1. The applicant (Ms Lyall) is the owner of the Unit. The First respondent (Element Five) is one of the builders of the apartment building located next door to the Unit (the Development) and the second respondent (Mr Walker) is the owner of lot 9 in the Development which is immediately adjacent to the Unit. Ms Lyall alleges the source of the water ingress is Mr Walker's lot 9.
2. In about 2005, Pace Constructions Pty Ltd (Pace) constructed the Unit. It is part of a development of 7 units and a lower level carparking area at the rear of the Unit and beneath the units located in that part of the property. Ms Lyall purchased the Unit in August 2006 upon completion of its construction. The occupancy permit was issued on 14 July 2006. The lower car parking area is at the rear of the Unit and the Unit abuts the land on which the Development was later constructed.
3. Ms. Lyall lived in the unit during 2006 up to 2008. After that time Ms. Lyall rented the unit out until 2016 when the water damage rendered the Unit uninhabitable. The Unit has been in an uninhabitable condition and state of disrepair since 2016.
4. In 2012, Momentum Builders Pty Ltd (Momentum) were appointed to construct 36 apartments at the Development. Momentum carried out the following works at the Development:

(a) Demolition of existing buildings at the Site; > > (b) Removal of concrete footings at the Site; > > (c) Relocation of a 2 meter wide council drainage easement; > > (d) Installation of a 450mm diameter barrel drain approximately 1 metre from the boundary with Unit 2, below the floor level of Unit 2; > > (e) Construction of site retention bored piers; > > (f) Construction of capping beam on top of the bored piers; > > (g) Carried out the excavation and the Site cut and established the granular fill levels adjoining the Applicant's Property at RL 34.09; and > > (h) Commenced bulk excavation of the basement.

5. Momentum went into liquidation in October 2012 and was deregistered in October 2014.
6. In 2013, Element Five entered into a Construct Only contract and commenced building works at the Site and by June 2013, Element Five had completed the basement construction with drainage at the Development.
7. In or about March 2014, Element Five overdressed the soil in the area of the Development adjoining the Unit which resulted in the soil levels changing from RL34.09 to RL34.24, because Element Five placed approximately 110mm of granular permeable fill, followed with approximately 40 mm permeable paving building up the levels adjoining the Unit. It is this increase in soil levels that Ms Lyall asserts is the cause of the water ingress into the Unit.
8. In October 2016, Ms Lyall's tenant complained of damp and mould in the second bedroom of the Unit. Upon investigation it was discovered that all of the subflooring and pine subfloor policy strips and support had rotted due to the inflow of water causing rising damp and mould in the second bedroom and rendering the second bedroom and therefore the Unit uninhabitable.
9. The Unit has remained untenanted since this time and no works have been undertaken by Ms Lyall.
10. In October 2016, Ms Lyall contacted Element Five about water ingress in to the Unit, and in November 2016 she obtained expert reports setting out the wood rot and mould problems to the Unit.[1]
11. As stated above, Mr Walker is the owner of lot 9 in the Development. The courtyard of lot 9 adjoins the external wall of the Unit.
12. Initially Ms Lyall sought to bring proceedings against Pace as the builder of the Unit. However Pace rejected any claim brought by Ms Lyall because the claim was made more than 10 years after the issuing of the certificate of occupancy and therefore was outside the limitation period for bringing a claim against the builder.[2]
13. Having had a building inspector, Mr David Gough, undertake an inspection of her premises and the necessary work required to be done to rectify the premises Ms Lyall then contacted a builder, Mr Andreatta, to provide an estimate of the cost of rectifying the Unit. At this stage Ms Lyall anticipated she was going to have to incur the cost of the work herself. The quote from Mr Andreatta was in the vicinity of $250,000. It was at this point Ms Lyall then sought legal advice whether there was any alternative claim which could be made to compensate her for the cost of fixing the Unit and ensuring the water ingress did not continue or re-occur.
14. In 2020, a letter of demand was sent to Mr Walker requesting he contribute and/or pay the sum of $320,000 for the cost of rectifying the Unit because Ms Lyall asserted that water was flowing from his premises into her premises and that under s 16 of the Act, he was liable for the cost of repair.
15. Element Five and Mr Walker (who has adopted Element Five's expert evidence) both rely on a defence that neither of them has breached s 16 of the Act because the water which is causing the damage to the Unit derives from a perched water table which existed in this area prior to the development of the Unit and the Development.

1. The claim by Ms Lyall is brought under s 16(1) of the Act. Section 16 of the Act relevantly states

16 Liability arising out of flow of water etc.

(1) If -

(a) there is a flow of water from the land of a person onto any other land; and

(b) that flow is not reasonable; and

(c) the water causes -

(i) injury to any other person; or

(ii) damage to the property (whether real or personal) of any other person; or

(iii) any other person to suffer economic loss -

the person who caused the flow is liable to pay damages to that other person in respect of that injury, damage or loss.

...

(5) If the causing of, or the interference with, the flow (as the case requires) was given rise to by works constructed or any other act done or omitted to be done on any land at a time before the current occupier became the occupier of the land, the current occupier is liable to pay damages in respect of the injury, damage or loss if the current occupier has failed to take any steps reasonably available to prevent the causing of, or the interference with, the flow (as the case requires) being so given rise to.

(6) The existence of a liability under subsection (5) extinguishes the liability under subsection (1) of the person who caused the flow or the liability under subsection (2) of the person who interfered with the flow (as the case requires).

1. Section 3 of the Act defines the term "flow" as including

...discharge, release, escape, percolation, seepage and passage, and includes both surface and underground flow

1. The flow of water must be from a person's land to other land, but it does not need to come from the land of the Respondent.[3] What is important is, who caused the flow?

1. In Spagnolo v Body Corporate Strata Plan 418979Q[4] Robson J said[5]:

The Act contemplates that a flow of water from one property to another is either reasonable or is not reasonable. It is the flow of water which has to be characterised as reasonable or unreasonable and not the conduct of the person sought to be held liable.

1. Even though the concept of a 'reasonable' flow is fundamental to liability under the Act, it is not defined in the Act.
2. However, s 20 of the Act sets out what matters the Tribunal must take into account when determining whether a flow of water is reasonable. These matters include
   1. Matters to be taken into account in determining whether flow is reasonable or not reasonable

(1) In determining whether a flow of water is reasonable or not reasonable, account must be taken of all the circumstances including the following matters -

(a) whether or not the flow, or the act or works that caused the flow, was or were authorised;

(b) the extent to which any conditions or requirements imposed under this Act in relation to an authorisation were complied with;

(c) whether or not the flow conforms with any guidelines or principles published by the Minister with respect to the drainage of the area;

(d) whether or not account was taken at the relevant time of the likely impact of the flow on drainage in the area having regard to the information then reasonably available about the cumulative effects on drainage of works and activities in the area;

(e) the uses to which the lands concerned and any other lands in the vicinity are put;

(f) the contours of the lands concerned;

(g) whether the water which flowed was -

(i) brought onto the land from which it flowed; or

(ii) collected, stored or concentrated on that land; or

(iii) extracted from the ground on that land -

and if so, for what purpose and with what degree of care this was done;

(h) whether or not the flow was affected by any works restricting the flow of water along a waterway;

(i) whether or not the flow is likely to damage any waterway, wetland or aquifer;

(j) in the case of a flow of, or interference with, water caused by the construction, removal or alteration of a levee in accordance with section 32AC of the Victoria State Emergency Service Act 2005, whether or not that construction, removal or alteration occurred in response to an emergency within the meaning of section 3 of the Emergency Management Act 2013.

(2) In taking account of the matters specified in subsection (1), greater weight must be attached to the matters specified in paragraphs (a), (b), (c) and (d) than to the other specified matters.

1. As set out in s 20 of the Act, those considerations must also be considered in "all the circumstances". Those circumstances include whether the flow was lawful[6] and the degree of flow.[7]
2. Reasonableness is a question of fact. In Di Clemente v Small[8] Balmford J stated[9] with respect to s 20

That section simply requires that "in determining whether a flow of water is reasonable or not reasonable, account must be taken of all the circumstances including" the matters there specifically set out. It is a balancing exercise for the Tribunal, in this case as an expert tribunal ... to determine the reasonableness of the flow on the basis of all the circumstances.

1. In summary, if water flows onto your property and causes damage or inconvenience, that flow is prima facie unreasonable. However, if the flow of water is natural runoff which follows the contours of the land and was not contributed to or aggravated by anything the respondent did, then it is likely to be reasonable.

1. The reference in s 16(1) to 'the person who caused the flow' is presumed to be a reference to the person whose acts or omissions caused the flow.[10]
2. Where the necessary facts are made out, the cause of action under s 16(1) is one of strict liability; that is, it is not necessary to demonstrate any want of reasonable care. The mere proof of causation appears to be enough.
3. Under s 19(9), in determining a cause of action arising under ss 15(1), 16, 17(1) or 157(1) of the Act the Tribunal must apply to the questions of causation and remoteness of damage the same tests as a court would apply to those questions in an action based on negligence. Despite that, it is clear that the cause of action is not in negligence.
4. In Turner v Bayside City Council, Deputy President Macnamara (as he then was) stated[11]

It is not necessary to demonstrate legal causation that the first matter was either the sole or the predominant cause of the second. See Medlin v State Government Insurance Commission [1995] HCA 5; (1995) 182 CLR 1. Generally it cannot be said that one event is the cause of the other unless the second event would not have occurred but for the first. Nevertheless, not every event but for which a second event would not have occurred is regarded in law as being a cause of that second event. The ultimate criterion of causation in law is common sense. March v E. & M.H. Stramare Pty Ltd [1991] HCA 12. Reference in Section 16(1) to "the person who caused the flow" is presumably to be read as meaning the person whose acts or omissions caused the flow.

Where the necessary facts are made out, the cause of action under Section 16(1) appears to be one of strict liability, that is, it is not necessary to demonstrate any want of reasonable care. The mere proof of causation seems to be enough. Nor are we seeking to answer the question whether the respondents owed a duty of care in accordance with the Common Law tort of negligence to Mr Turner. The issue of "duty" arises only in so far as the establishment of its existence and breach is the only means whereby it can be said that the respondents "caused" the flow of water.

1. As to causation by omission in this sense, Senior Member Walker stated in Kong v Rajaratnam[12]

Causation can be established by proving some act or omission on the part of the Respondent that resulted in the unreasonable flow. For an omission to be actionable in the law of negligence, it must be found that there was a duty to act, that is, a duty to do that which was not done.

1. In essence, the case law establishes that once causation is established, liability under s 16 is strict. The action is not founded in negligence. However, since liability depends upon causation, causation in the law of negligence can be by act or omission. Further, it has been decided in a number of cases that, for a failure to act to be causative of a flow for the purposes of the section, the Respondent had to have been under a duty to act.
2. For example, in Jasen v Demaio[13] causation was by omission, being the Respondent's failure to replace a water pipe that he knew to be defective.
3. In Cullinane v Owners Corporation 1 Plan No. PS434498R & Anor[14] DP Macnamara said

For the purpose of Section 16(1) a person can be regarded as having caused something by nonfeasance but only if the person was under a duty to take the steps which were, in fact, omitted.

1. In Mills v Rubenstein[15] SM Walker said

Of course, liability under the Water Act is not dependent upon the breach of a duty of care. It is strict, but the essential ingredients of the statutory cause of action must be established. To find that the Respondent has caused the flow by omission I must be satisfied that she was under a positive duty to do something and she omitted to do it.

1. In Fyson v Leederville Pty Ltd[16] SM Walker further said

That might arguably create a duty of care in the negligence sense and although this is a Water Act claim not based upon negligence it is at least arguable that to breach a duty of care to maintain such a facility which results in the escape of water and consequential loss, amounts to causing the flow of water that results within the meaning of s.16.

1. Again DP Macnamara stated in Body Corporate Strata Plan No. 405967 & Ors v Brady Constructions Pty Ltd[17]:

Where, as frequently occurs, the allegation is that the relevant respondent has 'caused' the unreasonable flow by omitting to do something, it is only if it can be shown that the respondent was under a duty to do what he omitted to do that he can be said to have 'caused' the relevant unreasonable flow of water and hence the loss and damage which results from it. A mere bystander owing no duty to anyone to intervene would not be regarded as having 'caused' an unreasonable flow of water merely because there were actions which he could have taken to avert it. Turner v Bayside City Council [2000] VCAT 399; (1999) 16 VAR 130, 135-6. In R108/05 the duty which was said to have obliged Brady to construct the development in a manner which would have avoided the flood in December 2003 was said to flow from its implied obligations as builder under a domestic building contract as imposed by the Domestic Building Contracts Act 1995.

1. Consequently, if the flow arose as a result of the want of repair of any part of the Respondents' property, it could be said that they had a duty to prevent the flow. However, under s 16(5) of the Water Act, the duty would only rise when they became aware of the want of repair and that it was causing an unreasonable flow. They would then have a reasonable time to investigate the matter and take reasonable steps to effect the repairs necessary to prevent the flow.

1. Liability for flows caused by works undertaken by earlier occupiers fall within s 16(5), which provides as follows:

(5) If the causing of, or the interference with, the flow (as the case requires) was given rise to by works constructed or any other act done or omitted to be done on any land at a time before the current occupier became the occupier of the land, the current occupier is liable to pay damages in respect of the injury, damage or loss if the current occupier has failed to take any steps reasonably available to prevent the causing of, or the interference with, the flow (as the case requires) being so given rise to.

1. The application of this section was considered in Connors v Bodean International Pty Ltd[18]

I consider that the words "steps reasonably available" includes a requirement that the current occupier has a sufficient and reasonable time in which to carry out those steps after being given notice or constructive notice of the unreasonable flow is imputed. Further, that their liability in the event of them not taking reasonable steps to cease the flow after such notice is limited to the time from which such steps should reasonably have been taken.[19]

1. In Leung v Harris[20] SM Walker said

In summary, the subsequent owner must, within a reasonable time after becoming aware of the existence of the flow of water from his land, investigate the problem, ascertain what positive steps are reasonably available for him to take in order to prevent the flow and take those steps. If he fails to do so, he will be liable for any injury, damage or loss suffered by the other party which would not have been suffered but for such failure. I should add that, so long as the flow is prevented, it does not matter how the subsequent owner does it.

1. Ms Lyall brings her claim against Element Five pursuant to s 16(1) of the Act. Her claim against Mr Walker is under s 16(5) of the Act.
2. Ms Lyall argues that the construction of the Development raised the soil level in Mr Walker's terrace. The raised level of the soil was above the level of the waterproofing in the Unit and there was no water proofing applied on Mr Walker's side of the wall. As a consequence, water is permeating through the masonry wall into the underfloor area of the Unit thus causing the water damage to the Unit.
3. Ms Lyall puts her claim as follows[21]:

7.... The water ingress has been caused by the works carried out to the courtyard area of Lot 9. The works included finishing the surface level of the courtyard at a level higher than the floor level of Ms. Lyall's unit with no measures taken to prevent moisture being transferred or penetrating through the boundary wall. The finished surface level of the courtyard is above the level of the waterproof membrane and cavity weep holes in the boundary wall of Ms. Lyall's unit.

1. No measures have been taken on the adjoining land to prevent a flow of water since notification of the damage to Ms. Lyall's unit, save for cleaning out of a surface drain and removal of constructed ends of that drain that had, until that time, prevented water flowing out the end of the drain.
2. There is an ongoing flow of water. The flow of water is unreasonable; could have been avoided; and has caused damage to Ms. Lyall's property.
3. To prevent a continuing flow of water and continuation of damage to Ms. Lyall's property, rectification work must be carried out and that will require works and access to be provided on and from Mr. Walker's property.
4. Ms Lyall contends that the perched water table relied on by Element Five and Mr Walker is not a feasible defence to the claim. She argues that it is not feasible because the base that forms the perched water table has been significantly disturbed and the catchment area reduced by the developments on both sites.
5. Ms Lyall argues that the clay layer which forms the base of the perched water table has been excavated and breached to such a significant extent that it cannot act as the base of the perched water table. Further, the open area which once acted as a catchment area to recharge the water in the perched water table has been significantly reduced by the construction of the buildings on both sites.
6. In summary, Ms Lyall argues that the perched water table did not impact the Unit and it is likely that it no longer effects the Development or the Unit and that the only possible cause of the water ingress into the Unit is horizontally through Mr Walker's courtyard masonry wall.

1. Element Five argues that the liability to Ms Lyall lies with Pace for breaching the warranties in the Domestic Building Contracts Act 1995 (Vic) when constructing the Unit rather than its liability under the Act. However, the 10 year limitation period under the Building Act expired in July 2016 leaving Ms Lyall without any recourse for the defective construction of the Unit.
2. Element Five as the builder of the Development argues that it is not liable for two reasons. Firstly, it says that the flow of water derives from a perched water table in the area which was present at the time the Unit was constructed and has not been interfered with by the Development. Alternatively, if the water flow which caused the damage is from lateral flow from Mr Walker's unit, then Element Five says it is not responsible. It puts its case in summary as follows[22]:

1. The uncontroverted evidence shows that the source of water and the flow which caused the damage to the sub floor space of the Unit 2 was a local natural perched water table. Unit 2 was constructed in the path of the perched water table, and the manner of its construction allowed water from the perched water table to enter the sub floor space. Element Five did not cause this flow. It had nothing to do with it. The flow into the sub floor space of Unit 2 commenced shortly after Unit 2 was constructed in 2006. On this basis the Applicant's claim against Element Five must fail. 2. Alternatively, if the Tribunal finds the flow which caused the damage was a lateral seepage through the land now constituted by the Second Respondent's court yard ... (which is denied), Element Five submits:

(a) When it took over the Site in 2013, the Site level in the area adjoining Unit 2 had already been elevated by 420mm by the previous builders (Momentum) to a level above the damp proof course of Unit 2[23]. In March 2014 it further elevated the surface level of the Site (the fill and pavers totalling approximately 150mm) in accordance with approved plans (referred to below in paragraph 40(b)); > > (b) There is no evidence that Element Five caused any flow before March 2014 (and it cannot logically be said to have caused any flow or any damage caused by a flow occurring before it undertook any relevant works in March 2014); > > (c) There is no evidence of any new flow causing any new damage to Unit 2 after March 2014 or that the elevation of the surface level in March 2014 caused any flow, or any further flow, which caused additional damage; > > (d) If there was a flow caused by it after March 2014 (which Element Five says is not supported by any evidence):

(i) There is no evidence that that flow caused any new damage. As damage is an essential element to relief under s. 16(1), a flow which does not cause any damage is not actionable under s. 16(1); and > > (ii) That flow was not a "not reasonable" flow for the purpose of s. 16(1) as, amongst other things, the works (the fill and pavers totalling 150mm which are alleged to have caused that flow) were authorised by the building permit;

(e) Any cause of action relying on damage occurring before November 2014 (6 years before the date of the commencement of the proceeding) is statute barred. There is evidence that the damage started to occur at or soon after 2006 and there is no evidence that any of the damage complained of first occurred after November 2014.

1. The second respondent adopted the submissions of Element Five.

1. Mr David Gough, a building consultant, and Mr Anthony Andreatta, a builder, were both engaged on behalf of Ms Lyall. Mr Gough prepared expert reports dated 19 January 2017, 12 August 2021, and 27 January 2022. Mr Gough also gave evidence during the hearing.
2. Mr Gough gave evidence that in his opinion it is the water seeping through the masonry wall above the damp proof watercourse that has caused the influx of water into the Unit's subfloor area.
3. The evidence from Mr Gough was to the effect that in his opinion the courtyard surface of Mr Walker's premises had been raised by 300 mm above the adjoining internal floor level and the wall against which all of that dirt and permeable paving was resting had not been properly waterproofed when Element Five undertook the Development.
4. In response to Mr Holt's opinion that the Unit's inverted T-beam provided a space for the water to penetrate the sub floor and pond (set out at paragraph 60 below) Mr Gough gave evidence that having investigated the area between the concrete footings and the inverted T-beam, he had identified a mortar fill in place which in his opinion would restrict any flow of water through that location. In his opinion, the mortar fill created a barrier to the water entry.
5. Mr Andreatta prepared tenders for the cost of undertaking rectification works for Ms Lyall in 2017, 2019 and 2022. Mr Andreatta also gave evidence during the hearing.
6. Element Five engaged Mr Timothy Holt, a Geotechnical Engineer, who prepared an expert report dated 3 March 2022 and who also gave evidence during the hearing. Mr Phillip Naughton also prepared expert reports on behalf of Element Five dated 26 July 2021 and 4 March 2022 (costings) and he also gave evidence during the hearing. Mr Walker relied on the expert evidence of Mr Holt and Mr Naughton.
7. Mr Holt gave evidence that in his opinion, it is the perched water table that has caused the water inundation of the Unit's subfloor.
8. In giving his evidence, Mr Holt explained how a perched water table is created and how such a natural phenomenon would affect the subfloor and construction of the Unit.
9. Mr Holt's evidence was that a perched water table exists throughout these sites between the upper level of the clay layer of soil which in most areas was at approximately 1m depth. When water hits the soil it flows easily through the sandy layer until it reaches the clay layer. It is above this layer of clay where a water table is then created. Such a water table is called a perched water table because it is not the natural permanent water table which exists below the clay layer of soil, rather it is perched in that area because it cannot penetrate through the clay rapidly enough and it therefore dissipates by finding other means horizontally in which it can then vertically descend through to the natural water table.
10. When the subfloor of the Unit was excavated it created a space for the perched water to flow to and fill. The construction of the Unit, using a T-beam floor support created a space for the water to penetrate the sub floor and pond thus creating the damp conditions creating the mould and deterioration of the subflooring of the Unit. Mr Holt's diagram explaining the effect of the perched water table is attached at Appendix A.
11. Mr Naughton gave evidence that in his opinion the Unit was subject to water penetration from a perched water table from the time of the excavation of the Unit.

1. Hardrock Geotechnical prepared a geotechnical report for Pace in 2005 prior to the construction of the Unit. In that report, Hardrock Geotechnical identified the existence of a shallow perched water table above the permanent groundwater table at the location where the Unit is located. This report also provided construction advice for developing the site with the perched water table.[24]
2. Element Five argues that in 2006 when Pace constructed the Unit, it was aware of the perched water table however, it appears to have failed to follow the advice set out in Hardrock Geotechnical's report. Further, Element Five argues that Pace did not provide adequate waterproofing to the northern boundary wall, did not support the external northern boundary wall by concrete footings but rather installed an inverted T beam resulting in a gap through which the subsurface water has flowed and the subfloor of the Unit has effectively operated as a pond for the collection of the subsurface water which has no means of escaping from under the subfloor. In addition, there is an absence of any subfloor ventilation.

1. At the conclusion of the hearing I conducted a site inspection. It is clear that the subfloor of the Unit has been substantially damaged by water ingress.
2. At the time the Unit was constructed, Pace was aware of the perched water table and Hardrock in its geotechnical report identified the perched water table and provided advice as to how to manage the perched water table and the construction of the Unit. This advice was not followed and the Unit was constructed without subfloor ventilation, waterproofing or drainage. As noted by Mr Gough, the construction of the Unit by Pace was "extremely poor, bordering on negligent"[25] and facilitated water ingress.
3. Ms Lyall's tenant's email of complaint dated 19 September 2016 to the agent (which was passed onto Ms Lyall) suggests that, in the tenant's opinion, when considering various matters "in retrospect", there were various factors (mould in bathroom, lower temperatures), that indicate a problem existed for "some period of time" prior to that email. The tenant also refers to[26]

large mould patches are also visible in the underground car park..., so there must be mould present downstairs which is adjacent to the rear bedroom of my tenancy.

1. This correspondence from the person actually living in the Unit indicates that the mould and more particularly the ingress of water in the sub floor had existed for some time prior to this email being sent. No evidence was led by Ms Lyall about the frequency of any routine inspections being undertaken by the managing agent or of any maintenance undertaken which indicated that at an earlier date there was no water infiltration.
2. In the light of the visible substantial timber degradation to the subfloor area by the time Ms Lyall's tenant raised the mould issue in late 2016, the evidence of Mr Holt and Mr Naughton was that it was likely that the wood deterioration started in or soon after 2006 (as a result of the inflows from the perched water table) rather than from 2014 (when Element Five undertook the works complained of), particularly as the sub floor timbers were untreated pine.
3. Neither Ms Lyall nor Element Five or Mr Walker led any evidence about the rate of decay of untreated pine and the impact of water on untreated pine. Therefore there is no evidence on which the Tribunal can rely in order to understand how long the water ingress would have been occurring in order to have caused damage to the extent visible at the Unit.
4. Having said that, Mr Holt and Mr Naughton both gave evidence that in their opinion, damage to the extent suffered in the Unit by 2016, would take longer than 1-2 years to have occurred. Mr Gough did not disagree with this proposition. I therefore find on the balance of probabilities and in the absence of any evidence to the contrary that the subfloor damage caused by water ingress at the Unit took longer than 1-2 years to occur. That is, the damage predated the construction of the Development in 2014.
5. The existence of the perched water table is a matter of geological fact and opinion. Mr Holt is the only expert witness who was qualified to give evidence about the hydro-geology of the area, the Development and the perched water table. While the building consultants were able to give evidence about construction and building issues, neither building expert was qualified to contradict the evidence of Mr Holt.
6. There was no contrary evidence called on behalf of Ms Lyall to challenge the opinions of Mr Holt.
7. In giving his evidence, Mr Holt was confident that the inflow into the Unit was from the perched water table, that the inflow would have occurred irrespective of the works by Element Five and that the actual level of the finished surface in the Mr Walker's courtyard is not relevant to the inflow.
8. I accept the evidence of Mr Holt that the perched water table is the source of the water ingress into the Unit's subfloor. I also accept his evidence that none of the construction works at the Development interfered with or altered the perched water table to cause a flow of water to the Unit which did not previously exist.
9. Mr Holt and Mr Naughton each independently gave evidence that the flow from the perched water table entered the sub floor space and started to cause damage in the period shortly after the Unit was constructed in 2006. They point to the ingress point (gap) under the T beam as an unusual and extraordinary approach by Pace Constructions to the construction of the Unit, and which allowed an unobstructed ingress point into the sub floor space. They also point to the natural contours of the land which direct the flow of water from the perched water table towards the Unit.
10. I find that the perched water table was a pre-existing geological phenomenon which ought to have been taken into account when the Unit was constructed. The perched water table is a natural flow of water and its ingress into the Unit has not been contributed to or aggravated by the construction of the Development. I therefore find that the flow of water is reasonable and not contrary to s 16(1) of the Act.
11. Further, I find that neither Element Five nor Mr Walker caused the flow of water which caused the damage to the Unit.
12. Having found that the cause of the water ingress is from the perched water table, and neither Element Five nor Mr Walker have caused or unreasonably interfered with the flow of that water, I do not need to consider the other matters raised by the parties including whether the claim is barred by reason of the Limitation of Actions Act 1958 (Vic).
13. Nor do I need to consider the heads of damage claimed and the quantum of such damages and whether Ms Lyall has mitigated her loss.
14. Accordingly, I will make orders dismissing the application against both respondents.

[1] As set out in the Mould Pro Report dated 8 November 2016 and the Just Inspections Report dated 10 November 2016.

[2] Section 134 of the Building Act 1993 (Vic).

[3] Coles Myer Limited v City West Water Limited [1998] VSC 63.

[4] [2007] VSC 423.

[5] [2007] VSC 423 at para 30.

[6] For example, there may be an easement of drainage, whether under an express easement or an easement implied by s 98 of the Transfer of Land Act 1958 (Vic) or s 12(2) of the Subdivision Act 1988 (Vic). See James v Christou [2020] VCAT 563.

[7] A certain amount of runoff of surface water is to be expected from paved surfaces, particularly in an urban area. It is usually reasonable to pave your driveway but it might be unreasonable not to provide for drainage if the runoff to your neighbour's property is to be more than minimal.

[8] [1998] VSC 157.

[9] [1998] VSC 157 at [18].

[10] Turner v Bayside City Council [2000] VCAT 399 at [16].

[12] [2018] VCAT 204 at [7].

[13] [2019] VCAT 712.

[14] [2013] VCAT 608 at [75].

[15] [2016] VCAT 586 at [103].

[16] [2013] VCAT 1748 at [22].

[17] [2006] VCAT 2678 at [34].

[18] [2008] VCAT 254 at [51].

[19] The approach taken in that case has been adopted and applied in a number of other cases before the Tribunal (see for example: Sidoti v Owners Corporation 633715B [2016] VCAT 1880; Mills v Rubenstein [2016] VCAT 586; Leung v Harris [2018] VCAT 1630; Davies v Owners Corporation 1 PS414649K [2019] VCAT 1159.

[20] [2018] VCAT 1630.

[21] Applicant's closing submissions dated 20 May 2022 at [7]-[10].

[22] First respondent's closing submissions dated 20 May 2022 at [9] - [10].

[23] The Applicant claims the damp proof course is at RL 33.74. This is 350mm below the surface level left by Momentum at RL 34.09.

[24] The Hardrock report identifies Pace as its client and records that the site work for the report was undertaken on 26 August 2005. A copy of this report is at Appendix 5 of the report of Mr Tim Holt dated 3 March 2022 and at Attachment G of the report of Mr Phillip Naughton dated 4 March 2022. The existence of the perched water table is also verified by a report dated 29 August 2011 by AS James who was engaged by the original developer of the adjacent Development.

[25] Gough expert report dated 19 January 2017 at TB 43.

[26] Email dated 19 September 2016 at TB265-266.