salt Ash Avenue culvert was noted. He considered that the pipe invert was 'immovable, locatable and represents a temporary datum'. Mr Staniland also observed that the survey of lot 7 contained datum to Australian Height Datum ("AHD") and recorded a level of RL 1.12 m AHD for the same point as noted on the council survey. Mr Staniland made adjustment to datum of + 0.03 m for lot 9 survey recordings on Exhibit A to ensure that the levels of the survey recordings for that lot could be correlated with the readings of lot 8.

Mr Begg considered that the adjustment of the council survey by Mr Staniland was inappropriate and the Court accepts that such adjustments could not be relied upon for the preparation of an accurate survey of lots 9, 8 and 7. However the Court notes that such adjustments were made by Mr Staniland only for the limited purpose of Exhibit A and that the survey readings remain valid, even though no contour survey exists. The Court is satisfied that adjustments to the survey data shown on Exhibit A do not detract from Mr Staniland's conclusions. Mr Staniland has demonstrated that the survey evidence relied upon by Dr Robinson had an accuracy of 0.125 cm, which could result in critical differences.

Whilst Dr Joliffe was cautious to say that the survey points did not show any discernable flow channels he was nevertheless satisfied that there was sufficient evidence to support the conclusion that a flow of water did exist from lot 9 to lot 7 prior to the introduction of fill on lot 8.

Despite the inadequacies of the survey evidence, as pointed out by Dr Robinson and Mr Begg, the Court accepts the evidence of Dr Joliffe and Mr Staniland relating to the ability of surface water on lot 9 to move in an easterly direction across lot 8.

The Court adopts the conclusions of Mr Staniland since he is the only expert who has made an inspection of the site during inundation which enabled him to observe the movement of surface water from lot 9 across lot 8. Mr Staniland said that no accurate conclusions could be drawn by Dr Robinson. Mr Staniland agreed with Dr Robinson that there was no discernable slope at the site. Nevertheless, Mr Staniland observed that Dr Robinson was able to conclude that there was a surface drainage flow towards the south.

The Court therefore concludes that on the balance of probabilities the presence of fill on lot 8 has affected the drainage of water from lot 9 by impairing and obstructing the natural flow of surface water in a general direction across lot 8 to lot 7.

Such conclusion is consistent with the evidence given by the lay witnesses Mr Cox and Mr Hutchison. The Court accepts that their observations corroborate those of Mr Anderson. The Court prefers these observations to the observations of witnesses called by the respondents since they emanate from the previous owner of the land and the personal observations of fifty years.

The expert evidence suggests that the term 'system' as an element of the phrase 'water drainage system' implies an organised method of drainage and would not include the surface flow of water as part of a water drainage system.

However, it is the function of the Court to construe the terms of the consent, which does not require the application of specialist terminology. Accordingly, the construction of the term 'water drainage system' in the consent is not a matter for opinion evidence because an 'over-technical approach to the meaning of the language used in conditions attached to permits and approvals is, as a general rule, not called for' (see Wollongong City Council v Australian Iron & Steel Pty Ltd (1988) 67 LGRA 51 at 56 per Holland J and the authorities referred to therein; see also Willoughby City Council v Sydney Water Corporation [1999] NSWLEC 131 at par [10] and Leichhardt Municipal Council v Gillespies Cranes Nominees Pty Ltd [1998] NSWLEC 71 at par [18] per Lloyd J).

The Court accepts the observations of Dr Joliffe that the term 'water drainage system' is not necessarily confined to a narrow channel and that the interpretation of the term 'water drainage system' should be construed according to the circumstances in which it is used. The Court accepts the submission of the applicant that condition 3 was intended to impose an obligation on the respondent to maintain the existing manner of water drainage for the surrounding land. The Court finds that the south-easterly flow of surface water as a means of drainage of lot 9 is part of a 'water drainage system' within the meaning of condition 3.

Since the evidence establishes that the fill has altered, and therefore interfered with the system of water drainage, the Court finds that condition 3 has been breached. The breach is both present and continuing for the purposes of relief pursuant to s 124 of the EP&A Act (see Winn v Director General of National Parks and Wildlife and Ors [2001] NSWCA 17 at par [99] and par [101] per Spigelman CJ).

The power of this Court to grant injunctive relief has been considered by the New South Wales Court of Appeal in Warringah Shire Council v Sedevic (1987) 10 NSWLR 335 and in ACR Trading Pty Limited and Anor v Fatsel Pty Limited (1987) 11 NSWLR 67. The exercise of discretion to grant relief and the form of relief is a matter for the Court once it is satisfied that the alleged breach has been established. In the present circumstances, the Court is required to determine those measures which will lead to a reinstatement of the drainage from lot 9 across lot 8.

Dr Joliffe expressed the opinion that if the drain between lot 8 and lot 9 were deepened by 200 mm and were widened by 5 m, and the drain on the southern side of lot 8 was also deepened and widened by the same dimensions, the drainage of water from the area would be restored. The Court accepts that this is a more practical solution than removal of all of the fill on lot 8. Accordingly, the Court finds that subject to the view it is appropriate to make an order that work be carried out in order to give effect to condition 3.

The Court therefore:- 1. Declares that the first respondent has failed to comply with condition 3 of Port Stephens Council development consent D164/96 by the placement of fill on lot 8 DP 240103 in such manner as to obstruct a water drainage system.

2. Orders that the proceedings be adjourned for the purpose of a view and submissions relating to restoration of the drainage to lot 9.

3. Orders that the proceedings be listed for call over on Tuesday 30 October 2001 for the purpose of allocating a date for a view.

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