A landowner unsuccessfully attempted to recover compensation from the Crown for its alleged failure to abate a rockfall hazard arising from neighbouring ‘red zoned’ land.
Mr Young owned a number of properties in the Christchurch area which were damaged in the 2010/2011 Canterbury earthquakes. Part of this damage was the result of rock fall from neighbouring cliffs.
The neighbouring properties were red zoned under the Canterbury Earthquake Recovery Act 2011 and the Crown acquired them between 2012 and 2015.
There is a continued risk of further rock fall from the land now owned by the Crown. Mr Young’s property was therefore red zoned. The Crown made three different offers to purchase the property, all of these were rejected.
Mr Young then sued the Crown for the tort of private nuisance. Initially he was seeking a declaration that the Crown should be required to remove existing rock fall and remediate the risk of further rock fall. However, this was subsequently reduced to simply seeking damages.
The High Court rejected Mr Young’s claim,concluding that while the risk of further rock fall is an actionable nuisance,the Crown had met its duty to prevent or minimise the risk by making their final offer.
The duty to prevent or minimise the risk is a measured one. Therefore, what can be reasonably required in the circumstances must be determined on the facts.
Mr Young unsuccessfully appealed to the Court of Appeal where they agreed with the High Court that in making the hybrid offer the Crown had met their measured duty.
Mr Young appealed this decision to the Supreme Court.
Mr Young argued that the Court of Appeal were incorrect to proceed on the basis that the risk of continuing nuisance was shared, as he contended that the rock fall hazard arose primarily from land owned by the Crown. The court disagreed, finding that 72% of the debris fell from within Mr Young’s own property, and accordingly that the Court of Appeal was justified in finding that the risk was shared.
The court concluded that neither the previous owners nor the Crown could be liable for any damages or ongoing risk from land owned by Mr Young. The court acknowledged that it would be incorrect for the landowners to bear the whole cost of remediation since a substantial part of the loss resulted from events which were not their responsibility.
The court found that the Crown cannot be held retrospectively liable for the initial nuisance, any liability is limited to continuing nuisance. The Crown would only be liable if it had failed to meet its measured duty to remove or reduce the hazard following their acquisition of the land.
The court therefore concluded “there can be liability in private nuisance arising from a natural hazard where the defendant knows or ought to have known of it but does not take reasonable steps to prevent it”. In other words, where there is liability in private nuisance resulting from a naturally occurring hazard there is a measured duty to abate.
The court identified a number of factors which can be considered when determining what is reasonably required. These include:
· How significant are the required works?
· What is the impact of the risk arising from both properties?
· The comparative financial position of the parties.
· Whether the activity is for the public benefit.
· Whether the required work benefits both the plaintiff and defendant.
The court then considered whether it was reasonable to require the Crown to implement the potential remediation option. They determined it would be unreasonable to do so given the cost of the proposal outweighed the benefits and the low likelihood of it being successful.
The court also highlighted that the hazard existed on both properties. Whilst the Crown argued that it did not matter what the source of the risk was, the court saw it to be a relevant consideration.
Mr Young argued that both parties would benefit from the remediation of his land. However, the court did not consider this to be important given the reasoning behind the Crown’s intervention.
The Supreme Court concluded that the actual duty on the Crown was limited to warning Mr Young of any ongoing risks and assisting with access to his property. The Crown had done both of these and therefore met their measured duty.
Unlike the Court of Appeal, the Supreme Court did not see the red zone offer as relevant to the Crown’s fulfillment of this duty as this is beyond what would be expected of a private citizen.
The Supreme Court concluded that the Crown had met its measured duty in this case and the appeal was therefore dismissed.
For further information on this case or similar issues, please contact Director, Brigitte Morten.
