Young v Attorney-General - [2019] NZHC 993

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IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2017-409-110

[2019] NZHC 993

BETWEEN
STEVEN RICHARD YOUNG

Plaintiff

AND

ATTORNEY-GENERAL

Defendant

Hearing: 9 April 2019

Appearances:

Andrew Barker QC and Jai Moss for Plaintiff K Stephen and M Madden for Defendant

Judgment:

8 May 2019

JUDGMENT OF MANDER J

[1] The plaintiff, Steven Young, has brought a claim in nuisance against the Crown alleging it has breached its duty of care as a neighbouring property owner to prevent wrongful interference with the enjoyment of his land. Mr Young owns a property that is bounded by steep cliffs which collapsed as a result of the Canterbury earthquakes. The Crown, which now owns the adjacent clifftop properties, has pleaded affirmative defences in response to Mr Young’s claim.

[2] The Crown has sought the determination of a preliminary question to advance the resolution of the proceeding. That course was not opposed by Mr Young. The issue that falls for determination is the following preliminary issue of law:

Does s 145 of the Greater Christchurch Regeneration Act 2016 provide the defendant with a complete immunity from the plaintiff’s claim?

YOUNG v ATTORNEY-GENERAL [2019] NZHC 993 [8 May 2019]

[3] In addition to the reliance placed upon the statutory immunity, the Crown further maintains that the common law defence of statutory authorisation has application. Mr Young contests both propositions.

Background

[4] Mr Young owns a property situated in Redcliffs (the property). He subdivided the land and built five houses on the property. By the time of the earthquakes, Mr Young had not yet received final consent for the subdivision. There is some dispute between the parties as to the reasons and significance of this fact, but they are not germane to the issue I must decide.

[5] The earthquakes resulted in major subsidence of the adjacent cliffs. Extensive amounts of rock and rubble were deposited onto the property and significant damage caused to the houses, as there was to the surrounding land and homes situated on top of the cliffs.

[6] In March 2012, the Canterbury Earthquake Recovery Authority (CERA) issued a notice under s 45 of the Canterbury Earthquake Recovery Act 2011 (CER Act), which restricted access to the property (s 45 notice).1 After the CER Act was repealed in April 2016, the s 45 notice was treated as having been imposed under s 86 of the Greater Christchurch Regeneration Act 2016 (GCR Act).2 The s 45 notice was removed in July 2018. In providing notice of its removal, the Crown advised Mr Young that removal of the notice “would not mean the life risks affecting the property have been removed” and that he, as the property owner, had responsibility for managing access to “the hazardous areas” on the property.3

[7] The property and the surrounding clifftop properties were designated as being within the Port Hills residential red zone. Residential red zone offers made by…

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 [2019] NZHC 993
Case: [2019] NZHC 993
Decision Date: 8 May 2019

CaseChat Overview and Summary

The High Court of New Zealand was asked to decide whether the Crown could rely on section 145 of the Greater Christchurch Regeneration Act 2016 to provide it with immunity from a nuisance claim brought by Steven Young. The Crown had acquired clifftop properties adjacent to Young's property after the Canterbury earthquakes, and Young claimed that the Crown's failure to remediate the hazard caused by the unstable cliff face amounted to a nuisance. The Crown argued that it had immunity from such claims under section 145. The court found that section 145 did not provide the Crown with immunity from Young's nuisance claim as the damage to Young's property was not caused by any action taken by the Crown under the relevant Act. The court also found that the common law defence of statutory authorisation was not applicable in this case. Young was therefore entitled to costs on a category 2B basis.

Orders