[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…

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 Ogle v Aitken

Details

AGLC: Ogle v Aitken [2017] NZHC 1799
Case: [2017] NZHC 1799
Decision Date: 1 August 2017

CaseChat Overview and Summary

Gary Brian Ogle brought actions in trespass and nuisance against Peter Ross Aitken and Katherine Dawn Aitken, his adjoining neighbours, in the District Court. The trespass action arose from the placing of dirt and debris on Mr Ogle’s property by a contractor engaged by the Aitkens to prepare a building site. The nuisance action related to the risk of future subsidence on the Aitkens’ property, which would result in further deposits on Mr Ogle’s land. The District Court found in favour of Mr Ogle on both actions. It ordered nominal damages for trespass and an injunction to erect a retaining wall on the Aitkens’ property. Mr Ogle appeals the adequacy of the relief granted. The appeal is dismissed. The Judge’s exercise of discretion in determining the form of the injunction was proper. The evidence did not establish a strong probability of grave damage accruing to Mr Ogle in the future. The reasonableness of the Aitkens’ conduct, the unreasonable expense to them of the ‘high end’ option, and the effectiveness of the remedial option which the Judge decided upon support the balance which the Judge struck. The appellant has not shown that the Judge erred in his approach or in the form of the injunctive relief which he granted.

Orders