Young v The Attorney-General

• Jurisdiction: New Zealand
• Judge: Kós P
• Judgment Date: 23 August 2022
• Neutral Citation: [2022] NZCA 391
• Docket Number: CA200/2021
• Court: Court of Appeal

Between

Steven Richard Young

Appellant

and

The Attorney-General

Respondent

[2022] NZCA 391

Court:

Kós P, Cooper and Dobson JJ

CA200/2021

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

Civil Procedure, Torts — appeal against a decision which held the Crown's hybrid red zone offer met its measured duty to do what was reasonable to abate the nuisance — application leave by Y to amend his notice of appeal out of time to appeal the costs judgment appeal — continuing nuisance — land damaged by earthquakes — measured duty of care

Counsel:

A R B Barker QC and J Moss for Appellant

K G Stephen and H T N Fong for Respondent

• A The application for leave to file an amended notice of appeal out of time to appeal the costs judgment [2021] NZHC 1359, within the extant appeal, is granted.

• B The appeal is dismissed.

• C The appellant must pay costs to the respondent for a standard appeal on a band A basis and usual disbursements.

JUDGMENT OF THE COURT

REASONS OF THE COURT

(Given by Kós P)

1 Mr Young's land lies beneath cliffs compromised by the 2010/11 Canterbury earthquakes sequence. The cliffs lie across the boundaries between Mr Young's land and the clifftop properties above. The earthquakes caused the cliffs to fail. Rocks fell across Mr Young's property. His wife narrowly avoided death.

2 Following the earthquakes, the neighbouring properties on the cliffs were red zoned under the Canterbury Earthquake Recovery Act 2011. They were acquired by the Crown between 2012 and 2015. Continued instability in the cliffs means Mr Young's land is unsafe. It, too, was red zoned. The Crown made a number of offers to buy Mr Young's land, all of which he rejected.

3 Instead, in 2017 Mr Young brought an action against the Crown in trespass and nuisance. He claimed the Crown was obliged to remove the rockfall from the 2010/11 earthquakes sequence and remediate the risk of further rockfall and/or cliff collapse on the cliffs so that he may return to, reoccupy and restore his property. Alternatively, he sought an award of damages reflecting the value of the property he lost.

4 Dunningham J dismissed that claim. 1 Mr Young appeals. He seeks also to challenge a separate costs decision in which the Judge awarded the Crown scale costs of $69,448 and disbursements of $259,645 — these mostly being for the costs of expert witnesses in what had been a five-day trial. 2

Background

5 We draw here on the judgment below. For over 40 years Mr Young has owned the land at 124 Main Road, Redcliffs in Christchurch. Mr Young has devoted great effort to developing and landscaping the land, which extends to about two hectares. It now comprises an enclave of five houses and appurtenant gardens. The original homestead — House 1 — was built in 1901. At the rear of the property, and enclosing it in a sweeping curve, are the cliffs that give the suburb its name. At the top of the cliffs were the 13 properties acquired by the Crown after the 2010/11 earthquakes sequence, between 2012 and 2015, via red zone offers made under the Canterbury Earthquake Recovery Act.

6 Prior to 2007, only three of the five houses existed on Mr Young's land (Houses 1–3). In 2007, Mr Young obtained subdivision consent to create four new residential lots in addition to the balance lot (Lot 5), on which Houses 1–3 stood. Mr Young subsequently sold two of the lots to two different families, who each built family homes on these lots (Houses 4 and 5) and lived in them in anticipation of the subdivision being completed and acquiring title. Rockfall protection works still needed to be completed before that could happen.

7 The 4 September 2010 earthquake damaged Houses 1–3, but relatively little rock fell from the cliffs. However, the 22 February 2011 earthquake (which struck at 12.51 pm) caused over 21,000 m ³ (or over 30,000 tonnes) of rock and debris to fall on to Mr Young's property. Mr Young described these frightening events in evidence:

Outbuildings were knocked over, boulders hit the houses and the driveway was completely blocked by rockfall and debris blocking all access to the property from Main Road.

It was very frightening and my wife almost lost her life. I was at home and my wife had just collected our son from daycare and was on her way back to her job at the Redcliffs Supermarket. She started driving down the drive but then realised she had forgotten her name badge and so jumped out of the car to go back into the house to collect it. At the very moment she was out of the car collecting her name badge the earthquake hit and her car was demolished by falling rock. Had she not returned for her name badge she would no doubt have been killed. This was a terrifying time for us.

8 More rockfall also occurred in subsequent earthquakes. Overall, around 72 per cent of the detached rocks and debris came from the cliff face lying within Mr Young's own land; 28 per cent came from the neighbours' land above Mr Young's land. Houses 1–3 were damaged and became uninhabitable. Houses 4 and 5 were damaged but were capable of repair.

9 In June 2012, the property was designated as a red zone property under the Canterbury Earthquake Recovery Act. The Crown gave Mr Young two standard options for the purchase of his property. Option 1 was for the land and improvements, based on their 2007 rating valuation, with Earthquake Commission (EQC) and private insurance claims assigned to the Crown. Option 2 was for the land only, based on its 2007 rating valuation, with EQC claims relating to land damage assigned to the Crown (with Mr Young retaining all EQC or insurance claims in respect of the dwellings).

A hybrid offer was made in February 2015, and renewed in December 2017, of $2.08 million, with Mr Young retaining the proceeds of insurance payments on Houses 1–3. 3 Mr Young rejected all offers. In mid-2015, he bought Houses 4 and 5 from the families to which he had sold the underlying lots. Mr Young now owns all the land and improvements on it.

10 Due to the devastating damage caused by the earthquakes sequence, the Christchurch City Council notified a new Christchurch District Plan (CDP), in tranches, in 2014/15. The CDP relevantly introduced new management areas, in which Mr Young's property is now located. These management areas largely either absolutely prohibit, or categorise as non-complying activities, development activities such as building, subdivision and hazard-removal works. The property is not currently accessible from the road due to rockfall at the street front. A private plan change would therefore be necessary to allow for the remediation Mr Young desires.

11 Mr Young wishes to salvage Houses 1–5, protect them as best as possible from future cliff collapse and rockfall, and return to living in House 1. Two remediation plans were put forward in evidence, which we summarise: 4

(a) the Davis Ogilvie plan, advanced by Mr Young. It involves scaling the rock faces to remove loose rock, removing approximately 56,800 m ³ of fallen rock and debris, benching the cliff face on the northwest side of the property (involving a further 13,600 m3 of earthworks) and building a significant bund (about five metres in height and 300 metres in length), along the two sides of the property threatened by the cliff to protect the area where the existing houses stand. The cost estimate for this work was $4,337,763 plus GST; 5 and

(b) the Kupec proposal, advanced by the Crown (but on the express basis it had no such remediation obligation). It involves the construction of two substantial bunds through the property. The first would be about 94 m long, 4 m high and 4.6 m wide at the base. The second would need to be about 73 m long and 2.5 m high with a base width of 3.5 m, and have a two metre-high rockfall-protection drape fence on top. The Kupec proposal would allow around 2,100 m ² of the property to be occupied for residential purposes, as opposed to 5,800 m ² under the Davis Ogilvie plan. It would be cheaper than the Davis Ogilvie plan, with the Judge estimating the actual cost would be at least $1.6 million plus GST. 6

12 The first of these concepts depended on a private plan variation to the CDP being successful to permit remediation, and any consents being granted. As the Judge put it: 7

[79] The primary barrier is the prohibited status of the works under the CDP. It cannot be reasonable to expect the Crown to embark on the costly plan change process which would be required before it could even seek consent to undertake the works, particularly when the prospects of success are remote. The cost of that exercise is not quantified by Mr Young, but I accept Mr Allan's evidence that it could involve several hundred thousand dollars and would take 12–18 months to complete, disregarding the cost and time involved in any subsequent appeal. Without a successful plan change the works are unlawful and there is no prospect that this Court would impose such an obligation on the Crown.

13 As to the prospects of obtaining the variation and/or consents, the key planning evidence came from Mr Mark Allan. He confirmed the necessity for a plan change to undertake certain development activities that are prohibited activities in the CCMA1 zone, which applies to a significant portion of Mr Young's land. The CCMA2 and MMMA1 zones, which also cover a lot of the land apart from a strip along the boundaries furthest from the cliffs (which is covered by the LMA zone), make these activities non-complying, requiring resource consents.

14 Mr Allan assessed a plan change was unlikely to be successful in respect of the CCMA1 zone, and resource consents were unlikely to be granted for the remaining land. These views were not significantly adjusted under cross-examination and were accepted by the Judge, as we noted at [12] above.

15 Finally, we record that the valuation experts were agreed that the effect of the 2010/11...