Enkelmann v Stewart [2026] QCA 67

Michael Creedon | Luke Trimarchi | Joseph Ryan

Key takeouts

This case confirms the modern test for private nuisance as articulated by the High Court in Hunt Leather Pty Ltd v Transport for NSW (2025) 426 ALR 631 and demonstrates its application to flood mitigation structures on rural land. The court found that there is no standalone defence entitling a landowner to hold back surface water with impunity.

A landowner who constructs a flood mitigation levee on their land must establish that the levee was ‘conveniently done’, that is, that it was constructed using means that reasonably minimised the extent of the interference with the neighbouring landowner’s ordinary use of their land. This requires consideration not just of the convenience of the defendant landowner, but also the convenience of the plaintiff neighbour.

Landowners constructing flood mitigation structures should undertake hydrological assessment of the potential impacts on neighbouring properties and consider design features (such as culverts, spillways or other engineering elements) that may mitigate adverse impacts. A failure to consider the impact on neighbouring land, or to obtain appropriate expert advice, may preclude a finding that the structure was ‘conveniently done’ and expose the landowner to liability in nuisance.

Background

The Enkelmanns and the Stewarts owned adjoining cotton farming properties in the South Burnett area of Queensland. The Enkelmanns owned Riverview and the Stewarts owned Mikandra. Both properties were located on a floodplain, with flood waters from Barambah Creek and its tributaries flowing through or over parts of Mikandra and onto Riverview.

Commencing in 2013, with further works in 2023, the Enkelmanns constructed a flood mitigation levee (Temporary Levee) on Riverview close to the common boundary of the two properties. The Enkelmanns built the Temporary Levee to deal with what they perceived to be increased water flows onto Riverview from levees or earthworks carried out by the Stewarts on Mikandra.

The Stewarts contended that the Temporary Levee had various adverse effects on Mikandra, including altering the course and velocities of water flow, soil erosion, deposition of silt and debris, the backing up of water onto parts of Mikandra to greater depths and for longer periods than would otherwise be the case. This caused loss of crops, reduction in grade of crops, and disruption of work on the affected parts of the property. These impacts were felt following a number of significant rain events and floods.

At first instance, the primary judge found the Stewarts’ claim for nuisance made out. The court found that the course of water flowing over Mikandra and onto Riverview was a natural watercourse, that the Enkelmanns did not use reasonable care and skill in constructing the Temporary Levee and that the Temporary Levee was more than reasonably necessary to protect the Enkelmanns’ use and enjoyment of Riverview. The court ultimately found that the Temporary Levee caused a substantial and unreasonable interference with the Stewarts’ use and enjoyment of Mikandra. An injunction in favour of the Stewarts was granted requiring removal of the Temporary Levee.

• The Enkelmanns appealed, contending (among other things) that:
• the construction and use of the Temporary Levee was conveniently done.
• the primary judge erred in concluding that the Enkelmanns could not rely on the ‘Turn Back Defence’;
• the primary judge erred in failing to apply the correct test for private nuisance;
• the Temporary Levee involved a common and ordinary use of Riverview; and
• the construction and use of the Temporary Levee was conveniently done.

Decision

MThe Court of Appeal unanimously dismissed the appeal.

The Court of Appeal held that the primary judge was correct to conclude that the Stewarts had made out their case of nuisance from the construction of the Temporary Levee, its modification and its maintenance in place. The nuisance would continue for so long as the risk of further heavy rain or flooding existed. There was no separate challenge to the primary judge’s decision to issue an injunction requiring removal of the Temporary Levee, and such an order was appropriate.

The Court of Appeal noted that in between the primary judge’s decision and the hearing of the appeal, the High Court of Australia published its decision of Hunt Leather Pty Ltd v Transport for NSW (2025) 426 ALR 631, which now frames the elements and test for the elements of the tort of nuisance, being that:

• a claimant must establish that the use of the respondent’s land causes a substantial interference with the claimant’s ordinary use of its land; and
• a respondent may have a justification or excuse for causing that substantial interference if the respondent can establish that it was using its land for a common and ordinary purpose, by means which involved it being conveniently done.

Issue 1: The ‘Turn Back Defence’

The Enkelmanns advanced that they were entitled to erect a barrier to prevent water entering Riverview even if it caused loss to Mikandra, because the water was surface water and not water following a natural watercourse. The Court of Appeal held that there is no standalone defence enabling a landowner to ‘turn back’ waters onto a neighbour’s land with impunity. Rather, the construction of such a barrier must be assessed under the general framework for private nuisance, without reference to any legal distinction based on whether the water being held back was surface water. On appeal, senior counsel for the Enkelmanns accepted that it was difficult to slot the ‘Turn Back Defence’ into the established nuisance framework.

Issue 2: Substantial Interference

There was no dispute that the Stewarts were making ‘ordinary use’ of Mikandra by using it for a cotton farm. The question for the Court was whether the interference with that ordinary use was substantial. The Enkelmanns submitted that, because Mikandra was used for a commercial enterprise, the interference could only be substantial if Mikandra’s profits were shown to be substantially affected in dollar terms. The Court rejected this submission and explained that the ‘substantial interference‘ test is a question of fact. It involves a qualitative assessment that an affected plaintiff can satisfy ‘without requiring proof of impact in terms of quantified revenue or profit impacts for commercial properties.’ The duration and frequency of the adverse impacts were factors in the assessment of their materiality. The Court found no error in the primary judge’s findings of substantial interference.

Issue 3: Was the Temporary Levee Use for a Common and Ordinary Purpose?

The Court considered whether the Temporary Levee was used for a ‘common and ordinary purpose’, noting that this is an objective question to be assessed by reference to the usages in the particular society, here, cotton farmers or farmers in the general locality.

The Court observed that there was evidence that the construction of embankments on land in the area was not uncommon, including a government-funded report acknowledging that levees had been built “over time usually to protect crops from inundation and production losses.”

On the basis of the limited evidence provided, the Court found on balance that the use of levees as a form of flood mitigation to protect crops or land was a common or ordinary use of farmland in that locality.

Issue 4: Was the Temporary Levee Use ‘Conveniently Done’?

The expression ‘conveniently done’ requires a party to establish that it acted using means that reasonably minimised the extent of the interference. There was an evidentiary onus on the Stewarts to identify the respects in which the use was not conveniently done. The Enkelmanns submitted that the test is objective (such that their subjective motivation was irrelevant) and that the Stewarts had not discharged their evidentiary onus.

The Court accepted that subjective motivations do not directly answer whether the means employed were conveniently done but held that the Stewarts had discharged their evidentiary onus. The Court noted that:

• the Temporary Levee caused harm by changing water velocities and backing up water;
• no consideration was given to culverts, spillways or other engineering elements to mitigate impacts;
• no hydrological assessment was undertaken; and
• the Enkelmanns were acutely aware of the Stewarts’ complaints before the 2023 modification works yet did nothing to accommodate those concerns.

The Court held that what is ‘conveniently done’ requires consideration not merely of the convenience of the defendant landowner, but also the convenience of the plaintiff neighbour. Given no consideration was given to the impact on Mikandra, the Enkelmanns could not establish that they acted using means that reasonably minimised the interference. The Court found no error in the primary judge’s conclusion.