Young v Attorney-General

JurisdictionNew Zealand
CourtHigh Court
JudgeMander J
Judgment Date08 May 2019
Neutral Citation[2019] NZHC 993
Date08 May 2019
Docket NumberCIV-2017-409-110

[2019] NZHC 993

IN THE HIGH COURT OF NEW ZEALAND

CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA

ŌTAUTAHI ROHE

CIV-2017-409-110

Between
Steven Richard Young
Plaintiff
and
Attorney-General
Defendant
Appearances:

Andrew Barker QC and Jai Moss for Plaintiff

K Stephen and M Madden for Defendant

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

The Court held the Crown's protection from liability was circumscribed by the words of s145(1) GCRA. It was necessary that the loss, damage or adverse effect be due directly or indirectly to an action taken by the Crown under the Act, or that resulted directly or indirectly from any such action. The immunity provided by s145(1) GCRA was dependent upon there being some causal connection (whether direct or indirect) between the statutory action and the loss or adverse effect for which damages were sought, or work required to be carried out to remedy or mitigate.

Immunity under s145(3) GCRA did not include any loss or adverse effect that had resulted from a failure to take action. Both s145(1) GCRA and s145(3) GCRA required a causal link between the loss or adverse effect and the action taken under the Act. The Crown's acquiring and holding of the property had not resulted (either directly or indirectly) in damage or adverse effects to Y's property. Neither the Crown's act of acquiring the land nor its present holding of the clifftop properties caused the damage or adverse effect. While the exercise of those statutory powers may give rise to the Crown's potential liability for the nuisance, the test for immunity under s145 GCRA was different.

Section 145 GCRA was not intended to extend an immunity to the Crown from the responsibility and liability (potential or otherwise) that it assumed in the ordinary way as its purchaser. Section 145 GCRA was not to be read in a way that would effectively result in the Crown being immunised from its obligations as a landowner, nor have the effect of alienating Y's property rights simply by having purchased the neighbouring clifftop properties. The Act had not intended they be extinguished by statutorily immunising the Crown from the consequences of becoming the owner of neighbouring land. The Crown's obligation should Y's action in nuisance succeed was only to do that which was reasonable in the circumstances to ameliorate the nuisance.

Statutory authority could provide a defence to an action for nuisance. Whether it was arguable that Parliament, by providing general powers to the Crown to acquire and hold land, intended to authorise the continuation of a particular nuisance would require detailed scrutiny of the circumstances of the decisions to purchase and hold the land in question.

Y was the successful party on the determination of the preliminary issue of law and was entitled to costs.

JUDGMENT OF Mander J

1

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.

2

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?

3

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.

Background
4

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.

5

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.

6

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

7

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

on those properties were removed by the Crown. 5 By April 2018, the Crown held ownership of all the clifftop land adjacent to the property
8

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's claim and the Crown's defence
9

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:

  • (a) the safety hazard created by the risk of rockfall and cliff collapse onto the property from the Crown's adjacent clifftop properties; 7

  • (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

  • (c) the interference with Mr Young's access to the property prior to the removal of the s 45 notice.

10

Mr Young seeks declarations requiring the Crown to: 8

  • (a) remediate the risk of rockfall and/or cliff collapse from the Crown's land onto the property; 9 and

  • (b) remove the rock and debris that has fallen from the Crown's neighbouring properties onto the property.

11

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.

12

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.

The action in nuisance
13

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.

14

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

liable, in the sense that it is not necessary to prove fault, for any nuisance that person causes through deliberate actions. 12 Additionally, a neighbouring landowner can also be liable for a nuisance which emanates from their land which they did not cause. Examples include where the nuisance may have been caused by a trespasser or a naturally occurring condition. 13 Importantly, however, in such a situation the landowner must have “continued” or “adopted” the nuisance
15

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.

16

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...

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