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No 8 Wire Solution Costs Landowner $286,000

29 September 2014

What New Zealand farmer hasn’t found a No 8 wire solution to a problem facing him on the farm? Unfortunately for Mr Street of rural Taranaki, his solution to his drainage problem had devastating and costly consequences.

 

Mr Street’s drainage system fails

Mr Street constructed a drainage system on his property so that he could build an access way. The drainage system carried water from a pond, along an open channel, under the access way, and then down a steep slope into a gully by means of a corrugated iron flume (or chute) supported by wooden trestles. The flume structure was held together by nails and no. 8 wire. In the words of Mr Street’s neighbour Mr Brouwers, the flume was “flimsy”.

After a period of unprecedented rainfall, the slope on which the flume was constructed collapsed into the gully. This meant that Mr Brouwers’ nearly completed home was perched precariously on the edge of the landslip. Mr Brouwers sold his home for a substantial loss.

 

Court action

Mr Brouwers successfully sued Mr Street.  The Court of Appeal ordered Mr Street to pay Mr Brouwers $286,495 in damages - for the loss in value of his property ($260,000), miscellaneous damages ($6,495), and stress and anxiety ($20,000).

The Court held Mr Street to be liable on two legal grounds:

1. Removal of support

A landowner has a right to have his land supported by neighbouring land. The neighbour will be liable whether or not the neighbour is negligent, or removes the support by excavation or other non-natural means. In this case the removal of support was the failure of the flume, which caused the slope to collapse, and not the severe rainfall.

2. Negligence

Mr Street failed in his duty to Mr Brouwers to take all reasonable and necessary steps to ensure the drainage system was sufficiently strong and safe to carry prolonged continuous rainfall. The construction of the flume was “questionable”. Mr Street was liable even though the drainage system met the council’s minimum requirements.
One of the judges reflected that the strict liability imposed on a landowner who removes support from his neighbour’s land is a property rule of “real antiquity”, going back to cases as early as 1670. The rights to support are very important, particularly in water, oil and gas law.

 

Landowners should heed the judge’s caution: In New Zealand, which is a country with numerous cities and towns built on hilly terrain, persons undertaking land development have to take real care with those developments.

 

 

Please email me at barbara.mcdermott@nwm.co.nz with your ideas for future articles.  Keep an eye out for next month’s column, where I will discuss another relevant rural legal issue.


 

Barbara McDermott is a partner of Norris Ward McKinnon, specialising in commercial and rural law.  With offices in Hamilton and Huntly, we have friendly, expert legal advisors ready to help you with your business and personal legal matters.   Find out more about us at www.nwm.co.nz