The Queensland Court of Appeal held that the so-called 'turn back defence' from Gartner v Kidman is not a standalone defence to nuisance but is properly understood as an illustration of the general private nuisance test as reformulated in Hunt Leather Pty Ltd v Transport for NSW (2025) HCA 53, and that no legal distinction based on whether water is surface water or follows a natural watercourse creates a separate defence. Applying the Hunt Leather framework, the Court found that while constructing flood mitigation levees was a common and ordinary use of farmland in the locality, the appellants failed to establish their levee was 'conveniently done' because they gave no consideration to the impact on the neighbouring property, did not obtain hydrological assessment, and did not incorporate design features to minimise interference. The Court also left open, without deciding, whether private riparian rights to flow of water survive the vesting of water rights in the State under s 26 of the Water Act 2000 (Qld) in light of ICM Agriculture Pty Ltd v The Commonwealth.
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