Cattell v Auckland Council
[2018] NZHC 337
•7 March 2018
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2014-404-1730
[2018] NZHC 337
BETWEEN CLEMENT GILLIBRAND CATTELL and
DEANNA PHYLLIS CATTELL (as trustees of the Deanna Phyllis Family Trust)
Plaintiffs
AND
AUCKLAND COUNCIL
Defendant
Hearing: 5 and 6 March 2018 Appearances:
D Bigio QC and A Steel for Plaintiffs F Divich and K Perry for Defendant
Judgment:
7 March 2018
JUDGMENT OF LANG J
[as to relief]
This judgment was delivered by me on 7 March 2018 at 3.30 pm, pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar Date……………
CATTELL v AUCKLAND COUNCIL [2018] NZHC 337 [7 March 2018]
[1] On 5 September 2017, I delivered a judgment (the liability judgment) in which I found the Auckland Council (the Council) liable to Mr and Mrs Cattell (the Cattells) in nuisance for damage that has occurred to a concrete turning area at the bottom of the Cattells’ driveway.1 The damage was caused by subsidence of the land under the turning area caused by earthworks carried out by the Council on an adjoining reserve.
[2] I left it initially to the parties to endeavour to reach agreement regarding the appropriate remedy. That has not been possible, and I am therefore now required to determine what relief the plaintiffs should receive as a result of succeeding at the liability hearing.
The options
[3] The focus at the resumed hearing was on three options put forward by the parties on the basis of advice given by their engineering experts. These have been referred to as Options 1, 2 and 3. The Council favours options 1 or 2. Mr and Mrs Cattell favour Option 3.
Option 1
[4] Option 1 involves removal of the affected area of the driveway and installation of new supports in the form of piles or a retaining wall. The driveway would then be replaced with reinforced concrete slabs. Under this option the driveway would finish approximately 500 millimetres from the eastern boundary fence. As a result, this option would effectively amount to replacing the existing driveway with a new structure of the same dimensions. The need for new supports arises because it was common ground between the experts at the liability trial that the structural support for the existing driveway is inadequate to guard against subsidence in the reserve.
[5] This option has a significant advantage in that it would require just one set of remedial works to be carried out. Logic suggests it is likely to be the cheapest option, although none of the options has been the subject of any costing exercises to date. It would result in the new structure being able to withstand any further subsidence caused
1 Cattell v Auckland Council [2017] NZHC 2140.
by the slope in the reserve, and would also enable an existing line of feijoa trees to be retained. These are planted in the gap between the retaining wall and the wooden boundary fence. They add to the amenity value of the Cattells’ property by shielding the fence from view.
[6] The greatest disadvantage is that it would not reinstate support to the plaintiffs’ land. Although the integrity of the driveway would be protected, subsidence could still occur in the 500 millimetre gap between the end of the retaining wall and the boundary fence. Furthermore, it would require the Cattells to permit the Council and its contractors to enter upon their land to carry out the necessary works.
Option 2
[7] Option 2 is effectively the same as Option 1, but the new structure and driveway would extend to the boundary fence. This would prevent further subsidence occurring in the gap between the driveway structure and the boundary fence.
[8] This option would require the feijoa trees to be removed, however, and the Cattells are anxious to preserve the trees if at all possible. For that reason Ms Divich for the Council effectively abandoned Option 2 in her closing submissions.
Option 3
[9] Option 3 involves the installation of a series of piles based 1.5 metres apart inside the boundary of the reserve but very close to the boundary fence with the Cattells’ property. The piles would be connected at the top by a concrete beam so as to prevent the structure from moving in the event that further subsidence occurs in the slope below the piles. This option has the major advantage of reinstating support to the Cattells’ land. Neither of the other two options achieved that object.
[10] Option 3 has three disadvantages. The first is that the Cattells’ driveway would still need to be repaired and strengthened. Secondly, the installation of the piles is likely to be a more difficult and costly option to implement. This is because it will require the creation of a platform at the top of the slope along the boundary of the reserve to enable a drilling machine to gain access to the site to drill the holes for the
piles. Thirdly, the drilling work is likely to cause some damage to the feijoa tress planted along the boundary of the Cattells’ property.
[11] If Option 3 is selected, it is necessary to determine whether the piles should extend for 35 metres as suggested by Mr Dooley, the engineering expert engaged by the Cattells. This would provide support for the Cattells’ land to a point approximately ten metres past the house on the Cattells’ land. The advantage of this option is that it would guard against the prospect of further instability within the reserve affecting structures on the Cattells’s property other than the driveway.
[12] The Council contends that this is not necessary because there is presently no evidence that instability within the slope of the reserve has led to subsidence of the Cattells’ land beyond the driveway. For that reason the Council submits that the piles should only extend to a point approximately three metres past the end of the driveway.
Decision
[13] I acknowledge that Option 1 has considerable practical advantages, the most significant of which is that it would require just one set of works to resolve the issue that has caused damage to the driveway. As a matter of principle, however, the Cattells are entitled to require the Council to restore support to their land. Option 1 does not achieve that object.
[14] In addition, the Court would not be justified in making an order that required the Cattells to permit the Council to enter upon their land for the purpose of carrying out the remedial work. That would be bound to create practical problems. More importantly, it would amount to an unjustifiable intrusion on the Cattells’ privacy and their right to occupy their land free from interference by others. It is significant that neither counsel was able to locate any other case in which the Court has granted orders in the terms sought by the Council in the present case. For that reason Ms Divich rightly acknowledged in her closing submissions that the approach suggested by the Council was unorthodox.
[15]For those reasons I do not consider Option 1 to be appropriate.
[16] It follows that relief along the lines of Option 3 must be granted. The Council is not bound to follow the proposal suggested by Mr Dooley, although that proposal obviously provides a convenient starting point. It will ultimately be for the Council to take the appropriate engineering advice in order to implement a scheme that reinstates support to the Cattells’ land.
[17] The only remaining issue is whether the Council should be required to provide support to the degree suggested by Mr Dooley. I have concluded that it should not. The authorities show that the Court will only grant an injunction to guard against the risk of future damage in circumstances where the plaintiff shows there is “a very strong probability upon the facts that grave damage will accrue to him [or her] in the future”.2 As I have already observed, it is common ground that there is presently no evidence of damage having been sustained by any other part of the Cattells’ property due to subsidence caused by instability of the slope in the reserve. This is despite the occurrence of several weather events in recent years that could have caused subsidence to occur. For that reason I do not consider the Cattells have established a current risk of significant harm sufficient to justify an order being made to prevent future damage.
Result
(a)The defendant is required, as soon as practicable, to take such steps as may be necessary within that land comprised and described in computer freehold register NA15A/1161 (known as the Downing Street Reserve), to reinstate support to that portion of the plaintiffs’ land (comprised and described in computer freehold registers NA25B/1215 and NA25B/1216), beginning at the northern end of the western boundary of the plaintiffs’ land and extending to a point not less than three metres past the end of the driveway.
(b)Leave is given to both parties to return to the Court to seek further directions in relation to the wording of Order (a) and the timing of the implementation of the work required to comply with the order made above.
2 Morris v Redland Bricks Ltd [1970] AC 652 (HL) at 665.
Future steps
[18] I have used the words “as soon as practicable” in Order (a) because I acknowledge it will probably be necessary for the Council to obtain further engineering advice before commencing the remedial work. It may also be necessary to obtain regulatory consents. Furthermore, the winter season is approaching and this may prevent the work from being commenced before September or October. I anticipate, however, that the work should be able to be completed before the end of 2018. This would provide the Cattells with an opportunity to carry out remedial work to their driveway during the early part of 2019.
[19] Logic suggests the Cattells will keep the Council informed regarding their plans to undertake remedial work on the driveway. That would go a long way towards preventing subsequent arguments as to whether the work has been carried out in an appropriate and cost-effective manner.
[20] Once the work on the driveway has been completed the parties should endeavour to resolve any consequential claims for damages and costs without further resort to the Court. This is consistent with the advice given by counsel in a joint memorandum provided on 10 July 2017 when they sought an initial trial on the issue of liability alone. In that memorandum counsel advised the Court that the parties intended to use alternative dispute resolution procedures to resolve outstanding issues once the Court had determined the issue of liability. In the event they cannot reach agreement, however, the present proceeding remains the vehicle through which such claims can be determined.
Lang J
Solicitors:
Pigeon Law, Auckland D R Bigio, Auckland A J Steel, Auckland