Water Diversion Results in a Successful Private Nuisance Claim

A recent case Enkelmann v Stewart [2026] QCA 67 was an important case applying the law of private nuisance to a neighbour dispute over temporary levees.

The parties were neighbouring cotton farms in south-west Queensland. Water naturally flowed across the respondents' property before reaching the appellants' land.
The appellants constructed a temporary levee near the common boundary to protect their farm from flooding. However, the levee altered the natural flow of floodwater, redirecting it back onto the respondents' land. The respondents alleged that this caused flooding, erosion and interference with their use of the property, and brought proceedings in private nuisance. At trial, the appellants abandoned their own claim but defended the respondents' counterclaim, arguing they were entitled to "turn back" surface water.

The Court of Appeal considered whether the levee created a private nuisance and whether the "turn back" principle operated as a standalone defence. The Court dismissed the appeal and upheld the trial judge's finding of nuisance.

The Court held that the levee caused a substantial and unreasonable interference with the respondents' ordinary use and enjoyment of their land. They found that constructing flood mitigation works on farmland was a common and ordinary use of land however the appellants failed to establish that the works were "conveniently done" because they did not take reasonable steps to minimise the impact on neighbouring land. For example, they had not obtained hydrological advice, assessed the likely downstream effects, or looked at measures to reduce interference. 

The Court also clarified that the so-called "turn back" defence is not a separate legal defence. Rather, earlier authorities concerning the diversion of surface water are now understood as applications of the general law of nuisance explained in Hunt Leather. The distinction between surface water and water flowing in a natural watercourse does not itself create a separate immunity from liability. 

Key Takeaways
Enkelmann v Stewart is one of the first decisions applying the High Court's law of private nuisance in Hunt Leather.  For property, and agribusiness disputes, the decision underscores that defendants must be able to demonstrate not only that their use of land was legitimate, but also that they took reasonable steps to avoid unnecessary interference with neighbouring properties.