Enkelmann v Stewart [2026] QCA 67

SUPREME COURT OF QUEENSLAND CITATION: Enkelmann v Stewart [2026] QCA 67 PARTIES: PETER ROBERT ENKELMANN (first appellant) MARGARET ANNE ENKELMANN (second appellant) v MICHAEL ALLAN STEWART (first respondent) ANDREA ISABEL STEWART (second respondent) FILE NO/S: Appeal No 2769 of 2025 SC No 12984 of 2016 DIVISION: Court of Appeal PROCEEDING: General Civil Appeal ORIGINATING COURT: Supreme Court at Brisbane – [2025] QSC 77 (Williams J) DELIVERED ON: 17 April 2026 DELIVERED AT: Brisbane HEARING DATE: 16 March 2026 JUDGES: Bond JA, Bradley JA, Doyle JA ORDERS: 1. The appeal is dismissed. 2. The appellants pay the respondents’ costs of the appeal. CATCHWORDS: TORTS – NUISANCE – PRIVATE NUISANCE – PARTICULAR CASES – WATER RELATED – where the parties own adjoining farms – where the appellants constructed a Temporary Levee on their land (Riverview) close to the common boundary – where the respondents contended that the Levee created a nuisance which had various impacts on their land (Mikandra) – where the primary judge found that the course of water flowing over Mikandra and on to Riverview was a natural watercourse – where the appellants contended that they could build a levee to hold water back from entering Riverview so long as it did not interfere with the respondents’ riparian rights (the Turn Back Defence) – where the primary judge found that the defence was not available – where the primary judge found that the appellants did not use reasonable care and skill in constructing the Temporary Levee and that such Levee was no more than reasonably necessary to protect their use and enjoyment of Riverview – where the primary judge found that the Temporary Levee caused a substantial and unreasonable interference with the respondents’ use and -- 1 of 23 -- 2 enjoyment of Mikandra – where the test to be applied for private nuisance is that set out in Hunt Leather Pty Ltd v Transport for NSW (2025) 426 ALR 621 – whether the Temporary Levee caused a substantial and unreasonable interference with the ordinary use of Mikandra – whether the Temporary Levee on Riverview was use for a common and ordinary purpose – whether the use of the Temporary Levee was “conveniently done” Water Act 2000 (Qld), s 26 Brown v Tasmania (2017) 261 CLR 328; [2017] HCA 43, cited Crossley v English (2025) 264 LGERA 186; [2025] WASCA 141, cited Elders Rural Finance Ltd v Westpac Banking Corporation (1989) 6 BPR 13,439, cited Fearn v Board of Trustees of Tate Gallery [2024] AC 1; [2023] UKSC 4, cited Gales Holdings Pty Ltd v Tweed Shire Council (2013) 85 NSWLR 514; [2013] NSWCA 382, applied Gartner v Kidman (1962) 108 CLR 12; [1962] HCA 27, explained Hill v Higgins [2012] NSWSC 270, cited Hunt Leather Pty Ltd v Transport for NSW (2025) 100 ALJR 89; (2025) 426 ALR 621; [2025] HCA 53, applied ICM Agriculture Pty Ltd v The Commonwealth (2009) 240 CLR 140; [2009] HCA 51, considered Knezovic v Shire of Swan-Guildford (1968) 118 CLR 468; [1968] HCA 38, applied Muckle v Anderson (2002) 131 LGERA 350; [2002] NSWCA 283, applied Nalder v Commissioner for Railways (Qld) [1983] 1 Qd R 620, considered Riverman Orchards Pty Ltd v Hayden [2017] VSC 379, cited Robinson Helicopter Co Inc v McDermott (2016) 90 ALJR 679; [2016] HCA 22, cited Walter v Selfe (1851) 4 De G & Sm 315; [1851] EngR 335, applied COUNSEL: N H Ferrett KC, with J P Hastie, for the appellants G J Handran KC, with M O Jones KC, for the respondents SOLICITORS: Macpherson Kelly for the appellants 23 Legal for the respondents [1] BOND JA: I agree with the reasons of Doyle JA and with the orders proposed by his Honour. [2] BRADLEY JA: I also agree with Doyle JA. [3] DOYLE JA: The appellants (the Enkelmanns) and the respondents (the Stewarts) are the owners of adjoining cotton farming properties in the South Burnett area of -- 2 of 23 -- 3 Queensland. The appellants own Riverview and the respondents own Mikandra. This is an appeal from a judgment against the appellants in respect of a use of their land which caused a nuisance to the respondents.1 [4] Both properties are located in, or to some significant extent in, a floodplain. In broad terms flood waters (from the breaking of the banks of the nearby Barambah Creek and its tributaries) flow through or over parts of Mikandra and onto Riverview. Commencing in 2013,2 with some further works in 2023, the appellants caused a flood mitigation levee (referred to below and by the parties on appeal as the Temporary Levee) to be erected on their property but running close to the common boundary of the two properties. This Levee, the respondents contended, has had various effects on water from significant rain events and flood water. Those effects include altering the course and velocities of the flow of water, soil erosion, deposition of silt and debris, the backing up of water onto parts of Mikandra to greater depths and for longer periods than would otherwise be the case, loss of crops, reduction in grade of crops, and disruption of work on the affected parts of the property. These impacts have been felt in a number of significant rain events and some major floods over the years. [5] The appellants were the plaintiffs below asserting that their land had been affected by a nuisance created on Mikandra, but that claim was abandoned (during the trial). The fact of that initial claim by them goes some way to explain a degree of discordance between the course and focus of the evidence at trial when compared to the issues relevant on appeal. Much of that is now only of background significance and I will not set it out here. It is explained in the reasons of the primary judge and no issue is taken with that summary. [6] Additionally, the trial was conducted and indeed the reasons for judgment delivered before the High Court decision in Hunt Leather Pty Ltd v Transport for NSW (2025) 426 ALR 621. That decision now frames the elements and test for the establishment of the tort of nuisance, in terms which two members of that Court would describe as a departure from the previously established test. The result has been that in some respects the findings have not been expressed in terms directed to the elements as now expressed in that High Court decision. The Primary Judge’s Reasons [7] The primary judge found the respondents’ claim for nuisance made out. In the course of doing so her Honour expressed her acceptance or otherwise of various witnesses and with one exception her Honour’s credit findings are not challenged. [8] The one exception concerns the evidence of Mr Hanlon, an engineer called by the appellants, and I will come back to the relevance of this later in these reasons. [9] As to the core matters urged on her Honour: (a) Her Honour found that the course the water (or some of it) took in flowing over Mikandra and to Riverview was a natural watercourse “which is part of the riparian flows though the various tributaries of Barambah Creek”: R [75]; R [77]. 1 Enkelmann v Stewart [2025] QSC 77 (Reasons or R). 2 At R [25] the primary judge recites the facts relied on by the respondents which refers to the Temporary Levee being built in the period 2013 to 2017. Her Honour however finds that it was first constructed to some extent in 2013: R [202]. -- 3 of 23 -- 4 (b) The way the matter was argued before the primary judge, the issue of whether the flow was through natural watercourses was relevant to whether or not the appellants were able to build a levee to hold the water back from entering Riverview at least if the Levee did not interfere with the riparian rights of the respondents and if other conditions for the construction of the Levee were satisfied. The riparian rights included a right to have water continue to flow off their land through natural watercourses (as distinct from surface waters). This became called the ‘Turn Back Defence’ and is referred as such in the reasons. Given the primary judge’s finding as to the natural watercourse she accepted that this ‘Turn Back Defence’ was not available to the appellants: R [82]-[83]. (c) Her Honour went on to consider, in the alternative, whether assuming the waters were surface waters the nuisance had been made out initially considering the other elements as her Honour called them of the ‘Turn Back Defence’: R [84]. (d) As to that, her Honour found that the appellants did not establish that they used reasonable care and skill in constructing the Temporary Levee: R [116]-[119]. This was in large measure because her Honour found: (i) They were concerned solely with their own position and did not consider the impact on Mikandra; and (ii) No hydrological assessment was undertaken to inform the design and construction of the Temporary Levee. (e) Further, as to that, her Honour also found that the appellants did not establish that the Temporary Levee was no more than was reasonably necessary to protect their own use and enjoyment of Riverview: R [136]. (f) Having regard to the evidence of Mr Stewart, Dr Bennett and Dr Markar, the primary judge held that the Temporary Levee (by its effects on the water) caused a substantial and unreasonable interference with the respondents’ use and enjoyment of Mikandra: R [173], [176], [187]-[190], [200] and [209]. (g) Her Honour found that the 2023 modifications to the Temporary Levee were, at best, no improvement in terms of the impact on Mikandra and possibly worse: R [214] and [234]. [10] In particular her Honour dealt with a contention made by the appellants and repeated in this Court as to the relevance of the absence of a quantification of the financial impact on the respondents stating: “[198] It is not an answer to look at the percentage of Mikandra affected, nor to look at the dollar value impact on the overall farming business operated on Mikandra. As is evident from past flood events, the interference is real, identifiable and repeated. It is not negligible. It impacts the use of Mikandra more than mere inconvenience.” [11] Finally, in granting the injunction to require removal of the Temporary Levee her Honour’s reasons were: “[237] In all of the circumstances: -- 4 of 23 -- 5 (a) There is no farming or irrigation reason for the [appellants] to retain the Temporary Levee. (b) There is evidence that the Temporary Levee is detrimental to Riverview. (c) No rational reason for the maintenance of the Temporary Levee has been identified.” Hunt Leather v Transport for New South Wales [12] This case arose out of the construction of the Sydney Light Rail in parts of central Sydney. Each stage of its construction took longer than had been anticipated in part due to insufficient planning for accommodating underground utilities: [3]. Lessees of business premises along its route commenced proceedings for nuisance due to the noise and dust, as well as the barricading and hoardings used in the course of the construction. [13] The reasons of Gordon and Edelman JJ (with whom Beech-Jones J agreed) identify the elements of the cause of action for private nuisance. The case, of course, was not concerned with natural watercourses or surface water issues. [14] First, the claimant in such a claim must establish that the use of the respondent’s land causes a substantial interference with the claimant’s ordinary use of its land: [96]. The ‘ordinary use of the land’ means the “ordinary uses of land in the relevant locality, which involves consideration of both the purpose of the use and the means by which the purpose is achieved”: [94]. At this point of the analysis consideration of whether the respondent’s use is or is not ordinary or unreasonable does not arise. The focus is on the impact on the claimant’s use of the land. There is no dispute in this case that Mikandra was being used for such an ordinary use. [15] Second, the respondent may have a justification or excuse for causing that substantial interference if the respondent established that it was using its land “for a common and ordinary purpose, by means which involved it being ‘conveniently done’…”: [97]. [16] The expression ‘common and ordinary’ refers to a use which is “reasonable according to the ordinary usages of mankind living in society, or more correctly in a particular society” [106]. Their Honours described as apt the description that this was an “expectation that people ‘must conform to the habits of the community’”: [104]. This is explained on the basis that both neighbours doing so will mean the conduct of one will create a reciprocal nuisance to the nuisance caused by the (like) conduct of the other which are both of comparatively trifling character: [104].3 [17] Difficult questions may arise as to the appropriate level of generality at which to identify the common and ordinary usage, but this is said to “be guided by the conduct that is said to be the infringement”: [107]. [18] Being ‘conveniently done’ is used in the sense that the respondent was “using means that reasonably minimised the extent of the interference”: [97]. There is an evidentiary onus on the claimant to identify the respects in which the respondent’s use of the land was not conveniently done: [111]. But the onus is on the respondent to establish that its use was conveniently done. 3 Citing Professor Burdick, The Law of Torts: A Concise Treatise on the Civil Liability at Common Law and under Modern Statutes for Actionable Wrongs to Person and Property (1905) 404-5. -- 5 of 23 -- 6 [19] Importantly, their Honours, at [112], said of the concept of ‘reasonably’ in this context that it meant: “… ‘reasonable according to the ordinary usages’ or ‘reasonable in the circumstances’. But the use of land by the defendant need not be ‘necessary’ in the sense of ‘essential’. And the concern with the reasonableness of a defendant’s use of land is not a test for negligence but a concern that the defendant adopted means for their own ordinary enjoyment of land that reasonably minimised the extent of the substantial interference with the plaintiff’s ordinary enjoyment of their land.” (citations omitted). [20] The assessment of what is conveniently done their Honours said at [113]: “…requires consideration ‘not merely of the convenience of the defendant, but also the convenience of the plaintiff’. In other words, the assessment involves consideration of the relative interests of each of the parties in all the circumstances…” (citations omitted). [21] Finally, their Honours explained Gartner v Kidman (1962) 108 CLR 12, as an illustration of the application of the test which they had outlined stating, at [114]: “… In other words, the question of whether the purpose of the use is ‘natural’ (ie, common and ordinary) is determined by reference to the locality of the land and the associated reasonable expectations. Likewise, for the proprietor of lower land: (i) it would be common and ordinary to ‘put up barriers and pen [the water] back’ to the higher land of the upper proprietor (but not a third proprietor), subject to (ii) ‘us[ing] reasonable care and skill and do[ing] no more than is reasonably necessary to protect his enjoyment of his own land’. The exposition of (ii) was a classic explanation of Bramwell B’s requirement that the activity be ‘conveniently done’.” (citations omitted). Notice of Appeal [22] By their further notice of appeal, filed 12 March 2026 (for which leave was granted at the hearing of the appeal), the appellants advance the following grounds of appeal: (a) The primary judge erred in concluding that “the appellants were not entitled to rely upon the defence articulated in Gartner v Kidman (1962) 108 CLR 12, 47-8 in respect of any nuisance caused to the respondents’ land by the flood mitigation embankment on the appellants’ land”: Ground 1. (b) The primary judge erred in finding that it was necessary to show an unreasonable interference with land to establish nuisance and accordingly in failing to apply the test set out in Hunt Leather Pty Ltd v Transport for New South Wales (2025) 426 ALR 621: Ground 2A. (c) As a result, the primary judge erred in failing to conclude that: (i) The Temporary Levee involved a use of Riverview which was a common and ordinary use. (ii) The construction and use of the Temporary Levee was done in a way which minimised the impacts on Mikandra and was, thereby, conveniently done. -- 6 of 23 -- 7 (iii) Accordingly, the appellants had a lawful justification or excuse for any substantial interference caused to the respondents’ land: Ground 2B. (d) The primary judge erred in concluding that the Temporary Levee caused a substantial and unreasonable interference with the use and enjoyment of Mikandra (by reference to the evidence before her Honour): Ground 2. [23] I propose addressing the first ground (whether and what is the natural watercourse, and the possible continuing relevance of the so called defence identified in Gartner v Kidman) but then deal with the remaining grounds by reference to the elements of the cause of action identified in Hunt Leather Pty Ltd v Transport for New South Wales and discuss the evidence relevant to each such element as needed under those headings. Ground 1: Gartner v Kidman and “The Turn Back Defence” [24] Before the primary judge close consideration was given to Gartner v Kidman. It was advanced by the appellants as stating a principle that they were entitled to erect a barrier to prevent water entering Riverview even if it caused loss to Mikandra, because it was surface water and not water following a natural watercourse (or some similar expression): see R [50], [53]. A similar contention was advanced as a ground of appeal though there was some movement on this in the course of argument. [25] In Gartner v Kidman a drain on the defendant’s land had in the past emptied into a sand pit with the result that the plaintiff’s land was under water less than might otherwise have been the case. At some stage the defendant, seeking to exploit the sand pit on the defendant’s land, stopped the water draining into it with the result that more water passed onto the plaintiff’s land. The latter claimed that this was a nuisance caused by the defendant’s use of its land. In rejecting the claim, the leading judgment was given by Windeyer J (Dixon CJ agreeing). It is unnecessary to set out much of his Honour’s reasoning. The facts of that case were unusual in that the watercourse as alleged by the plaintiff, was wholly on the defendant’s land: page 32. It followed that the plaintiff had no riparian right to require that the water flow to the sand pit on the defendant’s land. His Honour then turned to consider the alternative that the water was surface water flow: page 36. [26] As to that, at page 38 his Honour said: “What then is the law governing the natural flow of surface water from higher land to lower land? One would expect the answer to be well settled. But surprisingly it is not. There is not even general agreement by courts as to what are its fundamental rules in the abstract, still less as to the proper manner of their application in particular circumstances.” [27] His Honour concluded that “[i]n whatever way the case be put it depends upon the law of nuisance.”: 38. His Honour continued at 46: “… I have come to the conclusion that the correct view is that the so- called rule of the civil law that the owner of higher land has a right to insist upon his lower neighbour receiving surface water running off his land is not part of the common law as it exists in Australia… … -- 7 of 23 -- 8 On the contrary the law is, I think, that he may block it by any works on his own land, so far as they are reasonably necessary to protect his land for his reasonable use and enjoyment; but that in doing so he must not act recklessly of his neighbour so as to cause wanton damage to him. That, in my opinion, accords with the broad principles of the law of nuisance to-day…” The Natural Watercourse [28] The primary judge, at R [53(a)], identified as an issue to be decided whether the water which flows over Mikandra and onto Riverview at the location of the Temporary Levee was a natural watercourse. Her Honour found that it was: R [77]. [29] The common law recognised that the riparian rights of landowners extended, putting aside an ability to take some water for their own uses, to a right to have the natural watercourse flow water from their land and an obligation not to prevent that flow, including an obligation on the downstream landowner not to prevent that flow. [30] In Gales Holdings Pty Ltd v Tweed Shire Council (2013) 85 NSWLR 514, Emmett JA observed: “[133] The flow of water can give rise to nuisance. There is a difference between the flow of surface waters and the flow of natural watercourses. Riparian rights attach to the flow of natural watercourses such as rivers or streams, but not to the flow of surface waters. The word ‘riparian’ derives from the Latin ripa for riverbank. A riparian owner, being the proprietor of land on the banks of a natural stream of running water, is entitled to enjoy, and is obliged to accept, the flow of water past the land. The law of natural watercourses, not surface waters, applies even to waters of a river flowing in a wider channel than usual, when the river is swollen in time of flood, even though they flow on land outside the riverbed while still following the river’s general course. Such flood channels are treated as part of the alveus, or riverbed. [134] A riparian owner can neither deprive those lower down the river of its flow, nor pen it back upon the lands of a neighbour higher up. Riparian rights and obligations are proprietary, being natural incidents of the ownership or lawful possession of the land abutting on the stream or river. They turn on who owns the riverbank, not the riverbed: Gartner v Kidman (1962) 108 CLR 12 at 23.” (emphasis added). [31] It remains to consider what defines a natural watercourse, what differentiates that from surface waters, and was the primary judge correct to conclude the watercourse here fell into the first category? [32] The primary judge, at R [66(b)(ii)], accepted the expert evidence led by the respondents, and in particular that of Dr Markar from his first report at [20], that: “(ii) There are ‘three significant local watercourses draining through Riverview and/or Mikandra: • Hansens Gully, which is a tributary of Barambah Creek; -- 8 of 23 -- 9 • A watercourse, which is a major tributary of Hansens Gully, labelled as “Fairdale-Leafdale Gully” in the plaintiffs’ statement of claim …; and • A watercourse labelled … as “Lagoon Gully”, which is tributary of Fairdale-Leafdale Gully.’” [33] Some things should be noted. (a) The Fairdale-Leafdale Gully labelled as such in the statement of claim is one identified to the south of Mikandra and its course thereafter is not clear: see Figure A to the fourth amended statement of claim. Dr Markar later in his first report says it drains to the Lagoon: at [31]. I would read her Honour’s findings as referring to the gully taking that course. (b) The Lagoon is a natural lagoon which is the confluence of Fairdale-Leafdale Gully and Lagoon Gully: see R [66(f)]; Dr Markar’s first report at [31]. The Lagoon constricts flows, which concentrates and intensifies them as they flow downstream: R [66(g)]. (c) Further, Dr Markar said that the “Fairdale-Leafdale Gully appears to have drained in a straight northwesterly direction through the southwest portion of Riverview into Hansens Gully up to late 1980’s. The flowpath of Fairdale- Leafdale Gully has been significantly changed and formalised through Riverview into its current alignment by 1993. This gully is now channelised all the way to Hansens Gully. It appears that little or no change has been made to the Fairdale-Leafdale channel since around 1999.”: Dr Markar’s first report at [31]; see also R [66(h)]. (d) It seems that Hansens Gully is not likely to be directly relevant to the matters in issue here save that the watercourse through Mikandra and Riverview meets it to the north of Mikandra and west of Riverview. (e) The floodwaters flow through the Lagoon, through Mikandra and into Riverview and that this is all part of a tributary of the Barambah Creek: R [66(h)]. [34] A number of statements can be found as to what is required to comprise a natural watercourse.4 [35] In Gartner v Kidman, supra, at pages 26-27 Windeyer J said: “One, an often-quoted passage from Angell on Watercourses, 5th ed. (1854) p. 3, runs: ‘A watercourse consists of bed, banks and water; yet the water need not flow continuously; and there are many watercourses which are sometimes dry. There is, however, a distinction to be taken between a regular flowing stream of water, which, at certain seasons is dried up. and those occasional bursts of water which in times of freshet or melting of ice and snow descend from the hills and inundate the country’. A few other quotations may be added: ‘As distinguished from water of a casual and temporary character, a watercourse is a flow of water usually flowing in a certain direction, and by a regular channel, having a bed, banks and sides, and 4 See Australian Water Law, by Stoeckel, Webb, Woodward and Hankinson at [2.20]. -- 9 of 23 -- 10 possessing that unity of character by which the flow on one man’s land can be identified with that on the land of his neighbours’… That on some occasions the swamp overflowed and water from it spilled over the sand hill and ran down into the sandy basin washing out sand in doing so may be accepted. But this does not make a watercourse.” [36] In Knezovic v Shire of Swan-Guildford (1968) 118 CLR 468 at 475, the Court was considering the meaning of the term ‘watercourses’ in the Local Government Act 1960-1965 (WA) and whether the Shire had a right to enter the plaintiff’s land to maintain what it alleged was a watercourse. While, of course, the Court was concerned with the statutory meaning of the word, there is nothing in the reasons to limit what was said as not of more general application. Barwick CJ (McTiernan and Kitto JJ agreeing) said at 475: “It seems to me, on an examination of such authorities as exist and of the work of recognized writers on this subject, as well as the decision of the Court, that it is settled that a watercourse consists of a stream with a bed, with banks, and water. That the flow of the water in the stream is intermittent or seasonal will not prevent what would otherwise be a watercourse from being accounted such: but though it is quite true that a watercourse may exist though its bed be dry for some periods, the watercourse, in my opinion, must exhibit features of continuity, permanence and unity, best seen, of course, in the existence of a defined bed and banks with flowing water. It must, in my opinion, essentially be a stream and be sharply distinguished from a mere drain, or a drainage depression in the contours of the land which serves to relieve upper land of excess water in times of major precipitation.” [37] In Muckle v Anderson (2002) 131 LGERA 350 at [33], Sheller JA (Giles JA and Davies AJA agreeing) characterised surface water, albeit in a statutory context, as: “… water which appears on the surface of the earth in a diffused state with no permanent source or regular course and then disappears by percolation and evaporation. It has been elsewhere described as ‘water which flows over the ground discontinuously without reference to a defined channel and with no visible banks or margins’; Wisdom AS, Water Rights (Oyez Publications, 1969), p 27. See also, Wisdom AS, The Law of Rivers and Watercourses (4th ed, Shaw & Sons Ltd, 1979) pp 5-6 where there is reference to ‘water which squanders itself over an undefined area, such as surface water the supply of which is casual and its flow following no regular or definite course’.” [38] On the basis of the evidence accepted by the primary judge, whichever of these descriptions is adopted, the channels she identified at R [66(b)] and R [66(h)] are properly identified as natural watercourses. There is no error in her Honour’s factual findings in that regard. [39] There is a further feature which should be noted. Riverview and Mikandra flooded before the Temporary Levee was built and indeed subsequently. Dr Markar in his first report identifies major flooding in January 2011, January 2013 and February 2013, with a moderate flood in December 2010: at Table 3-7. Mr Stewart gives evidence of flooding in subsequent years: see his first affidavit at [410]-[412] overtopping the Temporary Levee; and [419]-[420]. This is consistent with -- 10 of 23 -- 11 Riverview and Mikandra being located on a floodplain: see R [16]. There is no finding that the whole of that floodplain (or at least the part where these properties are located) is to be viewed as a natural watercourse. [40] In any event, such a description would be inapt having regard to the characteristics of a natural watercourse outlined in the cases to which I have referred. Adopting the language quoted from Muckle v Anderson, supra, such general flood waters could be said to be “water which flows over the ground discontinuously without reference to a defined channel and with no visible banks or margins.”5 [41] However, it is not necessary to discuss this further, as the elements of the nuisance claim do not turn on the finding, or upsetting the finding, of the natural watercourses giving rise to riparian rights to the flow of waters. [42] Historically, interference with riparian rights (including the right of flow of waters) was actionable in nuisance: see Elders Rural Finance Ltd v Westpac Banking Corporation (1989) 6 BPR 13,439 at 13,443 (Bryson J); Nalder v Commissioner for Railways (Qld) [1983] 1 Qd R 620 at 623 (Kneipp J); Clerk & Lindsell on Torts at 1.64. [43] The decision in Gartner v Kidman (which it is noted did not deal with a natural watercourse) is to be understood as an example of the application of the test for nuisance and not as laying down, as it was advanced below, a defence available to the appellants to be able to ‘turn back’ the waters onto the respondents’ land with impunity. That is how Gordon, Edelman and Beech-Jones JJ treated it in Hunt Leather Pty Ltd v Transport for NSW, without reference to any legal distinction to be drawn based on whether or not the water being held back by a barrier was surface water. [44] There are reasons to doubt that the respondents continued to enjoy riparian rights, as such, to the flow of waters of the kind discussed in Gartner v Kidman, which the appellants were obliged not to materially affect. Those rights have been affected by the Water Act 2000 (Qld) and its predecessors. By section 26 “[a]ll rights to the use, flow and control of all water in Queensland are vested in the State.” Water is broadly defined to include both water in a watercourse and overflow water (itself broadly defined): Schedule 4. It had previously been held in this State that the predecessor to s 26 did not displace the private riparian right to have water carried away by a watercourse: see Nadler v Commissioner for Railways [1983] 1 Qd R 620 at 627, per Kneipp J. However, that aspect of the decision likely does not survive the later decision of the High Court in ICM Agriculture Pty Ltd v The Commonwealth (2009) 240 CLR 140 at [54] per French CJ, Gummow and Crennan JJ, and at [116] and [146] per Hayne, Kiefel and Bell JJ; see also Crossley v English [2025] WASCA 141 at [183]. This point was not argued on appeal and accordingly it is unnecessary to express a concluded view as to it. [45] Moreover, the respondents did not advance their case on the basis of them holding any riparian rights. The status therefore of a channel as a natural watercourse or a drainage line for surface water is not of itself material. (a) In their defence to the fourth further amended statement of claim (the statement of claim) they do identify what they contend to be the “relevant drainage 5 Cf Nadler v Commissioner for Railways [1983] 1 Qd R 620 at 624. -- 11 of 23 -- 12 features” of the area: paragraphs 2(f); 4A, 4B and 4C. It is also alleged that the Fairdale-Leafdale Gully course was altered by the appellants prior to 1993 by placing a channel inside Riverview and parallel to the common boundary with Mikandra to divert the Fairdale-Leafdale Gully course generally to the west along that boundary instead of its initial course of generally north-west across Riverview. But no complaint is made as to this alteration or its impacts. (b) The Temporary Levee is alleged to have had the effect of “blocking overland water flow from Mikandra from entering Riverview along the southern boundary”: in its original configuration during moderate flood events: Counterclaim [102], [104]; and in its form modified in 2023 for major flood events: Counterclaim [108], [113]. This is said to give rise to an actionable nuisance: Counterclaim [106], [116]. [46] At the hearing of the appeal, senior counsel for the respondents accepted the framework for assessment of their nuisance claim as being that now identified in Hunt Leather Pty Ltd v Transport for NSW, supra.6 Senior counsel for the appellants also adopted that framework7 and accepted that it was difficult to slot the ‘turn back defence’ into that framework.8 That approach is in my view entirely appropriate. [47] Accordingly, I turn to consider the elements identified in Hunt Leather Pty Ltd v Transport for NSW, and the remaining grounds of appeal. Substantial Interference with the Respondents’ Ordinary Use of Their Land [48] There is no issue that the respondents were making ‘ordinary use’ of Mikandra by using it for a cotton farm. The dispute is whether they established that the interference with that use was substantial. [49] The evidence refers to the impacts on the respondents’ land in a number of ways. In no instance was the impact expressed as a quantified dollar impact on the revenue or profits of Mikandra, or indeed as a quantified impact on the volume of the viable cotton crop. The appellants’ submission was that given the use here was a commercial enterprise, for an interference to be substantial it must be proved that the profits of Mikandra were substantially affected and that this has not been done. [50] I accept that if the profits of Mikandra had been shown to be significantly adversely impacted that would likely be sufficient to establish that the impact was a significant interference with the ordinary use of the farm. But I do not accept that the only way to establish that the respondents’ ordinary use of their land had been significantly affected is by something expressed as a dollar figure. [51] The evidence in this case was sufficient to make out that there has been a significant impact on the ordinary use of Mikandra. [52] The primary evidence was that of Mr Stewart.9 His evidence revealed: (a) Generally he and his wife operate Mikandra to grow as much cotton as they can having regard to water allocation, market prices and crop rotation schedules: [31]. 6 Appeal T1-67 line 45 to T1-68 line 7. 7 Appeal T1-3 lines 26 to 40. 8 Appeal T1-57 lines 34 to 40. 9 First Affidavit of Mr Stewart sworn 7 March 2023. -- 12 of 23 -- 13 (b) It is to the benefit of Mikandra for flood waters to enter Mikandra and “to spread out and slow down.” It would be adverse to his farm if water ran along or parallel to a levee causing erosion: [234]. (c) The majority of the flood waters that crossed Mikandra was from the overflow of Barambah Creek breaking out: [282]. (d) Specifically since the construction of the Temporary Levee a number of rain events have led to water backing up behind the Temporary Levee pooling in Mikandra “and cause us damage”: [401]. What followed in the affidavit was a discussion dealing with a number of rain events since 2017 up to 2025. (e) For the March 2017 event, the damage is said to have included water backing up into Blocks 1 and 2: [404].10 The damage also included silting up of the cotton plants and the rows of cotton, and the inability to get machines into the blocks to desilt them or apply defoliant chemical while the soil dried out: [404]. But a difficulty for the respondents with this part of their case is that, while it can be accepted in some rain events the water would pool back onto their land at a greater depth and coverage than if the Levee was not present, it is not clear what the marginal difference in any particular rain of flood even might have been. For some events when the Levee was overtopped the direct impact of the additional depth and coverage might have been negligible. The same can be said of the presence of silt, and the inability to get machinery in while the soil was wet. (f) More detail is given for later rain events, starting with the November 2021 event: [406]. In this case Mr Stewart said that the Temporary Levee “prevented the water from travelling in the normal flow path and instead the water began back filling and pooling on Block 1 and Block 2…”: [408(c)], [409(c)]. He says the same for rain events in January 2022: [412(c)]. (g) The January 2022 rain events caused damage to Mikandra, on Mr Stewart’s evidence being: (i) Loss of top soil. (ii) Erosion along the western boundary of Block 2 and the eastern boundary of Block 1. (iii) The loss of about 0.5 hectares of cropping land as a result of ‘erosion’ with the land now too low to be planted. (iv) Water backed up so that they lost around 24 hectares of cotton from those blocks which went under water with other cotton reduced in value because of the water being ¾ of the way up the plants. (v) The deposition of rubbish on parts of Block 2 which flattened cotton in those areas: [413]; [421]; [422]. From the photos provided the flattened areas appear about a third of the way into Block 2 south of the Temporary Levee’s location and generally about in the northern centre of that Block. (h) Again, the evidence does not clearly delineate what the marginal difference in any particular rain event was from the presence of the Temporary Levee. 10 The location of Blocks 1 and 2 appears on Figure 3-2 to Dr Markar’s Third Report. Block 1 is to the east, with Block 2 on the west of Mikandra, those blocks being divided by the Lagoon and its channel, with both being to the immediate south of Riverview. -- 13 of 23 -- 14 [53] However, Mr Stewart’s evidence, at least for the 2021 and 2022 events attributed the problems he was describing to the Temporary Levee blocking and causing the water to back up and preventing it from flowing away. [54] Generally his oral evidence did not greatly advance the matter. However, in re- examination he was asked (concerning the 2022 floods):11 “MR HANDRAN: And can you tell her Honour how – just looking at that part of the land that you’ve marked up – how that fared in the 2022 floods, compared to what it did in the previous – pre temporary [levee] works floods?--- We had similar water go through that field. But it got away a lot quicker. Tend to hang around a lot more, not being able to drain away in its natural course. And what effect does that have on farming in that area, when you’re running an irrigated crop farm?---Well, there was not a lot we could do. We couldn’t even get across there, you know, to do works there. What about irrigation? Can you irrigate when the paddocks are in that condition?---Not – not in that condition, no. Later on – – – Why not?---Later on we do. And if you’ve got silt deposit there, we can’t get water down the rows, can’t get tractors down the rows, can’t get sprayers down the rows. What’s the problem with water not getting down the rows or the furrows?---Well, when it gets to the end, if it’s all silted up, it can’t get through into the tail drain and do its thing, so it just blocks. Nowhere to go.” [55] This is some evidence identifying a marginal impact of the water hanging around longer and the effects of that on the use of Mikandra as a cotton farm. There is no reason to think this would not be true of all rain events where the Temporary Levee was said to have prevented water running away as it previously had. [56] The expert evidence called supported that the Temporary Levee had an adverse impact on the use of Mikandra. It came in the form of reports from a soil engineer (Ms Perrett), a soil scientist (Prof Bennett) and hydrological reports by Dr Markar. [57] Dr Markar in his third report dated 8 March 2023: (a) Expressed the view that the Temporary Levee (to which he referred as the Riverview flood mitigation embankment) “has an adverse impact on predicted flood levels and velocities on Mikandra”: [24]. (b) Modelled the hydrological features of the properties comparing the velocities and depths of water with and without the Temporary Levee. The primary judge accepted his evidence and there is no challenge to his modelling on this appeal. In section 6.5.5 he modelled the January 2022 rain event (and undertook a similar exercise in section 6.5.6 for the February 2022 rain event). It is sufficient to set out part of his opinion for the first of these flood events which is: 11 T19-74 lines 27 to 45. -- 14 of 23 -- 15 “ The [Temporary Levee] has significantly altered predicted peak water levels and velocities on both Mikandra and Riverview and has caused significant adverse flood impacts on Mikandra:  The predicted peak velocities on Mikandra Block 2 are increased where flows are concentrated and diverted to the northwest corner of the block by the embankment;  The predicted peak flood levels on Mikandra Blocks 1 and 2 are increased by up to 0.3 m due to the Riverview flood mitigation embankment (see Appendix B, Figure B- 69).”12 [58] His report includes figures which show the reduced velocities of flow being at a point after water exits the Lagoon and travels along a channel before backing up against the Temporary Levee and also in an area running broadly south to north in the middle of Block 2 for about two thirds of the length of the Block from its southern boundary towards the Temporary Levee. The area where velocity increased is to the west of the Temporary Levee as water sweeps round it to the west. It is difficult, however, to discern any material changes in velocity on the eastern boundary of Block 1. [59] The effects of these changes can be expected to include greater deposition of spoil and debris when the velocities are slowed compared to the position absent the Temporary Levee and greater erosion of soil from the areas where the velocities are increased. This is supported by the report of Ms Perrett (though any attempt to quantify impacts in these respects would require a greater analysis of the soil types than was undertaken). [60] Dr Markar’s modelled changes to the velocities on Block 2 support Mr Stewart’s description of erosion along the western boundary of Block 2 and the deposition of rubbish on parts of Block 2 which flattened cotton in those areas. However, the modelling of velocity changes on Block 1 do not support his evidence of erosion on the eastern boundary of Block 1. [61] Dr Markar’s fifth report considers the 2023 works conducted in the Temporary Levee. His summary conclusion is that there is likely to have been a slight increase in the adverse impact of velocities and flood levels but that he had not done sufficient modelling to quantify those changes: [28]. [62] Dr Markar gave oral evidence about the impact of the Temporary Levee on Mikandra. Having modelled the structure of the temporary bank at the time and against the conditions of the January 2011 flood event (a large flood), Dr Markar concluded that the Temporary Levee would not have caused significant adverse flood impacts. When asked about his findings, Dr Markar explained that the Levee would have been overwhelmed and the whole area inundated.13 [63] However, the effect of the Temporary Levee in that situation was to back up, slow down and redirect the water the other way. Once the water rises above the top surface of the Levee, however, the same quantity of water will back up into Mikandra irrespective of the presence of the Levee.14 12 Dr Markar’s Third Report at [215]. 13 T21-60 lines 21 to 34; his First Report at [172]. 14 T21-60 lines 36 to 48. -- 15 of 23 -- 16 [64] In this vein, a distinction was to be drawn between two types of impacts, namely, flooding that overtops the Levee and flooding which stays below the surface.15 [65] In the former category, the Levee has a lesser impact because “the whole flood plain comes into play.”16 [66] When asked whether, based on the modelling, the February 2022 flood event and the January 2022 flood event caused different impacts, Dr Markar responded that they were similar in terms of impact area, but different in respect of the magnitude of the impact.17 In both events, the Levee has a role in reducing the impact of the flooding to the north and redirecting the water to the west and north-west.18 Is that Substantial Interference? [67] As to the test of substantiality, Australian courts have frequently applied the formulation in Walter v Selfe (1851) 4 De G & Sm 315.19 There, Knight-Bruce VC posited the following question at 322: “[O]ught this inconvenience to be considered in fact as more than fanciful, more than one of mere delicacy or fastidiousness, as an inconvenience materially interfering with the ordinary comfort physically of human existence, not merely according to elegant or dainty modes and habits of living, but according to plain and sober and simple notions among the English people?” [68] Gordon and Edelman JJ observed in Hunt at [95]: “… it has been established since Walter v Selfe that a claim for interference with the plaintiff’s right to land can only be brought for private nuisance if there is ‘material discomfort and annoyance for the ordinary purposes of life to a [person’s] house or … property’.” [69] In Gales Holdings Pty Ltd v Tweed Shire Council (2013) 85 NSWLR 514, Emmett JA also canvassed the interference in terms of materiality. His Honour stated at [138]: “Leaving aside water, emanations of any kind constitute a nuisance if they create an inconvenience materially interfering with the ordinary physical comfort of human existence, according to plain, sober and simple notions among ordinary people. Regard must be had 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…” [70] In Brown v Tasmania (2017) 261 CLR 328, Gordon J summarised at [385] that an action for private nuisance requires there “be a material interference, beyond what is reasonable in the circumstances, with the plaintiff’s use or enjoyment of the land or of the plaintiff’s interest in the land.”20 15 T22-51 lines 22 to 35. 16 T22-51 line 49 to T22-51 line 9. 17 T22-62 line 46 to T22-63 line 8. 18 T22-66 lines 13 to 19. 19 Hunt at [95]. See also Riverman Orchards Pty Ltd v Hayden [2017] VSC 379 at [178] (John Dixon J); Hill v Higgins [2012] NSWSC 270 at [49] (Harrison J). See further Luntz & Hambly’s Torts (10th Ed) at [15.1.10]. 20 Citing Victoria Park Racing & Recreation Grounds Co Ltd v Taylor (1937) 58 CLR 479 at 504, 515- 516, 524; Sedleigh-Denfield v O’Callaghan [1940] AC 880 at 903; Sid Ross Agency Pty Ltd v Actors -- 16 of 23 -- 17 [71] Substantiality is ultimately a question of fact.21 [72] The primary judge identified at R [151] that the authorities use terms such as ‘real’, ‘material’ and ‘significant’ in relation to the test for substantial interference. This language comes from the reasons of Lord Leggart JSC (Lords Reed and Lloyd-Jones agreeing) in Fearn v Board of Trustees of Tate Gallery [2024] AC 1 at [22]. Lord Leggart went on to explain that the courts will not entertain claims for “minor annoyances.” [73] These are qualitative statements and can be satisfied without requiring proof of impact in terms of quantified revenue or profit impacts for commercial properties. Here the physical impact is identifiable in the form of erosion of soils towards one end of the Temporary Levee and the deposition of silt in various new places, with consequences for the manner of conduct of the farm at Mikandra. It is an impact which will be experienced during any significant rain events and that such things occur is not only something of which judicial notice could be taken but is also established in the evidence. The Levee though called Temporary was in place for many years and was modified in 2023. The duration and frequency of the adverse impacts are factors in the assessment of their materiality. [74] In my view for these reasons there is no error in the primary judge’s findings that the Temporary Levee (by its effects on the water) caused a substantial and unreasonable interference with the respondents’ use and enjoyment of Mikandra. Was the Temporary Levee use for a Common and Ordinary Purpose? [75] This is an objective question to be assessed having regard (at the appropriate level of generality informed by the conduct said to be the infringement) to what are “the usages… in [that] particular society”: Hunt Leather Pty Ltd v Transport for NSW, supra. I would take that to refer here to cotton farmers in the general locality, or if that is too narrow, then to farmers in that locality. [76] The primary judge, given the course of the trial and submissions made to her, did not explicitly consider this issue. Rather her Honour found that the course which the water breaking from Barambah Creek would have taken but for the Temporary Levee was a natural watercourse. [77] That finding, though once germane to the so called ‘Turn Back Defence’, in my view remains relevant to the assessment of whether what the appellants were doing was common and ordinary. [78] The construction of embankments on land in the area is not uncommon. Dr Markar included in his third report as Figure 3-3 a map which he described as showing “the location of the various irrigation, drainage and flood management works and features that are located on Mikandra or Riverview.”: [65]. It refers to multiple “embankments” not limited to the Temporary Levee, as well as something called “Wieser’s levee.” [79] There is some (limited) other evidence that the establishment of levees was not uncommon in the area. Dr Markar in his first report states at [24]: & Announcers Equity Association of Australia [1971] 1 NSWLR 760 at 768; Elston v Dore (1982) 149 CLR 480 at 487-488. 21 Riverman Orchards Pty Ltd v Hayden [2017] VSC 379 at [179] per John Dixon J which has been cited with approval in a number of later cases. -- 17 of 23 -- 18 “Barambah Creek flooding behaviour at Riverview and Mikandra would be impacted by the numerous flood mitigation structures that have been constructed by land owners in the region on both sides of the creek, as well as the irrigation infrastructure constructed on the floodplain. Flooding behaviour at Riverview and Mikandra would also be impacted by high water levels in Silverleaf Weir.” [80] Further, the material tendered at trial included a government funded report called the Barambah Creek Floodplain (Byee) Land Management Plan 2014 which recommended the removal of “all unnecessary levees”: pages 4, 25 and 27. The report acknowledges that levees have been built “over time usually to protect crops from inundation and production losses from ‘low’ to ‘moderate’ floods”: page 14. [81] What arguably has not been demonstrated is that a levee of the kind involved here was something encountered in the common or ordinary use of farms in that locality. There has been little examination of the purpose, size and alignment to the flow of water of these levees. It may well be that there are no other levees or embankments in the locality which seek to interrupt a channel of the kind identified in this case as the Fairdale-Leafdale Gully. Additionally, the Temporary Levee’s length and that it is perpendicular to the general south-north flow might be thought to differentiate it from other levees. [82] As already mentioned, it is acknowledged in Hunt Leather Pty Ltd v Transport for NSW that difficult questions may arise as to the appropriate level of generality at which to identify the common and ordinary usage. Insofar as guidance is provided it is said that this is to “be guided by the conduct that is said to be the infringement”: at [107]. [83] Levees to protect structures, roads or the like may well be common and ordinary. But the evidence also suggests (without greater amplification) that flood mitigation structures are also used in the locality. The Temporary Levee is such a structure. [84] On the basis of the slender evidence provided, on balance it seems appropriate to conclude, and I would find, that the use of levees as a form of flood mitigation to protect crops or land (even if generally of the kind employed by the appellants) is a common or ordinary use of the farm land in that locality. Was the Temporary Levee Use “Conveniently Done”? [85] The primary judge considered whether the appellants had established that they used reasonable care and skill in constructing the Temporary Levee: R [116]. The primary judge concluded they had not done so, principally because her Honour found no hydrological assessment was undertaken to inform the design and construction of the Temporary Levee: R [117]. This is to be read with her Honour’s reference to the sole purpose for the appellants constructing the Levee being to protect Riverview against the effects of non-existent works alleged to have been done on Mikandra (R [97]); and the irrationality of doing so: R [128]-[130]. [86] In Hunt Leather Pty Ltd v Transport for NSW the expression “conveniently done” was said to require the appellants to establish that they acted “using means that reasonably minimised the extent of the interference”: [97]. There was an evidentiary -- 18 of 23 -- 19 onus on the respondents to identify the respects in which that use of the land was not conveniently done: [111]. [87] It was submitted by the appellants that: (a) The test of whether something is conveniently done is objective such that their subjective motivation or considerations were irrelevant; and (b) The respondents had not discharged their evidentiary onus because they did not seek to establish that it was normal to employ hydrologists for the design of levees or that any hydrological analysis would have led to any different design which might have had a smaller impact on Mikandra. [88] I accept that identification of the appellants’ subjective motivations or considerations does not directly answer whether the means employed in their use of Riverview is or is not something conveniently done. But the evidence of the reasons for their constructing the Temporary Levee and the way they went about it do go to whether the respondents have discharged their evidentiary onus. [89] First, the primary judge found that the appellants built the Temporary Levee in order to deal with the consequences, as they perceived them to be, of increased water flows onto Riverview from levees constructed or earthworks carried out by the respondents on Mikandra: R [17]-[18]. The appellants had commenced proceedings to seek to recover, inter alia, the costs of the construction of the Temporary Levee due to that conduct by the respondents. That was the water flows which the Temporary Levee was to deal with, and not the ‘natural’ flows which comprised the usual surface water run off during flood or major rain events; and the “sole purpose” of the Temporary Levee was to mitigate “against the tortious conduct of” the respondents: R [29], R [33c], and the Amended Reply to the Defence and Counterclaim at [75]. [90] It was not established that any such levees or earthworks had been carried out by the respondents. The thing the appellants sought to achieve by the Levee necessarily was not directed at all to minimising harm to the respondents but rather exclusively to minimising the imagined harm to Riverview. [91] On the other hand the evidence of Mr Hanlon (whose credit the primary judge did not accept, a matter to which I shall return) was that he suggested the broad outlines of the Temporary Levee in order to protect Riverview from the worst of the flooding, seemingly not because of any additional flooding or velocity of flood due to the construction of levees on Mikandra: see his affidavit at [43]. He recommended that the appellants contact an engineer but there is no evidence they did so. There is, however, no suggestion Mr Hanlon in his broad description of the Levee paid any regard to impacts on Mikandra. [92] Second, Mr Stewart’s evidence identified the harm to Mikandra as including erosion of soil from certain places and the additional deposition of silt and debris on others. This is identified by Dr Markar as being a feature of the location of the Temporary Levee. It being perpendicular to the direction of flow leads to the diversion of the water, changes in velocities and erosion.22 [93] These pieces of evidence, in my view, discharge the evidentiary onus on the respondents to show that the Temporary Levee was not conveniently done. It caused 22 Mr Stewart’s first affidavit at [234]; T19-23 lines 14 to 36. -- 19 of 23 -- 20 harm and it did so because of its impact changing velocities or run off as well as causing the backing up of water for longer on Mikandra. No consideration was given to the inclusion of culverts, spillways, shutes or other engineering elements to mitigate these impacts. I do not think it was necessary for the respondents to go further and prove that: (i) it was usual for cotton farmers to engage hydrologists to conduct proper studies before erecting a levee; or (ii) that a design better than the one used was possible which would have provided protection to Riverview and done less harm to Mikandra. [94] The appellants had to establish that they acted “using means that reasonably minimised the extent of the interference.” Their case is that they consulted Mr Hanlon and Mr Watts. [95] Mr Enkelmann in his first affidavit said he took advice from Mr Hanlon and Mr Watts. The primary judge summarised the effect of Mr Enkelmanns’ first affidavit at R [103(a)] as stating his evidence in relation to the Temporary Levee in these terms: “(i) Construction commenced in about June 2013 and took about 6 months. (ii) The design and construction of the Temporary Levee was based on expert advice from Mr Steven Hanlon. (iii) Riverview suffered damage in the January and February 2013 flood events, including erosion, siltation and deposition of debris. (iv) Mr Hanlon was an agricultural engineer with expertise in irrigation design and he provided advice to the plaintiffs. (v) Mr Hanlon suggested the plaintiffs contact Mr Peter Watts of FSA Consulting Engineers to obtain advice ‘in relation to what measures [the plaintiffs] should put in place to limit future damage and what avenues of redress may be available to [the plaintiffs] to address the past flood events’. (vi) Mr Watts told the plaintiffs (as stated in the first defendant’s affidavit and the exhibited email) that ‘certain approvals may have been required from Local Government’. (vii) Mr Watts attended Riverview on 25 May 2013 and suggested that the plaintiffs should ‘construct an over-topping protection bank near the southern boundary of Riverview to try to slow and spread the flood water on the southern boundary of Riverview to mitigate against any future damage from flood events’. (viii) Mr [Hanlon] was then asked by the plaintiffs to design a protection bank on Block 9. (ix) Mr Hanlon provided ‘verbal advice’ to construct a levee of 600 mm in height with a minimum batter slope of 10:1. (x) The plaintiffs followed the advice of Mr Hanlon and Mr Watts and constructed the Temporary Levee, resulting in the loss of about 3.7 hectares of irrigated land. -- 20 of 23 -- 21 (xi) The construction of the Temporary Levee involved creating a drain near the Riverview boundary and using that dirt as the base of the Temporary Levee as well as dirt from other areas. (xii) Mr Hanlon later surveyed the area of the Temporary Levee.” [96] Mr Watts was not called by the appellants at trial nor it seems his absence explained. The primary judge was not prepared to act on the evidence of Mr Enkelmann “unless it is contrary to the interests of” the appellants: R [60]. There is no appeal from her Honour’s findings in that respect, which in any event would face the hurdle required for this Court to depart from such a finding made after a lengthy trial in which oral evidence was given: see Robinson Helicopter Co Inc v McDermott (2016) 90 ALJR 679 at [43]. [97] It follows that nothing helpful to the appellants can be extracted from the evidence of Mr Enkelmann as to the detail of his dealings with and the advice received from Mr Watts or Mr Hanlon. [98] But Mr Hanlon did give evidence. [99] The primary judge summarised Mr Hanlon’s affidavit evidence at R [103(c)] as follows: “(i) Mr Hanlon suggested that the plaintiffs build ‘a temporary protection bank’ to try to ‘prevent the worst of the effects of future floods’. (ii) He suggested that it be built in the same location as ‘the old, raised strip … about one metre above the natural surface with an extended base and a flatter batter at the northern side’. (iii) The Temporary Levee was ‘not designed to be a permanent fix to stop all future damage likely to result from the flood waters coming from Mikandra … it was designed by [him] to head off the worst of the effects of future flood waters until such time as a better and more permanent solution could be reached about controlling flood waters in the area’. (iv) Mr Hanlon was not well at the time and recommended that the plaintiffs approach Peter Watts at FSA Consulting Engineers to assist them ‘further with any farm design work’. (v) Mr Hanlon visited ‘in the years since 2013’ and saw the Temporary Levee had been built but he was ‘not involved in its construction’.” [100] But her Honour was dismissive of Mr Hanlon’s evidence. The primary judge expressed a finding that she generally did “not accept the evidence of Mr Hanlon.” The only reason given is that “[i]n cross-examination, Mr Hanlon gave evidence that he had kept a note of what he saw on Mikandra and he no longer had it as he ‘accidentally burnt the … wrong set of files’. This evidence goes to the credit of Mr Hanlon. This evidence is implausible…”: R [113]. The appellants in their submissions (but not in the notice of appeal) challenge this credit finding. -- 21 of 23 -- 22 [101] The note being referred to relates to a visit to the properties after the 2011 floods and what he saw in Mikandra.23 Whatever view may be taken as to the likelihood of someone who made a note in 2011 accidentally destroying it in 2018 in the course of moving home (after 40 years) that provides a poor foundation for challenging that person’s recollection of what he told the appellants in 2013 on a separate occasion as to the location and broad parameters of a possible levee. The primary judge did not identify any other reason why she would not accept Mr Hanlon’s evidence (beyond the explanation for the loss of a note in 2018). Accordingly, I would read her Honour’s conclusion in R [113] as limited to his evidence concerning that note or his observations in 2011 and not more broadly. In any event, there was no proper basis for not generally accepting Mr Hanlon’s evidence of what was said in 2013. It seems to me to be something he, as a civil engineer, is likely to have said and it was followed by the appellants in fact putting the Temporary Levee in the location he identified. This makes it a compelling inference to draw that that is what occurred. In the end however, nothing turns on this. [102] The Temporary Levee was in fact ‘constructed’ by the appellants themselves. It is a raised mound running approximately the length of Block 8 on Riverview’s southern boundary (and accordingly at least some hundreds of metres). The height of the Levee is not readily apparent from the material. However, the figures in Dr Markar’s fifth report suggest it is of varying height but in the order of a metre or perhaps less high.24 [103] The appellants: (a) Did not seek to identify the potential impact on Mikandra. (b) Were seeking to interrupt what were identified by them as being damaging increased flows of water in flood conditions onto Riverview and nothing more. (c) Did not consider any hydrological assessment (however rudimentary) of the Temporary Levee, despite it being clear that it would to some extent at least interrupt the flow of water from Mikandra onto their land, and in doing so would divert that water to the east and west of the Levee. (d) Did not by the appellants themselves or Mr Hanlon give consideration to how the Levee might be designed to reduce impact on Mikandra.25 (e) Were told by Mr Hanlon that given his health at the time he could not help further and that they should contact “Peter Watts at FSA Consulting Engineers in Toowoomba to assist them further with any farm design work”: Hanlon’s affidavit at [46]. This is vague but in cross-examination it seems to have been intended to refer to flooding related design work.26 (f) Did not establish that he was engaged. There was some evidence to the effect that Mr Watts advised a development application might be required but nothing more. (g) Appreciated the Levee was only intended by Mr Hanlon to be temporary until a more permanent solution could be designed. That provides some support for 23 T4-112 line 28; T4-113 lines 10 to 27; T4-114 lines 21 to 23. 24 See for example figures 3-9 to 3-13. On appeal the Court was informed it was in the order of half a metre high: Appeal T1-30 line 20. 25 Appeal T1-22 lines 13 to 17; T1-23 lines 3 to 15. 26 T4-110 line 48 to T4-111 line 6. -- 22 of 23 -- 23 the conclusion that it was not as carefully carried out as might be expected of a more permanent levee. Yet, while it was constructed commencing in 2013, it remained in place and was enhanced in 2023. (h) Were acutely aware of the respondents’ complaints about the adverse impacts on Mikandra before the modification works were conducted (in around July 2023).27 The trial commenced on 8 May 2023. A counterclaim had been made by the respondents in respect of the nuisance alleged to have been created by the Temporary Levee long before that, and they at least had the third report of Dr Markar by that time. Yet nothing different was done to accommodate the respondents’ concerns or minimise the impacts on Mikandra. Indeed as already adverted to, the modifications if anything made the adverse impacts marginally worse. (i) The only positive evidence was from Dr Markar to the effect that the Temporary Levee was only effective to stop some but not all flows. However, that provides no analysis of whether the Temporary Levee would, if made shorter or lower, or its design modified in other ways, minimise the impact on Mikandra. [104] Given, as I have discussed above, that the assessment of what is conveniently done requires consideration “not merely of the convenience of the defendant, but also the convenience of the plaintiff”, it cannot be established without any consideration of the latter. [105] In the circumstances there is no error in the primary judge’s conclusion that the appellants had failed to discharge their onus. Summary [106] Accordingly, the primary judge was correct to conclude that the respondents had made out their case of nuisance from the construction of the Temporary Levee, its modification and its maintenance in place. [107] Moreover, it would continue to be a nuisance for so long as the risk of further heavy rain or flooding existed; which plainly was the case. [108] There is no separate challenge to the primary judge’s decision to issue an injunction requiring its removal and such an order was appropriate. [109] For these reasons in my view the appropriate orders are: 1. The appeal is dismissed. 2. The appellants pay the respondents’ costs of the appeal. 27 See Third Affidavit of Mr Stewart at [6] to [8]. -- 23 of 23 --