Word Count : 1532
INTRODUCTION
The role of fault in nuisance law is a subject of ongoing judicial deliberation, specifically whether
liability remains strict or includes elements such as foreseeability and reasonableness. While
historically a strict liability tort, recent case law demonstrates a doctrinal shift towards incorporating
fault principles, notably in issues of material and unreasonable interference and the continuation or
adoption of a nuisance. The recent NSW Supreme Court cases of Boyes v Thomson (‘Boyes’)1 and
Rifai v Woods (‘Rifai’)2 illustrate how contemporary courts balance such considerations. Boyes
reflects a doctrinal shift towards negligence-based elements while Rifai has implications for
environmental policy.
Boyes
Facts
The plaintiffs, Frank Boyes and Sheena Boyes, live in Medowie NSW.3 The Boyes complain
of excessive water flow emanating from the defendant’s, Mr Shane Thomson, higher
neighbouring land, causing damage to a retaining wall in their backyard. The Boyes contend
that Mr Thomson was aware that his interallotment drainage system (IAD) was defective and
yet, did not take reasonable steps to end the nuisance.4 Thus, they claim that Mr Thomson is
liable for having adopted a nuisance. Mr Thomson claims to have taken reasonable steps to
prevent water flow to the Boyes’ property.5
1
[2024] NSWSC 1325 (‘Boyes’).
2
[2024] NSWSC 374 (‘Rifai’).
3
Boyes (n 1) [1].
4
Ibid [3].
5
Ibid [4].
Legal Issues and Outcome
The first issue was whether water flowed or continues to flow from Mr Thomson’s land onto
the Boyes’ land.6 Peden J found insufficient evidence regarding the volume of stormwater
during non-severe weather events.7 The second issue was whether any water flow constituted
a material and unreasonable interference with the Boyes’ land.8 In Gale Holdings Pty Ltd v
Tweed Shire Council,9 it was held that the owner of higher land is not liable in nuisance if a
more concentrated flow occurs simply as a result of the higher proprietor’s natural land use.10
Applying Gales,11 the court found no unreasonable interference.
The third issue was whether Mr Thomson knew of water flow caused by his defective IAD
and took reasonable steps to end the nuisance.12 In private nuisance, liability is imposed when
the defendant is aware of a nuisance but fails to take reasonable steps to end it.13 While
complaints from the Boyes’ over the years suggest that Mr Thomson was aware of
stormwater flow, there was no evidence of ongoing excessive water.14 Nevertheless, Peden J
held that Mr Thomson had taken reasonable steps to end the nuisance.15 The final issue was
whether damages or an injunction be granted to require Mr Thomson to carry out works to
avoid future damage to the Boyes’ land.16 To claim damages, proof of diminution in the value
6
Ibid [9].
7
Ibid [44].
8
Ibid [9].
9
Gales Holdings Pty Ltd v Tweed Shire Council (2013) 85 NSWLR 514 (‘Gales’).
10
Ibid [135].
11
Ibid.
12
Ibid [9].
13
Gales Holdings Pty Ltd v Tweed Shire Council (2013) 85 NSWLR 514, [131].
14
Boyes (n 1) [54].
15
Ibid [72].
16
Ibid [9].
of the property is required, although consequential losses are recoverable.17 The Boyes’
claimed of $54,812 in damages, however, Peden J found their works were necessary given
the ‘natural topography’18 of the land rather than an excessive inflow of water from
Thomson’s land. Consequently, the Boyes were not entitled to damages.
Rifai
Facts
The plaintiffs, Tarek and Nada Rifai, complain about water flowing onto their property in
Glenmore Park from the defendant’s higher neighbouring property.19 The defendants, Kane
and Natalie Woods, admit that water flows as alleged but claim that it is either ‘natural’ water
or a result of reasonable property use.20 The dispute arose in 2015 when the Woods replaced
two water tanks on their land with a swimming pool, later constructing a basketball court next
to the pool and a golf course.21 The Rifai’s claim these constructions altered water flow,
causing water ingress and creating a private nuisance.22 They seek injunctions compelling the
Woods to remedy the continuous nuisance.23
Legal Issues and Outcome
The first issue was the type of water flowing from the Woods’ property.24 Peden J highlighted
stormwater, pool water overflow and leakage as separate nuisances.25 The next issue was
whether the nuisance arose from the Woods’ reasonable use of property and if not, whether
17
Ibid [82].
18
Ibid [85].
19
Rifai (n 2) [1].
20
Ibid [2].
21
Ibid [3].
22
Ibid [5].
23
Ibid [6].
24
Ibid [9].
25
Ibid [31].
the fault element was established.26 The court held that the stormwater flow constituted a
material and unreasonable interference as it exceeded what was acceptable in their ‘lovely
suburban’27 locality. Peden J also found that the stormwater arose from the Woods’
ineffective drainage system as confirmed by expert evidence, making the interference
‘reasonably foreseeable’.28
The next issue was whether an order be made that the defendants prevent the nuisance.29
Applying Melaleuca Estate Pty Ltd v Port Stephens Council [2006],30 Peden J granted
injunctive relief due to evidence of past water nuisance.31 Finally, the Court assessed whether
the nuisance caused the wall to deteriorate and whether the defendants were required to
replace it.32 The Court found insufficient evidence to link the Woods’ work to the wall’s
deterioration.33
CRITICAL ANALYSIS
The cases of Boyes34 and Rifai35 reaffirm private nuisance as a fault-based tort rather than one
of strict liability, illustrating the common law’s cautious approach to imposing excessive
responsibilities on landowners. However, this raises both doctrinal and policy concerns about
whether the law of nuisance should adopt stricter liability rules to protect plaintiffs. Where
the nuisance is created and caused by the defendant’s own conduct, the fault requirement is
that the defendant’s use of property was unreasonable (Cambridge Water Co)36 or ‘reasonably
26
Ibid [9].
27
Ibid, [61].
28
Ibid, [76].
29
Ibid [9].
30
Melaleuca Estate Pty Ltd v Port Stephens Council [2006] NSWCA 31, [24]
31
Rifai (n 3), [82].
32
Ibid [9].
33
Ibid [87].
34
Boyes (n 1).
35
Rifai (n 2).
36
Cambridge Water Co v Eastern Counties Leather plc [1994] 2 AC 264.
foreseeable’37. However, where the defendant is claimed to have adopted or continued a
nuisance, the defendant will escape liability where they have no knowledge of it or takes
reasonable measures to end it.38
The doctrinal evolution of fault from strict liability to incorporating fault elements is most
evident in Boyes.39 The decision in Boyes highlights how courts are reluctant to impose
liability where the interference is causally complicated by environmental factors. 40 In
Boyes,41 Peden J found that the interference with the Boyes’ land was material but not
unreasonable during ordinary weather conditions. Although the onus is on the plaintiff to
establish that the interference was substantial, liability is mitigated by considerations of what
is socially acceptable in each locality. Peden J stated that the expert advice did not ‘explain
the magnitude of the benefit’42 of the steps that Mr Thomson took to improve his property to
deal with water issues yet, it was ultimately held that these steps were reasonable. Here, the
fault element allows some leniency in determining whether the measures were sufficient.
Contrarily, Canada’s stricter liability approach is more favourable to plaintiffs. In Antrim
Truck Centre Ltd v Ontario,43 the Supreme Court of Canada noted that reasonableness should
be evaluated from both the plaintiff's and defendant's viewpoints, imposing a larger duty on
defendants to alleviate harm. If a similar reasoning had been adopted in Boyes, liability may
have been imposed. Considering the growing frequency of extreme weather events in
Australia, courts may need to revaluate their approach. Ultimately, the move toward a higher
37
Rifai (n 2) [75].
38
Robson v Leischke (2009) 72 NSWLR 98, [44] – [46].
39
Boyes (n 2).
40
Ibid.
41
Ibid.
42
Ibid [67].
43
[2013] SCC 13.
evidentiary burden for plaintiffs does not align with the historical purpose of nuisance law –
protecting individuals from interference with their land.
In comparison, Rifai illustrates broader policy concerns regarding the conflict between
landowner rights and environmental regulation, while emphasising the importance of fault
where the defendant creates the nuisance.44 In Rifai,45 where the defendant created the
nuisance, the fault element was whether the interference was ‘reasonably foreseeable’. The
Court held the Woods’ accountable for their failure to foresee the water nuisance, reflecting a
shift towards stricter liability. This illustrates a policy of holding landowners to a higher
degree of accountability, supporting proactive measures to prevent harm to neighbours. This
policy approach aligns with growing concerns regarding urban expansion and the adverse
environmental consequences that follow.
Furthermore, Peden J granted injunctive relief to prevent future nuisances in Rifai.46 This
further reflects a policy-driven approach, prioritising prevention of the continuing water
nuisance over compensation. Conversely, in Boyes,47 Peden J denied damages as the works
carried out on the Boyes’ property were necessary given the ‘natural topography’48 of the
land, not the alleged nuisance. This restrictive approach limits remedies where the fault
element is difficult to establish because of external factors affecting causation such as natural
disasters. This could leave plaintiffs without redress as was in the Boyes’ case. Given these
constraints, Australia should consider legislative reforms such as implementing statutory
frameworks like the UK’s Environmental Protection Act,49 which allow the state to intervene.
This would prioritise overall environmental management over individual disputes. In cases
44
Rifai (n 2).
45
Ibid.
46
Ibid.
47
Boyes (n 1).
48
Ibid [85].
49
Environmental Protection Act 1990 (UK) s 79.
such as Boyes,50 plaintiffs could access regulatory action where private nuisance
responsibility fails. However, a complete shift to statutory nuisance may not be optimal as it
would impose excessive duties on landowners. Therefore, the law of private nuisance may be
unsuitable to address contemporary environmental issues due to courts’ ‘unduly narrow focus
on the immediate interests of the parties, leaving the environmental chips to fall where they
may’.51
CONCLUSION
The fault-based approach to liability, including elements such as reasonableness and
foreseeability, demonstrates a doctrinal shift away from strict liability. 52 Although this raises
concerns about the extent to which plaintiffs can effectively attain compensation, it mitigates
excessive responsibilities for landowners. Rifai illustrates the courts’ willingness to impose
liability where a nuisance is created by the defendant and thus, fault is clear. 53 However,
Boyes reflects the evidentiary difficulty for plaintiffs in proving fault due to causation. 54 Thus,
Australia should consider imposing stricter liability on landowners in cases such as Boyes
while still allowing for reasonable land use.55 Ultimately, these cases underscore the aim of
nuisance law – to strike a balance between private property rights and greater environmental
policy considerations.
BIBLIOGRAPHY
Collins, Lynda, ‘Evergreen? The environmental law of torts’ (2014) 22(3) Tort Law Review 107.
50
Boyes (n 1).
51
Lynda Collins, ‘Evergreen? The environmental law of torts’ (2014) 22(3) Tort Law Review 107, 119.
52
Maria Hook, ‘Reasonable Foreseeability of Harm As An Element of Nuisance’ (2016) 47 VUWLR 267, 282.
53
Rifai (n 2).
54
Boyes (n 1).
55
Ibid.
Hook, Maria, ‘Reasonable Foreseeability of Harm As An Element of Nuisance’ (2016) 47 VUWLR 267.
