Barron v Louw - [2018] NZHC 2275

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Barron v Louw

Details

AGLC: Barron v Louw [2018] NZHC 2275
Case: [2018] NZHC 2275
Decision Date: 30 August 2018

CaseChat Overview and Summary

The appeal was brought by the appellant against the decision of the District Court which dismissed her claim in nuisance against her neighbours, the respondents. The appellant claimed that excess water was being discharged from the respondents’ property onto her property because of a variety of drainage issues on the respondents’ land. The respondents denied the claims and maintained that the water flowing onto the appellant’s land was a natural consequence of the appellant’s property being at the bottom of a steep slope “in a city that receives an abundance of rain”. The respondents further relied 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. 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 appellant appealed from that decision. The appeal was dismissed with costs to follow the event. The court held that the appellant had not discharged the burden on her to prove her claim, and preferred the respondents’ expert evidence on the key factual issues arising in this case.

Orders