Responsibility for damage caused by the flow of water and the relevance of whether the water flow is a natural flow or created by works carried out by a landholder.
A long running dispute between neighbours was determined by the Supreme Court of Queensland in a judgment delivered on 17 April 2025 (Enkelmann & Ors v Stewart & Anor [2025] QSC 77).
Both the plaintiffs and the defendants claimed compensation against the other for damages caused by the flow of water. Before the final hearing, the plaintiffs abandoned their claim but defended the claims for nuisance and an injunction brought by the defendants in a cross claim.
The defendants claimed that a levee built by the plaintiffs on their property, Riverview, caused damage to their property, Mikandra. The plaintiffs, in their defence, claimed that the water flow was a natural water flow and they were entitled to raise what they referred to as the turn back defence.
The defendants’ case was that the plaintiffs constructed a temporary levee on Riverview that, during moderate flood events, caused water flowing in a northerly direction over Riverview to be blocked and pool on Mikandra. This pooling caused damage to crops.
The plaintiffs’ position was that the temporary levee was built for the purpose of blocking overland water flow from Mikandra. In this argument they rely on Gardner v Kidman [1962] HCA 27. This defence is available if the water flow is not a natural water course.
His Honour found that the water that flows over Mikandra and onto Riverview at the location of the temporary levee is a natural watercourse which is part of the riparian flows through the various tributaries of Barambah Creek. Earlier in the judgment His Honour had said: “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.”
The plaintiffs went on to argue that they were permitted to block the flow of water from Mikandra even if it was a natural watercourse, provided they acted with reasonable care and skill and did not act for the purpose of injuring this neighbour. This was a defence available in Gartner v Kidman.
After examining the facts, His Honour found that the plaintiffs took action to construct the temporary levee causing their own farming business harm, and physical harm to their own property, to deal with a perceived threat of increased water velocities caused by works claimed to have been done on Mikandra. Since no works had been carried out on Mikandra he considered this irrational. His Honour found that the turn back defence was not available.
His Honour ordered the removal of the temporary levee on the plaintiffs’ land.