The application of private nuisance to natural hazards
[55]
Conclusions
[68]
Factors relevant to reasonableness
[69]
What is “reasonable” requires a factual assessment
[69]
The duty is a “measured” one and requires consideration of what is practicable
[71]
The impact of the risk arising from both properties?
[81]
The comparative financial position of the parties
[85]
Relevance of the fact that the activity is for the public benefit
[90]
Whether the remedial work benefits both plaintiff and defendant
[96]
Conclusion
[98]
Application of the principles to the present case
[99]
Damages
[111]
Conclusion
[115]
Costs
[117]
Costs in the High Court
[118]
Costs in this Court
[120]
Result
[121]
Appendix A: Photographs of Mr Young’s property
Introduction
This appeal concerns the scope of liability in private nuisance for a naturally occurring hazard.
The issue arises in the following way. The appellant, Mr Young, owns land lying beneath cliffs which were damaged by the 2010/2011 Canterbury earthquakes. The cliffs sit across the boundaries between Mr Young’s land and the clifftop properties above. The earthquakes compromised the cliffs, leading to rockfall on Mr Young’s land. After the earthquakes, the cliffs remain unstable and at risk of further collapse onto Mr Young’s property. The neighbouring clifftop properties were treated as within the red zone under the Canterbury Earthquake Recovery Act 2011.[1] The Crown acquired these properties between 2012 and 2015.
The ongoing instability of the cliffs means Mr Young’s land is unsafe. His property was also red zoned. Accordingly, under the Canterbury Earthquake Recovery Act the Crown made an initial red zone offer to buy Mr Young’s property and then an improved red zone offer.[2] This offer was described as a “hybrid” because it was a mix of the types of offers otherwise made.[3] The offers were rejected. Instead, Mr Young brought the present proceeding against the Crown in trespass[4] and…
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.
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AGLC
Young v Attorney-General [2023] NZSC 142
Case
[2023] NZSC 142
Decision Date
CaseChat Overview and Summary
This appeal concerns the scope of liability in private nuisance for a naturally occurring hazard. The issue arises in the following way. The appellant, Mr Young, owns land lying beneath cliffs which were damaged by the 2010/2011 Canterbury earthquakes. The cliffs sit across the boundaries between Mr Young’s land and the clifftop properties above. The earthquakes compromised the cliffs, leading to rockfall on Mr Young’s land. After the earthquakes, the cliffs remain unstable and at risk of further collapse onto Mr Young’s property. The neighbouring clifftop properties were treated as within the red zone under the Canterbury Earthquake Recovery Act 2011. The Crown acquired these properties between 2012 and 2015. The ongoing instability of the cliffs means Mr Young’s land is unsafe. His property was also red zoned. Accordingly, under the Canterbury Earthquake Recovery Act the Crown made an initial red zone offer to buy Mr Young’s property and then an improved red zone offer. The offers were rejected. Instead, Mr Young brought the present proceeding against the Crown in trespass and nuisance. Initially, the primary remedies sought were, first, a declaration that the Crown should be required to remove existing rockfall and remediate the risk of further rockfall and/or cliff collapse so that Mr Young could return to, reoccupy and restore his property. Second, and alternatively, damages were sought reflecting the value of his lost property. The remedy now sought is confined to damages. The High Court dismissed the claim. The Court considered the rockfall risk was an actionable nuisance and that accordingly there was, what the Court described as, a “measured” duty on the Crown to do what was reasonable to prevent or minimise that risk. The High Court found that the Crown’s later, hybrid offer meant that the Crown had done all it needed to do to meet that duty. There was no obligation to compensate Mr Young fully for his loss. Mr Young appealed to the Court of Appeal but was unsuccessful. The Court of Appeal agreed with the High Court that the hybrid offer met the measured duty on the Crown. Mr Young appeals with leave to this Court from the judgment of the Court of Appeal on the question of whether that Court was correct to dismiss his appeal. The primary issue for this Court is whether the Crown has met its duty to do what was reasonable to prevent or minimise the harm from the rockfall risk. In terms of the factors that will be considered in assessing reasonableness, we identify one such relevant factor as being whether or not the risk is sourced in the land owned by Mr Young, the Crown, or both. We see no basis to interfere with the finding of the Court of Appeal that there is some hazard on both Mr Young’s property and on the properties now owned by the Crown. We see the split as sufficient to allow us to proceed on the basis the risk is shared as between the two properties. We consider that to impose an obligation on the Crown to effectively implement the Kupec proposal goes beyond what is reasonable in these circumstances. Taking first the practicalities, we reiterate that the Kupec proposal was estimated to cost at least $1.6 million plus GST. It would not enable full use of the land or restore the prior visual amenity. The Courts below also identified difficulties in implementation. In relation to those difficulties, the appellant maintains that the expert evidence on whether resource consent could be given was equivocal. He challenges the finding that it was unlikely that resource consent would be given to enable implementation of the Kupec proposal. In his evidence in chief the planning expert, Mr Allan, said that resource consents were not likely to be granted in relation to the non-complying activities. In challenging the finding on this aspect of the evidence, the appellant relies on an answer given by Mr Allan in cross-examination, namely, that he was reserving his position “as to the extent of the likelihood or not that that wall [the bunds in the Kupec plan will] ultimately receive consent”. When Mr Allan’s evidence is read as a whole, we accept the Court of Appeal’s assessment of this evidence, that is, the view that resource consents were unlikely to be granted was “not significantly adjusted” in cross-examination. The High Court had also accepted Mr Allan’s evidence that, given the objectives and policies of the Christchurch District Plan contained “quite directive avoidance policies” in relation to natural hazards, “this would make it difficult” to satisfy the requirements for a resource consent. The Judge also said there could be “no certainty” resource consents would be granted. The Kupec proposal was estimated to cost at least $1.6 million plus GST. It would not enable full use of the land or restore the prior visual amenity. The Courts below also identified difficulties in implementation. The High Court had also accepted Mr Allan’s evidence that, given the objectives and policies of the Christchurch District Plan contained “quite directive avoidance policies” in relation to natural hazards, “this would make it difficult” to satisfy the requirements for a resource consent. The Judge also said there could be “no certainty” resource consents would be granted. Mr Young’s argument is that, in any event, the significance of the planning restrictions discussed by Mr Allan is relevant to the availability of a remedy rather than to liability. That is because, he argues, it would be his responsibility to sort out an alternative arrangement if the necessary consents were not forthcoming for the Kupec proposal. Further, he says that there were opportunities for the Crown to remediate prior to the implementation of the Christchurch District Plan. The latter point was not dealt with in the Courts below so the necessary factual findings have not been made. In our view, in a case such as this, where the Kupec proposal is the only option under consideration and where the appellant will not recover the full value of his land, we consider it is fair to conclude that the practicalities and proportionality tell against the appellant’s case. Moreover, the duty is a tailored one — and it would be odd in this case in our view to assess the responsibility of the Crown in some abstract way. Questions of proportionality in this case are being assessed in the context where the nuisance was created by a natural disaster. It is also relevant to note that remediation, even in terms of the Kupec proposal, requires a significant engineering solution at considerable cost. In contrast, as noted above, the Crown’s witnesses valued the land which would be rendered usable by undertaking the Kupec proposal at just over $930,000 plus GST. We agree with the High Court that even if the value of Houses 4 and 5 were added in, “the cost of remediation and of creating the new subdivision, could well exceed the value of what would be preserved”. That would be a disproportionate outcome in the circumstances of this case. Turning then to the location of the nuisance, as we have discussed, we agree with the Courts below that the hazard was on both properties. Although contending this was the case, the Crown nevertheless questioned the relevance of the source of the risk. This was on the ground that, in any event, the appellant’s case was not put on the basis that the Crown could have abated the nuisance simply by addressing the cracks on its property. Neither remedial proposal advanced at trial proceeded on that assumption. However