A Rotorua District Court judge has made a ruling over missing water. Photo / Kelly Makiha
The mystery of a lack of water on one of Rotorua’s most prized farms has been solved after a court found someone at a neighbouring property had tampered with a pipe to illegally take water and divert it to their own property.
Kevin John Davenport and Janette Marie Davenport have been ordered to pay more than $23,000 in compensation to the owners of Sunnydown Farms - a 606ha farm that wraps around the western boundary of Rotorua between the Utuhina Stream and Paradise Valley Rd.
Sunnydown Farms has just won its Rotorua District Court civil case claiming the Davenports had unlawfully interfered with the farm’s water right by taking more than 8.5 million litres of water valued at about $9000.
A counterclaim by the Davenports for damages arising from an incident when the farm owners allegedly trespassed onto their neighbour’s property was thrown out by the court.
Judge Peter Spiller issued his judgement on November 16 following a hearing in the Rotorua District Court on November 6.
The judgement, obtained by the Rotorua Daily Post, said the Davenports took the water over eight years.
The judgement set out how the Sunnydown Farms owners - Paul Sumner Family Trust and Debra Sumner Family Trust Partnership - had a registered easement over part of the neighbouring Davenports’ farm. The easement allowed the Sumners to get water from the Utuhina Stream to the south of the Sunnydowns Farm, it was pumped through an underground pipe across the Davenports’ farm and into the Sumners’ farm.
But at some point, Kevin Davenport fitted a t-joint saddle over the pipe conveying the easement water and drilled a hole into the feed line to convey water to his property, the judgement said.
Kevin Davenport stated to the court the water was used to top up his farm tank when water was low and there were cattle that needed water.
The judgement said the Sumners doubled its stock from 2007 and between then and early 2019, the property received low or no flow of water during the summer months.
In 2018, Paul Sumner ordered a new ram - a device that sits beside the stream and pumps the water - to try and combat the water flow problem. In 2019, he also built a second reservoir on his farm.
The judgement said Paul Sumner noticed in February 2019 that he could not draw enough water from the source into his holding tank to keep up with stock requirements and he resorted to trucking water onto the property - costing nearly $7000.
It was Paul Sumner’s son, Dean, who identified Kevin Davenport had installed a supplementary line to their main feed line, directing the water into the Davenports’ water tank rather than into the Sumner’s holding tank, the judgement said.
In an interview with the Rotorua Daily Post, Sumner said he spent countless hours trying to work out what was wrong with his water supply.
He and farm workers spent years at different times riding farm bikes going to every trough following the feed lines trying to find leaks in the pipes.
When no explanation was found and when a drought stuck, Sumner said he spent thousands trying to improve the situation by trucking water in.
“We spent years looking for leaks,” he said.
Sumner explained to the Rotorua Daily Post his son, Dean Sumner, discovered the problem while he was away and had asked his son to keep an eye on the water issues by checking the tank.
He did one of these checks late one night and thought it was odd the tank wasn’t filling up - which it should be doing constantly.
Paul Sumner said he wondered if someone was physically turning it off.
Paul Sumner got back to Rotorua the following day and later that night he and his son went to check the water tank.
He said they discovered the tank was silent once again, indicating it wasn’t filling up like it should.
They decided to test their theory so Dean Sumner went 200m down the paddock and over the fence where the Davenports’ tank was. While talking to his father via mobile phone, he would turn the Davenports’ tap off. When he did, Paul Sumner noticed their tank started to fill up.
Paul Sumner said they tried it a couple of times and each time the Davenports’ tap was turned off, the Sumners’ tank would start to fill.
The judgement said the Sumners hired contractors on February 13, 2019, to gain access to the Davenports’ farm to find the pipe problem but the Davenports told them to leave the property.
Police were called and paperwork was supplied that showed the Sumners had the legal right to enter the defendants’ land to do any maintenance or repair to the water source.
It was agreed access could be granted the following day. With diggers, they removed the pipes that had been laid by the Davenports. The t-joint device used to divert the water was found, the judgement said.
Paul Sumner told the Rotorua Daily Post from his perspective he found the whole situation unbelievable and unfortunate.
“If he’d come to me and said I’m in trouble (and need water), I would have tried to accommodate him. But to go to those lengths and do that? ... To me, it’s the principle.”
Paul Sumner said it wasn’t only a frustration for him and his farm workers for several years, it was also a cost.
“I would go into the paddocks and there would be hundreds of cows with calves at foot bellowing at you. That’s why we were buying water and bringing it in.”
It was the Davenports’ evidence the Sumners breached the easement conditions first - before they put the t-joint over the pipe and took water for themselves - by increasing their storage capacity and not returning any water overflow.
The judgement said the Davenports believed the Sumners had “unreasonable and excessive use” of the water as a result of increasing their stock numbers over the years.
The Davenports’ evidence was the Sumners increased the storage capacity and the quantity of water they were allowed to take was restrained by the system of pipes and structures in place at the time of the easement.
It was the Davenports’ evidence they were entitled to the overflow, the easement is over the existing pipes, and the right to convey water does not include the right to store water, as the Sumners were doing.
They believed there was evidence there has been no overflow returned to the defendants, and that a pond they dug to store water overflows its banks rather than returning to the Davenports’ property, the judgement said.
Kevin Davenport told the Rotorua Daily Post in an interview he knew what they did wasn’t right but they felt they had to because they had “no water”.
He said they had lived at the farm for 32 years and had never had an issue with water with the previous neighbours.
“We had to do it, to be honest. We have admitted what we did and we are the ones paying.”
The judgement said the court acknowledges there was an element of uncertainty as to exactly what financial loss was caused by the diversion of the water and the sum of $9000 is a reasonable estimate based on evidence presented.
It said the court found compensation of $23,334.46 is to be paid by the Davenports to the Sumners plus interest (in terms of section 10 of the Money Claims Act 2016) until payment is made in full.
The judgement said the Sumners had “substantially succeeded on the central issues in this proceeding” and was also entitled to costs.
If the amount for costs can’t be agreed between the parties, the court will be notified.
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