if the defendant did not create the nuisance, he must, if he is to be held responsible, have continued it, which I think means simply neglected to remedy it when he became, or should have become, aware of it.
119 Although there may be some exceptions, fault of some kind is now usually necessary for liability in nuisance; see The Wagon Mound (No 2) at 639, and Montana Hotels Pty Ltd v Fasson Pty Ltd (1986) 61 ALJR 282 at 284. Humphries v Cousins (1877) 2 CPD 239, where the defendant was held liable for escape from a drain which began under his premises, passed under other houses and received their drainage and then returned under the plaintiff's premises, although he did not know of the existence of the drain under the plaintiff's premises, should probably be attributed to the principle in Rylands v Fletcher (1868) LR3HL 330, although that principle was not mentioned in Humphries v Cousins. The strict liability which was imposed in Humphries v Cousins is probably no longer good law, having regard to the absorption of the rule in Rylands v Fletcher by the principles of negligence in Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520.
120 The facts of the present case are distant from Sedleigh-Denfield as there is no element in any way like the intervention of a trespasser, and the appellant's part in the approval process gave it means of knowledge of the existence of the drainage works including the pipeline, from a time before the appellant acquired its interest. Attention should not be limited to the pipeline and the easement, as the appellant also became the owner of Myuna Place and of the system of pipes and pits for the collection of drainage water from that road, and the easement and the pipeline in it were part of the system by which drainage water was concentrated and carried off from the road.
121 In my opinion whether the appellant is liable depends on whether, when the system became a nuisance, the appellant did not remedy it without undue delay when the appellant became aware of the nuisance, or with ordinary and reasonable care should have become aware of it. Of what was it necessary that the appellant should become aware? There was in my opinion a nuisance when the pipeline and the easement came to be in a defective state so that the escape of water was an unreasonable and unjustified interference with the rights of nearby landowners to enjoy their property. This was not the time when the escape of water caused damage; it was (stating the matter with admitted circularities) the time when with ordinary and reasonable care, the appellant should have become aware of the risk that would happen. What the respondent's counsel principally relied upon to show this knowledge or imputed knowledge, and what he complained that the Trial Judge did not make findings about in relation to nuisance, was the evidence and information before the Council leading up to Mr Scott's report in 1985.
122 Exhibit S is a letter dated 18 October 2004 containing admissions by the appellant (BLUE 2/385):
1. The Council has no record and no knowledge of any maintenance or repair work being carried out on the 'pipeline' from its construction to date.
2. Up until the year 2000, the Council inspected the 'stormwater drainage system' in response to complaints or requests only.
3. Up until the year 2000, the Council did not have a policy for inspection of its stormwater drainage systems.
4. Up until the year 2000, the Council's system of inspection, maintenance and repair of its stormwater drainage systems was one of response to complaints or requests only.
5. From the year 2000 Council's policy was to carry out annual inspections of its stormwater drainage systems excepting those parts of the system within easements affecting private property.
123 Mr Sherrie, the appellant's Manager of Civil Works, gave evidence that up until the year 2000 the drainage system was generally maintained as a result of public request or complaint. After a decision in 1983 to implement a systematic drainage maintenance system the practice was adopted of conducting inspections of service pits; not inspections of pipelines. The appellant adopted another policy in the year 2000 but this did not extend to inspections of parts of drainage systems within easements affecting private property.
124 The respondent's counsel complained that the Trial Judge's consideration on the question of breach of duty after the creation of the easement was incomplete and inadequate. In support of these contentions Counsel did not refer to any evidence which tended to show what was practice or good practice in inspection by municipal authorities of pipelines in relevant circumstances. Counsel pointed to evidence which showed, clearly, that inspections could have been carried out relatively easily, earlier when staff could have gained access to the pits and inspected the pipelines with torches and mirrors on poles, and even more readily later when television camera inspection, referred to as CCTV, became readily available. It was contended that it should have been found that the cost of inspecting the pipeline was minimal. This contention has no force because it was not related by evidence or in any way to any estimate or understanding of the cost of inspecting pipelines over which the respondent had easements, or of the availability of funds and resources. Counsel also referred to the policy, from the year 2000, to carry out annual inspections, impliedly shown by the admissions in Exhibit S; I do not think that this has any force because, as the terms of para.5 of the admissions show, that did not extend to parts of the system within easements affecting private property. Counsel also cited my observations in Turnbull v Alm [2004] NSWCA 173 at [60] (Bryson JA) which related to annual inspection of the state of the footpath on private property within a shopping centre. Those observations related to the facts of that case and were assisted by much judicial experience relating to practices in maintaining footpaths, and in my opinion they do not have any present importance.
125 Counsel for the respondent also referred to information which came to the appellant's officers as a result of earlier complaints and landslips, leading up to Mr Scott's report. In April 1977 the appellant was informed by Mr K. Mason, who owned adjoining property to the west, of a number of complaints relating to the impact on his property of work in construction of the pipeline. Mr Mason's solicitor also narrated complaints and stated that the complaints were made in objection to granting approval for the subdivision. Counsel also referred to the appellant's consideration of an application by Mr Le Claire in 1979 for building approval for his proposed dwelling on Lot 8; which became house No. 14 and was later sold to Mr Plunkett. The respondent's consideration of the building application shows advertence to the need to protect its interest in the drainage easements. In my opinion these matters are not of any continuing significance.
126 In 1982 officers of the appellant considered a complaint by the respondent (whose surname then was Franklin) that the fill on the adjoining land, that is on Lot 8, was not stable. Records of consideration by officers of this complaint show knowledge that the fill had been placed on both lots. After the inspection was made a responsible officer decided to take no further action.
127 In 1984 there was some further complaint in which it was claimed that there was unauthorised and unstable fill, and that a load of spoil had been dumped on the top flat section of Lot 8. The appellant's file also showed one or two complaints in August 1984 relating to unauthorised fill, and also to surface and groundwater nuisance. An officer advised Mr Plunkett and the respondent to seek the services of a practising structural engineer to design a method of supporting the fill area. The appellant's file also shows that Mr and Mrs Plunkett wrote to the appellant at length complaining of the effects of heavy downpours on 24 and 25 March 1984 on the fill on Lot 7, and about further events on 27 July 1984. The burden of the complaint seems to have been that instability of fill on Lot 7 had adverse effects on the Plunketts' Lot 8, and that the respondent bore some responsibility. There were further communications and inspection, and an officer formed the view that the slope area between the two lots was unstable. The respondent engaged Mr W.J. Scott, a site investigation engineer practising in geo-mechanics and foundation engineering, to report.
128 Mr Scott's report dated 10 October 1985 (Blue 2/351) reported on his inspection and stated his views. He said (Blue 2/351): "The purpose of the inspection was to enable an assessment of the stability of the fill zone on the southern, downslope side of the existing house. Comment on the future management of slope stability and the effect that this might have on neighbouring property was also requested." He then reported his observations and views on the geology of the area, and on the characteristics of the fill, directing his attention to the respondent's house on Lot 7. When commenting on the fill zone and dealing with stability characteristics he did not refer to the pipeline in the easement or to possibility of the escape of water from it. He recommended (Blue 2/352) "site management procedures to improve the overall stability regime." These recommendations dealt with drainage - (Blue 2/352) "Probably the most important measure is drainage improvement" - and discussed drainage on the upper fill zone to intercept up-slope run-off, and some measure, to be negotiated with the owner of Lot 8, to deal with stormwater discharge from Lot 8. He also recommended measures dealing with vegetation and its reinforcing effect, and the creation of localised rock-wall supporting terraces on the slope. After discussing the material deposited on Lot 8 Mr Scott expressed this view (Blue 2/352): "However, since the general direction of the slope is to the south it is considered that no significant adverse effect is created by the fill zone of one property on the other."
129 Mr Scott recommended maintaining drainage control on a continuing basis. He observed that natural subsurface drainage through joints in the rock was difficult to intercept, but also recommended that drainage measures, related to drainage on the surface of and within the fill material, should be installed. He said (Blue 2/353): "Further 'creep movement' in the fill could fracture waste or drainage pipes embedded in the fill. These should be checked from time to time to ensure that no water is being lost into the fill." Mr Scott did not discuss, or mention at all, the pipeline in the easement or the possibility of the escape of water from it. The drainage which he discussed and the measures which he recommended related to drainage on the surface of or embedded in the fill material.
130 The appellant was given a copy of Mr Scott's report dated 10 October 1985 (Blue 2/351). A responsible officer reviewed the information available at length but concluded that the problem was one between the two property owners. This report (Blue 2/350) and other indications show that it was well known to officers of the appellant that both properties had substantial fill on them.
131 This material in the appellant's files shows that officers were aware of instability in the fill on Lot 7, and also possibly on Lot 8, of complaints about interaction between the deposits of fill on these lots, of reports of damage to stairs, pathways and garden drainage consequent on this instability; and of vague claims that the appellant may have incurred some liability. However there was no suggestion of involvement of the pipeline in the easement or of the escape of water from that pipeline in any of the matters under complaint.
132 It was contended that knowledge of Mr Scott's report should have alerted the appellant's officers to the possibility of creep movement and fracture in the pipeline in the easement, which was also, at least to a large extent and (it may be) wholly covered by fill material. In my opinion there is no substance in these contentions; Mr Scott's observations related almost entirely to the fill material on Lot 7, and to garden drainage lines which are extremely unlikely to have been constructed of materials or with techniques in any way like those used in the construction of the pipeline and the easement. Concrete pipes of diameter 300mm or more, with inspection pits, are of a different technology, in a different place, to the drainage observed on by Mr Scott. The material in evidence shows no reason why the appellant should have thought that the matters under complaint and investigation involved the pipeline and the easement in any way; and indeed there is no reason now to think that the pipeline was involved in any way. The respondent's proposition was to the effect that knowledge acquired by officers of complaints in the period 1982 to 1985, and of Mr Scott's report, should have shown the appellant, if it considered matters on a reasonable basis, that there ought to be a regular regime of inspection of the pipeline which it was entitled to use: this proposition has no real substance and should not be accepted.
133 A brief note in the appellant's records made on 16 April 1996 (Blue 2/386) indicates or seems to indicate that a ratepayer living at 38 Little Turriel Bay Road Lilli Pillli, immediately West of Lot 8, and at an earlier time occupied by Mr K. Mason, reported that there was water pollution and "Drain blocked from sand from building site. Water builds up and lids keep coming off the drain and flood complainant's property". The location of the problem was indicated as "14 Myuna Place" that is, Lot 8. The record says that action was finalised on or by 9 May 1996. There is next to no information in this record and the building site is not identified. The action taken as a result is not recorded. Blockage of the drain from sand from a building site and flooding from lids (which must be lids on inspection pits) on to the land to the West is plainly an altogether different problem to the escape of water which gave rise to this litigation.
134 The appellant's knowledge that there had been movements in the fill, referred to by the Trial Judge as landslides (Red 49P-T), did not bring with it any duty of care or other obligation relating to the pipeline; the earth movements of which it knew had no relation to escape of water from the pipeline, and no other relation to the pipeline, and the respondent's land was distant from the pipeline, separated by Lot 8 and the fill on Lot 8. What happened to the fill on Lot 7 was not the responsibility of the appellant, which was involved because of complaints from the owners of Lots 8 and 7, in substance complaints about each other, which in so far as they directed against the appellant had no clear basis. The respondent was not able to enhance or to alter the appellant's responsibility by bringing or keeping fill in her rear yard in an unstable condition, or in a condition in which its stability depended on lateral support from other fill. This was none of the appellant's business.
135 The Trial Judge spoke of the appellant as "the occupier/beneficiary of the pipeline". This is not an accurate or adequate statement of the appellant's position. The appellant's position was that it was the dominant owner of the easement; it was not the owner of the servient land, that is, the strip which was subject to the easement, but had rights, related closely to use of the pipeline, to go on the land or (it might be said) not to be unreasonably obstructed as it went on the land to carry out various acts in aid of its easement. The easement brought with it no obligation of the appellant, to the owner of Lot 8 or to anybody else, to go on to the easement or to do anything there. In no sense was the appellant the occupier of the servient land, or of the pipeline.
136 The Trial Judge's conclusion that the appellant should not be found to be negligent in respect of failure to inspect or maintain and repair the stormwater drainage system to ensure that it did not leak was correctly based on there being no evidence as to how frequently the pipeline should have been inspected or the cost of doing so, and should not be disturbed. In the law of nuisance as it operates in this case, negligence is a necessary element: for similar reasons the appellant was not negligent and is not liable in nuisance. Indeed there was a need for the respondent to go further than the proofs which the Trial Judge mentioned: even if inspections should have been carried out, it was necessary to show that an inspection would probably have revealed the need for some maintenance work or repair and that if that maintenance work or repair had been carried out the escape of water would not have occurred. Compare Swain v Waverley Municipal Council [2005] 79 ALJR 565 at 587 [100]-[102] McHugh J and cases there referred to.
137 A further matter is that I am of the view that the interest of the respondent for which she claimed protection under the law of negligence and the law of nuisance is beyond their range. Foreseeable risk of harm to her property interest in the fill deposit on Lot 7 is beyond the protection of negligence law and nuisance law because her property interest depended upon lateral support from unstable fill material on Lot 8 to which she was not entitled; she was not acting reasonably in continuing in existence a deposit of fill which depended on that lateral support, and damage to her interest is beyond the range of the reasonably foreseeable. Even if it were shown that the escape of water from the pipeline and disturbance by it of the stability of the fill on Lot 8 was a nuisance for which the owner of Lot 8 was entitled to remedy (and I am inclined to think that it was not), the respondent would not have any remedy in respect of that nuisance for similar reasons: it was not the tort of nuisance committed against her.
138 In my opinion the Court of Appeal should order: