Young v AG [2023] NZSC 142

Nuisance is more regularly featuring as a cause of action available where there is damage to land and structures. In Young v AG the Supreme Court confirmed that a landowner can be liable in nuisance even where they did not create the hazard, it being a cause originating in some natural condition of the land.

In this decision the Supreme Court considers the scope of liability in private nuisance for a naturally occurring hazard.

Mr Young, the appellant, owned land under cliffs that were damaged by the 2010/2011 Canterbury earthquakes. The ongoing instability of the cliffs meant that Mr Young’s land was unsafe. The cliffs sit across boundaries between Mr Young’s land and several clifftop properties above. All of these land/properties were treated as within the red zone under the Canterbury Earthquake Recovery Act 2011. The Crown acquired these clifftop properties between 2012 and 2015.

The Crown made an offer to purchase Mr Young’s property in 2013, followed by an improved “hybrid” offer in 2015. Mr Young rejected the offers, instead filing proceedings against the Crown in trespass and nuisance. He sought a declaration that the Crown was required to remove existing rockfall and remediate the risk of further rockfall and/or cliff collapse so that he could return to, re-occupy and restore his property. Alternatively, he sought damages reflecting the value of his lost property.

Both the High Court and the Court of Appeal considered that the rockfall risk was an actionable private nuisance, which is defined as “an unreasonable interference with a person’s right to the use or enjoyment of an interest in land”.

However, the High Court dismissed Mr Young’s claim. It determined that there was a “measured” duty on the Crown to do what was reasonable to prevent or minimize the risk. The Crown’s hybrid offer met that duty.

The Court of Appeal affirmed the findings in the lower court.

The Supreme Court found there can be liability in private nuisance for harm originating in some natural condition of the land, as opposed to a hazard caused by the defendant. Such liability will occur in situations where the defendant knows or ought to have known of the natural hazard but fails to take reasonable steps to prevent or abate it. The Court observed this gives rise to fault-based, rather than strict, liability. The existence of the duty is based on knowledge of the hazard, ability to foresee the consequences of not checking or removing it, and the ability to abate it.

The Court imposed on the Crown a test of reasonableness in terms of what was required to prevent or abate the nuisance. Relevant factors include:

• The ease or otherwise with which the risk may be avoided and the practicability of the proposed remedial action. A costly abatement will not be appropriate when remediation imposes too onerous or disproportionate a burden on the defendant. The circumstances of both the plaintiff and the defendant are relevant to that assessment.
• Whether the risk is sourced in the land owned by the defendant, the plaintiff, or both. In this case 72% of the rocks and debris came from Mr Young’s land and 28% from the land acquired by the Crown.
• Whether the activity was for the public benefit.

The Supreme Court dismissed Mr Young’s appeal, determining that the Crown had met its measured duty by warning of the risks and assisting with access to the property. Further, it was not reasonable to impose a legal obligation on the Crown to remediate or compensate Mr Young for his loss.

In assessing what was reasonable the Supreme Court considered the following:

• The proposed remediation plan had a cost of $1.6 million (plus GST) and would require consents (which may not have been granted). The remediation would not allow Mr Young the full use of his land, nor recover its full value. The value of the land rendered useful would be just over $930,000 plus GST. Ultimately the best solution to deal with the hazard was for Mr Young to move from the location.
• The Crown was a rescuer acting under a statutory framework dealing with a significant regionwide event. It was important not to discourage such initiatives.
• The hazard originated on both Mr Young and the Crown’s land.

The Court found that nothing further was required than for the Crown to warn Mr Young of the risks.

This case is relevant because it highlights that nuisance does apply to natural disasters and, due to New Zealand’s abundance of natural disaster risks, there will likely be similar cases in the future.

Worthy of note is the fact that the natural hazard does not actually have to cause damage before a response is required. If a defendant ought to have known about the hazard but does not take reasonable steps to remedy the hazard, they will be liable. However, the Supreme Court has made it clear that what is required will be dependent on what is reasonable on the specific facts of the situation.

Finding there was a duty on the Crown to warn Mr Young seems pointless as it appears he was well aware of the risk. However, imposing any financial burden on the Crown, over the offers already made, would have resulted in a harsh outcome.

This publication is intended as a general overview and discussion of the content dealt with. It should not be used in any specific situation, in which case you should seek specific legal advice.