Young v Attorney-General
| Jurisdiction | New Zealand |
| Judge | Mander J |
| Judgment Date | 08 May 2019 |
| Neutral Citation | [2019] NZHC 993 |
| Court | High Court |
| Docket Number | CIV-2017-409-110 |
| Date | 08 May 2019 |
[2019] NZHC 993
CIV-2017-409-110
IN THE HIGH COURT OF NEW ZEALAND
CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA
ŌTAUTAHI ROHE
Tort — nuisance claim — property damaged by cliffs which collapsed as a result of the Canterbury earthquakes — defence of statutory authorisation — immunity — Greater Christchurch Regeneration Act 2016
Andrew Barker QC and Jai Moss for Plaintiff
K Stephen and M Madden for Defendant
JUDGMENT OF Mander J
The plaintiff, Steven Young, has brought a claim in nuisance against the Crown alleging it has breached its duty of care as a neighbouring property owner to prevent wrongful interference with the enjoyment of his land. Mr Young owns a property that is bounded by steep cliffs which collapsed as a result of the Canterbury earthquakes. The Crown, which now owns the adjacent clifftop properties, has pleaded affirmative defences in response to Mr Young's claim.
The Crown has sought the determination of a preliminary question to advance the resolution of the proceeding. That course was not opposed by Mr Young. The issue that falls for determination is the following preliminary issue of law:
Does s 145 of the Greater Christchurch Regeneration Act 2016 provide the defendant with a complete immunity from the plaintiff's claim?
In addition to the reliance placed upon the statutory immunity, the Crown further maintains that the common law defence of statutory authorisation has application. Mr Young contests both propositions.
Mr Young owns a property situated in Redcliffs (the property). He subdivided the land and built five houses on the property. By the time of the earthquakes, Mr Young had not yet received final consent for the subdivision. There is some dispute between the parties as to the reasons and significance of this fact, but they are not germane to the issue I must decide.
The earthquakes resulted in major subsidence of the adjacent cliffs. Extensive amounts of rock and rubble were deposited onto the property and significant damage caused to the houses, as there was to the surrounding land and homes situated on top of the cliffs.
In March 2012, the Canterbury Earthquake Recovery Authority (CERA) issued a notice under s 45 of the Canterbury Earthquake Recovery Act 2011 (CER Act), which restricted access to the property (s 45 notice). 1 After the CER Act was repealed in April 2016, the s 45 notice was treated as having been imposed under s 86 of the Greater Christchurch Regeneration Act 2016 (GCR Act). 2 The s 45 notice was removed in July 2018. In providing notice of its removal, the Crown advised Mr Young that removal of the notice “would not mean the life risks affecting the property have been removed” and that he, as the property owner, had responsibility for managing access to “the hazardous areas” on the property. 3
The property and the surrounding clifftop properties were designated as being within the Port Hills residential red zone. Residential red zone offers made by the Crown resulted in it purchasing the clifftop properties in December 2013. 4 The houses
In March 2013 and February 2015, the Crown made residential red zone offers to Mr Young which he declined. He did not consider those offers represented fair value for the subdivided land and the improvements. Mr Young continues to own all of the land and dwellings on the property and the Crown continues to hold the surrounding clifftop properties. 6
Mr Young claims the Crown has breached its duty of care to him as a neighbouring landowner to prevent wrongful interference with the enjoyment of his land. In summary, Mr Young identifies the wrongful interference giving rise to his claim in nuisance as being:
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(a) the safety hazard created by the risk of rockfall and cliff collapse onto the property from the Crown's adjacent clifftop properties; 7
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(b) the failure to remove the debris and rubble from the collapse of the cliff caused by the earthquakes and from the ongoing intermittent fall of debris and rock onto the property from the neighbouring cliff face properties, including that resulting from the removal of the clifftop houses; and
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(c) the interference with Mr Young's access to the property prior to the removal of the s 45 notice.
Mr Young seeks declarations requiring the Crown to: 8
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(a) remediate the risk of rockfall and/or cliff collapse from the Crown's land onto the property; 9 and
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(b) remove the rock and debris that has fallen from the Crown's neighbouring properties onto the property.
If it is not reasonable for the Crown to carry out remedial work, Mr Young seeks damages or a declaration requiring the Crown to build safety measures to enable him to have access to and quiet enjoyment of the property.
The Crown pleads two affirmative defences. Firstly, that s 145 of the GCR Act provides it with immunity from Mr Young's claims. Secondly, and in the alternative, that the Crown issued the s 45 notice, purchased the adjacent properties, removed the unsafe clifftop dwellings, and now holds the land in accordance with statutory authority. 10 The inevitable effects arising from those actions by the Crown are said to have been as the result of authorised statutory powers.
While the determination of the preliminary issue proceeds on the basis that Mr Young has an actionable claim in nuisance against the Crown, it is necessary, in order to assess the Crown's reliance on s 145 of the GCR Act, to understand the nature of Mr Young's common law claim.
The owner of land or a person who has a right to occupy land is entitled to enjoy their interest in that land without disturbance or annoyance from their neighbour. 11 The owner of neighbouring land will generally be held to be strictly
Both parties referred to Viscount Maugham's speech in the House of Lords decision, Sedleigh-Denfield v O'Callaghan: 14
In my opinion an occupier of land “continues” a nuisance if with knowledge or presumed knowledge of its existence he fails to take any reasonable means to bring it to an end though with ample time to do so. He “adopts” it if he makes any use of the erection, building, bank or artificial contrivance which constitutes the nuisance.
By reference to the English Court of Appeal's judgment of Leakey v National Trust and the Privy Council's decision in Goldman v Hargrave, it was emphasised that a nuisance can arise as a result of a natural occurrence on a property and does not require any particular action on the part of the owner. 15 In Goldman the defendant was held to have adopted the nuisance when deciding not to extinguish a fire that had been caused by lightning striking a tree which was left to burn and spread to the neighbour's land. It was held in Leakey that the same principle applied notwithstanding there having been no fault on the part of the defendant: 16
It is to my mind clear, also, that no distinction is suggested in, or can properly be inferred from, [ Goldman] as between a hazard accidentally arising on the defendant's land which, on the one hand, gives rise to a risk of damage to a neighbour's property by the encroachment of fire and, on the other hand, gives rise to such a risk by the encroachment of the soil itself, falling from the bank on to the neighbour's land. There is no valid distinction, to my mind, between an encroachment which consists, on the one hand, of the spread of fire from a tree on fire on the land, and, on the other hand, of a slip of soil or rock resulting from the instability of the land itself: in each case, the danger of encroachment, and the actual encroachment, being brought about by the forces of nature.
In that case, the instability of the defendant's land had caused and was likely to continue to cause soil and debris to fall onto the plaintiff's land. It was not caused nor aggravated by any human activities on the defendant's land but by nature — the geological structure, content and contours of the land, and the effect of sun, rain, wind, frost, and other natural phenomena. 17
The scope of this duty, sometimes referred to in the United Kingdom as the “Leakey Duty”, which is imposed on the landowner from which the hazard is sourced, is limited to do what is reasonable in the circumstances to prevent or minimise the known risk of damage. 18 It is an approach which has been cited with approval in a number of New Zealand cases. 19
The Crown relies upon s 145 of the GCR Act which relevantly provides:
145 Protection from liability
(1) Except as otherwise provided in this Act, no action lies against the Crown, or an officer or employee or a Minister of the Crown, or against any other person,—
(a) to recover any damages or other amount for any loss, damage, or adverse effect that is due directly or indirectly to any action taken under this Act; or
(b) to require any work to be carried out or other action to be taken in order to remedy or mitigate any loss, damage, or adverse effect that results directly or indirectly from any action taken under this Act.
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(3) Subsection (1) applies whether the loss, damage, or adverse effect...
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Young v The Attorney-General
...for the continuing rockfall risk to the already gravely impaired land owned by Mr Young, was met by the offer it remade in 2017. 1 Young v Attorney-General [2021] NZHC 463 [Judgment 2 Young v Attorney-General [2021] NZHC 1359 [Costs judgment]. 3 Based on the rating value of $1.05 million fo......