65 Mr Quick gives evidence that on 9 November 2004 the fence on the southern boundary of the Quick Property was knocked over following heavy rainfall (Mr Quick notes the rainfall on that occasion as being 62mm). Mr Quick says that on at least 12 occasions since May 2004 the cattle paddock has flooded and that on a number of occasions the fence on the boundary of his property was knocked over. When cross-examined in relation to the flooding which had occurred, Mr Wilson did not deny that the No 1 water retention dam had 'overtopped' on around a dozen occasions over the period. Nor is it denied that there was damage occasioned to the boundary fences on the Quick Property over the relevant period. (In cross-examination Mr Knox agreed that at one stage an offer had been made by the defendants to meet the cost of repair of the fence. That offer was apparently coupled with a condition that Mr Quick withdraw his threat of legal action and was not accepted by Mr Quick. Mr Knox agreed that no further such offer had been made.)
66 By December 2004 or early 2005, some of the nursery operations on the Alpine Nursery land had commenced. Mr Rolfe gave evidence that commencement of those operations had taken place before the completion of all aspects of the development (for cashflow purposes) and that this is what had led, at least indirectly, to the blue-green algae outbreak in May 2005.
67 Mr Quick gave evidence that in January 2005, there was further flooding of the southern or cattle paddock. (In general, there was no contest by the defendants as to the evidence given by Mr Quick in relation to the occasions on which the paddock had flooded, and I accept his evidence that it did flood on those occasions. There was, however, a contest as to whether the flooding was due to the development of the Alpine Nursery land or whether it was simply a natural consequence of the topography of the area itself.)
68 On 11 February 2005, the Council wrote to the defendants requesting an explanation as to why consent had not been obtained before the undertaking of earthworks in the 7(c) water catchment zone. That letter referred to those as being for an amenities office and a small shed. Reliance is placed by Mr and Mrs Quick on this letter (p 149 Vol 6 Ex D) as indicating non-compliance with the Council's requirements. The defendants' response, which is at p152ff in the same volume, explained the circumstances in which flooding had occurred in January 2005, denied non-compliance in the main with the Council's requirements byt acknowledged a need to be more conscious of the need to maintain adequate air space in the dam to allow for any future significant rain events and confirmed that instructions had been given for this to occur at all times in the future.
69 In March 2005, four cows owned by Mr and Mrs Quick's neighbours died. There is no evidence as to the cause of death. It seems that Mr and Mrs Quick infer that this was in some way caused by the cattle drinking polluted water from the dam and that this polluted water came from the Alpine Nursery (since otherwise its relevance to anything in the proceedings would be difficult to imagine). (Given that there was a similar algae outbreak two months later in the No 1 water retention dam, it is certainly conceivable that water containing such algae could have flowed to the Quick Property if the dam had overflowed in that period. The cattle might, however, have died from any number of contaminants from a variety of sources or otherwise.) I cannot see how any relevant inference could be drawn from the death of the cattle (there having been no testing of the water in the dam and no admissible evidence as to the cause of death of the cattle). In fairness to Counsel for Mr and Mrs Quick (Mr Philips), I should note that I was not asked to draw any such inference and I do not do so. (In any event, as discussed later, I do not consider that any claim in nuisance based on the water quality as it arrived on the Quick Property can be maintained in light of the fact that there is no pleading to that effect.)
70 On 24 March 2005, Mr Quick sank a bore on his property. It was apparently operational when first installed but then failed. Mr Quick blames the fact that it does not now operate on the activities of the defendants on the Alpine Nursery land. This was an issue considered by the two experts and I consider it later. Again, however, I do not consider that any claim in nuisance based on the reduction of subsurface water percolating through the Quick Property can be maintained in light of the fact that there is no pleading of nuisance in that regard.
71 In May 2005 there was an outbreak of blue/green algae in the area. Tests showed the presence of such algae in both the cattle dam and the No. 1 water retention dam. A notice was issued on 17 May 2005 under s 96 of the Protection of the Environment Operations Act. Mr Rolfe explained the circumstances in which that algae outbreak occurred - he says it was due to the lack of available power to operate an aerator in the dam (that lack of power not having been anticipated at the time the nursery operations commenced). Mr Rolfe also explained the manner in which that outbreak was treated by 'environmentally friendly' pesticides. Since then the only evidence of elevated microcystis levels (indicating the presence of blue-green algae) has been in connection with dams 2 and 3 (although there was some suggestion of toxicity in April this year. There is, however, no suggestion of any further outbreak of blue-green algae in dam 1 and there was evidence of a more rigorous testing programme at least since 2009 in relation to water quality leaving the Alpine Property and on every occasion after an overflow from the dam, none of which indicated a problem with water quality.
72 It was put to the defendants' witnesses in cross-examination that it was the direction from the Council to take preventative action in relation to the May 2005 algae outbreak that had led to the preparation of the first Irrigation and Drainage Management plan for the retention and storage of water on the nursery. That was not accepted by the defendants. According to Mr Fitzgerald, there was testing carried out prior to the implementation of the water testing regime the subject of the respective management plans but this testing seems to have been confined to the water in the No 1 dam and to be more limited than the programme that has been in place since 2009. (Of course, at the outset there was only the one water dam so it is hardly surprising that the testing regime would not have been as comprehensive at that stage.)
73 The initial Irrigation and Drainage Management Plan referred to the three main criteria that had been considered in developing the Alpine Nursery property: first that the groundwater aquifer was relatively shallow and could possibly be contaminated; secondly, the conditions and licence in relation to use of water and the way it was or could be drained off the property; and thirdly, the shallow excavation of the land was not a reliable water supply so that works had to be undertaken to ensure a reliable water supply to be used as part of the development based on the natural use which could be made of the land.
74 In November 2005, the Council caused alterations to be made to the design of the Ellis Road culvert, extending or adding concrete wings to the points at which water flows in and out of the culvert. That alteration was the subject of complaint from Mr and Mrs Quick, who asserted that it had increased the flow and concentration of water onto their property. At the very least this suggests an alternative or additional cause for the flooding of the Quick Property the subject of the present complaint (which weakens any inference that might otherwise be available as to the cause of the current state of the southern paddock on the Quick Property).
75 In the early part of 2006, earthworks were commenced for the construction of a levy bank along the eastern ridge of the property. This was apparently for the purpose of preventing silt travelling from the eastern property being deposited on the Alpine Nursery land. Objection was taken by the Council to these works (by letter of 21 April 2006 referring to a site inspection in late March 2006).
76 On 19 May 2006, a further development application was lodged by the defendants for earthworks and the construction of new growing areas to the south of the existing development (those being the areas from the top of the property and including the area in which dams 2 and 3 now stand). It was asserted in the pleading that this application acknowledged the detrimental consequences of the existing development on water flow from the property. Certainly, the development application referred in terms to "the issue has been too much water, not the reverse" and acknowledged the abundant water directed to the culvert in front of the Alpine Nursery Property bordering Ellis Road and that it had been a focal point for waters flow in times of heavy rainfall.
77 On July 2006, Council gave its consent to the second development application and the remaining nursery areas were built.
78 The ridge or levy bank on the eastern side of the Alpine Nursery (running alongside the driveway to the property) assumed some significance during the course of argument and is of some relevance for at least two reasons.
79 First, on inspection of the Alpine Nursery property during the view, it was pointed out to me that the soil under the black plastic covering the production beds on the downhill slopes of the Alpine Nursery was not of the same bright red colour as that visible on some of the DVD footage taken by Mr Quick during rainfall events but that the soil which had been trapped by the silt curtain at the bottom of the Sultana property was of that colour. Thus it seems reasonable to infer that any reddish water flowing onto the Quick Property through the Ellis Road culvert (as shown on the DVD footage) must have originated from the Sultana property or other properties to the south east of the Quick Property (not the Alpine Nursery land), which supports Mr Kerr's submission that water from a variety of sources (not just the Alpine Nursery land) converges on the Quick Property during rainfall events.
80 Secondly, the effect of the ridge (as also evident from the DVD footage) seems to be that rainwater from the Sultana property (and perhaps others to the east or south east of the Alpine Nursery land) is channelled down the eastern side of the Alpine Nursery land (and, ultimately, through the 'silt curtain' into the grass swale at the bottom of the Alpine Nursery land running parallel to Ellis Road) rather than flowing either across the production pods on the Alpine Nursery land and then down the slope facing Ellis Road (as Mr Dey said it would) or down the Alpine Nursery driveway (as Mr Rolfe said it would).
81 In either case, the water would end up at the Ellis Road culvert and thus at the entrance to the southern paddock on the Quick Property. The only logical difference would seem to be the speed or concentration of the flow of water as it reached the culvert. There were conflicting views as to what effect that would have. As I understand Mr Dey's reports, he considered that this would have the effect that there was less opportunity for water to be absorbed across the expanse of the Alpine Nursery land (though in a heavy rainfall situation the absorption capacity of the soil would be reduced in any event so that the difference in area over which the water could naturally be absorbed is of less significance). Mr Rolfe, however, gave evidence that before the construction of the levy bank water flowing from the Sultana property ran down the driveway (and would be likely to do so more quickly than down the grassed swale or depression alongside the levy bank). In the absence of evidence as to measurement of the rate or flow, it is difficult to draw any final conclusion from this. Suffice it to say that Mr Dey's own evidence seems to suggest that there is no material adverse impact of the concentration of the water in either heavy or intermediate rainfall conditions and given the evidence of Mr Rolfe as to the pre-Alpine Nursery development flow of water from the eastern properties down the driveway rather than across the slope now covered with the nursery beds, the plaintiffs have not established any materially more concentrated flow by reason of the levy bank.
82 In any event, whatever the effect of the levy bank on the velocity or concentration with which water flowing from the Sultana property and others to the south east of the Quick Property arrives at the Ellis Road culvert, the pleading does not refer to the construction of the levy bank or ridge as part of the change in conformation of the Alpine Nursery land said to have caused the nuisance. Thus even if there has been an increase in the water flow or concentration of water referable to the construction of the levy bank or ridge, it is one about which complaint cannot now be made having regard to my findings below on the pleading points. Further, as Mr Kerr submitted in answer to the concerns I had raised as to the effect of the levy bank, there is no hydrological evidence from which I could reach a conclusion as to the effect on the Quick Property of any increase in the velocity or concentration of that water flow by reason of the construction of the levy bank (or otherwise).
83 Mr Quick gave evidence that in 2008 there were three occasions when the No 1 water retention dam overflowed (4 January, 20 April and 25 July 2008). He also gave evidence as to the occasions in 2009 when there was an overflow. Evidence as to historical rainfall records over the period was produced by Mr and Mrs Quick, including an affidavit by a neighbour (Mr John Ellison), which was not challenged by the defendants. During the hearing I gave leave, over Mr Kerr's objection, to the filing of an affidavit by Mr Quick updating the rainfall records. On average it seems that there have been two to three occasions each year over the past five years in which the rainfall has been of a volume which is categorized as an extreme rainfall event (that description relating to the amount of rain falling during a particular time period and not referring to the frequency or rarity of the rainfall event).