Young v Attorney-General
[2019] NZHC 993
•8 May 2019
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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Earthquake Recovery Act 2011 (CER Act), which restricted access to the property (s 45 notice).1 After the CER Act was repealed in April 2016, the s 45 notice was treated as having been imposed under s 86 of the Greater Christchurch Regeneration Act 2016 (GCR Act).2 The s 45 notice was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 the Crown resulted in it purchasing the clifftop properties in December 2013.4 The houses
1 Prior to the issue of the s 45 notice in 2011, successive notices restricting access to the dwellings situated on the property were issued by the Christchurch City Council throughout 2011 under s 124(1)(a) of the Building Act 2004.
2 Greater Christchurch Regeneration Act 2016, sch 1, cl 7.
3 By letter from Land Information New Zealand dated 15 March 2018.
4 Pursuant to Canterbury Earthquake Recovery Act 2011, s 53.
on those properties were removed by the Crown.5 By April 2018, the Crown held ownership of all the clifftop land adjacent to the property.
[8] In March 2013 and February 2015, the Crown made residential red zone offers to Mr Young which he declined. He did not consider those offers represented fair value for the subdivided land and the improvements. Mr Young continues to own all of the land and dwellings on the property and the Crown continues to hold the surrounding clifftop properties.6
Mr Young’s claim and the Crown’s defence
[9] Mr Young claims the Crown has breached its duty of care to him as a neighbouring landowner to prevent wrongful interference with the enjoyment of his land. In summary, Mr Young identifies the wrongful interference giving rise to his claim in nuisance as being:
(a)the safety hazard created by the risk of rockfall and cliff collapse onto the property from the Crown’s adjacent clifftop properties;7
(b)the failure to remove the debris and rubble from the collapse of the cliff caused by the earthquakes and from the ongoing intermittent fall of debris and rock onto the property from the neighbouring cliff face properties, including that resulting from the removal of the clifftop houses; and
(c)the interference with Mr Young’s access to the property prior to the removal of the s 45 notice.
5 Pursuant to s 38(2)(b) and (c); Greater Christchurch Regeneration Act 2016, s 77(2)(b) and (c).
6 Pursuant to Greater Christchurch Regeneration Act 2016, s 91(1)(b).
7 This includes the safety hazard arising from the “fractured knob” described in the first amended statement of claim as “a fracturing in the ignimbrite on the cliff face adjacent to the Property and near the driveway to the Property”.
[10]Mr Young seeks declarations requiring the Crown to:8
(a)remediate the risk of rockfall and/or cliff collapse from the Crown’s land onto the property;9 and
(b)remove the rock and debris that has fallen from the Crown’s neighbouring properties onto the property.
[11] If it is not reasonable for the Crown to carry out remedial work, Mr Young seeks damages or a declaration requiring the Crown to build safety measures to enable him to have access to and quiet enjoyment of the property.
[12] The Crown pleads two affirmative defences. Firstly, that s 145 of the GCR Act provides it with immunity from Mr Young’s claims. Secondly, and in the alternative, that the Crown issued the s 45 notice, purchased the adjacent properties, removed the unsafe clifftop dwellings, and now holds the land in accordance with statutory authority.10 The inevitable effects arising from those actions by the Crown are said to have been as the result of authorised statutory powers.
The action in nuisance
[13] While the determination of the preliminary issue proceeds on the basis that Mr Young has an actionable claim in nuisance against the Crown, it is necessary, in order to assess the Crown’s reliance on s 145 of the GCR Act, to understand the nature of Mr Young’s common law claim.
[14] The owner of land or a person who has a right to occupy land is entitled to enjoy their interest in that land without disturbance or annoyance from their neighbour.11 The owner of neighbouring land will generally be held to be strictly
8 Crown Proceedings Act 1950, s 17(1) precludes relief in the form of an injunction against the Crown.
9 Including from the fractured knob.
10 Canterbury Earthquake Recovery Act 2011, s 45; Greater Christchurch Regeneration Act 2016, ss 53, 77 and 91.
11 Michael A Jones (general ed) Clerk & Lindsell on Torts (22nd ed, Thomson Reuters, London, 2018) at [20-1]; Stephen Todd (general ed) The Law of Torts in New Zealand, (7th ed, Thomson Reuters, Wellington, 2016) at [10.2].
liable, in the sense that it is not necessary to prove fault, for any nuisance that person causes through deliberate actions.12 Additionally, a neighbouring landowner can also be liable for a nuisance which emanates from their land which they did not cause. Examples include where the nuisance may have been caused by a trespasser or a naturally occurring condition.13 Importantly, however, in such a situation the landowner must have “continued” or “adopted” the nuisance.
[15] Both parties referred to Viscount Maugham’s speech in the House of Lords decision, Sedleigh-Denfield v O’Callaghan:14
In my opinion an occupier of land “continues” a nuisance if with knowledge or presumed knowledge of its existence he fails to take any reasonable means to bring it to an end though with ample time to do so. He “adopts” it if he makes any use of the erection, building, bank or artificial contrivance which constitutes the nuisance.
[16] By reference to the English Court of Appeal’s judgment of Leakey v National Trust and the Privy Council’s decision in Goldman v Hargrave, it was emphasised that a nuisance can arise as a result of a natural occurrence on a property and does not require any particular action on the part of the owner.15 In Goldman the defendant was held to have adopted the nuisance when deciding not to extinguish a fire that had been caused by lightning striking a tree which was left to burn and spread to the neighbour’s land. It was held in Leakey that the same principle applied notwithstanding there having been no fault on the part of the defendant:16
It is to my mind clear, also, that no distinction is suggested in, or can properly be inferred from, [Goldman] as between a hazard accidentally arising on the defendant’s land which, on the one hand, gives rise to a risk of damage to a neighbour’s property by the encroachment of fire and, on the other hand, gives rise to such a risk by the encroachment of the soil itself, falling from the bank on to the neighbour’s land. There is no valid distinction, to my mind, between an encroachment which consists, on the one hand, of the spread of fire from a tree on fire on the land, and, on the other hand, of a slip of soil or rock resulting from the instability of the land itself: in each case, the danger of encroachment, and the actual encroachment, being brought about by the forces of nature.
12 Rapier v London Tramways [1893] 2 Ch 588 at 599 per Lindley LJ.
13 Jones, above n 11, at [20-20]-[20-22].
14 Sedleigh-Denfield v O’Callaghan [1940] AC 880 at 894.
15 Leakey v National Trust for Places of Historic Interest and Natural Beauty [1980] QB 485;
Goldman v Hargrave [1967] 1 AC 645.
16 Leakey v National Trust for Places of Historic Interest and Natural Beauty, above n 15, at 514 per Megaw LJ.
[17] In that case, the instability of the defendant’s land had caused and was likely to continue to cause soil and debris to fall onto the plaintiff’s land. It was not caused nor aggravated by any human activities on the defendant’s land but by nature - the geological structure, content and contours of the land, and the effect of sun, rain, wind, frost, and other natural phenomena.17
[18] The scope of this duty, sometimes referred to in the United Kingdom as the “Leakey Duty”, which is imposed on the landowner from which the hazard is sourced, is limited to do what is reasonable in the circumstances to prevent or minimise the known risk of damage.18 It is an approach which has been cited with approval in a number of New Zealand cases.19
The statutory interpretation exercise
[19]The Crown relies upon s 145 of the GCR Act which relevantly provides:
145 Protection from liability
(1)Except as otherwise provided in this Act, no action lies against the Crown, or an officer or employee or a Minister of the Crown, or against any other person,—
(a)to recover any damages or other amount for any loss, damage, or adverse effect that is due directly or indirectly to any action taken under this Act; or
(b)to require any work to be carried out or other action to be taken in order to remedy or mitigate any loss, damage, or adverse effect that results directly or indirectly from any action taken under this Act.
...
(3)Subsection (1) applies whether the loss, damage, or adverse effect is caused by any person taking any action or failing to take any action, so long as the act or omission occurred in the exercise or performance, or intended exercise or intended performance, of his or her functions, duties, or powers under this Act.
17 At 507-508.
18 Jones, above n 11, at [20-20]–[20-23].
19 Ruapehu Alpine Lifts v State Insurance Ltd (1998) 10 ANZ Insurance Cases 74,432; Easton Agriculture Ltd v Manawatu-Wanganui Regional Council [2012] 1 NZLR 120; Double J Smallwoods Ltd v Gisborne District Council [2017] NZHC 1284.
(4)No person is exempted from liability under subsection (1) for any act or omission to act that constitutes bad faith or gross negligence on the part of that person.
[20] The CER Act provided a number of powers to the Crown which are material to this case. Those powers were substantively reproduced in the GCR Act. Under s 45 of the CER Act, the Crown was able to restrict or prohibit access to any specified area.20 The Crown was able to purchase or otherwise acquire and hold land pursuant to s 53.21 The Crown was also empowered under s 38 to carry out or commission works, including the demolition, removal and disposal of any building structure or other erection on or under land.22
[21] The approach to be taken to the statutory interpretation exercise is well- established:23
The meaning of an enactment must be ascertained from its text and in the light of its purpose. Even if the meaning of the text may appear plain in isolation of purpose, that meaning should always be cross checked against purpose in order to observe the dual requirements of s 5 [of the Interpretation Act 1999]. In determining purpose the court must obviously have regard to both the immediate and the general legislative context. Of relevance too may be the social, commercial or other objective of the enactment.
(Footnotes omitted)
The text – the Crown’s argument
[22] The Crown’s reliance on s 145 is focussed on subs (1)(b) and is premised on its contention that Mr Young has sued the Crown in order to require it to carry out work or take other action to remedy or mitigate the loss, damage, or adverse effect to the property. The Crown’s position is that this situation has resulted directly or indirectly from an action taken by the Crown under the relevant Act. Mr Stephen, who appeared on behalf of the Crown, argued that it followed that s 145 provided an immunity to the Crown from Mr Young’s suit.
20 This power was reproduced in s 86 of the GCR Act.
21 Those powers, subject to some amendment, are reproduced in s 91 of the GCR Act.
22 Section 77 of the GCR Act continues this power.
23 Commerce Commission v Fonterra Co-operative Group Ltd [2007] 3 NZSC 36 at [22], per Tipping J; Interpretation Act 1999, s 5(1) provides that the meaning of an enactment must be ascertained from its text and in the light of its purpose.
[23] In pursuing that argument, Mr Stephen drew my attention to the way in which the Crown’s liability for an existing hazard is alleged to have arisen. That is, to paraphrase Viscount Maugham, with knowledge or presumed knowledge of its existence, the Crown is said to have failed to have taken “any reasonable means” to bring the nuisance to an end, despite having “ample time to do so”.24 Mr Stephen submitted that the alleged failure to remedy the existing hazard represents an omission which Mr Young claims has led to its “continuation”.
[24] Emphasis was placed on s 145(3), which states that the Crown’s protection from liability provided by subs (1) applies where the loss, damage or adverse effect is caused by any person taking any action or failing to take any action. Mr Stephen submitted that it was material that subs (3) referred not just to an act but also to an omission having occurred in the exercise or performance of the Crown’s functions, duties or powers under the Act. Subsection (4) also refers to both an act and an “omission to act”.
[25] Mr Stephen argued that Mr Young was putting his case on the basis the alleged loss, damage or adverse effect was “caused” by the Crown’s alleged omission to take action to bring the nuisance to an end, which, in his submission, arose as a result of it exercising its powers to hold the neighbouring clifftop properties under s 91(1)(b) of the GCR Act. That provision is contained within pt 2 of the GCR Act which is entitled “Functions, Powers, and Processes Relating to Regeneration of Greater Christchurch”.25 Mr Stephen submitted that however the Crown’s alleged liability is said to arise, it can only be because the Crown acquired and continues to hold the clifftop land adjacent to the property pursuant to powers exercised under the legislation.26
[26] The Crown stressed the power to hold land is reflected in s 3(1)(e) of the GCR Act, which provides that one of the Act’s purposes is to enable the Crown to “efficiently and effectively manage, hold, and dispose of land” under the CER or GCR
24 Sedleigh-Denfield v O’Callaghan, above n 14, at 894.
25 Interpretation Act 1999, s 5(3) provides that headings to Parts are indications of the meaning of an enactment.
26 Canterbury Earthquake Recovery Act 2011, s 53(1); Greater Christchurch Recovery Act 2016, s 91(1).
Acts. The significance of the continued holding of the neighbouring land, it was submitted, is that it represents an action taken under the legislation.
The text - analysis
[27] I do not consider the text, on its face, supports the meaning the Crown contends is to be attributed to the provision.
[28] The Crown’s protection from liability is circumscribed by the words of s 145(1). It is immunised from civil actions which would either seek to recover damages or require the Crown to carry out work or take other action to remedy or mitigate any loss, damage or adverse effect. However, it is necessary that this loss, damage or adverse effect be due directly or indirectly to an action taken by the Crown under the Act, or that results directly or indirectly from any such action. It follows that the immunity provided by s 145(1) is dependent upon there being some causal connection (whether direct or indirect) between the statutory action and the loss or adverse effect for which damages are sought, or work required to be carried out to remedy or mitigate.
[29] I accept there is some ambiguity between subs (1) and subs (3) of s 145. Subsection (3) explicitly provides that the protection afforded to the Crown by subs
(1) applies whether the loss, damage or adverse effect is caused by any person taking any action or failing to take any action, so long as the act or omission occurred in the exercise or performance, or intended exercise or performance of the person’s functions, duties or powers under the Act. The Crown argued that the inclusion in subs (3) of the loss, damage or adverse effect having been caused both by any person taking any action or failing to take any action extends the application of s 145(1) to omissions. Insofar as that omission arises from the failure to take any action to remedy or mitigate the loss or adverse effect that resulted from an action taken by the Crown under the Act, that proposition is accurate.
[30] However, the words of subs (3) of failing to take any action are, in my view, referable to the immunity provided to the Crown by subs (1)(b) from a suit requiring it to remedy or mitigate the damage or adverse effect that has resulted (directly or indirectly) from an action taken by the Crown under the Act. A necessary prerequisite
to immunity under subs (1)(b) is that the loss, damage or adverse effect has resulted from such an action. It does not include any loss or adverse effect that has resulted from a failure to take action per se but protects the Crown from a civil action that requires it to carry out work or take other action to remedy or mitigate loss or adverse effects which have resulted from acts taken by the Crown pursuant to its statutory powers. Insofar as further damage or loss may have been caused by the Crown’s omission to remedy or mitigate the damage or adverse effects arising from the taking of those statutory actions it is protected.
[31] As I have noted, some ambiguity arises from the reference in subs (3) to the loss, damage, or adverse effect being caused by both the taking of an action and the failure to take any action. However, as the present case illustrates, the loss or adverse effect can be of an ongoing nature. A normal prerequisite before resorting to civil action to compel work to remedy or mitigate those adverse consequences is a refusal or failure by the other party to so act. I consider the better view is that the reference in subs (3) to an omission is to the failure or refusal by the Crown to mitigate or remedy the adverse consequences of its statutory actions which may otherwise lead to a continuation of the damage or adverse effects.
[32] Even were I to accept the Crown’s interpretation, in the circumstances of the present case, it would not assist its position. There is a temporal difficulty faced by the Crown in relying on s 145, and subs (3) in particular. The damage or adverse effect to Mr Young’s property which remains to this day and upon which his claim in nuisance is based was caused by the 2011 earthquakes.
[33] Subsection (3) states that the immunity provided by subs (1) will continue to apply whether the loss, damage or adverse effect is caused by a person acting or failing to act so long as he or she was purporting to exercise or perform powers and duties under the GCR Act at the time of the act or omission. While the Crown’s exposure to liability may have arisen from or been triggered by an act or, on its argument, by its omissions, that act or omission must have directly or indirectly caused the loss, damage or adverse effect. However, in this case the damage and adverse effects to the property the subject of the nuisance claim were caused by the earlier earthquakes. Mr Stephen argued that Mr Young’s nuisance claim is premised on the nuisance having
been continued by the Crown when it obtained ownership of the clifftop properties. However, that assumption of liability by failing or declining to remedy the nuisance is neither directly or indirectly the cause of the damage to the property which occurred long before the Crown’s intervention.
[34] As stated at the outset of my analysis, both subss (1) and (3) require a causal link between the loss or adverse effect and the action taken under the Act. Insofar as that may extend under subs (3) to a failure to take action that must be the direct or indirect cause of the loss, damage or adverse effect. The Crown’s acquiring and holding of the property, while no doubt done by a person in the exercise or performance of statutory powers, did not result (either directly or indirectly) in damage or adverse effects to Mr Young’s property. The omission or refusal to remedy and mitigate the existing nuisance caused by the earthquakes is no doubt the basis of Mr Young’s pleaded claim against the Crown, but neither the Crown’s act of acquiring the land nor its present holding of the clifftop properties caused the damage or adverse effect. I consider the failure to take action (the omission) referred to in subs (3) relates back to the type of claim anticipated by subs (1)(b), which is premised on a failure by the Crown to remedy or mitigate the damage or adverse effect caused by its statutory actions, in respect of which the plaintiff may seek mandatory relief.
The text - conclusion
[35] In summary, the Crown relies upon its acquisition and holding of the clifftop properties as the statutory actions which may trigger its liability and therefore entitles it to the protection afforded by s 145. However, I consider that while the exercise of those statutory powers may give rise to the Crown’s potential liability for the nuisance, the test for immunity under s 145 is different. Those statutory actions are not the source of Mr Young’s loss, nor have those actions, either directly or indirectly, caused the adverse effects to the property. Both the present hazard that the unstable cliff face represents and the debris and rubble which has fallen onto the property are due to or resulted from the earthquake sequence which likely aggravated the existing instability of the adjacent cliff. It is that state of affairs that has caused the nuisance. The Crown’s act of acquisition and holding of the clifftop properties are no more the source or cause of that loss or adverse effect on the property than the previous acts of acquisition and
ownership of those properties by the prior private owners. Subject to further examination of the purpose of the enactment and the wider legislative context, in isolation the text of s 145 does not support the Crown’s claim to statutory immunity from Mr Young’s claim.
[36] However, as was acknowledged by Mr Barker QC on behalf of Mr Young, that position does not apply to all aspects of Mr Young’s claim. The Crown is immune under s 145 from those parts of the suit which are based on any claimed loss or adverse effect arising from the prohibition or restriction of access to the property that resulted from the issuing of the s 45 notice under the CER Act, and as continued by s 86 of the GCR Act. Any loss or adverse effect on the property relating to the issue of access arises, either directly or indirectly, from the Crown exercising its statutory power to issue a notice which restricted or prohibited access to the property.
[37] Similarly, any additional hazard or fall of debris and rubble onto the property as a result of the Crown carrying out or commissioning works to remove or demolish neighbouring clifftop houses or which arises from remedial work to that land (if any) was pursuant to the Crown exercising its powers under s 38 of the CER Act, or its later iteration in the form of s 77 of the GCR Act. Any such loss, damage or adverse effect would be due, directly or indirectly, to actions taken by the Crown under the legislation and therefore attracts the statutory immunity provided by s 145(1).
Statutory purpose and context`
[38] The Crown submitted that s 83 of the CER Act and its successor in the form of s 145 of the GCR Act must be interpreted in the light of the context in which those statutes were enacted and the purpose of that legislation. Mr Stephen drew attention to the speed with which the CER Act was enacted against the background of the
emergency of the Christchurch earthquakes and the need to act expeditiously.27 In those extraordinary circumstances extensive powers were provided to the Crown to facilitate the recovery and regeneration of the greater Christchurch area.
[39] The protection from suit provided by s 83 of the CER Act as continued by s 145 of the GCR Act, it was submitted, by necessity was required to be broad in scope because it was designed to guard against the unintended consequences of liability arising as a result of actions taken by the Crown in the public interest. It followed, in Mr Stephen’s submission, that the immunity provided to the Crown by s 145 should not be read down when regard is had to the purposes of the legislation. He submitted that an interpretation that favours protection from liability in the circumstances of the present case is to be preferred.
[40] Mr Stephen emphasised that what may become of the neighbouring land held by the Crown will depend on decisions that are yet to be made. Some land in greater Christchurch will be the subject of regeneration plans under the GCR Act, while other land may eventually be transferred to the Christchurch City Council. Presently, the fate of the clifftop land is uncertain but, for the meantime, it is held by the Crown under the GCR Act, having previously been acquired under either that legislation or its predecessor. The Crown’s position is that this is consistent with the scheme of the GCR Act and in furtherance of its objectives, which anticipates the holding of land while regeneration plans are developed. When viewed against that background, it was
27 The purpose of the Canterbury Earthquake Recovery Act 2011 were set out in s 3 as follows:
3 Purposes
The purposes of this Act are—(a) to provide appropriate measures to ensure that greater Christchurch and the councils and their communities respond to, and recover from, the impacts of the Canterbury earthquakes:
(b) to enable community participation in the planning of the recovery of affected communities without impeding a focused, timely, and expedited recovery:
(c) to provide for the Minister and CERA to ensure that recovery:
(d) to enable a focused, timely, and expedited recovery:
(e) to enable information to be gathered about any land, structure, or infrastructure affected by the Canterbury earthquakes:
(f) to facilitate, co-ordinate, and direct the planning, rebuilding, and recovery of affected communities, including the repair and rebuilding of land, infrastructure, and other property:
(g) to restore the social, economic, cultural, and environmental well-being of greater Christchurch communities:
(h) to provide adequate statutory power for the purposes stated in paragraphs (a) to (g):
(i) to repeal and replace the Canterbury Earthquake Response and Recovery Act 2010.
argued that it must have been intended that the Crown would be immune from liability while performing that role in discharge of its responsibilities under the Act.
[41] Mr Barker, in large part, did not dispute the Crown’s overview and analysis of the context of the legislation. However, he argued that the Crown’s interpretation of the purpose of the legislation represented a very singular perspective viewed solely from the position of the Crown and lacked balance. That aspect of the argument will be returned to shortly. Moreover, Mr Barker contested what he described was the “full immunity” from all liability derived from ownership of the land which was being contended for by the Crown as the effect of s 145. He submitted the provision did not provide an unrestricted immunity from any liabilities but only in respect of actions of the type described in subs (1)(a) and (b).
[42] The GCR Act, like its predecessor, provides the Crown with a broad range of powers to effect the purposes of the legislation. The exercise of those powers may necessarily or potentially interfere with the rights of landowners and third parties. A sample of such powers suffices to illustrate the point. The Crown may enter private land to undertake work to demolish or remove buildings without the consent of the owner under s 77 of the GCR Act. It may erect temporary buildings on a person’s land without their consent.28 Access to an area or to a building can be restricted or prohibited.29 The Crown can direct an owner to act for the benefit of adjoining or adjacent owners under s 89 of the GCR Act. Under s 93, it may subdivide, improve and develop land acquired under the GCR Act or its predecessor. There are other examples of powers provided to the Crown under the legislation. Mr Barker emphasised that the exercise of such powers may, as a consequence, give rise to claims by affected persons and that s 145’s purpose is to provide the Crown with protection from such claims. Positive actions taken by the Crown pursuant to these powers may cause loss, damage, or adverse effects to others, and it is that liability from which the Crown is intended to be protected by s 145. I consider there is some force in that submission.
28 Greater Christchurch Regeneration Act 2016, s 85.
29 Section 86.
[43] A significant purpose of the legislation, which was given less weight by the Crown in its analysis, was the authority provided to it to purchase land from persons affected by the earthquakes. It has largely done so in respect of red zoned properties for a market value that broadly approximates that which the land had before the earthquakes. By so doing, the Crown is advancing the statutory objectives of recovery and restoration by providing people in affected communities with the means to move on with their lives and restore people’s social and economic wellbeing.
[44] Mr Barker drew upon the Supreme Court’s analysis in Quake Outcasts v Minister for Canterbury Earthquake Recovery to illustrate that the use of s 53 of the CER Act to obtain the voluntary purchase of red zoned properties was a means to advance these statutory objectives and provide for the recovery of greater Christchurch communities.30 The Crown, in making its red zoning decisions in that case, was held to have done so in order to facilitate and encourage movement out of the red zones. However, the Supreme Court observed that the process by which the Crown sought to achieve that result had not involved the use of compulsory powers under the CER Act, nor had it impinged upon the property rights in the narrow sense of rights attaching to the ownership of land. Mr Barker submitted that the red zone process marked a recognition by the Crown that it was dealing with landowners’ property rights which it had only sought to secure on a voluntary basis.
[45] The Crown has compensated the red zoned clifftop property owners from whose land the nuisance is sourced on the basis of those properties’ pre-earthquake value without regard to that extant nuisance nor without appearing to have taken into account the cost of remediating the land and removing the hazard. Having assumed at common law the responsibility for the nuisance as the new property owner, I accept the Crown cannot ignore the property rights of Mr Young to have his interest in the enjoyment of his property recognised. Nor can it effectively pass on the cost of the remediation of his land to him as the neighbouring landowner, or expunge the responsibilities of the prior owners, which, on Mr Young’s case, have been assumed by the Crown.
30 Quake Outcasts v Minister for Canterbury Earthquake Recovery [2015] NZSC 27 at [172]-[181].
[46] While the strategy of the red zone purchases to compensate people for the impact of the earthquake on their land and to allow them to move on is consistent with the legislation’s purposes, the question remains whether as a consequence that should result in neighbouring landowners’ property rights being extinguished. It appears that would be the essential effect of the Crown being immunised from any claim for nuisance after having “stepped into the shoes” of the neighbouring landowner.
[47] Mr Stephen submitted that in the ordinary situation a prudent purchaser simply would not have offered to purchase the clifftop houses because of the risk of assuming the additional liability caused by the collapse of the cliff face. He noted that it would have frustrated the purposes of the CER Act to expedite the recovery of the local community from the impact of the earthquakes to have required lengthy negotiations to occur between the Crown and Mr Young before completing the acquisition of the clifftop properties. In that regard, Mr Stephen stressed the rationale for the red zone offers, as acknowledged by the Supreme Court in the Quake Outcasts case. Red zone decisions were made on “a community-wide basis” which involved a “whole of community approach”, rather than separating out particular individuals or groups for differential treatment in a manner that does not support recovery.31
[48] While those considerations may have an important, if not central, influence on the Crown’s approach to resolving the situation as it relates to Mr Young’s land, it is difficult to discern how a decision by the Crown to purchase clifftop properties, thereby apparently exempting those owners’ potential liability from issues relating to their land, could, without more, result in a neighbouring landowner’s property rights being nullified. As Mr Barker submitted, the Crown’s interpretation of s 145 of the GCR Act would effectively result in Mr Young’s private law rights to the use and enjoyment of his land being extinguished without compensation. The immunity provided by s 145 would lead to Mr Young’s rights being acquired by the Crown simply as the consequence of its purchase of the clifftop properties.
[49] To emphasise that point, Mr Barker submitted that the Crown could have compulsorily acquired the property, in which case its market value would likely be
31 Quake Outcasts v Minister for Canterbury Earthquake Recovery, above n 30, at [178] and [197].
determined in accordance with the approach set out in the Public Works Act 1981, which, it was submitted, would likely favour Mr Young.32 Mr Barker submitted that in determining the market value of the property in a manner that had regard to the Public Works Act, the negative impact on the value of the property from the unstable cliff faces or from any decision not to remediate that hazard would be excluded from the assessment of value.
Conclusion as to the meaning of s 145
[50] I do not consider either the statutory purposes of the legislation nor the legislative context of the statute’s enactment or its predecessor requires any gloss to be placed on the words of s 145. The provision immunises the Crown from liability for damages or mandatory relief that it would otherwise be exposed to as a result of exercising statutory powers that directly or indirectly may cause loss or adversely affect others. The link between the loss, damage or adverse effect and the Crown action is causal. That causal connection may be indirect but the immunity requires the identification of an act taken under the statute which directly or indirectly has resulted in the loss, damage or adverse effect, or is due to such an action in respect of which either damages or mandatory relief is sought by the claimant.
[51] The damage or loss for which Mr Young seeks to sue the Crown is not the consequence, even indirectly, of the Crown’s acquisition or holding of the red zoned clifftop properties. On Mr Young’s case, he seeks to recover damages or requires relief only because of the Crown’s status as the neighbouring landowner. The Crown’s liability arises in no different way from any other landowner. However, the immunity provided by s 145 is not regulated by the mechanism by which the Crown becomes liable but by whether its acts directly or indirectly caused the loss, damage or adverse effect for which relief is sought. Notwithstanding the background to its acquisition of the land, I do not consider s 145 was intended to extend an immunity to the Crown from the responsibility and liability (potential or otherwise) that it assumes in the ordinary way as its purchaser.
32 Greater Canterbury Recovery Act 2016, ss 102-104 and 114.
[52] While I accept the Crown’s focus under the relevant Act is in achieving holistic solutions to community or neighbourhood-wide issues relating to red zoned land, I do not consider the policy behind the legislation or its purpose requires s 145 to be read in a way that would effectively result in the Crown being immunised from its obligations as a landowner, nor have the effect, as it would in the present case, of alienating Mr Young’s property rights simply by dint of having purchased the neighbouring clifftop properties. The value of those rights in the circumstances may be open to question, but I do not consider the Act intended they be extinguished by statutorily immunising the Crown from the consequences of becoming the owner of neighbouring land.
[53] I am reinforced in my reading of s 145 when regard is had to the potential jeopardy to which the Crown appears exposed as a result. The Crown’s obligation should My Young’s action in nuisance succeed is only to do that which is reasonable in the circumstances to ameliorate the nuisance. I have already noted the Crown has a wider responsibility under the Act to provide remedial solutions and implement recovery plans for communities as a whole. It must deal with area-wide problems. As was recognised by the Supreme Court, the recovery principle which both Acts have sought to give effect does not mean the Crown has a duty to each and every resident to do everything possible to ensure the individual recovery of that person from the earthquakes.33
[54] However, in the instant case, Mr Young is only arguing that his individual rights as a landowner be permitted to be recognised in a way that is consistent with how it appears the red zoned clifftop property owners were dealt with. As the Supreme Court also observed, the provisions in the Act were designed for the recovery of communities, and communities are made up of individuals.34 It is not apparent to me that the purposes of the Act nor the legislative context requires the words of s 145 to be extended beyond their ordinary meaning and construction, or that by so doing the objectives of the legislation would be frustrated or would otherwise result in an outcome inconsistent with the enactment’s purpose.
33 Quake Outcasts v Minister for Canterbury Earthquake Recovery, above n 30, at [177]-[178].
34 At [177].
[55] While I have not found it necessary to place great reliance on the principles of construction that suggest legislation which affects common law rights, including property rights, should be construed narrowly, that is an aspect which favours Mr Young’s argument. I do not overlook the observation of Cooke J (as he then was) in Attorney-General v Cunningham, which was drawn to my attention by Mr Stephen.35 Namely, that such an approach would be “especially important” if there was true ambiguity in the words of a statute, but that a “strict and cautious” approach will not justify an artificially narrow meaning. Interference with property rights is something to be weighed in the process of interpretation, but will not be allowed to override the discernible policy of the legislation or the ordinary meaning of the words.
[56] However, a difficulty for the Crown is that I consider the ordinary meaning and effect of s 145 to be tolerably clear and, insofar as any ambiguity arises, the rule of construction requires a conservative approach. Nor do I consider a less expansive interpretation from that contended for by the Crown would be incompatible with the statute’s purposes. The Crown contends that the section provides a wide immunisation from liability, which could result in Mr Young’s property rights being taken from him without compensation. I accept clear statutory language would be required before a provision which may have such an effect should be interpreted in such a manner.36
Result
[57]For these reasons, I would answer the preliminary question of law “no”.
Common law defence of statutory authorisation
[58] In addition to its reliance on s 145, the Crown has also pleaded the common law defence of statutory authorisation. This defence does not directly bear on the preliminary issue of law. However, both parties addressed this alternative affirmative defence. There is a measure of overlap with the s 145 limitation of liability defence and, as I gleaned from the opportunity taken by the parties to address the alternative
35 Attorney-General v Cunningham [1974] 1 NZLR 737.
36 SMW Consortium (Golden Bay) Ltd v Chief Executive of the Ministry of Fisheries [2013] NZCA 95 at [31].
defence, some assistance may be provided by expressing some, albeit tentative, views on the issue.
[59] Statutory authority can provide a defence to an action for nuisance. This may include a situation where the statute does not just lay down a mandatory direction or obligation but also where a statutory power has been provided to do something which must carry with it the implicit authorisation of such an act.37 The defence has been summarised as follows:38
Where Parliament has authorised the defendant to undertake a particular activity, that authorisation will normally carry with it an immunity from liability for any nuisance created as an inevitable consequence of carrying out that activity. In such circumstances it is presumed, in the absence of express provision to the contrary, that Parliament intends private property rights of individual citizens to be subordinated to the wider public interest.
(Footnotes omitted)
[60] Where Parliament has authorised a particular activity to take place, whether expressly or through the implied authorisation of activities that are necessary to carry out Parliament’s purpose, and which will necessarily involve interference with the use and enjoyment by occupiers of their land, then it can be assumed that Parliament intended to authorise and approve that interference.
[61] The creation of a nuisance in such circumstances must be the inevitable consequence of carrying out the authorised activity.39 Whether the legislature has impliedly authorised the nuisance is linked to whether the nuisance can be considered to be the inevitable consequence of the authorised activity, and the requirement to prove inevitability will often merge with the question of whether there is in fact statutory authorisation for the nuisance.40
[62] Where Parliament by express direction or by necessary implication is held to have authorised the activity giving rise to the nuisance, any resulting immunity is subject to the statutory powers being exercised with all reasonable regard and care for
37 Bill Atkin “Nuisance” in Todd, above n 11, at [10.2.08(3)].
38 At [10.2.08(3)].
39 Downard v Kaipara Excavators Ltd HC Tauranga CP3/92, 13 March 1992.
40 Jones, above n 11, at [20-87].
the interests of other persons.41 That has been said to require all reasonable care and skill, according to the state of scientific knowledge at the time to have been taken.42 It follows that if all reasonable care in carrying out that which is expressly or otherwise impliedly authorised by Parliament has been taken, any effect which results in the creation of a nuisance will be considered inevitable. Absent the meeting of those requirements, no immunity will be afforded.
[63] Mr Barker submitted that neither the CER Act nor the GCR Act expressly authorised the creation or continuation of any nuisance. It was acknowledged that if a particular statutory action was taken, for example, the removal or demolition of a house, then by implication a right to interfere with the use and enjoyment of a neighbour’s property to progress that activity could be inferred. However, Mr Barker submitted that was not the position in the present case.
[64] While some of the same issues arise that emerged in relation to the question of immunity under s 145 of the GCR Act, there may potentially be stronger grounds for the Crown to rely on the defence of statutory authorisation. However, reliance on the defence for the purposes of the alleged interference in Mr Young’s enjoyment of the property from his access being restricted by the s 45 notice, or as a result of any consequential rockfall or aggravation of the unstable cliff face due to the removal of the houses, would necessarily require a closer factual examination of the way those powers were executed and whether the resulting consequences were inevitable in the circumstances.
[65] In terms of the Crown’s statutory acquisition and holding of the neighbouring clifftop properties, Mr Young’s claim is based on the Crown having, as a result, assumed liability for the nuisance from the previous landowners. He relies on the continuation of the nuisance caused by the original collapse of the surrounding cliffs and the depositing of rock and debris onto his land during the earthquakes.
41 Allen v Gulf Oil Refining Ltd [1981] AC 1001 (HL) at 1011.
42 Manchester Corp v Farnworth [1930] AC 171 (HL), cited with approval in Downard v Kaipara Excavators Ltd, above n 39, at 19.
[66] It was argued on behalf of Mr Young that, rather than the decision to purchase and hold the clifftop land by the Crown as necessarily resulting in the authorisation of the Crown continuing the nuisance, “the more likely reasoning” is that the purchase of the clifftop properties involved the Crown assuming all the liabilities of ownership which that entails. A difficulty with that reasoning is that if, accepting for present purposes Mr Young’s claim that the Crown has continued the nuisance as a result of purchasing the clifftop properties, that arguably was the inevitable consequence of the exercise of those statutory powers.
[67] While s 145 of the GCR Act requires there to be a causal link between the actions taken by the Crown pursuant to a statutory power and the loss, damage or adverse effect suffered, the doctrine of common law statutory authorisation is arguably not confined in those same terms. Parliament has authorised the Crown to acquire and hold land pursuant to the applicable Act. The argument is that the exercise of that power or the taking of an action pursuant to that authority would carry with it an immunity from liability for any nuisance which arises as the inevitable consequence of undertaking that action, providing all reasonable care and skill has been executed in carrying out what has been expressly or impliedly authorised by the legislation.
[68] However, at least two principal issues arise for the Crown. Firstly, the application of the defence of statutory authorisation in a situation such as the present appears to be novel. Aside from those aspects of Mr Young’s claim that involve allegations of the Crown exercising statutory powers to restrict his access or to remove clifftop dwellings that have caused discrete aspects of interference in the enjoyment and use of Mr Young’s land, the purchase and holding of the neighbours’ properties by the Crown has not created the nuisance. Again, there appears to be a required linkage between the “activity” which is authorised by Parliament and the “creation” of the nuisance.
[69] While ongoing or continued rockfall or erosion of the cliff onto the property since the Crown’s acquisition of the clifftop land could arguably be said to have created the nuisance for which the Crown as the landowner at the time was responsible, the same temporal issue arises as to whether, by acquiring and holding the clifftop properties, the interference with Mr Young’s land, caused years before by the collapse
of the cliffs during the earthquakes, can be said to have been “created” by the Crown. The Crown may have assumed responsibility for the nuisance as a result of it purchasing the neighbouring land but the common law defence appears to be premised on the activity which the statute has expressly or impliedly authorised as having created the nuisance, rather than one that results in it assuming responsibility for it.
[70] Secondly, whether in any given instance it is arguable that Parliament, by providing general powers to the Crown to acquire and hold land, intended to authorise the continuation of a particular nuisance would require detailed scrutiny of the circumstances of the decisions to purchase and hold the land in question. Whether such a common law defence is available to the Crown would require more than an analysis of the statute itself but, in the circumstances of the present case, a close examination of the decision-making process that led to specific authority being provided to acquire and hold the clifftop land. That would include an evidential review of the decision-making process as it relates both to the purchase of the clifftop land, and engagement with Mr Young regarding his property. It would also require an assessment of wider considerations related both to prospective regeneration plans or options, if any, to remediate the land or discernible public policy objectives and strategies to promote the recovery of the wider community which the red zone decisions appear to seek to give effect.
[71] Beyond these observations, in the context of determining the defined and necessarily limited preliminary question that is before me, in the absence of the type of material to which I have referred, I do not consider it is appropriate to comment further on the potential application of the common law defence.
Costs
[72] As the successful party on the determination of the preliminary issue of law, Mr Young is entitled to costs on a category 2B basis. Absent agreement between the parties, memoranda is to be filed (not more than four pages).
Solicitors:
Ngaire Smith Lawyer, Christchurch Crown Law, Wellington
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