1/11/2023·4 mins to read
Supreme Court provides guidance on obligations to manage natural hazards
The Supreme Court recently released its first judgment in a “measured duty of care” case about landowner obligations to control natural hazards on their land.
A measured duty of care is owed by one landowner to another when there is a natural hazard on their land that threatens the other’s property. The case provides useful guidance to landowners, local authorities, and the Crown on obligations owed when natural events such as earthquakes, coastal erosion or extreme weather cause or threaten rockfalls, landslides or other damage which impacts neighbouring properties.
The cliffs above Mr Young’s property were damaged during the 2010 and 2011 Christchurch earthquakes, causing a significant amount of rockfall onto his land.
After the earthquakes, the Crown designated the cliff top properties as “red-zone” land and acquired them because they were unsafe to live on. However, the cliffs remained unstable, and Mr Young’s property was at risk from further rockfall.
Mr Young’s property had also been “red-zoned”. The Crown made a “red-zone” offer to buy his land but Mr Young refused the offer. Instead, he brought proceedings against the Crown (as the adjacent landowner) in the tort of private nuisance, claiming that the Crown had not complied with its measured duty of care to do what was reasonable to prevent or minimise harm from the risk of further rockfall.
- Individual circumstances will dictate the extent of a landowner’s responsibility for the harm caused to their neighbour’s land by a natural hazard.
- Cost-sharing between landowners may be reasonable depending upon the nature and location of the risk and the practicality and cost of remedial works.
- In some cases the obligation of the landowner may go no further than warning their neighbour of the risk and cooperating in the neighbour’s own remedial works (eg by allowing access through their land).
- The principle in this case only applies to natural hazards. Landowners remain strictly liable for any nuisances which they create themselves.
Nuisance claims and natural hazards
Nuisance claims have traditionally arisen in the context of a landowner’s action (or inaction), ie a failure to repair an overflowing pipe. But what happens if the hazard is outside the landowner’s control?
The High Court, Court of Appeal and Supreme Court considered this point and all concluded that since landowners do not cause natural hazards, they should not be fully responsible for the consequences of those hazards, even if those consequences cause or threaten damage to a neighbour’s land. Instead, they owe a “measured duty of care” to their neighbour - a duty to do what was reasonable to prevent or minimise the harm occurring.
The focus of the case was whether the Crown had done what was reasonable.
The lower courts
The High Court dismissed Mr Young’s claim. The Court recognised that the ongoing rockfall risk was a nuisance, but it found that the Crown had discharged its duty to do what was reasonable to prevent or minimise the risk by offering to purchase Mr Young’s property.
The Court of Appeal agreed with the High Court that the offer to purchase the land satisfied the Crown’s duty to prevent the nuisance.
The Supreme Court
Mr Young appealed to the Supreme Court, arguing that the Crown’s offer to purchase the land did not meet its measured duty of care, and that the Crown should instead pay for remedial works. The Supreme Court dismissed the appeal, emphasising that what is “reasonable” in any case will be heavily dependent on the facts of the case. Where a hazard can be removed with little effort and no or minimal expenditure, it will be more straightforward. But where, as here, the cost of removing the risk is significant, it will be more complicated.
The Court helpfully discussed some factors that were relevant to whether the Crown took “reasonable steps” to prevent or minimise the risk. These are:
- The practicality of the proposed remedial action;
- The extent and cost of the necessary works;
- The locality of the nuisance - which may impact on the scale and therefore the reasonableness of remediation measures;
- Whether the hazard arose solely from one person’s land, or was shared across properties;
- Any underlying statutory framework (eg here the Crown had purchased the clifftop land not to occupy or develop it but as a “rescuer”);
- Whether remedial work will benefit both parties.
The Supreme Court expressly left open whether the comparative financial position of the parties was relevant. This has been a recognised factor in some overseas cases, but the Supreme Court held that it was unnecessary to determine this point given the overall conclusion it had reached. In this regard, therefore, the Crown was treated in the same way as any other landowner.
Applying the principles set out above, the Court made four key factual findings:
- Remediating Mr Young’s land was not practicable in terms of cost and difficulties in implementation.
- The cost of remediation was disproportionate to the value of the land.
- The hazard was shared across both properties.
- The Crown had purchased the adjacent land in the context of a natural disaster. The purchase was intended to achieve equitable and safe outcomes for landowners whose properties were unliveable and had suddenly lost all value.
Unlike the Court of Appeal, the Supreme Court did not consider that the Crown’s red zone offer to acquire the land (which was made by the Crown under the Earthquake Recovery legislation) was relevant to the measured duty. A private landowner would not be required to make such an offer, so it was not relevant to the “measured duty of care” analysis.
In all the circumstances, the Court held that the “measured” duty of care required the Crown to do no more than warn Mr Young of the risks of rockfall and assist with access to the property, both of which it had done. The Crown had therefore met its obligations. In particular, it was not required to fund or even contribute to the funding of the remediation of Mr Young’s land, or compensate for the loss of value to his property as a result of the slips.
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