Legal Research
Cases
Young v Attorney-General

Young v Attorney-General

Case [2021] NZHC 463 11 March 2021

Nuisance

Unjust Enrichment

Restitution

Measured Duty of Care

Costs

Nuisance

Property Law

No judgment structure available for this case.

Type to search within this case.

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2017-409-000110

[2021] NZHC 463

BETWEEN
STEVEN RICHARD YOUNG

Plaintiff

AND

ATTORNEY-GENERAL

Defendant

Hearing: 2 to 6 November 2020

Appearances:

A R B Barker QC and J Moss for Applicant K G Stephen and H T N Fong for Defendant

Judgment:

11 March 2021

Reissued:

12 March 2021

JUDGMENT OF DUNNINGHAM J

This judgment was delivered by me on 11 March 2021 at 2.30 pm, pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

YOUNG v ATTORNEY-GENERAL [2021] NZHC 463 [11 March 2021]

Contents
Introduction........................................................................................................... [1]
The property.......................................................................................................... [8]
The subdivision.................................................................................................... [17]
The Christchurch District Plan............................................................................ [23]
The natural hazards affecting the property.......................................................... [33]
Does the rockfall risk constitute a nuisance?....................................................... [37]

Does the Crown have a common law defence of statutory authorisation? [40]

Submissions for the Crown [45]
Submissions for Mr Young [54]

Discussion [58]

Does the Crown have a duty to abate the nuisance?............................................ [61]

Submissions for the Crown [61]
Submissions for Mr Young [67]

The proposed solutions to address the nuisance  [70] Does the Crown have a duty to implement either of these solutions?  [77]
Should alternative relief be awarded in the form of damages for the value of the
land lost?.............................................................................................................. [86]
Background to the damages claim  [86]
Cost of rockfall protection works  [89]
Value of the property in 2010  [92]
Is the Crown obliged to pay damages to compensate Mr Young for his loss?

[105]

Can Mr Young succeed on his other damages claims?....................................... [116]

Lost improvements [116]
Lost rental for Houses 3, 4 and 5 [119]

Lost chattels [120]

General damages [122]

Damages on a diminution of value basis [124] Conclusion [129]

Introduction

[1] The property at 124 Main Road, Redcliffs, is a special place. The entrance is marked by low stone walls constructed of local volcanic rock. They lead the visitor to an enclave of five houses set in attractive gardens. The first two homes are recent additions, set along the narrower front section of the property that leads from the Main Road entranceway. The rear of the property expands out into a series of spacious garden rooms in which are set the original homestead and two further houses which once housed Mr Young, his family, and guests from overseas.

[2] At the rear of the property, and enclosing it in a sweeping curve on two sides, are the cliffs which give the suburb its name. They rise up as high as 70 m. Their face displays the geological history of the area, laid bare by sea and weather erosion and, more recently, by the force of the Canterbury earthquakes.

[3] Mr Young’s world was changed forever by the Canterbury earthquakes. On 22 February 2011, his wife was seconds away from being taken by a debris fall which destroyed the parked car she had just left. Rocks now completely cover his driveway and he can no longer access his property through it. The three…

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 Young v Attorney-General

Details

AGLC: Young v Attorney-General [2021] NZHC 463
Case: [2021] NZHC 463
Decision Date: 11 March 2021

CaseChat Overview and Summary

Steven Richard Young, the plaintiff, initiated a lawsuit against the Attorney-General of New Zealand, the defendant, in the High Court of New Zealand, Christchurch Registry. The dispute arose after the Canterbury earthquakes, which caused significant damage to Mr Young's property at Redcliffs. The property, owned by Mr Young for over 40 years, consists of five houses situated within a two-hectare area. The earthquakes resulted in the red-zoning of the property, rendering it unsafe and inaccessible. Mr Young sought declarations and damages from the Crown, claiming that the ongoing rockfall risk from the clifftop properties, now owned by the Crown, constituted an actionable nuisance. He also sought an award of damages for the value of the lost property and for other losses incurred due to the Crown's failure to implement protective works in a reasonable time.

The legal issues in this case primarily revolved around the Crown's duty to address the nuisance caused by the rockfall risk and the extent of its liability for the damages. The court had to determine whether the Crown had a complete defence under the common law defence of statutory authority and whether it had a duty to abate the nuisance under a "measured duty of care." Additionally, the court needed to assess whether the Crown should be liable to compensate Mr Young for his loss and whether alternative relief in the form of damages should be awarded.

The court concluded that the Crown did not have a complete defence under the common law defence of statutory authority. However, it held that the Crown had no more than a "measured duty of care" to abate the nuisance, which was not met by implementing the extensive protective works proposed by Mr Young. The court found that the proposed works were neither practicable nor cost-effective, and the cost far exceeded the value of the property that could be rendered usable. The court also rejected Mr Young's claim for damages for the value of the lost property and other losses, as the primary loss resulted from the Canterbury earthquake sequence, and the Crown was not obligated to fully compensate individuals for all their losses.

In summary, the court dismissed Mr Young's claim seeking declarations that the Crown is required to undertake the remediation works proposed, or for an order awarding damages for his loss. The court held that the Crown, through its hybrid red zone offer, met its obligation to do what is reasonable in all the circumstances to address the continuing nuisance. The court ordered that costs should follow the event and provided a timeline for the parties to file and serve their respective memorandum and responses on the question of costs.

Orders