Matthew Jones KC (led by G J Handran KC) represented the respondents, instructed by 23 Legal.
The appeal concerned a private nuisance claim between adjoining cotton-farm owners arising from a “Temporary Levee” constructed by the appellants on their land near the common boundary. The Court of Appeal dismissed the appeal, holding that 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.
In applying the elements of private nuisance identified in Hunt Leather Pty Ltd v Transport for NSW (2025) 426 ALR 621, the Court of Appeal held there was 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’ ordinary use and enjoyment of their land. Although the Court found the use of the Temporary Levee for flood mitigation constituted a common and ordinary use of farm land, the appellants failed to establish that the levee was “conveniently done”, in the sense of using means that reasonably minimised interference with the respondents’ land.
The judgment can be read by clicking here
