The Registrar General's records show that Yvonne Anna Layton of Strathfield, Spinster, became the registered proprietor of the subject land by transfer C924718 which was registered on 24 July 1940, the transfer being dated 9 December 1939. It is clear, accordingly, that Miss Layton was a prospective purchaser of the subject land at the time she made her enquiry.
8 The building committee's report which was adopted by the Council at its meeting on 5 December 1939 shows:
"7. That the quotation of Rocla Ltd of 13/2 per lineal foot for a 36 inch diameter stormwater drain, Agnes Street, be recommended to the owner for acceptance on condition that Council supplies the labour and the company the supervision and lifting gear and that the Council bear two-thirds of the cost of the work."
9 The Town Clerk reported to the Mayor on 2 January 1940 that the 36 inch concrete pipe drain through private land in Agnes Street had been completed. The original of FP 190578 shows that the survey for the plan was made on 15 January 1940 and the plan itself was completed on 3 May 1940 and it shows the 3 foot Monier pipe across the land in the same position as it currently is.
10 Although various plans were submitted, there was little evidence before me as to the concourse of the land or what it was like before it was more or less completely built over in the 1930s and 1940s.
11 Agnes Street appears to be almost due south of Homebush railway station. There appears to be a significant stormwater channel which runs from just to the south west of Strathfield railway station, to the north of Homebush railway station, which flows into Homebush Bay. The plan shows that there is a drain coloured blue on the exhibit (which indicates control by Sydney Water) which follows an irregular path from (so far as is relevant to this case) Albyn Street, Strathfield to the main stormwater drain. Albyn Street is one block north of Agnes Street. From Albyn Street to Llandillo Avenue, which is one block south of Agnes Street, there is a prolongation in a more or less straight line of this drain shown in green which indicates control by a local cuncil so far as Sydney Water is concerned.
12 This plan, together with the Council minutes of 1939 to which I have referred, enables me to infer, and I do infer, that before any artificial works there was a natural flow of water from Llandillo Avenue across the subject land to the drain commencing in Albyn Street. Furthermore, before the erection of the pipe in 1939, there was more likely than not a "natural watercourse" through the land more or less on the position of the present pipe which carried some water which would have drained from surrounding lands.
13 By their summons filed 11 December 2002, the plaintiffs claim a declaration that the discharge of stormwater through the pipe constitutes a trespass, and they seek an injunction restraining such trespass continuing.
14 I directed pleadings. In them, the plaintiffs relied on nuisance as an alternative for trespass. Although at some stage substantial damages were sought, in the end, the plaintiffs' counsel indicated that the plaintiffs were content with nominal damages and an injunction, postponed, if necessary, for six months so that the public authority could institute alternative drainage systems for the area.
15 The defence was that under the Local Government Act 1919, the defendant has been entitled to discharge stormwater from its stormwater drainage system through the pipe and it has been necessary for it so to do. Furthermore, it supplied the labour for and paid two-thirds of the cost of the pipe and is, by virtue of ss 59A(1) and 749 and clause 22 of Schedule 7 of the Local Government Act 1993, the owner of the pipe and that it is entitled to operate the pipe by discharging into it stormwater from its stormwater drainage system.
16 Alternatively, the Council says that the plaintiffs fully appreciated and voluntarily accepted the risk of injury or damage from the stormwater drainage system when they purchased the land.
17 The evidence as to the purchase of the land by the plaintiffs was rather bizarre. The male plaintiff is a real estate agent practising in the area. He claims that he had no knowledge of the instant pipe until June 2002. It would not appear that the plaintiffs retained a solicitor to advise them on the purchase. The male plaintiff saw a copy of the deposited plan before he completed. He says that he mistook the pipe for the sewerage pipe. I must confess I found this all a little hard to accept, but as the evidence was hardly challenged I suppose I need to accept it, though perhaps it makes very little difference to the outcome of the case.
18 The hearing took place before me on 22 April 2003. Mr F M Douglas QC appeared with Mr T G R Parker for the plaintiffs, and Mr G O Blake SC, appeared for the defendant. I am indebted to both sets of counsel for their clear presentation and for the helpful written submissions which they prepared. At the end of the oral argument there were certain loose threads. Mr Blake asked for some time to consider these matters to see whether some amendment should be made. I granted that application but I was advised later that week that no amendment would in fact be made. I thus reserved my decision.
19 The basal argument of the plaintiffs is that they are the registered proprietors of the land, and there is no easement in favour of the Council. The Council's pipe is buried in the land. The plaintiffs want it removed. The Council is passing more water through the pipe because it is part of its drainage system than would naturally flow, and the plaintiffs are entitled to an injunction to stop that continuing.
20 Both parties, of course, accepted the law as to water laid down by the High Court in Gartner v Kidman (1962) 108 CLR 12, especially per Windeyer J at 23-24 where his Honour said:
"By the common law the proprietor of land upon the banks of a natural stream of running water, is entitled to have, and is obliged to accept, the flow of water passing his land. He cannot either deprive those lower down the stream of its flow nor pen it back upon the lands of his neighbour higher up. These rights and obligations do not depend on prescription or grant. They are proprietary in character, natural incidents of the ownership or lawful possession of the land abutting on the stream … .
"The position of an artificial watercourse, that is a water channel constructed by man as distinct from a natural stream, is entirely different. Generally speaking, the owner of land through which an artificial watercourse runs may block or divert it at his will, unless some easement over it has been acquired by grant or prescription."
21 What is a watercourse is discussed by Windeyer J at p 27. Although both a natural depression in which surface water is carried away in times of heavy rain and a continuously flowing stream are both commonly called watercourses:
"The law treats such valleys and depressions very differently from watercourses that have the qualities of rivers and streams."
22 In the instant case there is little evidence but what there is inclines me to the view that prior to 1940 there was a natural depression across the plaintiffs' land which appears to be the low point through which water ran, but there is insufficient to show that it was the sort of watercourse that was a natural flowing stream. Furthermore, it would seem almost incontrovertible that the Council's plan for draining the surrounding streets has meant that there is more water now flowing through the pipe than would be the case if the land had been left in its unbuilt upon state.
23 Thus it would seem to me that on the principles of Gartner v Kidman, unless there is some statutory defence available to the Council the plaintiffs should succeed subject only to the question of "coming to the nuisance" which I have mentioned is raised in the defence.
24 Before dealing with the statutory and other defences, I should make some general comments.
25 There was some discussion before me as to the nature of the Council's rights and who owned the pipe. There was some discussion as to whether the Council might have an interest in land (vide Toronto City Corporation v Consumers' Gas Company of Toronto [1916] 2 AC 618 and Telecom Auckland Ltd v Auckland City Council [1999] 1 NZLR 426), but doubtless in view of the existence of the High Court's decision in Commissioner of Main Roads v North Shore Gas Company Ltd (1967) 120 CLR 118, the defendant decided not to rely on this line of argument. However, there was put to me some argument as to whether the pipes were fixtures or not, but in view of what was said in the cases to which I have just referred, it is clear that such submissions can go nowhere.
26 I also threw out some suggestions that it may be that the defendant would like to consider some estoppels based on conduct of the plaintiffs' predecessors in title, but such suggestions met with nil response.
27 I have already noted that there was no defence of any easement claimed by the Council either prescriptive or by necessity or otherwise. Nor was there any application under s 88K of the Conveyancing Act for the court to create such an easement.
28 Where the parties have deliberately confined the issues which they wish the court to decide, then almost always the court should merely deal with those issues and that is what I will now proceed to do.
29 The first statutory defence is that from December 1939 to 30 June 1993, pursuant to ss 382-3 of the Local Government Act 1919 and thereafter pursuant to ss 21, 23 and 24 of the Local Government Act 1993, the defendant was entitled to discharge stormwater from its stormwater drainage system into the pipe and through the plaintiffs' land.
30 Section 382 empowers the Council to construct control and manage drainage works and s 383 gives it power to enter land, construct works thereon and makes it a constructing authority for the purpose of compensation under the Public Works Act 1912.
31 There is no doubt that this right exists. However, Mr Douglas QC for the plaintiffs says that it is completely irrelevant in the instant case because, whilst the Council may have had those statutory powers, it never exercised them. He says that the evidence from the Council minutes which I have abstracted clearly shows that the pipes were purchased by the then owner of the land to which purchase price the Council made a contribution and whilst they may have been laid with Council labour, there is insufficient to show that the works were being constructed by the Council. With respect, I agree. The proper construction of what happened as evidenced by the minutes is that the owner laid pipes through her own land with a subsidy from the Council. She did this so that she could get her building plans through Council to build over the pipeline or drain that was otherwise there.
32 Sections 21, 23 and 24 of the 1993 Act take the matter no further. Again, they are merely facultative empowering councils, but there is no evidence that anything was ever done pursuant to those powers.
33 The second statutory defence is based on s 59A of the 1993 Act. This section was added to the Act by Act No 40 of 2002 and was proclaimed to commence on 1 August 2002. The section is as follows:
"59A(1) Subject to this Division, a council is the owner of all works of water supply, sewerage and stormwater drainage installed in or on land by the council (whether or not the land is owned by the council).
(2) A council may operate, repair, replace, maintain, remove, extend, expand, connect, disconnect, improve or do any other things that are necessary or appropriate to any of its works to ensure that, in the opinion of the council, the works are used in an efficient manner for the purposes for which the works were installed."