VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
CIVIL DIVISION
BUILDING AND PROPERTY LIST	
vcat reference No. BP1910/2019	
CATCHWORDS	
BUILDING AND PROPERTY – Water Act 1989 – s.16 – claimed flow of water from respondent’s land onto the land of the applicants – claimed not to be reasonable.
CAUSATION – found that the applicants had proved on the balance of probabilities that between 2016 and March 2019, and possibly extending to April 2020 there was a surface flow of water from the respondent’s land onto the land of the applicants that was not reasonable – damages in respect of such flow awarded to the applicants.
CAUSATION – found however that applicants had not proven on the balance of probabilities that following works undertaken by the respondent prior to March 2019, and a further set of works undertaken by him prior to April 2020, there continued to be a flow of water, whether by surface flow, underground flow or seepage, from the respondent’s land onto the applicants’ land that was not reasonable.
Damages – Water Act 1989 s.16(1)(c)(iii) – economic loss – mitigation measures – held that the cost of measures adopted by a landowner to divert a reasonable flow of water coming from another’s land that is not reasonable, is a type of recoverable economic loss within the meaning of s.16(1)(c)(iii) – held though, that applicants not entitled to such damages (being their costs of installing a sub-surface intercept drain in 2021) in respect of the period after April 2020.
Tribunal’s ancillary powers – s.19(3) and s.19(5) – absent proof of facts that tend to prove that there has been a failure of sub-surface drainage lines on the respondent’s land as to give rise to a cause of action under s.19(1), an order providing for an invasive investigation in respect of the respondent’s land to determine whether sub-surface drainage pipes have been properly constructed not made.
JURISDICTION – Fences Act 1968 – found that damage to a shared boundary fence caused by a flow of water that is not reasonable is not damage to the property of another person within the meaning of s.16 of the Water Act 1989–orders sought in respect of the respective liabilities of the parties for the cost of a proposed new fence held justiciable only in the Magistrates’ Court of Victoria under the Fences Act 1968 – observations as to cause of damage to shared boundary fence. 	
first APPLICANT
SECOND APPLICANT	Kathryn Jones 
Aaron Jones	
RESPONDENT	Jose Miranda	
WHERE HELD	Melbourne	
BEFORE	A T Kincaid, Member	
HEARING TYPE	Hearing	
DATE OF HEARING	5 February 2020, 22 October 2020 (at site, followed by Zoom hearing).
Applicants’ Final Submissions 30 October 2020;
Respondent’s Final Submissions 12 November 2020; and
Applicants’ Reply Submissions 20 November 2020.	
DATE OF ORDER 	29 July 2021	
CITATION	Jones v Miranda (Building and Property) [2021] VCAT 845	

Order
1	Having found that the applicants have incurred economic loss because of a surface flow of water from the land of the respondent that was not reasonable, the respondent must pay $3,551 to the applicants.
2	The claim by the applicants in respect of claimed damage to an 11.4 metre section of a shared boundary fence is dismissed for want of jurisdiction.
3	Having regard to the nature of, and issues in the proceeding, and the result of the proceeding in which the applicants successfully proved that the unreasonable flow of water has caused them to suffer economic loss, but failed to prove their main head of claimed economic loss, the respondent must pursuant to s.115B of the Victorian Civil and Administrative Tribunal Act 1998 reimburse the applicants with the sum of $243.65, being one half of the filing fee paid by the applicants.
4	Any application for costs, which will be dealt with on the papers, must be filed with the Tribunal by 4 pm on 27 August 2021, failing which there will be no order as to costs.

A T Kincaid
Member			

APPEARANCES:		
For Applicants	In person	
For Respondent	In person	

Reasons
1	Mr and Mrs Jones (“the applicants”) own land in Kett Street, Nunawading, which they purchased in 2002. For the purposes of these Reasons, Kett Street may be taken to run approximately from north to south. Their land is located to the east of Kett Street.
2	They live in a single-story brick veneer residence on their land, which is about 60 years old. It has timber framed stud walls with brick veneer walls externally, with brick piers on concrete strip footings supporting the brick veneer walls, and concrete stumps on pad footings supporting the floor bearers.
Property layout
3	Along approximately one half of their northern boundary, running from west to east, the applicants share a boundary fence with Mr Miranda (“the respondent”) (the “boundary fence”). It is a paling fence, with supporting posts on the applicants’ side. The fence is in a state of dilapidation, particularly towards its most easterly section, adjacent to the applicants’ garage. There is a dispute between the parties as to how this was caused.
4	The applicants share the other half of their northern boundary with another neighbour, who has an address in Tasman Avenue (the “Tasman Avenue property”).
Relief sought by applicants
5	By this proceeding filed on 2 October 2019, the applicants seek over $32,000 damages from the respondent pursuant to s.16 of the Water Act 1989 (“the Water Act”), in respect of loss and damage allegedly caused by a flow of water coming from the land of the respondent that the applicants allege is not reasonable.
6	The applicants’ damages claim includes the sum of $16,701.44 for a 90mm slotted PVC agricultural drain between the applicants’ garage and the boundary fence, founded about 950cm below the surface of their land. The purpose of the drain is to intercept the alleged flow of water coming from the land of the respondent, and to divert it eastwards towards a new connection in the 600mm council stormwater drain located to the east of the applicants’ land, south of the Tasman Avenue property.
7	The applicants also apply by their final submissions for an order requiring the respondent to undertake a CCTV assessment of the stormwater drainage pipes below the surface of his land. They fear that it has been compromised in some manner, or was not installed properly by the respondent, thus causing or contributing to the alleged flow of water coming from his land. The applicants first sought such an order by an email to the Tribunal dated 3 April 2020, and it was then refused. Following their final submissions, by their further emails to the Tribunal dated 24 May 2021, 2 June 2021, and 22 June 2021 they re-apply for the same order.
Respondent’s position
8	The respondent denies that there has ever been a flow of water coming from his land beyond what is reasonable and that, even if there was, he submits that certain works he completed in the period prior to March 2019, and further works undertaken during the period prior to April 2020, had the effect of stopping any unreasonable flow.
9	He declines to carry out a CCTV assessment of his own sub-surface stormwater drainage pipes, and resists the making of any order requiring him to do so.
Contours of the properties
10	Kett Street runs laterally across a hill. To its west, the natural surface level of the land gradually rises at least 4 metres, and possibly higher.
11	It follows that the natural surface levels of both the applicants’ land and the respondent’s land drop towards the east from their respective boundaries on Kett Street.
12	From his western boundary at Kett Street, the respondent’s natural surface level drops approximately two metres towards his eastern boundary that he shares with the Tasman Avenue property. 
13	From their western boundary at Kett Street, the applicants’ natural surface level drops along their side of the boundary fence about one metre towards the eastern end of the boundary fence. From this point, and going back towards the south, the natural surface level of the applicants’ land has an upward gradient of about 1-2 metres towards their southern boundary.
14	Both properties have car access from Kett Street to the west. The applicants’ concrete driveway slopes down to their steel framed garage, between their house and the boundary fence, constructed on a concrete slab. The respondent has a shorter concrete driveway, sloping down to his carport. The level on which the carport is erected is supported by a retaining wall to the east.
15	The respondent’s carport is closer to Kett Street than the applicants’ garage is to Kett Street and, it follows from the surface contours, is in an elevated position relative to the level of the applicants’ garage.
Findings-summary
16	For the reasons set out below, I find that during the period prior to March 2019, and possibly extending only until April 2020, there was a surface flow of water from respondent’s land onto the land of the applicants that was not reasonable, and in respect of which the applicants are entitled to damages.
17	The applicants have not persuaded me, on the balance of probabilities, that a flow of water that was not reasonable, whether by way of surface flow or underground flow or seepage, continued after the respondent carried out certain works during the period to March 2019, alternatively after the completion by the respondent of further works during a subsequent period prior to April 2020. The applicants are therefore not entitled to damages in respect of the period after April 2020.
Water Act 1989
18	Section 19 of the Water Act provides:
19.	Jurisdiction of Tribunal 
(1)	The Tribunal has jurisdiction in relation to all causes of action (other than any claim for damages for personal injury) arising under sections 15(1), 16, 17(1) and 157(1) of this Act or at common law in respect of the escape of water from a private dam.
…
(5)	The Tribunal may in respect of any works that give rise to a cause of action of a kind referred to in subsection (1) make any order with respect to— 
(a)	compensation for damage to land; or 
(b)	the continuation, removal or modification of works; or 
(c)	payment of the costs of the removal or modification of works— that it considers appropriate.
…
(9)	In determining a cause of action arising under section 15(1), 16, 17(1) or 157(1) of this Act the Tribunal must apply to the questions of causation and remoteness of damage the same tests as a court would apply to those questions in an action based on negligence
19	Where relevant, s.16 of the Water Act provides as follows:
16.	Liability arising out of flow of water etc
(1)	If–
(a)	there is a flow of water from the land of a person onto any other land; and
(b)	that flow is not reasonable; and
(c)	the water causes–
(i)	injury to any other person; or
(ii)	damage to the property (whether real or personal) of any other person;	or
(iii)	any other person to suffer economic loss–
the person who caused the flow is liable to pay damages to that other person in respect of that injury, damage or loss.
…
20	Section 20 of the Water Act sets out the considerations that the Tribunal must take into account when deciding whether or not a flow of water is reasonable or not reasonable. It states:
20	Matters to be taken into account in determining whether flow is reasonable or not reasonable
(1)	In determining whether a flow of water is reasonable or not reasonable, account must be taken of all the circumstances including the following matters–
(a)	whether or not the flow, or the act or works that caused the flow, was or were authorised;
(b)	the extent to which any conditions or requirements imposed under this Act in relation to an authorisation were complied with;
(c)	whether or not the flow conforms with any guidelines or principles published by the Minister with respect to the drainage of the area;
(d)	whether or not account was taken at the relevant time of the likely impact of the flow on drainage in the area having regard to the information then reasonably available about the cumulative effects on drainage of works and activities in the area;
(e)	the uses to which the lands concerned and any other lands in the vicinity are put;
(f)	the contours of the lands concerned;
(g)	whether the water which flowed was–
(i)	brought onto the land from which it flowed; or
(ii)	collected, stored or concentrated on that land; or
(iii)	extracted from the ground on that land–
and if so, for what purpose and with what degree of care was this done;
(h)	whether or not the flow was affected by any works restricting the flow of water along a waterway;
(i)	whether or not the flow is likely to damage any waterway, wetland or aquifer.
(2)	In taking account of the matters specified in subsection (1), greater weight must be attached to the matters specified in paragraphs (a), (b), (c) and (d) than to the other specified matters.
21	Section 3 of the Water Act states:
flow, in relation to water, includes discharge, release, escape, percolation, seepage and passage, and includes both surface and underground flow.
Preliminary matters
22	I decline to make an order requiring the respondent to carry out a CCTV inspection of his sub-surface stormwater drainage.
23	Section 19(5) of the Water Act allows the Tribunal to make any order with respect to the “removal” or “modification” of “works”, seemingly without limitation as to where those works may be situated. I consider that this power generally comes to the aid of the Tribunal only when the Tribunal’s usual order requiring a respondent to carry out such works as prevents the continuation of a flow of water is not complied with.
24	Section 19(1) of the Water Act also grants a broad power to the Tribunal to order an injunction (including one of a mandatory nature) if “just and convenient to do so”.
25	Absent proof of facts, however, that raise a serious question that there has been a failure of sub-surface drainage pipes on the respondent’s land as to give rise to a cause of action under s.19(1), I decline to order an invasive investigation of his land to determine whether sub-surface drainage pipes have been properly constructed, or have been damaged subsequent to their installation.
26	I also accept the general proposition that a landowner who has incurred the cost of taking mitigation measures to divert what is found to be an unreasonable flow of water from the land of a person onto their land, such as the construction of an intercept drain, is economic loss within the meaning of s.16(1)(c)(iii) of the Water Act.
Issues for determination
27	The matters for determination are:
(a)	whether a flow of water at any time (and if so, when) came from the land of the respondent;
(b)	if so, whether the flow of water was not reasonable; 
(c)	if so, whether the flow of water:
(i)	caused damage to the property of the applicants; or
(ii)	caused the applicants to suffer economic loss; and
(d)	if yes to (a) and (b), and to either or both of (c)(i) or (ii), what amount of damages is the respondent liable to pay to the applicants in respect of their claimed damage or loss?
The hearing
28	The first day of the hearing took place on 5 February 2020. It was not possible to resume the hearing until 22 October 2020, by reason of the Covid-19 pandemic preventing my undertaking a site visit, which I considered necessary in order to better understand the evidence. I visited both the land of the applicants and the land of the respondent on 22 October 2020, and completed the hearing by video conference later that day.
29	The parties subsequently filed extensive written submissions.
Liability-material relied on by the parties
30	In respect of the claimed liability of the respondent, the applicants rely on:
(a)	their witness statement entitled “Timeline as at 1/10/19” and attached expert report of Ms Sara Khani, consulting civil engineer, filed at a directions hearing on 23 October 2019;
(b)	their witness statement in reply to the respondent’s witness statement dated 30 October 2019, tendered at the hearing on 5 February 2020;
(c)	their undated submission entitled “Response to Lanigan Civil Report” (dated 15 December 2019), and tendered at the hearing on 5 February 2020;
(d)	their email to the Tribunal dated 9 July 2020, attached videos and records of water levels;
(e)	their email to the Tribunal dated 10 July 2020, with further records of water levels;
(f)	report of Mr D Turnbull, consulting engineer dated 3 August 2020, and attached drawing of the then proposed intercept drain;
(g)	their photographs taken 8 September 2020, showing photographs of damage to the boundary fence allegedly caused by a flow of water from the respondent’s land;
(h)	further report of Mr Turnbull dated 6 October 2020 and attached drawing Revision A, sent to the respondent by their email dated 8 October 2020;
(i)	their email to the respondent dated 9 October 2020, attaching a contour map, and cross sections derived by them from the map of both the surface levels of the respondent’s land and the surface levels diagonally across their land;
(j)	their final written submissions dated 30 October 2020 pages 1-15 (the “applicants’ final submissions”), including the documents referred to under the headings “Relevant Documents” and “Relevant Videos” on page 6 of their final written submissions, and “Updated Information for VCAT” dated 30 October 2020;
(k)	“Boreholes and Holes Dug-Location Map” tendered at site on 22 October 2020;
(l)	drawing Revision B and C2 of Mr Turnbull (contained in the applicants’ final submissions); and
(m)	their reply submissions dated 20 November 2020 (the “applicants’ reply submissions”).
31	In respect of liability, the respondent relies on:
(a)	his witness statement dated 30 October 2019 and attached documents, filed 8 November 2019;
(b)	the evidence of consulting civil engineer Mr Geoffrey Lanigan who also gave evidence on 5 February 2020, and the contents of Mr Lanigan’s report dated 15 December 2019 (“Mr Lanigan’s report)”;
(c)	the contents of his email to the Tribunal dated 30 September 2020, and
(i)	Appendix A, being a letter to the respondent dated 28 September 2020 from a Mr Balassone, architect, confirming the nature of landscaping works undertaken by the respondent immediately to the north of the boundary fence, including a new drainage system;
(ii)	Appendix B, being an addendum to Mr Lanigan’s report dated 29 September 2020 (“Mr Lanigan’s addendum”); and
(iii)	the attached two videos, having allegedly been taken on 22 August 2020 and 12 September 2020 being days of heavy rain demonstrating, in the respondent’s view, how stormwater run-off from his land was being successfully captured by the new drainage system.
(d)	the contents of a second addendum dated 10 October 2020 to Mr Lanigan’s report (“Mr Lanigan’s second addendum”);
(e)	the contents of his email to the Tribunal dated 18 October 2020, including a third addendum dated 18 October 2020 to Mr Lanigan’s report (“Mr Lanigan’s third addendum”);
(f)	an email from Mr Lanigan to the respondent dated 19 October 2020, attaching drawings that he had obtained from the Council (“Mr Lanigan’s email”); and
(g)	his final submissions dated 12 November 2020, attaching a further report of Mr Lanigan dated 11 November 2020 expressly responding to the applicants’ final submissions (“Mr Lanigan’s responding document”), such expert report being filed after the completion of the hearing on 22 October 2020, and to which the applicants responded by the applicants’ reply submissions.
Material filed by the parties after the hearing
32	In their final submissions dated 30 October 2020, the applicants also relied on a video of the sub-floor after rain taken 24 October 2020 (2 days after the hearing) (“video 13”).
33	In view of the filing by the respondent, without leave, of the further report of Mr Lanigan, which I have considered, I have also received and considered the final submissions from the applicants by way of reply dated 20 November 2020, and viewed video 13.
Works undertaken by the respondent
34	The respondent purchased his land in 1995. His residence is situated towards the northern part of his land.
35	In 1999, the respondent concreted his driveway, and installed a grated strip drain to protect his carport. He considered that the water from the strip drain was at all times directed by a PVC pipe that ran beside his carport towards the east of his land-described by him as being “[then] un-landscaped grass and soil only”.
36	When the applicants purchased their property in 2002, a large pine tree grew on the respondent’s land, close to the boundary fence. In about 2012, at the request of the applicants, the respondent arranged to have the tree chopped down.
37	The respondent subsequently constructed an undrained prefabricated steel shed without roof gutters, coloured brown (the “first shed”), located close to the boundary fence. It was erected on pavers, and surrounded by stone blocks, allowing for a concrete pad to be then poured to support the structure.
38	In about 2013, the respondent built a gazebo located between his residence and the boundary fence. He did not make provision for the drainage of stormwater run-off from the roof of the gazebo.
39	He subsequently installed a sub-surface PVC pipe, the opening of which was directed south towards the applicants’ land (the “PVC pipe”), but the respondent has provided no explanation as to from where the PVC pipe originates. The respondent has since capped the PVC pipe.
40	In about 2014, the respondent installed an undrained second prefabricated steel shed, again located close to the boundary fence, coloured cream, on a concrete slab footing (the “second shed”), where the pine tree once stood, on a raised concrete slab about 6 metres long and 0.85 metres at the highest point.
41	In June 2016, at the request of the applicants, the respondent installed gutters and a downpipe to the west side of the gazebo, but did not construct a further downpipe to the east side of the gazebo in June 2018.
42	In about 2016, the respondent constructed an undrained paved area around the gazebo, about 7 metres in length, and raising the ground level by approximately 0.8 metre, sloping towards the applicants’ land, with the parties’ shared fence acting as a retaining wall. The respondent concedes that drainage was not then installed, as he was “slowly paving the gazebo area”.
43	In about June 2018, and in response to a request from the applicants, the respondent installed guttering and a downpipe to the carport, and installed a downpipe to the eastern side of the gazebo.
44	By a Building Order dated 5 July 2018 (the “Building Order”), Whitehorse City Council (the “Council”) required the respondent, among other things, to remove the first shed, which he did immediately, but he did not remove the concrete pad footing. The total length of the concrete pad footing is about 5.7 metres. From that date, both the footing and the second shed have remained in place. At that time, the second shed did not have gutters or any drainage for its concrete pad footing.
45	I find that when the respondent concreted his driveway, he failed to ensure that the strip drain was connected to a legal point of discharge, and that the PVC pipe facing east, towards the applicants’ land, discharged water directly from his driveway towards the applicants’ land.
Reports obtained by applicants in 2018
46	The applicants became aware of what they allege were unreasonable water flows from the respondent’s land in about June 2018.
47	They obtained a Special Purpose Inspection Report from The Home Inspection Hub dated 23 September 2018 (the “Special Purpose Report”), which states:
Surface water from the [respondent’s] property runs under the fence and enters [the applicant’s land] at the front of the garage.  The concrete paving on the [respondent’s land] slopes to the side boundary fence and the level has been built up approx. 700mm above the ground in front of the [applicants’ garage] without a retaining wall for support and any surface water from this area discharges into [the applicant’s land]…It is also possible that the dampness under [the house on the applicants’ land] is from a broken or blocked water pipe, sewer pipe or drainage pipe however it appears the most likely source is surface water from the front of the house and north side from [the respondent’s land]. It is also possible that there could be a leak from the council storm water drains along the southern boundary of the [applicants’ property]. It is important to ensure the water from the [respondent’s land] is cut off by either [the respondent], and if not feasible, cut off with the installation of [agricultural drains] along the boundary.
48	In about November 2018, and in attempt to channel the water that was then coming from the respondent’s land from under the boundary fence, the applicants dug three open spoon drains. The purpose of their doing so was to divert this surface water into a grated channel drain running along the western side of their garage (the “garage drain”). On one occasion, the garage drain overflowed for the first time during their occupation, causing the garage to flood.
49	Acting on the advice of The Home Inspection Hub that the source of the water may be the water and drainage assets attached to their own property, the applicants asked Yarra Valley Water to check for leaks in its supply assets, and its subsequent report dated 4 December 2018 (“Yarra Valley Report”), confirmed that no leak was found.
50	Acting also on the advice of The Home Inspection Hub that the source of the water may alternatively be the sewerage system servicing the applicants’ land, the applicants obtained a report from Independent Plumbing Inspections dated 17 December 2018 (“Independent Plumbing Report”), which stated:
Conducted a static pressure test of the water supply pipes and there was no evidence of a leak at this inspection, CCTV of the sewer drain found a crack in the frog mouth at the top of the overflow relief gully that the laundry trough waste runs to [to the south of the applicants’ dwelling, on the other side of their land farthest from their boundary shared with the respondent]. The sewer drain is constructed from earthenware clay pipe and has sludge in it preventing a full inspection of the drain. There were roots visible in the drain around the legal point of discharge. CCTV of the stormwater drain was conducted from the drainage pits and surface grates around the house.  The stormwater drain on the northern side of the house is constructed from 90mm pvc pipe.  There were no visible cracks or breaks found in this section of the drain. There was a poor join in the drain out of the pit at the front of the garage…CCTV of the stormwater drain from the overflow pipe at the rain water tank found no visible cracks or breaks in the drain…Further investigation is required to identify where the water that is running down the northern boundary is coming from. Access to the neighbouring property is required to inspect [their] stormwater drainage to identify if there are any cracks or breaks where water could escape from.
Third party observations – December 2018
Expert opinion of Ms Khani
51	An expert witness engaged by the applicants Ms Khani, consulting civil engineer, inspected the applicant’s land and house on 11 December 2018 and 16 January 2019, including certain holes that had then been dug by the applicants.
52	Ms Khani’s subsequently provided a report dated 11 February 2019 (revised 19 March 2019, after receiving a geotechnical report to which I will refer), containing attached photographs 1-33 taken by Ms Khani and photographs 34-43 taken by the applicants (“Ms Khani’s report”).  Ms Khani’s report records her observations made on site at that time, as follows:
The respondent’s property
(a)	No gutters or downpipes existed along the southern sides of the carport and shed on the respondent’s land;
The applicants’ land
(b)	the open spoon drains (to which I have referred) on the applicants’ side of the boundary fence, were directed to the garage drain;
(c)	Ms Khani observed that a 650mm deep hole (dug by the applicants) at the northern side of the applicants’ land, immediately adjacent to the boundary fence (“Khani Hole 1”) contained approximately 40mm of water;
(d)	Ms Khani observed another 600 mm deep hole (dug by the applicants) at the north west corner of their garage (“Khani Hole 2”) was observed contained 30mm of water;
(e)	a fencepost in the boundary fence was decayed at its base;
(f)	Ms Khani observed that another 600mm deep hole at the south west corner of the applicants’ garage, between the garage and the applicants’ house (“Hole 1”) contained 30mm of water;
(g)	Ms Khani observed the soil immediately on the applicants’ side of the boundary fence, and approximately east of the second shed was wet, whereas the soil on the applicants’ side of the boundary fence further up their drive (and approximately west of the second shed) was relatively dry;
The applicants’ residence
(h)	there were fine cracks to the brick veneer wall at the northern and north western sides of the applicants’ house;
(i)	there were fine cracks to the brick veneer wall at the eastern side of the house;
(j)	there was a diagonal crack in the brick veneer wall at the southern side of the house, showing evidence of previous repair;
(k)	there were numerous cracks in the concrete porch at the western side of the house;
The applicants’ sub-floor
(l)	there was good clearance from the floor frame to the soil for air movement;
(m)	soil along the northern side of the sub-floor was moist;
(n)	soil along the southern side of the sub-floor was relatively dry;
(o)	there was efflorescence on the bottom section of the of the brick walls along the northern section of the sub-floor;
(p)	a hole dug by the applicants under the northern side of the residence (“Hole 6”) contained water;
The applicants’ dwelling-internal
(q)	there were squeaky floors, predominantly in the northern section of the house;
(r)	there were gaps between the floorboards, predominantly in the northern section of the house;
The applicants’ garage
(s)	there were previously filled cracks in the concrete slab; and
(t)	there was efflorescence in the concrete slab at the western end of the garage.
Floor level survey results
53	Ms Khani carried out a spot level survey of the ground floor of the house using a Zip LevelPro-2000 altimeter.  The results showed:
(a)	that using the front entry of the house as an arbitrary datum point zero, the floor levels varied from +2mm to -34mm;
(b)	the general pattern of this localised settlement was in the north central section of the house (and particularly settled, I note, below bedroom 2, which is approximately above Hole 6); and
(c)	a relative pattern of settlement towards the south-west corner of the house.
Expert opinion of Ms Khani, called by the applicants
54	Following her inspections of the applicants’ land and house on 11 December 2018 and 16 January 2019, and having read the Special Purpose Report, Yarra Valley Report and Independent Plumbing Report, Ms Khani provided her opinion by her report as follows:
9.2	…the observed excessive sub-surface water has been caused due to inadequate stormwater drainage within [the respondent’s land]…the soil at [the] western side of the house is relatively dry compared to the soil along the northern shared boundary fence and particularly with the dug test holes that were filled with subsurface water. Furthermore, the video captured by [the applicants] of subsurface flow into [Hole 6] is from the northern side (i.e. [the respondent’s] side]. All the [evidence of work undertaken by the respondent at his property, referred to in sections 5 and 6 of Ms Khani’s report] suggests that the stormwater runoff from the [respondent’s property] has not been properly controlled/managed for a long period of time causing the observed excessive dampness within the subfloor and possibly underneath the concrete slab of the garage at the [applicant’s] property.
9.3	[I] note that all service pipes (i.e. main water, sewer and stormwater pipes) within the [applicants’] property have been inspected and no major defects/leaks have been identified.  The reported minor defects to the sewer and stormwater pipes are mainly located at the southern side of the hose, however, the location of these reported defects is considered to be remote from the identified location of the pooling subsurface water and damp soil at [the] northern region of the house. Furthermore, the volume of water intermittently leaking from the sewer and/or stormwater drains is not considered enough to cause the observed excessive surface water runoff and subsurface water pooling. 
…
9.6	The recent formation of efflorescence on the surface of the concrete slab at a number of locations throughout the garage is another indication of moisture ingress throughout the concrete slab as a result of possible surface water running underneath the slab due to the alteration in ground level [of the respondent’s land] and inadequate stormwater drainage system at the [respondent’s] property.
9.7	Regarding the cracking damage to the external brick walls, [I understand] that the [applicants] are concerned that the observed subsurface water particularly within the subfloor space may have caused distress to the foundation of the house, however, [my] visual inspection and floor levels survey results at the time of inspection confirmed that the foundation of [the applicants’] house has not been adversely affected by the identified stormwater runoff underneath the house.
55	Ms Khani gave evidence on 5 February 2020, and tendered her report dated 11 February 2019.
Applicants’ evidence concerning alleged continuing flow of water
56	The applicants gave evidence that their pre-purchase inspection report dated June 2002 indicated a dry sub-floor, and did not indicate the presence of rising damp, or any efflorescence or cracks in the garage slab.
57	They gave evidence that after they purchased their property, they noticed that the respondent’s carport did not have any gutters or downpipes, and significant stormwater ran off the carport roof until gutters and downpipes were installed by the respondent in June 2018.
58	They allege that unchanneled stormwater poured from the roof of the carport, and that between June 2017 and mid-2018 they observed the following:
(a)	efflorescence and cracks in the west side of their garage slab, which are moving further eastwards over time, when no such damage had been observed by them during the seventeen years prior;
(b)	wetting and efflorescence in the ground immediately below their house, which caused them to instal a sump pump in Hole 6, now activated on “every occasion that it rains”;
(c)	wetting and efflorescence in the external brickwork of their house; and
(d)	excessive wetting along the shared fenceline, causing premature rotting of the paling fence and the panel fence between their garage and the boundary fence.
59	The applicants allege that photographs taken by them on 17 June 2018, which I have reviewed, show excessive water run-off from under the boundary fence. 
60	They also allege that on 8 September 2018 and 18 November 2018, as a result of the respondent washing his car on his driveway, there was a run-off of water down their side of the boundary fence, and pooling in the garage drain.
61	The applicants also allege that an unreasonable flow of water is evidenced by a number of videos of surface water run-off in November and December 2018,  allegedly from the land of the respondent, and captured by the three open spoon drains that the applicants had dug on their land located to the immediate south of the boundary fence.
Expert opinion of Mr Lanigan
62	The respondent engaged Mr Lanigan, consulting civil engineer to provide opinion. Mr Lanigan first inspected both the applicants’ land and the respondent’s land on 29 October 2019.
63	By his first report dated 15 December 2019, Mr Lanigan concluded:
Drainage system within [the applicants’ land]:
Major flows must be handled [by the applicants] by providing “flow paths” that direct water away from buildings.  In this case there should be an overland flow path between the house and the [garage, running west east], which would allow any surface flows that come from the west [of the applicants’ house] (down the driveway) and in this case until recently, minor excess flows from [the respondents’], to flow through to the rear yard, which is the low point (valley) on this property – in the vicinity of the Council point of discharge.  I did not witness an effective overland flow path during my site visit as the pathway at the south east corner of the garage…is above [the south western corner of the garage]...  What is also evident…is that the [applicants’] concrete driveway abutting the grated trench and small pit is virtually flush with the garage floor level…and the gravel pathway.  This will ensure that if any rainfalls with and intensity greater than 1 in 5 years will overtop the pit/trench and enter the garage and possibly even the house underfloor.  It must be borne in mind that the Council drainage system will be at capacity (full and unable to accept any more stormwater) for storms greater than 1 in 5 year intensity.  In summary, there has been no overland flow allowance made within [the applicants’ land] for flows of greater intensity than 1 in 5 years, and even with some minor flows from [the respondent’s land], the garage is liable to flood.  This could easily be prevented by providing overland flow paths around the garage by setting it nominally 100mm proud of its surroundings, on all sides…
[Summary]:
The [applicants] have directed surface water from [the respondent’s land, by the spoon drains] into [the garage drain] and thereafter via a 90/100 diameter pipe system to the Council drain at the rear.  Their drainage system has zero capacity for overland flow should their underground drains cease to function.  If the drains were effective and compliant with current building regulations (including overland flow provision) and had to cater for a small additional flow from [the respondent’s], there would be no flooding of the garage or overflows into the sub-floor of the house.  It appears that [the applicants have] purposely raised the pavement (gravel pathways south and east and earth only to the north) to a level closely matching the garage floor level.  This is great for access purposes, but disastrous for drainage.  They have, as many layman do, assumed that the underground drainage provided will adequately drain ALL water that falls on the pavements that the drains serve.
Applicants’ response to opinion of Mr Lanigan concerning their allegedly inadequate surface drainage
64	Consequent upon the respondent filing the first report of Mr Lanigan, the applicants filed photographs of the gravel path around their garage, in particular, that part of the path running between the west side of the garage towards their easterly garden. They submit that any run-off of the type described by Mr Lanigan is directed towards a silt pit located on the path at the south east corner of the garage, and that any excess water would flow through to their easterly garden and also flow north towards a boundary discharge point near the Tasman Avenue property. Various photographs of readings of a spirit level, taken on the gravel path, appear to conform this.
Findings-2016 to December 2018-whether a flow of water that was not reasonable
65	Having carefully reviewed the videos taken of the spoon drains by the applicants between 20 November 2018 and 14 December 2018, I am of the view that they show excessive surface water then coming from the respondent’s land being channelled towards the garage drain.  The overland flow plainly emanated from the respondent’s land.
66	I find that the respondent has not demonstrated that the alleged improper state of the applicants’ surface drainage contributed at all to the extent of the flow of water.
67	I therefore find from the evidence of the applicants to which I have referred, and the observations and the opinion of Ms Khani, that between about 2016 and December 2018, there was a flow of water from the respondent’s land. I find that it was a surface flow of water and that, by reason of the extent of the flow, and the plain effect on the applicants’ land, where the garage drain was overwhelmed, it was not reasonable.
68	The applicants are entitled to damages pursuant to the Water Act in respect of such flow.
Works subsequently undertaken by respondent in 2019 and 2020
69	The question arises whether, following works subsequently performed by the respondent between January 2019 and March 2019, and also between September 2019 and April 2020, there continued to be a flow of water from the respondent’s land onto the land of the applicants that was not reasonable.
Respondent’s 2019 works 
70	On 4 December 2018, the respondent obtained a building permit for the re-erection of a retaining wall and other works (the “2018 building permit”). This was to rectify the works he undertook in about 2016, to which I have referred, when an area of raised ground south of the respondent’s gazebo, abutted the boundary fence, or was inappropriately close to it.
71	In about February 2019, the respondent undertook the construction of a retaining wall on his property, at the eastern end of the boundary fence. The purpose of the retaining wall was to ensure that the boundary fence no longer acted as a retaining wall for the respondents’ raised paved area around the gazebo.
72	On 27 February 2019 the Council served a further Building Order on the respondent, stating:
1.	By 10.00am on 27 March 2019, the owner of the land where the construction of a retaining wall and connection of roof and service drainage (sic) at [the respondent’s land] MUST carry out the following building work as required by the Building Regulations 2018
1	The retaining wall uprights and construction are to be installed as follows:
*1	The retaining wall elements are to be a minimum of 150mm from the boundary
*2	Steel sections that have already been cast in can remain subject to New UC sections being installed on the north face of uprights (welded to existing cast in UCs) subject to this Order
2	Existing pavement [around the gazebo] to be altered as follows:
*1	Cut back at a minimum of 300mm from inside face of retaining wall.  This is to facilitate enough room for the placement of AGG drains, granular backfill and surface spoon/cut off drain to areas that drain towards boundaries.
3.	Ensure all roofed and paved areas including existing carport, driveway cut off drain, new gazebo and paved areas are connected to the stormwater drainage system that connects to the legal point of discharge. NOTE: A certificate of compliance from a registered plumber will be required upon completion of the above works.
73	The nature of the works subsequently undertaken by the respondent (and completed, I find, on 1 March 2019) was to install a drainage system both to the eastern boundary of his land that he shares with the Tasman Street property, and to the southern boundary of his land that he shares with the applicants. These works included:
(a)	the installation of a new retaining wall located some distance on his side of the boundary fence, constructed by a bored footing, galvanised retaining wall uprights, treated timber sleepers, a black polythene membrane lining and an 90mm agricultural drain to the north of the retaining wall (viz. on the respondent’s side) and backfilled with scoria; and
(b)	the installation of a trench grate above the agricultural drain, which was connected to a new storm water drainage pit on the respondents’ eastern boundary.
74	On 17 June 2019 the building surveyor approved the work undertaken by the respondent pursuant to the building permit.
75	By letter dated 11 September 2019 to the respondent, the applicants requested the respondent to:
(a)	instal drainage on the raised, undrained concrete footing on which the first shed was once erected;
(b)	instal drainage on the raised, undrained concrete slab footing on which the second shed remained erected;
(c)	direct the unplumbed driveway drain into a storm water drainage system, and from there to the legal point of discharge; and
(d)	also connect the stormwater pipe, then plumbed openly below the fenceline into a storm water drainage system, and from there to the legal point of discharge.
76	By their letter, the applicants also sought damages of $4,283.67 for the cost of their various expert reports, and $2,000 damages for physical inconvenience arising from the audible operation of the pump in Hole 6.
77	On 18 September 2019, the respondent:
(a)	connected the lateral strip drain at the end of his drive to a pit, and from there to the legal point of discharge; and
(b)	installed a stormwater pit under the gazebo.
Respondent’s 2020 Works
78	The first day of the hearing before me was on 5 February 2020. I adjourned the hearing part heard to 25 May 2020 for a further day’s hearing.
79	I made the following orders at the hearing:
NOTED
A.	The respondent performed drainage works in February-March 2019 in purported compliance with paragraph 3 of the [Building Order] City of Whitehorse Building Order (a copy of which is at page 5 of Exhibit A3 tendered by the applicants).
B.	The applicants consider that the works performed by the respondent in early 2019, being those drainage works referred to in schedule one on page 17 of the report of Mr Lanigan (undated), have had the effect of reducing the flow of stormwater from the respondent’s property (as shown in the videos 1-10 taken by the applicants in about December 2018, and shown this day in evidence) by about 80%.
C.	The applicants wish to press their claim for alleged economic loss caused by the flow of water, and the amount presently claimed is $4,283.67 (exhibit A1). The applicants are not in a position to claim any amount for any damage to the sub-floor of their house and any consequential damage, because they have not received opinion on whether the flow of water alleged to have come from the respondent’s property has caused damage to their property and, if so, what the rectification costs will be.
D.	Given that the applicants wish to press the claim for damages, it will be necessary for the Tribunal to make findings that there was/is a flow of water from the respondent’s land that it was/is not reasonable, and that it has caused damage as claimed by the applicants. Such findings have not been made. The proceeding is part-heard, with evidence from the parties themselves to be heard on the resumption of the hearing on 25 May 2020, with an oral decision intended to be given on that day.
E.	The morning of the hearing this day was taken up with discussions on a work scope that the respondent is prepared to carry out with a denial of liability, and the afternoon was spent hearing the experts give concurrent evidence.
F.	The respondent has agreed in a spirit of goodwill, with a denial of liability, and in an effort to rule out the applicants’ concerns that there is a flow of water from his land that is not reasonable, to carry out the following works on his property no later than 15 May 2020:
(a)	dismantle the [second] shed;
(b)	remove the pavers on which the shed now stands, sufficient to allow for access to construct the works referred to in sub-paragraph (c) below;
(c)	remove the top course of the keystones comprising the existing retaining wall running west to east on the respondent’s property near the boundary with the applicant’s property;
(d)	construct a 100 x 100mm grated drainage drain, cast in concrete (having a 50 mm lip on the south side so as to minimise overflow) running west to east, and connected to a downpipe which directs stormwater down to the grated drain running to the south of the respondent’s gazebo;
(e)	cap the grated drain running to the west of the carport;
(f)	fix a gutter to the south side of the [second] shed upon its re-erection, the design for which was written on a whiteboard by Mr Lonergan, with a downpipe directing the water into the new grated drain running west east to the south of the shed referred to in sub-paragraph (d), and then east into the drain adjacent to the gazebo;
(g)	attempt to relocate the re-erected [second] shed further northwards, as close to the car park carport as possible.
80	On 20 April 2020 the respondent installed a drainage solution in respect of the concrete slab previously supporting the first shed. As a consequence, the applicants therefore submit, water from the roof of the shed, and subsequently from the surface of the slab, had flowed onto their property for a total of 20 years.
81	On 20 April 2020, the respondent installed a drainage solution in respect of the second shed. The applicants submit that, as a consequence, water from the undrained roof of the second shed had flowed onto their property for 7 years.
82	By email to the Tribunal dated 26 April 2020, the respondent alleged that he had completed “all the tasks” referred to in the Tribunal’s orders dated 5 February 2020, attaching a copy of a plumber’s compliance certificate stating that the respondent had on 20 April 2020:
Glue(d) and seal(ed) PVC downpipe from new garden shed and connected via 65 mm drain connecting strip drain and connect to existing stormwater drainage.
Respondent’s video evidence taken in September 2020-finding concerning whether there was an unreasonable surface flow at that time
83	I have reviewed two videos taken by the respondent on 22 August 2020 and 12 September 2020 of the applicants’ drive, adjacent to their side of the boundary fence. He took the videos from his side of the boundary fence.  The footage shown in the videos sweeps down to the garage drain, and includes the area of the applicants’ land between the boundary fence and the northern side of the applicants’ garage.
84	I am satisfied that the videos were taken during periods of heavy rain.
85	The videos show none of the surface flows of water from the respondent’s land that I have found had occurred up to December 2018, and which I have found were not reasonable. I find from these videos that by reason of the works undertaken by the respondent during the period January 2019 to March 2019, and the further works undertaken by the respondent between September 2019 and April 2020 to which I have referred, there was no longer after April 2020, and possibly no later than March 2019, a surface flow of water from the respondent’s land that was not reasonable.
Applicants challenge efficacy of the respondent’s retaining wall and associated drainage works
86	The applicants challenge the efficacy of the respondent’s works undertaken during period January 2019 to March 2019, and the further works undertaken by the respondent between September 2019 and April 2020.
87	They allege, in effect, that there remains an underground flow of water from the respondent’s land onto their land that is not reasonable, by reason of the very nature of the landscaping and drainage works performed by the respondent on his land between 2013 and 2018. I have already noted from the definition of flow in the Water Act that actionable flow that is not reasonable includes “seepage” and “underground flow”.
88	The applicants rely on:
(a)	photographs they took on 6 February 2019, showing that an 80 cm deep hole adjacent to the new retaining wall footing, at the south east corner of the respondent’s land was “waterlogged” allegedly containing 15cm of water; and
(b)	a photograph they took on 18 February 2019, showing a clay slurry during the respondent’s works, between the retaining wall and the boundary fence
as demonstrating the sodden nature of the ground on the respondent’s side of the boundary fence.
89	I find that these photographs are not probative of any relevant issue, as they were not taken by the applicants before the respondent had completed his retaining wall works pursuant to the 2018 building permit (and which I have found were completed on 1 March 2019).
90	The applicants also rely on the following further material as evidencing an ongoing flow of water from the respondent’s land that is allegedly not reasonable:
(a)	a video entitled 4A Hole front garage 070720 44cm 3.15pm VIDEO.mp4 of a hole dug by the applicants on 7 July 2020, located to the north and slightly west of the garage (“Hole A”, being at the same location as Khani Hole 2), and taken on 7 July 2020 (“video 11”); 
(b)	photographs numbered 1-6 of Hole A dug on 7 July 2020, and the applicants’ accompanying observations of the increasing depth of water in Hole A between 7 July 2020 and 10 July 2020 (from 3 cm to 32 cm deep, over the period);
(c)	photographs numbered 7-10 of Hole B, another hole dug by the applicants on 7 July 2020 (“Hole B”), located north of the garage and about 3 metres east of Hole A, and the applicants’ accompanying observations of the increasing depth of water in Hole B between 7 July 2020 and 10 July 2020 (being fairly stable from 13 cms to 12 cms deep over the period);
(d)	photographs numbered 11-14 of a Hole C, another hole dug by the applicants on 7 July 2020 to the south of the garage (“Hole C”), between their garage and their house, and the applicants’ accompanying observations of the increasing depth of Hole C between 7 July 2020 and 10 July 2020 (increasing from .5 cm to 8 cm deep over the period);
(e)	a further video entitled Spoon Drain 1 100720 7.45pm VIDEO K&A Jones.mp4 taken on 10 July 2020 (“video 12”);
(f)	a further video entitled Subfloor Video After Rain 241020.mp4 taken on 24 October 2020 (“video 13”); and
(g)	the applicants’ observations concerning the depth of water of Hole 1, between the garage and the house, from 7-10 July 2020 (increasing from 2.5 cms to 23.5 cms deep over the period).
91	The applicants also rely on their observations concerning the contents of various holes dug by them in late 2018, including:
(a)	Hole 1 (to the south-west of the garage, from which water is alleged by the applicants to enter from the north side);
(b)	Hole 3 (dug to the west of the house, but which remained dry, and was therefore filled in by the applicants) (“Hole 3”);
(c)	Hole 5 (immediately north of hole 3, but dug near the boundary fence, where the conditions were found to be sodden) (“Hole 5”);
(d)	Hole 6 (the sub-floor hole, observed by Ms Khani, from which water is alleged by the applicants to enter from the north side (as for Hole 1)); and
(e)	Hole 7 (near the council’s stormwater drain to the east of their house, and which has remained dry) (“Hole 7”),
all shown in the document “Boreholes and Holes Dug-Location Map”, provided to me during my site visit on 22 October 2020.
92	The applicants also rely on videos of dug “Hole 6 Small Sub-floor” taken 23 November 2018 (video 1), “Hole 6 Large Sub-floor” taken 13 December 2018 (video 2) showing, in their submission, the extent to which water flowing or seeping from the land of the respondent is affecting the ground below the northern sub-floor of their house, being that part of their residence nearest the respondent’s land.
93	They also rely on the observations of Ms Khani to the effect that the soil along the northern side of the subfloor to their residence remains relatively moist, and that this moist area has allegedly expanded since Ms Khani’s inspections in late 2018 and early 2019. They rely on the fact that the soil to their southern sub-floor has remained relatively dry.
Parties’ respective experts’ submissions concerning the origin of a flow of water
94	Before I turn to the opinions of the respective experts engaged by the parties, I will summarise the contents of a geotechnical report obtained the applicants from geotechnical engineers AM and PU Pty Ltd trading as Oz Geos (“Oz Geos”), attached to Ms Khani’s report.
95	On Ms Khani’s second visit, 16 January 2019, she had arranged for Oz Geos also to attend for the purpose of subsequently providing the geotechnical report.
Geotechnical report of Oz Geos
96	Oz Geos subsequently provided a geotechnical report dated 19 March 2019. The main purpose of this investigation, in Ms Khani’s words was to “identify the founding depth of the footings, and to determine if the ‘groundwater table’ is present at the site”.
97	It is notoriously known that there are commonly two zones beneath the land surface in which water occurs, the unsaturated zone below the surface and the saturated zone below that. In the unsaturated zone, the spaces and fractures within the soil, sediment and rock are filled with both air and water. In the saturated zone, all spaces and fractures are completely filled with water. Groundwater is known as the water that exists in the saturated zone, the upper surface of which is called the water table.
98	In their executive summary to their report, Oz Geos stated:
The investigation at this site was carried out based on complaints raised by the [applicants], in which they recently (June 2018) found out that the soil is in damp condition and [were] worried will undermine the performance of the house foundation. [The applicants] suspected that the changes in the soil moisture content is strongly caused by the construction of the alfresco and gazebo at [the respondents], where the neighbour also raised their ground level, which [is] believed to cause storm water/ surface run off to flow to their house.
99	It appears from their report that work undertaken by Oz Geos on 16 January 2019 included:
(a)	the drilling of three boreholes 1, 2 and 3 to 1.8 metres deep below the existing ground level;
(b)	carrying out a continuous dynamic cone penetration test to “refusal” depth at three locations;
(c)	carrying out a footing probe to identify the founding depth of the applicant’s footings, and the type of foundation material; and
(d)	obtaining water levels from holes dug by the applicants.
100	The three boreholes were drilled in the front garden to the west of the applicant’s house, approximately between it and Kett Street (“Borehole 1”), immediately north of the residence, between the residence and the garage (“Borehole 2”) and in the rear yard area immediately east of the house (“Borehole 3”).
Groundwater observations
101	Oz Geos reported that during the drilling of the boreholes, groundwater was not encountered. Oz Geos also reported that according to a diagram on the website called Visualising Victoria’s Groundwater (VVG), attached to their report, the groundwater level is between 5.0m and 10.0m below the existing ground level of the applicants’ land.
Footing observations
102	Oz Geos undertook a footing probe at the north west corner of the house, to establish its location and dimensions. They excavated to 1.50m to the bottom of the footing, founded on rock. The top of the footing was found at 0.90m below ground level, and the total thickness of the footing was 0.60m. They did not find any groundwater or standing water at that location.
Observation holes
103	Oz Geos observed that Hole 1 near Borehole 2, had been dug by the applicants to a depth of .66m and contained .30m of standing water, and that Hole 6 was dug to a depth of .74m and contained .60m of standing water.
104	Oz Geos also observed a third hole dug by the applicants, Hole 7, located in the back garden to the east of the house, but they found no standing water there.
105	Oz Geos concluded as follows:
It was observed from the three (3) boreholes sunk and from one manual excavation done [with a] footing probe across the site, the sub-grade profile is mainly dominated by:
Silty SAND (SM): brown, fine to coarse grained, loose, moist, with fine to medium grained Gravel [comprising the TOP SOIL); followed [below] by
CLAY (CI): grey-brown, intermediate plasticity, stiff, moist; and [followed below] by
SILTSTONE (XW): yellowish orange, argillaceous, very low strength (their emphasis).
106	Oz Geos concluded:
The following were observed which can be related to the sub-surface water logging:
1.	The sub-surface water is found to be accumulating underneath the building footprint and at location North, North West;
2.	[confirming the contours of the applicants’ land, to which I have referred] The West side (Entrance) of the property is sloping towards the East. The sloping continues up to the building footprint location after which the ground can be considered relatively flat.
…
Views of Mr Turnbull arising from his site inspection in July 2020
107	The applicants also rely on a report dated 3 August 2020, Mr D Turnbull, consulting civil engineer engaged by the applicants, which states as follows:
I inspected the site on [3 July 2020] and [14 July 2020]. During these inspections, I observed seepage from [the respondent’s land] through the embankment adjacent to the north boundary to the west (in front) of [the applicants’] garage.  The ground in this vicinity is wet.
I have also reviewed your water level monitoring records for Holes 1, A, B & C with readings from September 2018 and between 07/07/20 and 10/07/20.  These records show significant water infiltration, particularly into Hole A in front of the garage on the fence side and Hole 1 between the garage and the House.  I also note your advice that the groundwater collects under the garage slab and beneath the residence, and I observed the temporary sump pit and pump that you have installed [in Hole 6] beneath the residence.
It is my opinion that the intercept drain [shown on a drawing attached to Mr Turnbull’s letter] is necessary to collect the excessive seepage water flow from [the respondent’s land] to stop the flow below the garage slab and to below the residence…[emphasis added].
108	In his later report dated 6 October 2020, Mr Turnbull states:
“…It is my opinion that the groundwater seepage is primarily in the silt layer on top of the clay layer and the nominated [criterion] of [the  invert level of the proposed intercept drain] below the observed groundwater seepage zone will be achieved with the invert levels shown in the [attached] drawing.
Views of Mr Lanigan
109	The respondent relies on the various reports of Mr Lanigan. In his report dated 15 December 2019, Mr Lanigan expressed opinion about the water that he observed in Hole 6, as follows:
[Existing Underground creek]
I inspected the underfloor [of the applicants’ dwelling] in the company of [the first applicant], and witnessed [hole 6 that] they had excavated under the house and had fitted with an electric sump pump…It can be seen that the hole is holding water and the material excavated is a silty sand as described in the Oz Geos report [which states] “(Silty SAND) is permeable, it allows the water to percolate through to the low permeable material (CLAY) where it accumulates”.  I agree with this, however I believe that it is far more probable that the water found in the silty sand is subsoil water being transferred through the subsoil along the line of a creek that existed in this location around 60 years ago before [the applicants’ residence] was constructed.
The existing creek is easily identified by the existing land contours and the fact that there is a Council drain constructed roughly along the line of the existing creek [shown in an Attachment 1 to this report].  [Another attachment to his report] indicates the location of the 600 [mm] diameter Council drain, and it can also be seen on both attachments that [hole 6] dug within the subfloor of [the applicants’ house] coincides with the line of the creek.  The silty sand material witnessed will be a material that was part of the existing creek and will transport subsoil water any time it rains.  The creek has quite a large catchment upstream of [the applicants’] (I calculate 15.6 Ha) and will always have subsoil water in the existing cross section of the creek during and after rainfall events, especially in the wetter months and where it does not coincide with the concrete drain constructed to underground the creek.  Current practice for subdivision design does not allow creeks in this type of situation to be part of residential lots as there is also a chance of flooding along the line of existing creek lines.  The existing creek is also indicated in an old air photo provided by Council – see as Attachment – 3 to this report.
…
Flows from [the respondent’s land to the applicants’ land]:  
After consideration of site areas contributing from [the respondent’s land] and computed flows, inspection of the site and perusal of photos provided by [the applicants], I am of the opinion that the flows are minimal and at best a contributing factor to subsoil water within the zone of the existing creek that once flowed under [the applicants’ land].  The soil strata is noted as silty sand, very pervious, and therefore susceptible to ingress of water from many sources, including the front yard of [the applicants’ land] and the full extent of the existing creek with a catchment area on 15.6 Hectares.  There will always be subsoil water in soil substrate of this type after rainfall events and it will linger in the wetter months of the year.
110	By Mr Lanigan’s addendum dated 29 September 2020, Mr Lanigan expressed the following opinion:
I agree with [that part of the report of Mr Turnbull dated 3 August 2020] with regard to seepage through the sub-soil, which [in my view] will always occur on sloping land [his emphasis]. Whilst landowners on the high side of a lower property are generally obliged to ensure surface flows do not disadvantage the lower property, the same does not usually apply to sub-soil water. In this case, these properties are located in and beside what was a valley in past times, which has been filled to varying degrees long ago to achieve relatively flat areas to build. Silt and topsoil are always deeper in valleys, and the depth of the clay layer could well be deeper than in areas outside the valley, with 900-1200 metres not being uncommon.
It is hard to argue that a creek/valley does not exist after sighting the Council drawings.-see [drawing extract]…indicating a “gully”.
…In summary, I am still of the opinion that the majority of the seepage is because of existing topology (filled valley) and the subsoil water moving through the substrate, which is [not the responsibility of the respondent]. The existing valley has most likely been filled using variable materials and the subsoil water flows are most likely not uniform. 
111	In Mr Lanigan’s second addendum dated 10 October 2020, he states:
[The applicants’ residence] has been constructed over what I previously referred to as an old “creek”…clearly marked on [the Council drawings] as a “gully”.
The gully is no longer in existence, as it has been filled to allow development since the [Council] drain was designed in [about 1957]. The nature of the filling back then was not subject to such stringent controls as apply now, and would have consisted of whatever the developer could source economically. 
…I have located the gully/creek as accurately as possible over a current Nearmap geolocated on title and scaled the drawing over. I believe the accuracy would be + or – 1 metre, but in any case puts the existing gully/creek fairly under the [applicants’ residence] and after further consideration, almost exactly where [Hole 6, under the residence] is. All creeks/gullies by their nature are not just a line on a plan, but rather, extend laterally, say 5-10 metres in a case like this-which is the extent that [would have been] filled. The fill most likely contained silt and as such will transport water through silt layers-down to the base level of the existing gully.
…the subsoil water flows would occur regardless of [the existence of the respondent’s retaining wall]. The majority of the seepage is because of existing topology (filled valley) and the subsoil water moving through the substrate, which is [not caused by the respondent]
112	In Mr Lanigan’s third addendum dated 18 October 2020, he observes:
[The applicants’ residence] is constructed on an existing valley, as indicated by the contours [submitted by the applicants] and as I have consistently pointed out in the past. The old Council design drawing indicates an existing “gully” on the alignment suggested by the contours.
…[I agree with the Oz Geos conclusion that] SILTY SAND allows water to percolate [through the SILTY SAND to] the low permeable material (CLAY)…and that it will follow contour viz flow downhill. 
The valley that flows into the [applicants’] land is indeed large…and far outweighs what could possibly come from the respondent’s land.
113	By his last report dated 11 November 2020, attached to the respondent’s final submissions dated 12 November 2020, Mr Lanigan provides further opinion about the extent of sub-surface water flows affecting the applicant’s land by reference to findings from the digging of a test hole at no. 7 Kett Street, being the land immediately to the south of the applicants’ land, partly in response to which was the subject of the applicants’ reply submissions.
Findings- whether, following works completed by the respondent in 2019 and 2020, there remains a sub-surface flow of water from the respondent’s land that is not reasonable
114	I have carefully considered the applicants’ final submissions, in response to the opinion of Mr Lanigan, in which they submit that the following matters should lead to a conclusion that there continues to be a flow of water from the land of the respondent that is not reasonable. As I have described, they rely in particular on their observations of the contents of Hole 1, Hole 3, Hole 5, Hole 6 and Hole 7. They also emphasise that their land was not affected by water during the period prior to the respondent carrying on works upon his land.
115	I find:
(a)	from the three bore logs taken by Oz Geos that the applicants’ residence is constructed on a permeable silty sand upper layer of soil varying in depth from the surface of .5 and .6 of a metre (the “upper layer”);
(b)	from the further observations of Oz Geos, Mr Turnbull’s report dated 6 October 2020, and Mr Lanigan’s reports that:
(i)	below the upper layer is a clay base of low permeability, and that the water table, below which is saturated ground, is between 5 metres to 10 metres below the existing ground level;
(ii)	there is water present in the upper layer, primarily made up of rainwater, that has percolated into the upper layer from surface flows;
(c)	there is identified in the historic plans of Whitehorse City Council and an aerial photograph in evidence, a natural gully caused by the action of water running from the south west to the north east in the approximate direction of Koonung Creek, part of which gully lies approximately below the applicants’ land;
(d)	compacted fill is likely to have been lawfully placed over the gully in the late 1950s, to create many of the building blocks in and around Kett Street, and in Tasman Street to the north east of the applicants’ land; and
(e)	by reason of the contours of the applicants’ land, sub-surface water is flowing through the applicants’ upper layer, and approximately in the direction of the gully.
116	The applicants, who have brought the proceeding, must persuade me that their evidence of sub-surface water collecting in Hole 6, and otherwise evident in other holes dug by them, together with their evidence of the relative dryness of Hole 3 and Hole 5, and the other matters upon which they rely, is sufficient for a conclusion that on the balance of probabilities there is a flow of water from the land of the respondent within the meaning of s.16(1)(a) of the Water Act that is not reasonable.
117	Given particularly the contours of the applicants’ land, I consider that it is equally open on the evidence, to conclude that the origins of the flows of sub-surface water in the upper layer below the applicants’ land and which have percolated into Hole 6 in particular and other holes, are from rainwater falling:
(a)	on the applicants’ land;
(b)	on land in the direction of Kett Street, in an elevated position to the west of the applicants’ residence, and further west from there;
(c)	on land to the south of the applicants’ land, which is also elevated, relative to the level of the applicants’ residence; and
(d)	on the respondent’s land to the north
and, having once fallen, percolating into the upper layer below the surface of the applicants’ land.
118	I am unable to find on the evidence that the applicants’ land is now affected by a flow of water from the respondent’s land that is not reasonable.
119	I find from the contents of Mr Turnbull’s reports that the principal purpose of the sub-surface 90mm slotted PVC agricultural drain constructed by the applicants on their land between their garage and the boundary fence is to intercept an alleged underground water flow coming from the respondent’s land, and to carry it to the main council drain to the east of their property.
120	Given that the applicants have not proved that after April 2020 there has been a surface flow or an underground flow of water from the respondent’s land that is not reasonable, it follows that the claimed cost of $16,701.44 for the construction of the drain cannot be sustained. The applicants are not entitled to recover any damages referrable the cost of it, and the associated professional costs.
Claimed damage to boundary fence
121	There is no question that the boundary fence needs to be replaced. It is observably very old.
122	The Fences Act 1968 grants jurisdiction to the Magistrates’ Court of Victoria in respect of fencing works on the common boundary of adjoining lands. This includes the Court making orders in respect of the way in which contributions for proposed fencing works are to be apportioned and taking into account any negligent or deliberate acts by a neighbour that may have shortened the life of a boundary fence.
123	The applicants allege that damage was caused to the boundary fence by the surface flows of water that I have found were unreasonable.
124	During the respondent’s construction of the retaining wall, on about 17 February 2019 the section of the boundary fence adjacent to the applicants’ garage was destroyed, and a fence post broken.
125	The applicants claim $1,438.45 for damage to 11.4 metres of the shared fence. They rely on a quotation dated 10 April 2019 of M & V Leonard, Fencing Contractor, for $2,574 including GST for the replacement of the entire 20.4 metres length of the boundary fence. They allege that the section of the boundary fence damaged by the flow of water is 11.4 metres, the replacement cost of which, they submit, should be paid by the respondent. They arrive at the claimed amount of $1,438.45 by dividing the quotation of $2,575.40 by 20.4 to arrive at a per metre replacement cost of $126.18 and multiplying that by 11.4 being the length in metres of the fence alleged to have been damaged by the overland flow of water.
126	The applicants also make a claim for $775 for 12.4 metres of replacement fence, as particularised in a quotation of Eastside Fencing dated 19 August 2020.
127	I find that the claim by the applicants in respect of damage to 11.4 (or possibly 12.4) metres of the boundary fence caused by the surface flow of water, is in the nature of a claim by the applicants in respect of the way in which contributions for proposed new fencing works are to be apportioned between the parties. It would require me, when making an order about respective contributions to a new fence, to have regard to the way in which the respondent’s or the applicants’ acts may have shortened the life of or destroyed that section of fence. I find that this claim is not justiciable in the Tribunal, and I must dismiss it for want of jurisdiction.
128	I propose however to provide my observations about the cause of damage to the boundary fence.
129	I have reviewed all the evidence submitted by the applicants, including photographs. I have also considered the respondent’s evidence to the effect that the stability of the fence was affected not by a surface flow of water from his land, but by the applicants felling a large tree previously standing north west of the applicants’ garage, and subsequently reducing by 300 mm the surface level of the area adjacent to their side of the boundary fence, causing it to become destabilised.
130	The video evidence plainly demonstrates, in my view, the proximity of the flow of water that was not reasonable to the claimed affected portions of the boundary fence.
131	It is most likely, therefore, that the damage to the 11.4 metres section of the boundary fence was caused by the flow of water from the respondent’s land that I have found was not reasonable. The damage to the boundary fence was probably exacerbated by the actions of the respondent’s workmen.
132	Whether, if the Court makes a finding to this effect, it would provide a basis for the applicants’ claim for the full cost of replacement of the 11.4 metres section, will be a matter for the Court. There will doubtless be a question as to the extent to which the surface flows from the respondent’s land hastened the demise of a fence that may have already been failing due to age.
Quantum
133	In respect of the overland flow of water that I found existed during the period to March 2019 and possibly to April 2020, which I have found was not reasonable, I allow the following costs incurred by the applicants by way of damages within the meaning of s.16 of the Water Act:
(a)	$825 being one-half of the $1,650 professional costs paid by the applicants of Ms Khani’s report dated 11 February 2019 (revised 19 March 2019) concerning both surface water run-off, and expressing her views about alleged sub-surface flows of water from the land of the respondent;
(b)	$726 being one-half of the $1,452 professional costs paid by the applicants for the attendance of Ms Khani at hearing on 5 February 2020;
(c)	$770 being the cost of the Oz Geos report, it being reasonable in the circumstances for the applicants to obtain such report in response to the flows of water then occurring;
(d)	$550 being the cost of the Special Purpose Report, it being reasonable in the circumstances for the applicants to obtain such report in response to the flows of water then occurring;
(e)	$660 being the cost of the Independent Plumbing Report, it being reasonable in the circumstances for the applicants to obtain such report in response to the flows of water then occurring; and
(f)	$20.38 being the cost of the property sewerage plan in connection with the Yarra Valley Report, it being reasonable in the circumstances for the applicants to obtain such report in response to the flows of water then occurring.
134	I make the orders attached.

A T Kincaid
Member