Rifai v Woods

State of the properties and the wall

1. On the first day of the hearing, pursuant to s 53 of the Evidence Act 1995 (NSW), the Court conducted a view of the properties. In attendance were the parties themselves, the Woods' legal representatives, and two of the four expert witnesses who gave evidence at the hearing, namely, the defendants' Mr Peter Blacker, structural engineer, and the plaintiffs' Professor James Ball, civil and environmental engineer.
2. The view commenced at the Rifais' backyard where various features traversed in the evidence were pointed out and are described in more detail below. Their location is also depicted in the picture below, which is a modified version of a picture in evidence.
3. The wall is made of timber logs and is evidently porous. It runs along the whole of the boundary between the properties. It is approximately 1.2 metres in height from the ground to the top. The depth of the piers supporting the logs is unknown. The experts agreed that to determine their depth would require excavation of the foundations, threatening the integrity of the wall.
4. A metal dividing fence has been constructed atop the wall.
5. Both properties were created as part of a development involving a subdivision of a larger piece of land. As part of that development, a 2-metre wide water drainage easement was created for the benefit of Number 47 and burdening Number 49. Number 49 has the benefit of a water drainage easement through to other properties downhill from it. The drainage easement runs along the back of Number 49's backyard. On the corner of Number 49's backyard next to the wall is a shed sitting on a concrete slab.
6. While it does not matter, the best evidence of why the wall was built is from one of the experts, Mr Wiekens, who considers it is likely that extra fill was added to Number 47 which led to the construction of the retaining wall.
7. The basketball court appears to be constructed on a concrete slab with porous perforated plastic tiles on top. The court gently slopes towards some "ag pipe" next to the swimming pool surround. That pipe runs towards the back of the Woods' property. The end of the pipe sits on the surface of the ground. It was not, for example, directed towards the drainage easement on Number 49.
8. There is a drainage grate near the southeastern corner of the pool. The grate is connected to a 900 millimetre stormwater pipe which runs to the curb and gutter on the street in front of Number 47. Water from the Woods' southern roof gutters and overflow from the pool can enter the drain and the pipe. Stormwater from the northern roof drains through pipes around the pool towards the drainage easement. A disconnected downpipe on the northern side was observed, but there was no evidence as to why it has been disconnected.
9. The swimming pool and its hard surround is located right next to the boundary and above the level of the top of the wall. At the end of the pool closest to the boundary is a slippery slide of about 1.5 metres tall that allows users to slide and splash into the pool. It is not in dispute that until about December 2021 water splashing out of the pool flowed across the hard surface around the pool, primarily across the wall into Number 49. On about 4 November 2020, the local council suggested to the Woods that they could prevent pool water overflow entering Number 49 by installing a small brick "lip", which was done by the Woods in about December 2021. There is no dispute that, despite the lip, some water splashing from the pool continues to flow across and through the wall, however it appears in a lesser amount.
10. An inspection pipe is located near the pool skimmer box, in which water could be seen. This is considered below.
11. Also observed was the wet ground near the wall on Number 49. Seeping water was seen coming through the wall and around the location of the pool.

Nuisance

1. The law of private nuisance seeks to balance the interests of one land owner using their land as they see fit, and the interests of another land owner, whose use and enjoyment of their own land is interfered with because of the other's actions: Bayliss v Lea (1961) 62 SR (NSW) 521 at 529 (Owen J, Ferguson J concurring), citing Fleming, The Law of Torts (2nd ed, 1961, Clarendon Press) at 362-363.
2. A private nuisance is a continuous or recurrent state of affairs: Hargrave v Goldman (1963) 110 CLR 40 at 59 (Windeyer J). To establish private nuisance, the state of affairs must amount to or involve a material and unreasonable interference with a plaintiff's use and enjoyment of their land: Brown v Tasmania (2017) 261 CLR 328 at [385] (Gordon J); Gales Holdings Pty Ltd v Tweed Shire Council (2013) 85 NSWLR 514 at [138] (Emmet JA, Leeming JA and Sackville AJA agreeing) (Gales). A material and unreasonable interference can include both physical damage to property and non-physical damage: Quick v Alpine Nurseries Sales Pty Ltd [2010] NSWSC 1248 at [167] (Ward J).
3. The question whether an interference is material and unreasonable requires the Court to make a value judgment in the circumstances: Southern Properties (WA) Pty Ltd v Executive Director of the Department of Conservation and Land Management (2012) 42 WAR 287 at [119] (McLure P, Buss JA agreeing). In making this judgment, regard must be had to "plain, sober and simple notions among ordinary people", as well as to "the character of the locality in which the inconvenience is created and the standard of comfort that those in the locality may reasonably expect": Gales at [138]. In this respect, allowances must also be given for a certain amount of "give and take" between neighbours: Gales at [138].
4. Liability for private nuisance is established if the defendant created, adopted or continued the state of affairs which constitutes the nuisance unless the defendant's conduct involved "no more than the reasonable and convenient use of its own land": Gales at [131]. The "reasonable and convenient" user defence has been variously described in terms of whether the defendant's conduct was necessary for the common and ordinary use of the land or a natural use of land: Gartner v Kidman (1962) 108 CLR 12 at 45 (Windeyer J) (Gartner). The proper question to ask to determine whether a particular use is reasonable and convenient is whether the use "is reasonable according to the ordinary uses of mankind living in society, or more correctly in a particular society": Elston v Dore (1982) 149 CLR 480 at 488 (Gibbs CJ, Wilson and Brennan JJ) (Elston) citing Sedleigh Denfield v O'Callaghan [1940] AC 880 at 903-904 (Wright L).
5. Various authorities consider the principles of nuisance in relation to the flow of water between properties. In Gales, Emmett JA observed at [135], citing Gartner, that a higher proprietor of land is not liable for nuisance merely because surface water flows naturally from its land to the lower land. However, a higher proprietor may be liable in respect of water artificially concentrated on its land and allowed to escape, as well as surface water which the defendant has caused to flow onto lower land in a more concentrated form than it otherwise would. Whether liability exists in these circumstances depends on whether the flow is or is not a result of a natural use of the defendant's land: Gales at [135].
6. The relevant principles in cases of water nuisance were also considered by the Court of Appeal in Corbett v Pallas (1995) 86 LGERA 312 at 315 (Priestly JA, Mahony and Meagher JJA agreeing) (Corbett): 1. Where the nuisance alleged is damage caused by water entering the plaintiff's land it is sufficient in order to establish a prima facie case for the plaintiff to allege and prove that material damage to his property has resulted from an increase in the flow or percolation of surface water due to the defendant's act in altering the conformation of land in the course of the defendant's use of it. 2. It is not for the plaintiff to allege or prove unnatural or unreasonable use of the land by the defendant. 3. So far as the conformation of the land is altered in the course of some specific use which may avoid liability, the burden of proof is on the defendant to allege and establish it as a distinct defence. 4. Unreasonable use is not an ingredient of the cause of action but certain types of user may amount to a "natural" and reasonable user of the land and afford a defence. 5. Whether a particular user of land is "natural" must be determined reasonably having regard to all the circumstances, including the purposes for which the land is being used and the manner in which the flow of water was increased.
7. Water nuisances aside, fault of some kind is generally necessary to establish liability for nuisance: Elston at 487-488 (Gibbs CJ, Wilson and Brennan JJ). The type of fault required appears to depend, in turn, on whether the defendant has created the state of affairs which constitutes the nuisance, or continued or adopted that state of affairs.
8. In cases where a defendant created the nuisance, the fault requirement appears to be that the material interference with the plaintiff's use and enjoyment of their land was reasonably foreseeable: see eg Overseas Tankship (UK) Ltd v The Miller Steamship Co Pty Ltd [1967] 1 AC 617 at 639 (Reid L); Gales at [139]; Hunt Leather Pty Ltd v Transport for NSW [2023] NSWSC 840 at [663] (Cavanagh J). In cases where the defendant has continued the state of affairs which constitutes the nuisance, the fault element is satisfied if, with the knowledge or presumed knowledge of the state of affairs, the occupier fails to take reasonable steps to bring it to an end despite having had ample time to do so: Gales at [131].
9. There are various types of water involved in this dispute, namely, stormwater, pool water overflow, and pool water leakage. Each is considered separately below as each can amount to a separate nuisance.
10. Before applying the above principles, it is therefore necessary to determine what water flows onto Number 49 from Number 47 and the reasons for that. It is also relevant that the experts accepted that every landowner is responsible for drainage of water within their own property. As Mr Wiekens put this, "No drainage is to cross any individual's properties."

Stormwater

1. Having seen Mr Rifai's videos, I accept that stormwater flows from Number 47 to Number 49 during inclement weather and that the intensity of the flow increases with the severity of the weather.
2. However, the Woods submit that the topography of the land is the sole cause of the flow of stormwater from Number 47 to 49, whereas the Rifais submit that the primary cause is inadequate drainage systems on Number 47.
3. To support the submission that the flow of stormwater is primarily caused by an inadequate drainage system on Number 47, the Rifais rely on the expert evidence of Professor James Ball and plumber, Mr Luke Galea.
4. Professor Ball's expert opinion includes the following: 1. Before the Woods built the pool, stormwater runoff from the southern part of the roof of Number 47 would have drained to two drainage tanks, with overflow from them draining through a pipe in the drainage easement. The stormwater from the northern part of the roof drains towards that drainage easement. 2. When those drainage tanks were removed and the improvement works were completed, stormwater runoff from the southern portion of the roof was funnelled through a new stormwater pipe, which ran to the kerb and gutter on the street, instead of through the drainage easement. 3. The drainage grate near the swimming pool also connects to this new stormwater pipe. 4. The stormwater pipe is 900 millimetres in diameter and was laid at a grade flatter than 1% despite the fact that relevant industry standard AS 3500 would have required a wider stormwater pipe to be used and to be laid at a grade steeper than 1%. 5. Because the stormwater pipe is small in diameter and laid at an improper gradient, stormwater from the southern portion of the roof is likely to flow out of the surface grate instead of draining to the kerb and gutter on the street. The egress of stormwater from the surface grate is likely then to flow from Number 47 to 49. 6. This problem has likely been made worse by the construction of impervious surfaces in the vicinity of the swimming pool which would funnel further surface water, including pool water overflow, towards the drainage grate and because of the pipe's inadequacy ultimately into Number 49.
5. Professor Ball was a credible witness. I consider he has the appropriate expertise to give evidence on these matters. His evidence was not meaningfully challenged by the defendant's expert, Mr Peter Blacker, who did little more than assert, without engaging in the substance of Professor Ball's evidence, that he had not been "supplied with proof of a pipe in the easement" and was "not aware of any problems with the grate". As elaborated on more fully below, Mr Blacker also at times ceased being an expert witness assisting the Court, and adopted the role of an advocate for the Woods.
6. In these circumstances, I accept Professor Ball's evidence as to the most likely causes of the flow of stormwater from Number 47 to Number 49.
7. Unfortunately, the Woods' legal representatives did not indicate to Mr Rifai, who was self‑represented, when it was likely cross‑examination of Mr Galea would take place. All of the originally scheduled hearing days were exhausted with other evidence. I, and perhaps Mr Rifai, understood that because no cross‑examination of Mr Galea had occurred, that the Woods did not challenge his evidence. However, during closing submissions when I raised that issue, the Woods' counsel submitted that Mr Galea's evidence ought to be disregarded because he was not made available for cross‑examination. However, the Woods accepted that there was no prejudice to them if Mr Rifai was allowed to re‑open his case to call Mr Galea and for him to be cross‑examined, which then occurred.
8. Mr Galea's evidence was also to the effect that the stormwater drainage on Number 47 is defective, because: 1. The northern stormwater system was "blocked" near the pool on the Woods' property. 2. The southern stormwater system leading from the pool grate is "bad plumbing", because it constantly holds water and has not been built as a "charge drainage system".
9. The Woods objected to any weight being placed on Mr Galea's evidence on the basis that in cross‑examination he indicated he did not know what the "expert code of conduct" was. However, attached to his 10 January 2024 affidavit, which was served at the latest on 18 March 2024, the code of conduct was attached and his evidence was that he adopted it and agreed to adhere to it. Mr Galea was not taken to that affidavit, nor the copy of the expert code of conduct. I do not accept that Mr Galea did not understand his obligations to the Court. I considered him a careful witness, who attempted to answer all the questions asked in a frank and candid way. I consider it appropriate to have regard to Mr Galea's evidence as expert evidence. However, to a large extent Mr Galea's evidence was factual rather than expert evidence, including, for example, the evidence of what he observed and the attached video images of the blocked stormwater pipes, or water being held in stormwater pipes. However, even if I did not have regard to Mr Galea's evidence, I consider that Professor Ball's evidence is sufficient to demonstrate inadequacies within the Woods' stormwater systems.
10. I do not consider relevant the Woods' evidence about stormwater issues in respect of their common boundary with their neighbour at Number 45, which they say they rectified by the installation on their land of a strip drain to capture stormwater. I do not accept that the topography between the various neighbours is the same, and further, I was not presented with any evidence of the existing drainage or improvements on number 45. As such, I do not consider a relevant comparison is available on the evidence.

Pool water overflow

1. As noted above, the evidence demonstrates that until December 2021, when a brick lip was installed, pool water overflowed in reasonably large quantities into the Rifais' property, over and through the wall, when the pool was being used and also when there were extreme weather events.
2. Since December 2021, the quantity of pool water entering the Rifais' property when the pool is being used has reduced. However, it is not possible on the evidence to quantify the difference in quantity, and the water has in any case not ceased entirely. Videos taken after the installation of the lip continued to show water flowing into Number 49, when the sound of people using the pool could be heard. The lip has not contained all overflowing pool water during extreme weather events either.
3. Professor Ball's evidence was that the lip was insufficient to prevent pool water overflowing into Number 49, because while the lip caused some splashed water to be redirected back into the pool, water also escaped around the sides of the lip. In his opinion, the lip ought to be extended to reduce that possibility.
4. Professor Ball also commented on the inadequacy of the Woods' drainage system to deal with overflowing pool water. Typically, for drainage in the vicinity of pools, the backwash from a pool filter and flows arising from excess water in a pool would be drained through the sanitary sewer system while those flows generated on the impervious surfaces surrounding a pool would be drained through the stormwater system. However, there may be an issue with [the Woods'] pool drainage. The pool filter is a cartridge style filter and therefore does not require a backwash to waste (sanitary sewer) for cleaning. For many pools, pool water used for backwashing (cleaning) of the filter is discharged to the sanitary sewer. This provides a capacity to also drain the pool when it is over-filled due to, for example, storm events. When there is a need to drain the pool using this approach, the filter is by-passed and the pool water is pumped directly to the sanitary sewer. For the pool at [Number 47], the absence of a need to provide capacity for backwash flows to the sanitary sewer means an alternative approach for removal of excess water from the pool is required. When asked during the February 2023 site visit this alternative was unknown… … I agree with [Mr Blacker] that the excess rainfall that occurs on the pool itself should be conveyed to the sanitary sewer system through the filter backwash system. However … the cartridge style filter used at [Number 47] does not require a fixed backwash system. The absence of the backwash to waste (sewer) means an alternative means of water removal from the pool is required. … My view is that the runoff from [the impervious areas surrounding the pool] will be discharged using the stormwater system via the surface grate located at [at the edge of the pool area]. … Surface runoff from the impervious areas surrounding the pool were not included in my calculations demonstrating the inadequacy of the existing stormwater system. My expectation of these flows in the calculations will amplify the inadequacy of the existing system.
5. I accept that, because there is no drainage from the pool to the sewer, the only possible avenues for flow of excessive water are through the stormwater drainage or downhill to Number 49.
6. I accept Professor Ball's opinion that the stormwater drainage is insufficient even for stormwater, before overflow pool water is considered in addition.
7. I note that in one of the videos in evidence, a person on Number 47 could be heard speaking and explaining he was washing the pool filter with the hose. It could be seen that water was flowing into Number 49 and not being captured by the lip or the grate.

Pool water leakage

1. The Rifais also point to the constant stream of water flowing through the wall at the site directly behind the pool. This seeping or stream occurs even when the pool is not in use.
2. Another one of the Rifais' experts, Mr Wiekens, gave evidence relevant to this state of affairs. Mr Wiekens is a senior project manager with extensive experience with utilities projects around the world. I am satisfied that he had requisite expertise to provide opinions about the drainage and structural improvements on the Woods' property. In his March 2023, report Mr Wiekens gave an opinion, supported by diagrams and explanations, that there is an issue with the sealing of the pool tiles such that water seeps between the inside top of the pool and the impervious tiles around the pool. Such water would logically travel downhill towards Number 49.
3. Mr Wiekens explained during cross‑examination: Now, there's also an issue with the sealing of the pool, and I've seen many photos where the levels of the pool were just below the tiles. Now, if we have a 10 mil or 20 mil rain event, the pool's not going to go up in height, but it's going to go through the pavers to the neighbouring property because it's not sealed. Now, I went to the neighbouring property to have a look at this, and there's no seal between the pavers and the pool itself. Again, if we have 10 or 20 mil rain event, it's going to go between the pavers to the neighbouring property.
4. Mr Blacker did not engage in his written report with Mr Wiekens' opinions about the pool leaking. In cross-examination, he did not accept there was a lack of sealing based on his assumption of how the pool ought to have been constructed: Well they're not exactly pavers, they're large tiles and they'd be glued down, so they'd be sealed underneath, and then they were grouted in between, so to my understanding there'd be virtually no gap between any of those, as Mr Wiekens calls them, pavers. I can't imagine virtually any water getting across 1 metre of tiled and grouted tiles before, you know, to get through, so I can't see that as being a problem.
5. However, Mr Blacker did not actually engage in his answers with Mr Wiekens' report, nor had he examined the adequacy of the pool's sealing in person.
6. Further, I generally prefer the evidence of Mr Wiekens over that of Mr Blacker. Mr Wiekens was a careful witness who made appropriate concessions where appropriate. Also, in my view, Mr Blacker at times ceased being an expert assisting the Court and became an advocate for the Woods. I give the following examples: 1. In response to a question from Mr Rifai as to whether damage to the retaining wall had been caused by water seepage Mr Blacker changed the subject and instead said to Mr Rifai, "you should have had a path and drainage down your side". 2. Mr Rifai asked Mr Blacker to assume that various development conditions for the pool construction had not been met and on that assumption asked whether the pool ought to have been certified in his opinion. Mr Blacker refused to make the assumption or to answer the question. Instead, he asserted that he was not the person who certified compliance and speculated the development conditions could have been met retrospectively. When I later asked a similar question, Mr Blacker conceded that the development should not have been certified on the relevant assumption. 3. In response to a simple question from me as to whether he agreed that the retaining wall was bowing, Mr Blacker began to expound on what he considered were more general issues with the retaining wall.
7. Mr Wiekens' opinion is also consistent with Mr Rifai's videos, which depict a constant stream of water flowing from Number 47 to Number 49 through the wall primarily where the wall abuts the pool surrounds. The Woods have failed to offer an explanation for the state of affairs depicted in this video. Mr Wiekens' evidence that the pool constantly leaks when its water level rises above a certain point, therefore provides the only explanation in evidence for the stream of water depicted in these videos. On the balance of probabilities, I accept it is correct.
8. The report of Mr Galea, plumber, is also relevant to the issue of pool water leakage. Mr Galea's evidence on this topic is brief. His evidence is that he inspected an inspection pipe next to the skimmer box of the pool and that it is half full of water, which in his opinion demonstrates that the pool or pipe may be leaking into the soil around the pool. However, Mr Galea appropriately conceded that he did not know with certainty whether the pool or pipe is leaking and recommended a pool plumber ought to investigate.
9. In cross-examination, Mr Blacker did not know the significance of the water in the inspection pipe, and did not appear to consider the issue of pool leaking in the context of the water seepage into Number 49. This exchange occurred when Mr Rifai cross examined Mr Blacker about Mr Galea's evidence: PLAINTIFF: Yeah, what I mean is there is 1 metre deep of water pool under the pool. WITNESS BLACKER: Pooling? PLAINTIFF: Yeah. WITNESS BLACKER: No, because it is so close to the wall and if it is, as Mr Wiekens says, it's uncompacted fill along there, I would expect that the water would come out like an absolute torrent through to your property, but it is not doing that. It, it's not going to stay in there. It's a leaking wall and there's water coming through it, then there must be pinholes in it, so I can't imagine that it would be retaining water. PLAINTIFF: This water, what do you consider it? WITNESS BLACKER: Well, I don't know, I didn't see it. It could be just a pipe that has got water it in it.
10. Mr Blacker therefore does not directly contradict Mr Galea's evidence or provide competing evidence about the purpose of the inspection pipe or the reason for the water in it. Further, he did not undertake the inspections that Mr Wiekens and Mr Galea did. The Woods did not bring forward any evidence of a pool plumber to explain the issue either. While I consider Mr Wiekens' evidence sufficient to conclude that on the balance of probabilities there is some pool leakage, Mr Galea's opinion that there is a concern that needs to be investigated also supports that conclusion.

Interference with use and enjoyment of land

1. It is necessary to consider whether each of the types of water ingress found above have interfered with the Rifais' enjoyment of their land sufficiently to ground the Woods' liability in nuisance.

Stormwater

1. I accept that the amount of flow of stormwater constitutes a material and unreasonable interference with the Rifais' use and enjoyment of their land so as to constitute a nuisance. In addition to making the northern portion of their property unattractive, the parties' experts are in agreement that the flow of water, including stormwater, has eroded the ground beneath the wall on the Rifais' property, undermining the structural integrity of the wall and accelerating its degeneration. This level of interference is well beyond what would be considered acceptable by residents of the locality of the lovely suburban houses seen by the Court during the view.
2. While the evidence of damage to the Rifais' home was limited, it is logical that excess water on a property would cause negative consequences such as mould and the rusting of metal fixtures and possibly provide a risk to the home's foundations, as submitted by the plaintiffs. However, such findings are not essential to the outcome.
3. As noted above, Mr and Mrs Woods gave evidence that they rectified stormwater coming from Number 45 to their property by installing a strip drain on their property. This conduct was said by the Woods to be indicative of the "reasonable give and take" required by adjoining landowners. That submission seemed to be that, because such an approach could have been taken by the Rifais, the stormwater interference is not a material and unreasonable one. I do not accept that submission. It is evident that the Rifais have working drainage on their property next to the retaining wall. However, that does not prevent the influx of excessive water. Emmett JA's observations in Gales at [201] concerning the application of "give and take" considerations to cases of water nuisances by inadequate drainage are also apt here: The acts of nuisance established by the evidence do not fall within the "give and take" principle. While a neighbour may accept the occurrence of certain minor disturbances as a fact of life, the inundation of land as a result of an inadequate drainage system is an entirely different matter. It was inappropriate to transpose the notion of "give and take" into the circumstances involved in the present case.

Pool water

1. For the same reasons I am also satisfied that the flow of pool water by way of overflow and seepage from Number 47 to Number 49 amounts to a substantial and unreasonable interference with the Rifais' use and enjoyment of their land. In addition, the parties' experts were in agreement that overflow swimming pool water ought to be drained to the sewer, not a stormwater system, because, as Mr Wiekens noted, pool water generally may contain "chemicals such as bromine, cyanuric acid, calcium, salt, chlorine plus the potential if the chemicals are not kept up to date the development of some nasty bacteria such as faecal coliform or Escherichia Coli". Mr Blacker assumed the Woods' pool water did drain to the sewer, but later appeared to accept his assumption was wrong. There was no evidence from the Woods as to the location and operation of their sewerage system.
2. I consider that an average resident of the district in which the parties live, would reasonably expect that pool water, that should be treated as sewerage, would not fall upon their land in the volume suffered by the Rifais, both before and after the installation of the pool lip.
3. Having found that the flow of pool water and stormwater from Number 47 to 49 constitutes a nuisance which the Woods have caused, the final issue to determine is whether the Woods are liable for these nuisances.
4. The primary question is whether the Woods have established that the various water nuisances involve no more than the reasonable and convenient use of their own land so as to avoid liability. An additional question is whether the fault element of the tort of nuisance has been established.

Reasonable and convenient use

1. I am not satisfied that the Woods have discharged their burden of proving the various water nuisances are caused by no more than the reasonable and convenient use of their own land.
2. The installation of a replacement drainage system and swimming pool in an area of suburban houses could, in principle, amount to a natural and reasonable user of land. Whether these works are in fact reasonable and natural ultimately depends, however, on the manner in which they were carried out.
3. As noted above, I accept Professor Ball's evidence that the replacement drainage system was not compliant with relevant Australian standards, and that it does not effectively drain stormwater or pool water to the street, as may have been intended. As a result, I do not consider the flow of stormwater from Number 47 to Number 49 to be a "natural" consequence of the topography of the land, but rather a direct result of the Woods' conduct in adopting a new, ineffective drainage system for stormwater runoff. By installing this replacement system and not maintaining it, the Woods diverted and concentrated the flow of stormwater from Number 47 to Number 49. I also accept the expert evidence the swimming pool was constructed defectively in the sense that pool water overflow is not appropriately captured and leaks through the pavers or otherwise.
4. The installation of a drainage system and pool with the above features, in the immediate vicinity of a neighbouring property, does not, in my view, involve a natural and reasonable use of Number 47. These works were not carried out in the "reasonable and proper manner" required for such a defence to apply: Gales at [137].
5. This conclusion is bolstered by the fact that the Woods do not suggest, and there is no reason to believe, that the various water nuisances could not have been avoided by taking reasonable steps during the installation of the pool and completion of related works, or after their construction. In this respect the following remarks of Mahoney JA in Corbett at 313 are apposite: … where [a] swimming pool is erected in such a way as to concentrate the flow of water as this did and there are other ways of constructing it, [liability for nuisance] is not to be avoided upon the ground that what was done is, in whatever sense, a natural user of the land or a reasonable use of it.
6. I do not consider the fact that the Woods were provided, in 2016, with a complying development certificate provides a sufficient defence. The certificate is an opinion given by a certifier, but the basis upon which the opinion was given was not in evidence and was not tested. Despite that certificate, the Woods have been on notice of the water issues for years and had been provided with expert opinions that identify the problems, which they have not remedied.

Fault

1. As noted above, the fault requirement in cases where a defendant created a nuisance is whether the interference with the plaintiff's use and enjoyment of land was reasonably foreseeable.
2. In neither Corbett nor Gales did the Court of Appeal consider the issue of reasonable foreseeability in determining whether the defendant had committed private nuisance, as distinct from considering reasonable foreseeability (as a control on the losses for which damages are recoverable, which was considered in Gales). This perhaps reflects an understanding that it is necessarily foreseeable that water might flow into and harm a neighbouring property in circumstances where it is brought to or concentrated upon land: Owners Corp SP 46510 v Tan [2020] NSWSC 1564 at [63] (Robb J).
3. Here, I consider that it was reasonably foreseeable that installing a pool and new drainage system near the boundary with Number 49 could result in the flow of pool and stormwater into Number 49, and that the flow of that water could materially interfere with the Rifai's use and enjoyment of Number 49. As such, I consider the fault element is established.
4. If this analysis is mistaken, I would still consider the Woods liable for the various water nuisances on the basis that they continued those nuisances. As noted above, the fault element for continuing a nuisance is actual or presumed knowledge of the material interference with use and enjoyment, combined with a failure to take reasonable steps to bring the interference to an end.
5. Since, at the latest 2020, the Woods had knowledge of the relevant state of affairs, because of the Rifais' complaints. The Woods have not taken reasonable steps to end this state of affairs. As noted above I do not accept that the pool lip installed by the Woods was sufficient to meaningfully reduce overflow pool water flowing into Number 49. This lip was also installed only after Penrith City Council asked the Woods to do so, and it took the Woods approximately one year from receipt of this request to install the simple brick lip. The lip and stormwater drain have also had no positive effect on the leakage of pool water identified by Mr Wiekens and assumed by Mr Galea. Further, no works at all have been undertaken to improve the stormwater drainage system or any blockages.
6. For these reasons, even if the defendants are not liable for creating the various water nuisances, I consider that they are liable for continuing them.

Injunctive relief for water nuisance

1. Having found that the Woods are liable for nuisance in relation to the flow of both stormwater and pool water into the Rifai's property, the appropriateness of a grant of injunctive relief must be considered. The Woods made no submissions on this issue.
2. In Melaleuca Estate Pty Ltd v Port Stephens Council [2006] NSWCA 31 at [24], Giles JA (McColl JA and Hunt AJA agreeing) explained the significance of past water nuisances when granting injunctive relief: For the claim to injunctive relief, evidence of past discharges could found a finding that unless relief was given nuisances are likely to occur, and consequentially that the relief should be given. The relevant conduct of the respondent could nonetheless be its past conduct creating the state of affairs whereby the water was discharged and would be discharged onto the appellant's land …
3. Here, evidence of extensive past water nuisance suggests that, unless injunctive relief is granted future, nuisances are likely to occur. Even if any damage caused by the past water nuisance is repaired, so long as the current status quo persists there is reason to believe that there will continue to be substantial interference with the Rifais' enjoyment of their land. For these reasons damages are not an adequate remedy, and I consider it appropriate that an injunction should be issued.

Necessary works

1. The Woods submitted that if a finding was made that the overflow pool water amounted to a nuisance then the Woods would be prepared to carry out the works proposed by Professor Ball, in terms of the extension of the brick lip around the hard surround of the pool to redirect splashing water back towards the pool.
2. However, I do not accept that such work is sufficient in circumstances where Professor Ball has highlighted the deficiencies in the stormwater drainage system. Professor Ball's remedial action must be carried out in relation to the brick lip and the stormwater drainage system. Further, any blockages in the stormwater systems and disconnected gutter pipes must be rectified.
3. Further, I accept that there is some leaking from the pool which is causing water ingress to Number 49 and that must be prevented.

Retaining wall?

1. The Rifai's pleadings sought orders that the Woods rectify those parts of the wall that are bowing at: 1. The part adjacent to the swimming pool surrounds; and 2. The part towards the front of the properties, where brick rubble fill has been placed behind the wall.
2. However, while it appears accepted that the wall is nearing the end of its useful life, I do not consider it possible to make findings as to the exact impact of the Woods' works on the wall, for the following reasons.
3. There is insufficiently certain evidence as to the state of the wall before the Woods constructed the pool and other improvements. While the Woods' evidence was that Mr Rifai told them that the wall was "falling over" in 2014, Mr Rifai denied having said that, and self-evidently the wall has not fallen over almost 10 years later, which makes such an alleged statement unlikely. I also accept Mr Rifai's submission that if there were reasons for concern in 2014, then it is likely he would have commenced proceedings earlier than when he did.
4. The experts were not provided with any evidence of the properties and the wall before the Woods carried out improvements. Mr Wiekens considered that the Woods' works placed a lateral load on the wall. That may be accepted. However, it is not possible to determine whether that load increased from the time the water tanks were removed and replaced with the pool.
5. I consider it likely that the wall has been negatively impacted by the consistent water flow from Number 47, that ought to have been drained into appropriate stormwater or sewage draining instead. However, it is not possible to know with sufficient certainty what that impact might have been. With every year the wall is also getting older, and was always porous. It is not possible to quantify any impact on the wall.
6. The experts consider that the whole of the wall ought to be replaced, rather than fixing some parts of it. In those circumstances, even if it was possible to quantify the impact of the water on the water on the wall, to require the Woods to replace the whole wall would unjustly enrich the Rifais, who would otherwise be expected to contribute to the costs of a replacement wall required in the ordinary course of events: see eg Yared v Glenhurst Gardens [2002] NSWSC 11 at [109]-[112] (Austin J); Owners Strata Plan 4085 v Mallone [2006] NSWSC 1381 at [93]-[94] (Young CJ in Eq). Mr Rifai accepted that he was prepared to contribute, as did the Woods "broadly", according to their counsel.
7. There was no evidence that the wall is at risk of imminent collapse. Mr Blacker gave evidence that if the water ingress was reduced then the ground near the wall would be drier and that may extend the wall's life. The continuation of the wall without water ingress was Mr Rifai's preferred position also.

Orders

1. The plaintiffs have succeeded in establishing that the defendants have, in various respects, committed actionable nuisances. Injunctive relief is appropriate to restrain future occurrences of water ingress.
2. As noted about, the defendants agree to remove concrete slab encroachments, and therefore no order concerning that issue is necessary.
3. There is no reason why costs ought not follow the event.
4. For the reasons above, the appropriate orders are as follows: 1. Pursuant to s 66 of the Supreme Court Act 1970 (NSW), within two months of the date of these orders, the defendants are to take necessary steps in a manner that complies with relevant building standards and legislative regulations: 1. identified by Professor James Ball in his reports, to prevent water entering the plaintiff's property known as 49 Luttrell Street Glenmore Park in New South Wales, from the swimming pool overflow and stormwater drainage situated on their property at 47 Luttrell Street Glenmore Park in New South Wales; 2. to remove any stormwater drainage blockages on their property; 3. to ensure all downpipes are appropriately connected to stormwater drainage systems; and 4. to rectify swimming pool defects causing water leakage. 1. Defendants to pay the plaintiff's costs, as agreed or assessed.

Amendments 19 April 2024 - 19 April 2024 - Amend citation in paragraph [23] pursuant to slip rule. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 23 April 2024