Barron v Louw
[2018] NZHC 2275
•30 August 2018
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2017-404-2996
[2018] NZHC 2275
IN THE MATTER of Nuisance BETWEEN
GILLIAN ANNE BARRON
Appellant
AND
MELT JACOBUS LOUW and TONI MARIE WARREN
Respondents
Hearing: 22 May 2018 Counsel:
DA Cowan for appellant
KP McDonald and ND Percy for respondents
Judgment:
30 August 2018
JUDGMENT OF FITZGERALD J
[As to appeal from District Court judgment]
This judgment was delivered by me on 30 August 2018 at 3 pm pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Date……………
Solicitors:Doug Cowan, Barristers & Solicitors, Auckland Kevin McDonald & Associates, Auckland
Barron v Louw [2018] NZHC 2275 [30 August 2018]
Introduction
[1] The appellant, the original plaintiff in the District Court, claims in nuisance against her uphill neighbours, the respondents. The appellant says that excess water is being discharged from the respondents’ property onto her property because of a variety of drainage issues on the respondents’ land.
[2] The respondents, on the other hand, say that water draining onto the appellant’s land is a natural consequence of her property being at the bottom of a steep slope “in a city that receives an abundance of rain”. Their position is that any alterations they have made to their property since acquisition have not increased the overall quantity of water that would find its way naturally onto the appellant’s land but have in fact decreased it. They further say the drainage on their property is adequate, a conclusion accepted by the Council in response to the appellant’s repeated complaints. Finally, the respondents rely on the doctrine of ‘natural servitude’ — which says the owner of a downhill property is obliged to receive the water of an uphill property if that water would naturally flow there, even if the owner of the uphill property has altered the flow in some minor way.
[3] The District Court Judge accepted the respondents’ position and dismissed the appellant’s claim. The Judge’s decision was based primarily on the doctrine of natural servitude. The appellants appeal from that decision.
Background
[4] The land on which both parties’ properties are located used to be one property. Sometime during or before 1998, two walls were built on the property. One is a curved rock wall, perpendicular to the slope of the hill, referred to as Wall A. The other is referred to as the ‘block’ retaining wall. It runs parallel to the slope down the eastern side of the properties’ boundaries and is referred to as Wall B. The two walls are separated by a set of steps.
[5]By 2009, the main house on the (then un-subdivided) land was uphill of Wall
A. Below Wall A and the steps was a small studio house. The appellant rented and lived in the studio from late 2009. The land was subdivided by the then-owner in early
2010, and the land the studio was on was separated from the uphill property. A concrete turning bay was added at that time, at the top of the uphill property.
[6] The boundary between the two properties runs through Wall A and the steps. In March 2010, the appellant purchased the land on which the studio was situated, now being 42 Harley Close. In November 2011, the respondents purchased the uphill property, on which the main house is located, being 5 Spencer Terrace. In 2014, the respondents carried out some building works on their property, primarily on the western side, involving the addition of a decked area.
[7] At the time of the District Court hearing, the appellant was building a new house on her land. She says that an excessive amount of water emanates from the respondents’ property onto her land. In particular, she complains of water flowing from under the steps, discharge at the curved end of Wall A, other leaks in the same wall and other miscellaneous emanations of water. She and her partner also give evidence of other drainage issues associated with what is said to be a blocked novacoil drain which runs down the eastern side of the properties, which is said to be exacerbating the water flowing onto her property.
[8] In terms of the effect of the water flowing onto the appellant’s property, the appellant gives evidence of how the silt carried by the water discharges in periods of heavy rain, causing significant problems for her while she is building her new house. She also states that the water flow also makes the area behind her new house wet and damp.
District Court decision
[9] The appellant’s claim was heard before Judge GM Harrison on 10 and 11 October 2017 and the Judge issued a reserved judgment on 17 November 2017.1 The Judge based his decision on the doctrine of natural servitude. He reviewed the
1 Barron v Louw [2017] NZDC 25965 [District Court decision].
development of the law and noted the doctrine had been adopted into New Zealand at least as early as 1930,2 and adopted the following statement from the Privy Council:3
The law may be stated thus: Where two contiguous fields belong to different proprietors, one of which stands upon higher ground than the other, nature itself may be said to constitute a servitude on the inferior tenement, by which it is obliged to receive the water which falls from the superior. If the water, which would otherwise fall from the higher grounds insensibly, without hurting the inferior tenement should be collected into one body by the owner of the superior in the natural use of his property for draining or otherwise improving it, the owner of the inferior is, without the positive constitution of any servitude, bound to receive that body of water on his property.
[10] The Judge further adopted the following passage from Davis v Lethbridge, discussing the doctrine of natural servitude in the context of residential houses:4
The tort of nuisance is committed when the user of the defendant is either non- natural, or unreasonable as between him and his neighbour or his local community, with resulting damage or interference with property rights sufficiently substantial to warrant the intervention of the law. In modern society where land use is controlled by zoning ordinances it is now impossible to contend, in my opinion, that the building of a house and the laying-out of paths and other amenities is not a reasonable and natural user of land zoned by law for that use alone, even though the resulting impermeability of the land surface now diverts surface water elsewhere, and not wholly into the storm- water drains prescribed by the controlling local authority.
[11] Having laid out these (and other) statements of the law, the Judge considered whether there was a nuisance in this case. He found it was clear that surface water runs from the respondents’ land to the appellant’s land. He also found the evidence was clear that there has been no change to the contour of the land or in the buildings or other improvements to the respondents’ land that had increased the natural flow of surface water onto the appellants’ land. This was the view of the respondents’ expert and the Judge did not take the appellant’s expert to disagree with him. The Judge understood the appellant’s expert to be saying that the fact the land was subdivided in 2010 required the respondents to undertake remedial measures to stop the flow of water off their land and onto the appellant’s. The Judge stated that this was not the correct interpretation of the law, in light of the doctrine of natural servitude.
2 In Bailey v Vile [1930] NZLR 829 (CA), adopting the Privy Council Decision Gibbons v Lenfestey
(1915) 84 LJPC 158, [1914-15] All ER Rep Ext 1239.
3 Gibbons v Lenfestey, above n 2, at 1242; District Court decision at [26].
4 Davis v Lethbridge [1976] 1 NZLR 689 (SC) at 698; District Court decision at [30].
[12] Ultimately, the Judge found that, as the natural flow of water from the respondents’ land onto the appellant’s land had not increased because of anything done through the subdivision or by the respondents themselves, the flow of water was not a nuisance. He also stated5 that it was only because the appellant has constructed a new house on her land that the water, which has not changed in its flow, is now claimed to be a nuisance in its ordinary sense. He accordingly found for the respondents.
Appellant’s submissions
[13] The appellant says the Judge failed to adequately consider the evidence of her expert witness, Mr Finnigan. In particular, she says the Judge erred in deciding there had been no increase in surface water flowing from the higher to the lower property.
[14] The respondents’ witness, Mr Search, gave evidence that the amount of surface flows from the higher property has decreased as a result of work undertaken as part of the subdivision, and the works carried out by the respondents in 2014. The appellant says Mr Search’s evidence should have been given little weight as he did not inspect the appellant’s property, nor did he substantially dispute Mr Finnigan’s evidence.
[15] The appellant accordingly says the evidence establishes the flow of water has increased. She says when the property was subdivided, insufficient drainage was in place to mitigate the effect of water flowing from the higher property to the lower property. Further, because the higher land does not have adequate drainage to accommodate alterations made to the property post-subdivision, the respondents should be liable for the cost of installing drainage to ameliorate the flow of water onto the appellant’s land.
[16] The appellant also questions the Judge’s conclusion that it is only because the appellant has constructed her house that the flow of water is now claimed to be a nuisance. She says she complained about the nuisance long before the building consent for her new house was issued. She says there is no question of her “coming to” the nuisance because her use of the property is identical to that of the prior users.
5 With reference to observations of the United Kingdom Supreme Court in Lawrence v Fen Tigers Ltd [2014] UKSC 13, [2014] AC 822.
She began constructing her new house in 2015, and has been complaining about the nuisance since 2009. She says, therefore, that any defence arguing she has come to the nuisance must fail.
Respondents’ submissions
[17] The respondents submit that to succeed with her claim, the appellant must prove the obligation of natural servitude does not apply to her property. They say that doctrine applies in this case and factually there is “overwhelming” evidence that the water that flows across the respondents’ land onto the appellant’s land has decreased. They say the problem the appellant faces is that the location of her land will always be damp, being at the bottom of a hill.
[18] The respondents say that in the District Court the appellant took the view that because the retaining walls and the stairs were artificial structures, the law relating to natural servitude does not apply. In response, they say a defendant is not liable in nuisance when they have constructed artificial structures, provided those structures do not cause water to pass onto the plaintiff’s land in a new way that causes damage which would not have been caused by the natural flow.
[19] The respondents further assert that the appellant does not have standing to allege the respondents’ property breaches any building code or regulatory requirement concerning drainage; this is solely a matter for the local council. Further, they note the appellant has made several complaints to the relevant council about the alleged lack of or defective drainage on the respondents’ property, all of which have been rejected by the council in any event.
[20] The respondents also note that the appellant’s new house is closer to boundary of the properties than before, which they say constitutes a change of use.
Approach to appeal
[21] The leading decision in relation to the approach to be taken on appeal of this kind is the Supreme Court’s decision Austin, Nichols & Co Inc v Stichting Lodestar.6 The Court stated the following matters of general principle:7
(a)Appeals proceeding by way of general appeal require the appeal court to come to its own view on the merits.
(b)The weight an appeal court gives to the decision under appeal is a matter of judgment. For example, if the High Court is of a different view from the District Court, it must act on its own view.
(c)The appellant bears the onus of satisfying the appeal court that it should differ from the decision under appeal.
(d)It is only if the appeal court considers that the trial court is wrong that it is justified in interfering with it.
(e)The appeal court may or may not find the reasoning of the trial court persuasive in its own terms.
(f)The trial court may have had a particular advantage (such as the opportunity to assess the credibility of witnesses, where such assessment is important). In such a case, the appeal court may rightly hesitate to conclude that findings of fact or fact and degree are wrong, and it may take the view that it has no basis for rejecting the reasoning of the trial court and its decision should stand.
(g)The extent of consideration the appeal court gives to the decision of the trial court is a matter for judgment. The appeal court makes no error in approach simply because it pays little explicit attention to the reasons of the trial court, given the appeal court has the responsibility of
6 Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103; [2008] 2 NZLR 141.
7 At [3]–[5].
arriving at its own assessment of the merits of the case.
[22] The Court of Appeal has also more recently addressed on the approach to be taken on a general appeal, stating in Green v Green that:8
[29] Austin, Nichols reaffirmed the appellate court’s obligation to form its own independent judgment on the merits of an appeal by way of rehearing. But two fundamentals remain constant.
[30] First, it is still axiomatic that the appellant bears the onus of persuading the appellate court to reach a different conclusion. Of necessity, in discharging that onus the appellant must identify the respects in which the judgment under appeal is said to be in error.
[31] Second, it is also axiomatic that in determining whether the judgment was wrong the appellate court will take into account any particular advantages enjoyed by the trial court. The advantages possessed by a trial judge in determining questions of fact are obvious, especially where assessments of credibility and reliability are involved. The trial judge gets to see and hear the witnesses, and is able to evaluate the strength of the evidence as it progressively unfolds within the context of the trial as a whole. As this Court pointed out in Rae v International Insurance Brokers (Nelson Marlborough) Ltd:
As the evidence unfolds the trial Judge gains an impression from the evidence which is not necessarily or usually apparent from the cold typeface of the transcript of that evidence on appeal. The Judge forms a perception of the facts in issue from which he or she adds or subtracts further facts as witnesses give their evidence, and so obtains as complete a picture as is possible of the events in issue. The Judge perceives first-hand the probabilities inherent in the circumstances traversed in the evidence and can obtain a superior impression of those probabilities as a result.
[32] It was for those reasons the Supreme Court in Austin, Nichols expressly stated an appellate court should exercise caution in considering challenges to findings of credibility.
(Footnotes omitted)
[23] Similar observations were expressed in Fonterra Co-operative Group Ltd v McIntyre and Williamson Partnership, affirming that “compelling grounds” will need to be shown before an appeal court will reverse factual findings.9
[24] I am bound by these principles. In particular, and while I have carefully reviewed all the briefs of evidence and the transcript of the evidence given at trial, I am conscious that many of the key issues in this case turn on intensely factual matters.
8 Green v Green [2016] NZCA 486, [2017] 2 NZLR 321.
9 Fonterra Co-operative Group Ltd v McIntyre and Williamson Partnership [2016] NZCA 538, (2016) 14 TCLR 435 at [153]–[160].
Detailed expert evidence was also given at trial, with contemporaneous and extensive reference to and analysis of maps, photographs and other exhibits which were produced. The Judge had the advantage of hearing all the viva voce evidence over a two-day period, and was in a position to review and absorb the exhibits as the evidence was given, and assess the evidence overall as it unfolded. While of course it is open to me to differ from the Judge on key factual findings where I consider it is appropriate to do so, I am conscious of the Supreme Court and Court of Appeal’s notes of caution expressed in the extracts set out above when detailed factual findings are challenged.
Analysis
Key legal principles
[25] The appellants’ claim is brought in nuisance. In its most basic terms, “nuisance is an unreasonable interference with a person’s right to the use or enjoyment of an interest in land.”10 As explained in The Law of Torts in New Zealand, at the heart of this tort is the concept of a substantial and unreasonable interference with another’s rights to use or enjoy their land.11
[26] Given the appellants’ allegation that the block and retaining walls, which were present on the property well before the respondents became owners of their property, have caused unreasonable amounts of water to flow onto the appellants’ property, the concept of continuing a pre-existing nuisance is also relevant. A nuisance is “continued” if the occupier knows or ought to know of its existence on the land and fails to take reasonably prompt and effective steps to remedy it.12 In this way, continuing a nuisance originally created by another is fault based. In terms of that aspect of the appellants’ claim concerning the 2014 works carried out by the respondents themselves, fault is not required.
[27] A precursor issue is, however, the doctrine of natural servitude. If that doctrine applies, and none of the exceptions to it are triggered, then there will not be a nuisance
10 Bill Atkin “Nuisance” in Stephen Todd (ed) The Law of Torts in New Zealand (7th ed, Thomson Reuters, Wellington, 2016) 525 at 526.
11 At 534.
12 Tindall v Far North District Council HC Auckland CIV-2003-488-135, 20 October 2006 at [65]– [75].
in the first place. As noted earlier, for this reason, the doctrine was central to the Judge’s conclusion that the appellant’s claim must fail.
[28] The doctrine of natural servitude is examined and summarised in Hinde McMorland and Sim Land Law in New Zealand as follows:13
Before the commencement of the Resource Management Act it was clearly established that the natural servitude as expressed in Gibbons v Lenfestey applied in New Zealand allowing the higher owner, in the natural use of the higher land, to concentrate and discharge on to the lower land water that would otherwise naturally flow there. Three principal limitations were placed upon this right. First, the higher owner could not, by means of an “artificial structure” such as a building or a raising of soil level, alter the flow on to the lower land causing injury to that land. Secondly, he or she could not so concentrate the water as to increase appreciably the burden on the lower land by altering the volume and velocity with which the water flowed on to the lower land, thus causing damage to the lower land which would not have been caused by the natural flow. Thirdly, he or she could not introduce “foreign water”, that is, water which would not be part of the natural surface water on the higher land, and insist that it be received by the lower landowner. Though there is some authority for the proposition that the natural servitude applies only to rural land, and not to urban or suburban land, the better view is probably that it applies to all land and that any problems in its application to non-rural land are met by the limitations upon the right.
(Emphasis added)
[29] The above extract draws on the authorities cited by the Judge and referred to earlier in this judgment, as well as other leading authorities. There was no suggestion the Judge failed to summarise the law relating to natural servitude accurately, which I am satisfied he did.
[30] The central issue is accordingly whether the walls, steps or any actions taken by the respondents, including the works undertaken in 2014, have increased the amount of water naturally flowing to the appellant’s property, or have directed the water in a new or harmful way, causing damage. As discussed further below, this turns largely on an assessment of the expert evidence.
13 See DW McMorland and others Hinde McMorland and Sim Land Law in New Zealand (online ed, LexisNexis) at [6.017], footnotes omitted. The implications of the Resource Management Act were not argued nor are relevant in this case. Even if they were, were the “discharge” of water permitted by a resource consent, it is likely this would override common law principles and mean the discharge was lawful (see Saunders v Northland Regional Council, Environment Court, A 40/98, 27 April 1998).
[31] Despite raising some 15 grounds of appeal, and 34 points for determination in the subsequent points on appeal, the essence of the appeal, evident from the appellant’s written and oral submissions, is that the Judge erred in preferring the respondents’ expert evidence on this issue to that of the appellant’s expert.
[32]I accordingly turn to the experts’ evidence.
Mr Finnigan’s evidence
[33] Mr Finnigan gave expert evidence for the appellant. After setting out his qualifications and expertise, Mr Finnigan describes his instructions and his resulting report as addressing the following issues:
(a)the sources of the water discharge;
(b)the legal responsibility for the discharge;
(c)who should bear the cost of remedying the situation; and
(d)remedial work options.
[34] Mr Finnigan made a site visit to each of the appellant and respondents’ properties, reviewed the relevant property file information, regulations and legislation, reviewed further information from the appellant and undertook an independent assessment of specific drainage related issues.
[35] At the outset of his brief of evidence, Mr Finnigan states that the appellant’s property is experiencing ongoing drainage issues. He states “these drainage issues are associated with excess water being discharged from the [respondents’] property to the [appellant’s] property”. Mr Finnigan gives evidence of his opinion of the six sources of the “excess” water which “all emanates from the [respondents’] property” as being:
(a)Wall A;
(b)Wall B;
(c)what was referred to in the evidence and at the hearing as the “eastern novacoil” (being blocked);
(d)the “undrained” area of the respondents’ property (being an increase in the impervious area of the respondents’ land, including from the inclusion of the turning bay at the time of subdivision and the 2014 works);
(e)downpipes and guttering (which Mr Cowan, counsel for the appellant, acknowledged in his submissions on appeal are not a significant issue);14 and
(f)what was referred to as the “PVC stormwater discharge line out”.
[36] A key focus of Mr Finnigan’s evidence was his review of the actions taken on subdivision of the original property into four lots (including those now owned by the appellant and respondents). The drainage system put in at the time of subdivision was, in Mr Finnigan’s opinion, inadequate. His view was that this should have been upgraded to the North Shore City Council’s standard on drainage at the time of the subdivision. Mr Finnigan extensively refers to various bylaws and regulations concerning drainage, leading to his view that the respondents ought to be responsible for the costs of ameliorating the flow of water onto the appellant’s land.
[37] I pause to interpolate at this point that despite the appellant having made multiple complaints to the Council (including seeking a Mayoral inquiry in relation to the subdivision), and Council staff having carried out various inspections of the site and the respondents’ drainage, the Council is reported as satisfied with the state of drainage which is in place between the respondents’ and the appellant’s properties. Mr Finnigan quite properly accepted that there is a difference between his and the Council’s views as to the sufficiency of drainage upon subdivision.
14 This reflected the fact that the north-western downpipe on the respondents’ property has been increased from a 63 mm diameter metal pipe to an 80 mm diameter PVC pipe. Mr Finnigan accepted in cross-examination that this is now satisfactory.
[38] In cross-examination, Mr Finnigan confirmed that pre-subdivision, the drainage system that was installed was acceptable but post-subdivision, with new lots being created and assuming there would be a new dwelling built on them (including the appellant’s property), it should have been confirmed that the existing drainage would not adversely affect the future development on the new separate lot.
[39] Mr Finnigan’s views as to the need to upgrade the drainage systems because of the subdivision were reinforced in his answers to questions by the Judge. The following exchange took place between the Judge and Mr Finnigan at the conclusion of Mr Finnigan’s evidence (in relation to the essential difference between his evidence and that of the respondents’ expert, Mr Search):
Q. …what is the fundamental difference between [Mr Search’s conclusion] and yours? Yours is for option 3 to remedy the situation as you’ve assessed that he says “nothing needs to be done, the flows decreased, it hasn’t increased?”
A. He’s saying there’s been no increase in surface water flow post- subdivision, so I’m saying that at the time of sub-division, that condition 12 which he doesn’t really talk about, I don’t feel, well my opinion hasn’t wasn’t fully complied in that there is no primary drainage system provided for that rear yard area which included over 50 percent into this area.
Q.So is that as you see it the defining factor that he says since 2009 there’s been no increase, but that your theory is that from even before then, there was an unacceptable flow which should’ve been remedied at the sub-division stage and wasn’t?
A.Before the sub-division happened, that water it was fine for it to flow onto what’s now number 42 –
Q. That’s because it was a different property –
A. Yes, and soon as it –
Q. - in terms of its (inaudible 16:1:44) –
A. As soon as a sub-division is created, then you have this new situation
–
Q. Yes.
A. - where there’s a new lot and you’re getting uncontrolled runoff discharging onto it?
Q. Yes. All right, thank you.
Mr Search’s evidence
[40] As noted, Mr Search gave evidence for the respondents. Mr Search’s instructions were:
To assess whether the structures located on 5 Spencer Terrace, Hauraki, Auckland, after allowing for the drainage present on site, has increased the natural flow of water from 5 Spencer Terrace to 42 Harley Close.
[41] Mr Search explains his “site walk over” at the respondents’ property and review of various survey plans and other associated Council documentation in relation to the two properties. Ultimately, Mr Search’s evidence was that since the 2009 subdivision, “there has been no change in surface water run-off from 5 Spencer Terrace to 42 Harley Close”. Indeed, his evidence was that Walls A and B (constructed prior to sub-division) have decreased the area and volume of surface run-off from the respondents’ property to the appellant’s property. Mr Search further noted that:
Lower lying properties will almost always receive localised surface water run- off from higher properties. This can be observed to occur in the other properties adjacent to 42 Harley Close. As 42 Harley Close is at the bottom of a hill, it would also be common for the site to be damp and possibly receive ground water seepage/flow from the slope above, which extends 200 metres to the south-west to the intersection of Hart Road and Francis Street.
[42] Mr Search also gave his opinion that the west yard of the respondents’ neighbours at 3 Spencer Terrace will also be contributing to flows to the appellant’s property.
[43] Mr Search concluded his formal brief of evidence by stating that as has already been suggested by the Council, the appellant can:
…very easily and economically intercept any surface and subsurface stormwater flows along their northern boundary by constructing a scoria-filled cut-off drain with a surface swale (or formed channel).
[44] Mr Search reiterated these broad conclusions in his evidence-in-chief. The following exchange took place between Mr Search and the respondents’ counsel:
Q.So are you able to venture an opinion as to whether water from 5 Spencer Terrace in its nature [sic] state – which we do have a photograph of in the evidence as grass – has got, would be greater now
with the house built on it or lesser now, are you able to offer an opinion on that?
A. Ah, yes, um, as the site’s got developed there’s been storm water reticulation put in, so there’s actually been storm water flows from the roof and the upper paved area have been diverted away from what would have originally flowed down towards 42 Harley Close over the course of you know the development over the many years –
Q. Right.
A.Originally – like it would have just been the – going way back before the subdivision it would have just been, I don’t know if it was vegetated or farmed but this whole area is under – would be, typical of North Shore with quite heavy clays and permeable clays underneath as well so there’s not really much ground soakage so I would have expected this water to have always sort of come down more or less shallow subsurface or on the surface.
Q. And so there would be more or less water pre-the building of the house and the development of the site of 5 Spencer going onto 42 Harley Close?
A. My opinion is that there would definitely have been more water previously before that house and site got developed and the drive put in.
Q. Right, right.
A. There would’ve been water all coming down from way up there, travelling across that contour –
Q. Right.
A. – contour line and down.
Q.And the second thing is, you already have given us an opinion, haven’t you, as to the difference after the renovations that the defendants did on 5 Spencer –
A. Yeah.
Q. – just –
A. So that’s had the effect of taking even more water away ‘cos there was more coming into the downpipes and piped away from there.
[45] Under cross-examination, Mr Search noted that he had arrived at similar run- off figures that Mr Finnigan had arrived at in his evidence. The following exchange then took place between Mr Cowan and Mr Search in cross-examination:
Q. I want to talk about a surface water drainage area. At the time in 2009, in your experience being an expert, when would have been the ideal
time to provide for surface drainage areas, impervious areas, wouldn’t that be the time to do it?
A. Well unfortunately, that’s the way development occurs in Auckland, haphazard, cut out any council directive to put in a public storm water system and that’s probably what should’ve happened at the time.
Q.And also checking retaining walls, subsoil drainage at the same time that would’ve been the time to do it wouldn’t it?
A. I’ve never known that to be done to be honest in the time of sub- division unless there’s a reported problem, but it’s more council are more worried with you, you just getting a public storm water really, so we can’t turn the clock back, but that’s typical, everyone does their bit haphazardly because there’s quite a bit of serviced area in this whole slope that really needs a proper co-ordinated storm water system really put and you know, unfortunately for your clients maybe this hasn’t happened over time really and they’re at the bottom of a slope and they’re getting the effects of the ad hoc way this has all be developed really over time.
[46]The following further exchange occurred between Mr Search and Mr Cowan:
Q.And that’s what I put to you is happening to my client, flooding has come down from 5 Spencer Terrace everywhere, it’s sheeting down the property?
A.No I wouldn’t say that. This property at 5 Spencer Terrace, if you look at that plan that I’ve prepared that area that comes onto their neighbours is pretty typical with every other site on that whole slope. 5 Spencer Terrace receives water from above them, I’d say probably more than what goes down to 42 Harley Close really, it’s just the fact of living on a slope basically which is most of Auckland and there’s run-off just goes downhill, you know everything doesn’t get 100% drained to a storm water system and even if it did there’s the occurrence that you’re going to get blockages, storm events more than the designed 10-year, the term period storm, you know water’s going to end up going downhill unfortunately.
Q.So let me get this right and some final questions for you, you didn’t go to 42 Harley Close to see what was happening on the other side, you haven’t done any dye testing have you, you haven’t done a CCTV camera?
A. No, I’m not aware that anyone’s done any including your clients unfortunately; they have done no investigations to try and sort out where the source of the problem is.
[47] Mr Search did state that in his view, there was an issue with the water levels at the south-eastern corner of the appellant’s property but could not say clearly where that water was coming from. He stated:
… I think there’s quite a bit coming down from that direction of 3 Spencer Terrace and the first step would be to go and CCTV all of those drains on that side over by the one at 40 Harley Close and 3 Spencer Terrace and to check that they’ve got adequate stormwater discharge occurring”.
[48] In questions from the Judge at the conclusion of Mr Search’s evidence, the following exchange took place:
Q.All right. Now when Mr Finnigan gave his evidence I asked him what the fundamental difference was between your opinion and his, he having seen your evidence, and I ask you the same question, you’ve seen Mr Finnigan’s evidence, what do you determine is the fundamental difference between your respective stances if I can put it that way?
A.Ah, well Mr Finnigan from what I’ve seen he’s implying that the source of the problem is just from the overflow from gutters and that, what I consider not an excessive amount of un-drained area at 5 Spencer Terrace and I believe that there’s, that that’s not the source of the problem, that could be a minor contributing factor but for example that undrained area Council’s been aware of it, they looked at it at building consent, subdivision consent and have been back to the site since, they’ve had no problems with it, there’s been no notice to rectify an issue, I think there’s more of a problem there with the source of the water coming from somewhere else just with what’s been described. I don’t think over on the east side the problem is as bad as the west side, it seems to be just on that, sorry on the west side, it’s not as bad as the east side, it seems to be in the east corner from the phots and the video I’ve seen that there is a problem. You know there is a problem there.
Other evidence
[49] I have not disregarded the appellant’s and respondents’ own evidence, which I have carefully considered. However, in my view, a case such as this is very dependent on the views of properly qualified and independent experts. Quite naturally, each of the appellant and the respondents feel considerably aggrieved at the allegations being made against them, and have their own personal views as to what has occurred and what is causing the flow of water. For example, the appellant gives evidence that the various structures erected on the land (prior to her or the respondents’ occupation of their respective properties) have worsened the flow of water onto her property and makes various observations that certain drainage structures as they were constructed have not been installed properly or are in other ways defective. However, the appellant properly acknowledges that she is not an expert in these areas.
[50] Accordingly, while I have no doubt that the parties’ own views are genuinely and firmly held, I consider the Judge was right to place more reliance on the independent experts’ evidence. For these reasons also, the submissions on appeal from both the appellant and respondents also focussed heavily on the expert evidence.
Assessment
[51] In relation to the application of the legal principles to the facts, the appellant submits:
A flow of water onto neighbouring property which substantially interferes with the enjoyment of that property has been recognised as a nuisance requiring abatement.
[52] With respect, however, that is not a complete statement of the law. For the reasons outlined above, and recognising the doctrine of natural servitude, a defendant will not liable in nuisance provided that artificial structures or other actions taken by the defendant have not caused natural surface waters (or new “foreign” waters) to pass onto the plaintiff’s land in a different or increased way (from that which otherwise have been the case with natural water flow) that causes damage.15
[53] Having reviewed the evidence in this case, and in particular, the expert evidence, I am not satisfied the Judge erred in reaching the conclusions he did, including preferring the respondent’s expert’s evidence to that of the appellant’s.
[54] First, I am not satisfied that the appellant proved on the balance of probabilities that all the water flowing onto her property emanates from the respondents’ property. For example, Mr Search was of the view that some of the dampness, particularly in the south-eastern corner of the property, could be coming from 3 Spencer Terrace, but that much more invasive investigations (including CCTV review of the various drains) would need to be carried out to confirm the precise sources of the water. Those investigations have not, however, been carried out. Further, aspects of Mr Finnigan’s
15 Baily v Vile, above n 2, at 839-840 (also a case involving subdivision); Wilsher v Corban [1955] NZLR 478 (SC) at 490; Dijkmans v Howick Borough [1971] NZLR 400 (SC) at 406 to 408 (noting that in urban environments, activities which reduce the permeability of the soil, particularly in areas of impervious clay, are more likely to be natural use of urban land, for the purposes of the doctrine of natural servitude); and Davis v Lethbridge, above n 4, at 698-699 (where these and other earlier authorities were collected and reviewed).
evidence relied on (non-expert) personal views of the appellant and her partner as to the sources and causes of the water flow, for example:
(a)that the eastern novacoil drain is understood to be blocked and that contractors have been unable to clear the blockage; and
(b)that water has “always” leaked from the base of the steps and behind Wall A with every rain event since the appellant took up residence on the site in November 2009.
[55] Second, an area of the expert evidence which was addressed on appeal was Mr Finnigan’s evidence that actions taken by the respondents in 2014 (additional decking) had increased the impervious area of the respondents’ property, which was contributing to the excess water flowing to the appellant’s property. Mr Finnigan and Mr Search disagreed on the applicable calculations for ascertaining the total impervious area. However, Mr Finnigan acknowledged in cross-examination that his own calculations had taken into account the newly added deck, which was at least partly covered by an overarching roof. This had the potential risk of double counting that aspect of the impervious area. Mr Finnigan acknowledged that the calculations might also be affected by the nature of the deck (for example, whether or not it is solid) but he had not climbed up onto the deck in this case to inspect it. On this basis, at least part of the impervious area arrived at by Mr Finnigan may need to have been “backed out” of his calculations (but no precise figures were arrived at on that issue in Court).
[56] Third, and most importantly in my view, while it is clear that both experts are well qualified in their respective areas of expertise, I consider that Mr Search more directly addressed the key factual issues arising in this proceeding, in light of the legal principles outlined above. The question he addressed was: have any alterations or actions by the respondents unreasonably increased the flow of water from the respondents’ property to the appellant’s property than would have otherwise been the case with the natural flow of water? Mr Search was clear in his view that they had not, and indeed the actions taken (by others) at the time of subdivision, and by the
respondents in 2014 were more likely to have decreased the flow of water than would otherwise have passed naturally onto the appellant’s land.
[57] Mr Finnigan, on the other hand, did not directly address the change in water flow from before the erection of the walls and the subdivision. As appears from his exchange with the Judge and recorded at [39] above, Mr Finnigan did not directly dispute Mr Search’s conclusion that there had not been a change in water flow (or that if anything, there was a decrease from what would otherwise flowed naturally onto the appellant’s property). Rather, his evidence was directed to whether there was adequate drainage on the respondents’ land from the time of subdivision (which the respondents did not own at that time), particularly by reference to various Council bylaws and other legal requirements. Whether the drainage on the respondents’ property is “up to scratch” might be relevant to whether the respondents are taking reasonable steps to abate any nuisance which was already in existence when they purchased their property.16 But that does not address the preliminary issue of whether there is a nuisance in the first place.
[58] Accordingly, I have reached same conclusions as the Judge, in that I prefer the respondents’ expert evidence on the key factual issues arising in this case, and do not discern any error in the Judge arriving at the result that he did. Ultimately, and on the basis of the evidence at trial, I am not satisfied the appellant discharged the burden on her to prove her claim.
[59]The appeal is dismissed.
Costs
[60] Subject to any further submissions received from the parties (see below), my preliminary but non-binding view is that costs ought to follow the event in the ordinary way, and be awarded to the respondents on a 2B scale basis.
[61] If, despite these preliminary views, the parties are not able to agree costs, memoranda may be filed. The respondents are to file any memorandum seeking costs within 15 working days of the date of this judgment. Any memorandum in response
16 The Council at least is comfortable that the drainage system is presently sufficient.
is to be filed within a further 5 working days. Neither memoranda are to exceed three pages in length. I will thereafter determine costs on the papers.
[62] Given the nature of the matters in issue, however, I would strongly encourage the parties to seek to agree costs.
Fitzgerald J
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