In Enkelmann v Stewart [2026] QCA 67, the Court (Doyle JA, Bond JA Bradley JJA agreeing) applied the tests for nuisance set down by the High Court in Hunt Leather and dismissed the appeal on the basis that while a levee constructed on a cotton farming party which caused loss and damage to the adjoining property was "common and ordinary practice", it was not "conveniently" done.
Case background
The Enkelmans and the Stewarts own are adjoining cotton farming properties in the South Burnett area of QLD known as "Riverview" and "Mikandra" respectively. Both are in a floodplain whereby flood waters from Barambah Creed and its tributaries flow through or over parts of Mikandra onto Riverview. Between 2013 and 2023 Enkelmans caused a flood mitigation levee to be erected on Riverview near the boundary with Mikandra which altered the course and velocity of the flow of water, soil erosion, deposition of silt and debris, more backing up of water on parts of Mikandra, loss and reduction of crops, and disruption of work. The Stewarts succeeded in a nuisance claim in the primary proceedings and granted an injunction to remove the levee. The Enkelmans appealed.
"Riparian Rights"
The Enkelmans argued a "Turn Back Defence", ie a right to block surface waters to protect their own land, but this was unavailable because the primary judge's factual finding that the water flowed through a natural watercourse so "riparian principles", and since the decision of Hunt Leather, this was simply an application of the standard nuisance test rather than a standalone defence. The Court also rejected the Enkelmans argument that the Stewarts had to prove a quantified dollar-value loss to establish "substantial interference" as not strictly necessary as expert evidence proved that the levee increased peak flood levels and accelerated velocities disruption farming operations. This being a material non-fanciful interference.
Outcome
The Court accepted that constructing a levee was "common and ordinary practice" among property in the area, but it was not "conveniently done" and means were not taken to minimise interference because (i) the levee was constructed solely to protect Riverview based on an unproven belief that the Stewarts had altered Mikandra, (ii) no hydrological assessments were undertaken to understand or mitigate the impact on Mikandra, (iii) the Enkelmans failed to integrate engineering solutions to minimize the back-up of water, and (iv) the levee was maintained despite awareness of the Stewarts' claims and issues.