Ogle v Aitken
[2017] NZHC 1799
•1 August 2017
IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY
CIV-2016-443-54 [2017] NZHC 1799
BETWEEN GARY BRIAN OGLE
Appellant
AND
PETER ROSS AITKEN AND KATHERINE DAWN AITKEN Respondents
Hearing: 20 September 2016 Counsel:
J M Marinovich and J Bourke for Appellant
P R Aitken in personJudgment:
1 August 2017
JUDGMENT OF CLARK J
Introduction
[1] The parties are adjoining landowners in central New Plymouth. As a result of earthworks undertaken by a contractor preparing a building site on which a home was to be built for Mr Aitken’s mother, dirt and debris were placed onto Mr Ogle’s property. Mr Ogle brought actions in trespass and nuisance. He sought damages and injunctive relief addressing the deposits on his land and the placement of the building platform at the boundary.
[2] The District Court Judge accepted that material had been deposited on Mr Ogle’s property. He was also satisfied that the earth and building works, together with particular features of the low-lying area, meant there was an ongoing potential for subsidence to occur.1 Those circumstances amounted to the torts of trespass and
nuisance. Judgment was entered for Mr Ogle as follows:
1 Ogle v Aitken [2016] NZDC 5072.
OGLE AITKEN AND AITKEN [2017] NZHC 1799 [1 August 2017]
(a) for trespass, nominal damages in the sum of $1,000; and
(b)in respect of the nuisance cause of action a mandatory injunction requiring the erection of a retaining wall and reshaping and replanting the slope.
[3] Mr Ogle appeals the decision of the District Court on the basis that, the torts of trespass and nuisance having been established, the remedies did not adequately address the loss which the plaintiff suffered.
[4] Broadly speaking those are the issues for my determination.
Background and District Court decision
[5] It is convenient to set out the background primarily by reference to the
District Court decision.
[6] At the material time Mr and Mrs Aitken, the respondents, owned properties at
56B and 58 Maratahu Street, New Plymouth. The intention was to live in the house at 56B Maratahu Street and, as soon as possible, build a home for Mr Aitken’s mother at 58 Maratahu Street.
[7] On his property adjacent to the respondents’ properties, Mr Ogle runs an accommodation business known as Egmont Eco Leisure Park. Mr Ogle’s property covers 2.5 hectares and is approximately 450 metres long. The boundary of the properties owned by the Aitkens and Mr Ogle is approximately 97 metres.
[8] The Waimea Stream runs through the length of Mr Ogle’s property. Between the Waimea Stream and the Aitkens’ property native and exotic plants and trees have been established. Mr Ogle said they were planted according to a planting plan prepared by the previous owner in 1995. Mr Ogle’s evidence was that the planted area was integral to the eco-lodge theme of his accommodation business.
[9] Shortly after purchase of the Maratahu Street properties in November 2012, Mr Aitken began to prepare for the building of the home at number 58. It is the preparation of the building platform for this home that is the genesis of the dispute.
[10] Mr Aitken contracted with an excavating company to complete the cut and fill work necessary to form the building platform. Excess soil from the excavations was pushed over the boundary of Mr Ogle’s property. An embankment was formed with an approximate angle of 37 degrees as a result of the creation of the building platform. This was one of three areas in which soil and debris were placed on to Mr Ogle’s land.
[11] At the rear of the property at 56B Maratahu Street the operator pushed a further amount of dirt and material onto Mr Ogle’s land. A smaller amount of material was deposited on Mr Ogle’s land at a third site on the boundary.
[12] Mr Ogle became aware of the dirt and debris on his property during the last week in March 2013 when an employee reported it to him. He met with Mr Aitken on site on Sunday 31 March 2013. While there was debate between the two men as to the exact location of the boundary Mr Aitken conceded, at the time, that material had been placed on Mr Ogle’s land. He offered to retrieve it immediately. Although by 31 March 2013 the earthworks at the Aitkens’ property had been completed Mr Aitken was prepared to arrange for his contractor to return and retrieve the dirt and debris.
[13] Mr Ogle refused to allow that as he did not want matters made worse. Judge Barkle recorded that Mr Ogle’s refusal to allow this ‘quick fix’ solution created significant ill-feeling that persisted at the time of the hearings.
[14] During the months following the excavation Mr Ogle and Mr Aitken continued to dispute how the trespass was to be remedied. In August 2013
Mr Aitken initiated Dispute Tribunal proceedings but the referee accepted submissions on Mr Ogle’s behalf that the matter was inappropriate for resolution in the Tribunal.
[15] Mr Ogle filed these proceedings in February 2014. Judge Barkle recorded in his judgment that every effort had been provided by the Court through the settlement process to assist the parties to resolve the dispute. Ultimately a hearing was conducted over five days between 9–13 November 2015 and a sixth day on
11 December 2015. Judge Barkle conducted a view of the property on 13 November
2015 to better understand the context and so that information from his site visit could be used as evidence to assist him.
[16] At no stage did Mr Aitken dispute liability for the trespass by way of soil and debris onto Mr Ogle’s property. He said the placement of this material on Mr Ogle’s land was due to the unintentional actions of his earthworks contractor. The Judge accepted Mr Aitken’s evidence that the material was deposited by his contractor carelessly rather than intentionally.
[17] When considering the appropriate remedy for the trespass Judge Barkle said there was no clear evidence of the state of the land prior to the trespass. Nor did Mr Ogle attempt to particularise the form of injunction sought from the Court. There was no proper basis, therefore, to grant an injunction. Furthermore, an injunction would be futile because 56B had been sold and the Court could not bind the new landowner to allow Mr and Mrs Aitken access to the property to undertake removal of the encroaching property. There was no evidence of diminution in value of Mr Ogle’s land as a result of the deposits, nor any evidence as to the number or value of trees, shrubs and plants allegedly damaged nor as to the cost of restoration. Consequently, Judge Barkle awarded nominal damages only, to recognise the breach of Mr Ogle’s right. He specifically held that Mrs Aitken could not be liable in trespass as there was no evidence that she had taken any action in respect of the dirt and debris deposited on Mr Ogle’s land.
[18] With regard to the nuisance action the Judge was satisfied that the earthworks and building work undertaken by Mr and Mrs Aitken on their property at
58 Maratahu Street resulted in risk of future subsidence of the eastern embankment area:2
There is in my assessment a strong probability that damage will occur as a result of any such subsidence. It would inevitably result in further material being deposited onto Mr Ogle’s land. Depending on how dramatic the movement then impact on the integrity of the house built by Mr and Mrs Aitken may also take place.
[19] Of three remedial options which had been the subject of expert evidence called by the parties Judge Barkle settled on a solution that would avert harm to Mr Ogle from potential subsidence. He gave judgment for Mr Ogle in the following terms:3
[93] The plaintiff, Mr Ogle, will have judgment as follows:
…
(b) In respect of the second cause of action a mandatory injunction requiring both Mr and Mrs Aitken as the registered proprietors of 58 Maratahu Street to:-
(i) erect an earth/gravity retaining wall along the eastern embankment within the boundary of 58 Maratahu Street commencing adjacent to the northeast corner of the house and concluding adjacent to the southeast corner of the house, and
(ii) reshape the batter slope to an angle of 43 degrees to the retaining wall and replant the slope.
Grounds of appeal
[20] To remedy the trespass, Mr Ogle seeks a permanent injunction requiring the removal of the material placed on his land and restoration of his property to the condition it was in prior to the trespass; or damages assessed on a wrongful use basis. In respect of the nuisance, Mr Ogle seeks an order requiring the removal of the trespassing soil and the construction of a driven timber pole retaining wall.
[21] Mr Ogle challenges the adequacy of the relief granted in light of the Judge’s
findings.
[22] The first ground of appeal is directed at the remedy for trespass:
1.9The learned Judge erred in law and in fact in declining to order an injunction requiring the removal of the trespassing soil for the following reasons:
1.9.1.The learned Judge erred in fact to hold that removal of the earth was not feasible.
1.9.2.The factors identified by the learned Judge were not sufficient to displace the prima facie presumption that a landowner is entitled to an injunction to restrain a continuing trespass on his land.
1.9.3.The factors identified by the learned Judge did not amount to exceptional circumstances or circumstances where it would be oppressive to the respondent for an injunction to be ordered.
[23] The sum of $1,000 in damages is appealed on the basis the award should have been on a “wrongful use” basis, which would have resulted in a higher award. Further, there was no basis for separating the liability of the first and second respondents. The trespassing soil came from the property they owned jointly.
[24] The second ground of appeal challenges the Judge’s remedial response to the
nuisance created by the ongoing threat of subsidence:
2.9.The learned Judge erred in law and fact in adopting the second proposed remedial option for the following reasons:
2.9.1. The Judge erred in accepting the evidence of Mr Ian Steele.
2.9.2. The evidence of Mr Frank Kerslake was that the most appropriate course of action was the construction of a driven timber pole retaining wall.
2.9.3.The Judge erred in fact that in finding that a retaining wall could be created without the removal of the soil.
2.9.4.The adopted remedial option does not alleviate future risk of soil subsidence and continues to place the Appellant’s property at risk of further damage.
Approach on appeal
[25] The appellant has a general right of appeal under s 72 of the District Courts Act 1947.4 A judge hearing such an appeal has the responsibility of arriving at her or his own assessment of the merits.5
[26] The appellant has the onus of satisfying an appellate court that it should differ from the original decision.6 As did Stevens J in considering injunctive relief in the context of an action for nuisance,7 I will make an assessment of the matters under appeal after considering the record of the evidence, including the exhibits and the reasoning of the District Court Judge, in order to determine whether the appellant
has satisfied the onus.
[27] However, the award of damages and the grant of injunctive relief are exercises of a discretion.8 There are different constraints on an appellate court hearing an appeal from an exercise of discretion. It will not be appropriate to disturb the Judge’s exercise of discretion unless the Judge acted on a wrong principle, or failed to take into account a relevant matter, or accounted for an irrelevant matter, or was plainly wrong.9
Trespass
[28] In his amended claim Mr Aitken seeks:
(a) an order by way of final injunction that the defendants
i. remove all soil and other material which have been placed or brought onto the plaintiff’s land and
ii. restore the plaintiff’s land to the condition it was in before the defendant’s activities, where
4 The District Courts Act 1947 is now repealed. A general right of appeal from a decision of the
District Court is now conferred by s 124 of the District Courts Act 2016.
5 Austin, Nichols & Co Ltd v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141 at [5].
6 At [13].
7 HSU v Weddings Etc Ltd HC Auckland CIV-2009-404-1077, 5 August 2009.
8 TV3 Network Ltd (in rec) v Eveready New Zealand Ltd [1993] 3 NZLR 435 (CA) at 433 per
Cooke P.
9 May v May (1982) 1 NZFLR 165 (CA) at 170. And see Brown J’s helpful review of the authorities in New Zealand Institute of Chartered Accountants v Chartered Institute of Management Accountants [2015] NZHC 818, [2015] 3 NZLR 692.
iii. the scope of remedial work shall be as directed by the Court but otherwise based on expert and other evidence to be commissioned and adduced at the hearing.
(b) an order by way of permanent injunction restraining the defendants from
(i) depositing earth or anything else onto the plaintiff’s land,
naturally occurring stormwater runoff excluded
(ii) felling, pruning, trimming or otherwise tending the trees and
understorey on the plaintiff’s land
(iii) depositing or storing any other organic or inorganic material
on the plaintiff’s land
(c) general damages of $10,000
(d) special damages the quantum of which is the aggregated expense to the plaintiff arising directly out of the defendants’ activities, including but not limited to the pleaded survey expenses and the expense of landscape, arboreal and general remedial advice and specifications, and any necessary remedial works, and
(e) costs.
[29] In respect of the second cause of action Mr Aitken seeks:
(a) an order by way of final injunction
(b) directing the defendants to remove or modify their building platform
(c) restraining the defendants from retaining their nuisance and from maintaining their nuisance which is the chronic risk of subsidence of earth onto the plaintiff’s land.
[30] The prima facie rule is that a landowner, whose title is not in issue, is entitled to an injunction to restrain trespass on his land whether or not the trespass harms him or her.10 A mandatory injunction requires the removal of a trespassing object from the plaintiff’s land. An injunction is, of course, a discretionary remedy. Even in the case of a continuing trespass a court may refuse an injunction. The High Court may
award damages in substitution for an injunction or specific performance.11
10 Patel v W H Smith (Eziot) Ltd [1987] 1 WLR 853 (CA) at 858.
11 Senior Courts Act 2016, s 13, replacing s 16A of the Judicature Act 1908.
[31] Damages in substitution for an injunction may be given if the following circumstances apply:12
(a) the injury to the plaintiff ’s legal rights is small;
(b) the injury is capable of being estimated in money;
(c) the injury can be adequately compensated by a small money payment;
and
(d)the case is one in which it would be oppressive to the defendant to grant an injunction.
[32] Since the decision of the United Kingdom Supreme Court in Lawrence v Fen Tigers13 a wider range of circumstances, including the public interest, may come into play in considering an award of equitable damages in lieu of an injunction.
Analysis
[33] The Judge concluded that access from within Mr Ogle’s land to the two areas of deposited material adjacent to the boundary of 56B Maratahu Street (described above at [10]–[11]) was not feasible. Mr and Mrs Aitken no longer own the property at 56B Maratahu Street. It was sold prior to the hearing. There was no evidence that it was sold for any other reason other than that Mr Aitken’s employment had taken him to Hawke’s Bay. As the Judge correctly observed, an injunction could not bind the new owners to allow Mr and Mrs Aitken onto the land to access the encroaching
material.14 In the absence of the landowner’s consent compliance would be
impossible unless the defendant acted unlawfully. A court will not require work to be carried out on land neither owned nor controlled by the plaintiff.15
12 Shelfer v City of London Electric Lighting Co [1895] 1 Ch 287 (CA) at 322–323.
13 Lawrence v Fen Tigers [2014] UKSC 13, [2014] AC 822. See Stephen Todd (ed) The Law of
Torts in New Zealand (7th ed, Thomson Reuters, Wellington, 2016) at [9.2.07(5)].
14 District Court decision, above n 1, at [60].
15 Grocott v Ayson [1975] 2 NZLR 586 (SC) at 588.
[34] A mandatory injunction is to be granted in specific terms so that the person who is required to comply knows exactly what he or she is to do. As Judge Barkle observed the plaintiff made no attempt to particularise the terms of the injunction. Rather, it was left to the Court to consider how the dirt and debris were to be removed and how the restoration of the land was then to occur. Furthermore, there was only very general evidence from Mr Ogle as to planting in the whole area on the western side of the Waimea Stream. There was no specific evidence as to the plants, shrubs and trees that were said to be damaged because of material deposited in the particular areas.
[35] The Judge was correct to identify these aspects of the plaintiff’s case as deficiencies when seeking an injunction that land be restored to its pre-trespass condition. The evidence of the prior state of the property was inadequate and there was imprecision and a lack of particularity in the relief sought. It would not be
possible to enforce an injunction in the terms sought by Mr Ogle.16 This deficiency
applies to all three areas where the dirt and debris were placed on Mr Ogle’s land.
[36] I can see no basis for differing from the District Court Judge and the reasons which led him to decline to order an injunction in respect of the trespass.
Damages
[37] The Judge awarded $1,000 “nominal damages” in lieu of an injunction. In
determining the remedy for the trespass action, the Judge said:
[62] Trespass is actionable per se and does not require proof of any actual damage for an award of monetary damages to be made. That is a consequence of the recognition of the possessor’s right as a landowner. I accept Mr Aitken’s evidence that the depositing of the material was not intended and was undertaken by his contractor carelessly rather than intentionally.
[63] As I have already said there was no evidence as to any diminution in value of Mr Ogle’s land as a result of the material being deposited. Nor was there any evidence as to the number or value of the trees, shrubs and plants allegedly damaged or destroyed or as to the cost of restoration.
[64] Nevertheless in my view a nominal award of damages is warranted to recognise the breach of Mr Ogle’s right.
16 Morris v Redland Bricks Ltd [1970] AC 652.
[38] The appellant appeals the damages as inadequate and because, he says, an award of damages should have been made on a “wrongful use” basis. Mr Marinovich submitted that where an injunction is not granted an assessment of damages should be made.
[39] Wrongful use requires an election, prior to judgment, between damages to compensate loss and damages for wrongful use.17
[40] An election is necessary to put the counter-party and the court on notice. Evidence would have been necessary to determine the quantum of wrongful use damages. That can be a substantial evidential contest, particularly in circumstances where there is no market for the right that has been infringed and thus no easy proxy for determining the value of the right.18
[41] Wrongful use damages were not live in the proceeding because the appellant made no such election. Accordingly, the Judge did not err in refusing to award wrongful use damages.
[42] Compensatory damages are aimed at restoring the plaintiff to the position he or she was in before the wrong was committed. In terms of damages for physical injury to land and improvements the courts take a flexible, pragmatic approach and will award the cost of reinstatement19 where the plaintiff intends to restore and occupy the property and it is reasonable to do so.20
[43] Mr Ogle did not present evidence as to diminution of value of the land as a result of the material being deposited; nor was there any evidence as to the number or value of the trees, shrubs and plants allegedly damaged or destroyed or as to the cost of restoration. When the Judge viewed the area in November 2015, over two and a half years following the deposits, vegetation had begun to regenerate at all
three areas where the trespass had occurred. No doubt that process has continued.
17 Waugh v Attorney-General [2006] 2 NZLR 812 (HC) at [53].
18 See for example Waugh v Attorney-General, above n 17, at [58]–[117].
19 Todd, above n 13, at [25.2.07]–[25.2.08(3)(a)].
20 Taylor v Auto Trade Supply Ltd [1972] NZLR 102 (SC); and Chase v de Groot [1994] 1 NZLR
613 (HC).
[44] Mr Aitken’s uncontested evidence was that the material was deposited by his
contractor carelessly rather than intentionally.
[45] Trespass is actionable per se and does not require proof of actual damage for an award of monetary damages to be made. Mr Ogle is entitled to damages in recognition of the interference to his possessory rights. However, I see no basis for an award beyond nominal damages. Mr Aitken has never denied his liability for the unintentional conduct of his contractor. There was no conscious wrongdoing by Mr Aitken. There was no indifference to, or disregard for, Mr Ogle’s rights. To that
extent the trespass was not insulting.21 Indeed, Mr Aitken wanted to make
immediate amends by removing the material. There is no risk he will trespass further and accordingly there is no need for a deterrent aspect to the award. The Judge’s award of nominal damages in the sum of $1,000 appropriately recognised the breach of Mr Ogle’s rights as landowner.
Nuisance
[46] The Judge determined there was an ongoing risk of future subsidence which would result in deposits onto Mr Ogle’s land. An injunction was the appropriate remedy. Three remedial options were before the Judge:
(a) removal of the encroaching soil and reshaping the batter slope to
43 degrees together with plantings (Option A);
(b)removal of the encroaching soil and construction of a geotechnical earth retaining wall (Option B);
(c) removal of the encroaching soil and construction of a TSE designed retaining wall based on the plaintiff’s instructions (a driven timber pole retaining wall) (Option C).
[47] Having considered the experts’ evidence the Judge was satisfied the appropriate solution lay in the erection of an earth/gravity retaining wall, reshaping
21 Compare for example the trespass at issue in Ramsay v Cooke [1984] 2 NZLR 680 (HC) at 687, where Holland J described the nature of the trespass as greatly aggravating the damage.
the batter slope to an angle of 43 degrees to the wall and planting. The Judge declined to order the removal of the encroaching soil from the appellant’s property. The material was to remain as that would diminish the potential risk of subsidence.
Appellant’s submissions
[48] The appellant’s position is that the injunction granted by the District Court Judge was inadequate to address the nuisance and remove the ongoing harm that had been identified and restore the appellant’s property. The appellant desired, as the most appropriate option, the construction of an engineer-designed retaining wall (option C) including earth anchors and driven poles. This was said to be necessary because soil testing showed that the stability and integrity of the ground varied and was weak in some places. Simply removing the soil would compromise stability, creating a risk of slippage and stability issues for the house that Mr and Mrs Aitken had built.
[49] Mr Marinovich submitted the effect of the Judge’s decision was to amount to a licence permitting the encroaching soil to remain on the appellant’s property. It appeared the Judge had adopted a “middle ground” approach. In doing so the appellant’s proprietary rights had not been vindicated even if the outcome was a practical approach to resolving the dispute. In any event the Judge should have ordered that the encroaching soil be removed from the appellant’s property. As well, whichever option was adopted, the retaining solution should be designed by qualified professionals and certified by an appropriately qualified civil engineer.
Respondent’s submissions
[50] Mr Aitken, the respondent, appeared in person. Mr Aitken confirmed he took no issue with the judgment. Mr Aitken took me through Judge Barkle’s judgment and to the relevant passages in the notes of evidence to demonstrate that the injunction was appropriate to the nature of the risk and to all the circumstances as the Judge had correctly understood them to be.
[51] Mr Aitken submitted the appellant had been unreasonable from the outset because he had rejected Mr Aitken’s immediate offer to remove the soil and the litigation was avoidable.
The competing expert evidence
[52] I turn now to the evidence of the two witnesses as to the merits of the three remedial options (outlined at [46] above).
Mr Kerslake
[53] Mr Kerslake gave expert evidence on behalf of Mr Ogle. Mr Kerslake has
30 years experience as a civil and structural engineer. A significant portion of his work has been on geotechnical investigations for single and multi-storey buildings across the range of residential, commercial and industrial sites and subdivision developments. Mr Kerslake visited the site and surrounds several times and is familiar with the geographical history of the local environment.
[54] Mr Kerslake’s evidence was directed towards the particular issue of:
… the means by which depositions of earth at the toe of a recently formed building platform may be removed without creating new issues for the integrity of the dwelling since erected on the platform.
[55] In relation to Option A, Mr Kerslake said in cross-examination that the slope was “not ideal” for battering or cutting because of the variance in levels of strength in the soil. He considered the slope along the boundary was not stable to stand at
43 degrees unless retained. A good base is required to build an earth retaining wall. Mr Kerslake’s investigations showed a thick layer of organic material on which the whole batter is resting and there was nothing to support a retaining wall.
[56] Considering option B, a gravity wall, Mr Kerslake said:
I’ve got no problems with that as long as the ground is tested and approved but the only hesitant thing I have that really is the sub-grade that we’ve tested and the results we’ve found and the sub-grade is variable … these mass structures [earth/gravity retaining walls] are very dependent on their sub-grade so as long as he’s tested, he’s approved, he’s happy with it then if he’s using good engineering judgement on the design and can make it work then fine but we would have doubts with the results so far.
[57] Mr Kerslake reviewed various tests of the soil that had been conducted and concluded that the soils provide “poor foundations for any type of retaining wall”. He had discarded the idea of a basic retaining wall because the ground was so poor. His tests showed that the slope was comprised of soils of varying strength. There was a risk that a retaining wall, if not properly anchored, would not prevent subsidence.
[58] In Mr Kerslake’s opinion, permanent retention of the soil would require a retaining wall with very deep piles (up to 10 metres down) and ground anchors to stabilise the top of the retaining wall. The retaining wall was designed to be
20 metres long and it was to be placed well past the bottom of the slope. The wall
was to be built on the Aitkens’ property at 58 Maratahu Street. Mr Kerslake said:
If you want to remove the soil you’ll have to hold the … remaining soil up or the batter up and provide support to the foundations of the house. So the retaining wall is basically to support the batter and to support the loose fill that’s sitting on the top.
[59] Mr Kerslake accepted his proposal had as its object the reinstatement which Mr Ogle desired. If the encroaching material was removed the proposed pile and anchor retaining wall was necessary to support the ground.
Mr Steele
[60] Mr Ian Steele gave expert evidence on behalf of the Aitkins. Mr Steele has
14 years experience as a design engineer, mostly working on infrastructure design projects such as stormwater, residential buildings, roads, earthworks design, geotechnical investigation and reporting, foundations and other civil engineering projects within Taranaki. As a senior civil engineer with BTW Company, his projects have included retaining walls, earthworks designs, stormwater, residential homes, site development, hydraulics and hydrology, and environmental engineering. He has visited the site and surrounds.
[61] I summarise Mr Steele’s evaluation of the three remedial options proposed by
Mr Tooley in his report dated 29 January 2015:
(a) All three options were possible but only options A and B were “sensible”. The significant cost of option C (removal of soil and installation of a large timber pole retaining wall) was not justified when more appropriate options exists.
(b)The first sensible option, option A, is to trim the eastern embankment to no greater than 45 degrees. This would leave an embankment with a “low likelihood” of causing nuisance by slippage.
(c) A modified option B removed almost all likely risk that the embankment would move due to slippage. This option involved removal of the encroaching soil and placement of a suitable earth/gravity retaining wall extending from the embankment adjacent to the northwest corner of the house southward along the eastern boundary.
[62] It is clear Mr Steele viewed both options A and B as involving the removal of the encroaching soil. Ultimately Mr Steele’s view was that “the best and most appropriate solution “was a modified option B” involving:
… removal of the encroaching soil and the installation of an earth/gravity retaining wall along approximately half of the embankment length adjacent to the house. This shall be designed by a suitably qualified person, namely a CPENG Civil engineer.
The proposed solution provides a sensible, stable option that satisfies the stated objectives of both parties — to remove encroaching soil and provide a safe, long term, stable solution.
[63] Mr Steele emphasised that the tests conducted provided varied results. At the time of giving evidence it had been two years since the construction and Mr Steele estimated 50 per cent of the consolidation, or settling, of the house would have occurred in the first six months. He considered a retaining wall of the scale and kind proposed by Mr Kerslake to be unnecessary. In his opinion the influence of the weight of the house at or on the embankment was minor and any consolidation effect would be mostly vertical as is typical of most houses. Indeed, an earth/gravity wall, his preferred option, was “heading towards conservatism or beyond conservatism”. Mr Steele accepted that he had not tested the ground. He stated that, from his
conversation with the earthworks contractor, the contractor was exposing hard Taranaki ash and then placed compacted Taranaki ash over and above that. He had visited the site following a magnitude 4.8 earthquake and remarked that, were the slope fragile, some ground deformation would have been expected yet none was observable.
[64] In Mr Steele’s opinion the pile and ground anchor retaining wall was unnecessary because the influence of the weight of the house at or on the embankment beyond the 45 degree slope was minor. That is, the presence of the house did not significantly increase the risk of subsidence. A larger and more significant retaining wall was not required. In his estimation an earth/gravity retaining wall could be placed with a lesser footprint and using smaller equipment than a pile and ground anchor retaining wall. And the cost of the latter would be five times that of the former.
[65] It was put to Mr Steele in cross-examination that the soil quality at the toe of the embankment would not support an earth/gravity retaining wall. Mr Steele said any organic soil certainly attracts the attention of an engineer but he was satisfied the organic soils were sufficiently deep to make a gravity wall effective. Queried about risk of subsidence Mr Steele believed that other than “the nuisance of material across the boundary” the risks of cracking or deformation were to the Aitkens. In the absence of observable deformation, or water emanating from the slope, an appropriate level of risk could be attained with a minor wall. Mr Steele also maintained his view that trimming the bank would suffice but he had suggested the gravity wall “as a way of appeasing both parties”.
Analysis
[66] In New Zealand the courts have jurisdiction to grant an injunction whenever required by justice.22 The limits on the court’s jurisdiction are provided by rules that
have been developed to guide the exercise, in particular cases, of the court’s
22 TV3 Network Ltd, above n 8, at 438.
considerable discretion. In a case involving private nuisance Stevens J, in a passage
I have found particularly helpful, set out the applicable principles:23
(a) Once private nuisance is established, injunctive relief is available as a remedy. The grant of injunctive relief is discretionary.
(b)Where damages will not compensate, the claimant is entitled to an injunction.
(c) Injunctions are generally sought in two situations:
(i)where the defendant’s activities will continue to cause harm to the plaintiff unless restrained; and
(ii)where the plaintiff has not yet suffered harm but there is a strong possibility that a state of affairs on the defendant’s land will cause harm to the plaintiff unless something is done to change that state of affairs.
[67] Usually a plaintiff will be granted an injunction to restrain the continuation or repetition of the nuisance. The injunction may be prohibitory (to prevent an encroachment) or mandatory (requiring removal of encroachment) or both.24
[68] In appropriate circumstances, a quia timet injunction may be granted to prevent an apprehended infringement of the plaintiff’s rights. Usually the infringement has not yet occurred but a quia timet injunction may be granted in the case of a historical infringement likely to cause damage in the future.25
[69] The nature of the injunction which Judge Barkle granted was both mandatory (requiring positive steps by the defendant and not simply restraint) and quia timet (in anticipation of harm not yet done). The threshold for the grant of such injunctions is
high. In Redland Brick Ltd v Morris, Lord Upjohn proposed principles to guide the
23 Hsu v Weddings Etc Ltd, above n 7, at [26].
24 Peter Blanchard (ed) Civil Remedies in New Zealand (2nd ed, Thomson Reuters, Wellington,
2011) at [5.4.1].
25 At [5.1.2(3)].
exercise of the Court’s discretion to grant a quia timet injunction.26 As Stevens J noted in Hsu v Weddings27 the principles have been conveniently summarised in Todd:28
(i) A mandatory injunction can be granted only where the plaintiff shows a very strong probability on the facts that grave damage will accrue to him or her in the future;
(ii) It must be shown that damages will not be a sufficient or adequate remedy if such damage does happen;
(iii) The cost to the defendant of doing the work required to prevent or lessen the likelihood of a future apprehended wrong is an element to be taken into account where the defendant has acted reasonably, though in the event wrongly; and
(iv) If, in the exercise of its discretion, the court decides that it is a proper case to grant a mandatory injunction, then the court must be careful to express the injunction in very clear and specific terms so that the defendant knows exactly what has to be done and can give proper instructions to contractors.
[70] Judge Barkle determined that the earthworks undertaken on the property at
58 Maratahu Street resulted in an ongoing risk of future subsidence of that area and a strong probability of future damage as a result. The appropriate remedy, in the Judge’s view, was the installation of an earth/gravity retaining wall, reshaping the batter slope to a 43 degree angle to the retaining wall and replanting the slope. The Judge expressly determined removal of the encroaching soil was not required because leaving it in place would reduce the risk of subsidence.
[71] I have not been persuaded that in declining to order the removal of the soil the Judge was in error. Neither expert’s evidence supports the proposition that removing all of the encroaching soil is necessary to abate the nuisance, the nuisance being the risk of subsidence.
[72] Indeed, Mr Kerslake’s evidence was that removal of the soil would
destabilise the slope. Mr Kerslake’s design was predicated on the appellant’s desire
26 Redland Bricks Ltd v Morris [1970] AC 652 (HL) at 665–666. See Grocott v Ayson, above n 15, at 587 per Cooke J.
27 Hsu v Weddings Etc Ltd, above n 7, at [27].
28 Todd, above n 13, at 25.4.02(2).
for reinstatement, thus the removal of the encroaching soil. The pile and anchor design was said to be necessary if all the soil is to be removed.
[73] The appellant’s position is that Mr Steele recommended removing the encroaching soil in any case. Having reviewed the evidence, I do not think Mr Steele went so far. He remarked that there was “some work to remove the encroaching soil”, but went on to say that any retaining wall option will need some removal of material to build a wall. My understanding of the evidence is that removal of all of the encroaching soil is not necessary to respond to the nuisance. The retaining wall required by the injunction will entail removal of some of the encroaching soil.
[74] The form of the injunction the appellant seeks, requiring removal of the trespassing soil and the erection of a retaining wall in accordance with option C, tends to elide a remedy for trespass and a remedy for nuisance. The appellant seeks an injunction for nuisance in the terms he sought, but was not granted, on his trespass action. Having determined Mr Aitken was liable in nuisance, the Judge properly granted an injunction directed at the nuisance namely, the risk of subsidence. Because the removal of all of the soil is not necessary to remedy the nuisance, the Judge did not err in declining to order its removal.
[75] The remaining question, then, is whether an earth/gravity retaining wall with the reshaping of the batter slope and planting is a sufficient response to the risk of subsidence. The appellant says it is not.
[76] Of undoubted relevance to the question of the effectiveness of one form of retention over another is the present state of the land. Mr Steele had walked around the house. He saw no displacement of bricks or cracks in the masonry. His evidence was that 50 per cent of displacement of fill occurs within six months of a house being erected.
[77] In the two and a half years since the earthworks and completion of the house no subsidence of the embankment was apparent despite a magnitude 4.8 earthquake subjecting Taranaki to a sudden jolt followed by “wavy periods” on 22 October
2015. If the embankment was fragile Mr Steele would have expected some observable deformation.
[78] I do not understand the experts to be in serious disagreement about the availability of the options to address the nuisance. Rather, their evidence addressed slightly different questions, which masked an overall commonality. Mr Kerslake provided an opinion as to what solution would prevent subsidence with a high degree of certainty, predicated on achieving Mr Ogle’s desire to have all of the trespassing soil removed. Mr Steele, in contrast, addressed himself to the question of what would be a sensible solution in view of the risk of subsidence at issue. It is not necessary that the Court orders such work as may be required to remedy the wrong. On occasions it may be proper to require the defendant to complete such work as
may merely lessen the likelihood of further injury to the plaintiff’s land.29
[79] The experts were agreed that a timber pile and ground anchor retaining wall would cost approximately $100,000. That contrasts significantly to the cost of the earth/gravity retaining wall which Mr Steele estimated to be between $10,000 and
$20,000.
[80] Because an injunction is an equitable remedy the court can take a broad view of the factors that bear on the issue of where justice lies as between the parties. The following matters support the balance which the Judge struck in terms of the injunctive relief he granted:
(a) The slope was already at risk of subsidence prior to the earthworks.
Thus the installation of a retaining wall places Mr Ogle in a better position in terms of risk of subsidence than he would have been had the torts not been committed.
(b)Further subsidence seems unlikely to place human safety or buildings at risk given the location of the slope near the boundary. If there is serious subsidence the respondents are the parties at greatest risk of
grave damage.
29 Redland Brick v Morris, above n 26 at 666.
(c) While Mr Aitken has accepted liability and in the eyes of the law is seen to have behaved “wrongly”, he did not behave unreasonably. His response to the news that his contractor had pushed earth and debris over the boundary was an immediate offer to remove the material. A plaintiff is under a duty to take reasonable steps to mitigate his or her
loss.30 Mr Ogle had his reasons for refusing Mr Aitken’s offer but he
failed to mitigate his loss. Mr Steele estimated the cost of removal had it been immediate, as (relatively) minor – in the vicinity of $1000.
(d)Access is a significant issue to pursuing Option C. A gravity wall can be placed with a reduced footprint and using smaller equipment.
Conclusion
[81] The appellant has not shown that the Judge erred in his approach or in the form of the injunctive relief which he granted. On one view of the outcome the grant of injunctive relief was generous to the appellant. The threshold for the grant of a mandatory injunction is high. The evidence did not establish a strong probability of grave damage accruing to Mr Ogle in the future. That said, the cases recognise that
“grave damage” is not an indispensable test.31 Taking into account the matters which
I have identified at [80] and, in particular, the reasonableness of Mr Aitken’s conduct, the unreasonable expense to him of the ‘high end’ option, and the effectiveness of the remedial option which Judge Barkle decided upon I am satisfied the injunctive relief granted was a proper exercise of the Judge’s discretion. The appellant has not persuaded me that I should reach a different view.
[82] One final matter: in giving formal judgment (at [93] of his reserved judgment) Judge Barkle did not specify that the earth/gravity retaining wall is to be erected with the assistance of engineers. But the Judge make it abundantly clear in his preceding paragraph that engineers are to be involved. Judge Barkle could see no difficulty with BTW Company Ltd continuing to assist given its involvement and significant knowledge of the site. Thus, Mr Aitken can be in no doubt as to his
obligations and what is required of him.
30 Wu v Body Corporate 366611 [2014] NZSC 137, [2015] 1 NZLR 215 at [134].
31 See for example Grocott, above n 15, at 588.
Disposition
[83] The appeal is dismissed.
[84] Although the respondents have succeeded there will be no award of costs in their favour. The established rule is that a self-represented litigant is not entitled (except in exceptional cases) to recover costs.32
[85] The respondents are entitled though to their reasonable disbursements.
Karen Clark J
Solicitors:
Law West, New Plymouth for Appellant
32 Commissioner of Inland Revenue v Chesterfields Preschools Ltd [2010] NZCA 400, (2010)
24 NZTC 24,500 at [162]; and Re Collier (A Bankrupt) [1996] 2 NZLR 438 (CA).
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