In our newsletter item in October 2025, we set out the law relating to damages claimed when earthworks on a property blocked the flow of water causing pooling of the water that caused damage (Enkelmann & Ors v Stewart & Anor [2025] QSC 77).
In the same case the court considered whether the defendants in their cross claim established a claim in nuisance.
His Honour first set out the elements that must be proved to establish nuisance. Liability for nuisance arises if there is a wrongful interference with another’s use and enjoyment of land. Although the nuisance can take many forms, it must be substantial and unreasonable. Whether a harm is substantial depends on the gravity of the harm and this requires consideration of its character and duration. His Honour stated that what is substantial is decided based on what would be viewed by the “normal person“. The test must be that it exceeds a minimum level of seriousness to justify the law’s intervention. There must also be a degree of give and take between the parties that balances competing rights to enjoyment of land.
The court will look at what steps were taken to minimise the interference and the type of damage suffered.
Having set out the elements of a claim in nuisance, His Honour went on to determine if the defendants had established that the temporary levee constructed by plaintiffs (the defendants in the cross claim) caused a substantial and unreasonable interference with the defendants’ use and enjoyment of their property Mikandra.
In defence of the claim, it was asserted that it would have to be proved that the pooling caused by the temporary levee interfered with the operation of a commercial farm.
His Honour reviewed the expert and lay evidence and found that the construction of the temporary levee did cause substantial interference with the use and enjoyment of Mikandra.
The interference referred to above had persisted for some years and it was claimed that the temporary levee was necessary because of works on Mikandra. His Honour found, however, that there was no credible evidence that there were any such works on Mikandra. The court found that the interference in the circumstances was unreasonable.
The final matter determined by His Honour related modification works on the temporary levee in 2023. These works did not dramatically alter the temporary levee. Importantly, the unreasonable interference found in respect of the temporary levee was continued following the 2023 modifications.
His Honour ordered that the temporary levee be removed.