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Woodgate Limited v Palmerston North City Council [2024] NZHC 2423 (27 August 2024)

Last Updated: 6 September 2024

JUDGMENT OF ASSOCIATE JUDGE PAULSEN

This judgment was delivered by me on 27 August 2024 at 4.00 pm pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar Date:

WOODGATE LIMITED v PALMERSTON NORTH CITY COUNCIL [2024] NZHC 2423 [27 August 2024]

A preliminary issue [5]

Background [6]

Summary judgment principles [38]

Woodgate’s submissions [40]

The Council’s submissions [45]

Nuisance [55]

Is there a nuisance? [63]

Defences [94]

Implied consent [95]

Ex turpi causa [98]

The change of use defence [105]

Result [106]

• [1] The plaintiff (Woodgate) is a land developer and the beneficial owner of land at Aokautere (the Woodgate land). It wishes to develop the land as a retirement village. Leslie Fugle is the sole director of Woodgate. Mr Fugle has a long connection with the Woodgate land through his involvement with other companies that have owned or attempted to develop it. There is a history of disputes and litigation between those companies, Mr Fugle and the defendant (the Council) about earthworks and drainage issues affecting the land.

• [2] The Council is the owner of public stormwater infrastructure created as part of the residential subdivision by Palmerston North Industrial and Residential Developments Ltd of land (the PNIRD land) adjoining the Woodgate land. Stormwater is discharged from a 450 mm stormwater outflow pipe on what is called Monaco Grove and travels for a short distance upon an intermediary strip before entering onto the Woodgate land. Woodgate says the stormwater discharge has caused, and continues to cause, ponding on and damage to the Woodgate land and is hindering its development.

• [3] Woodgate has sued the Council in nuisance and negligence in respect to the stormwater discharge. The application before me is for summary judgment on the cause of action in nuisance only. Woodgate seeks judgment as to liability and an injunction to restrain the Council from repeating or continuing the nuisance. It also seeks an enquiry as to damages.

• [4] The Council says the case is unsuitable for summary judgment and that:

(a) Woodgate has not provided sufficient evidence to establish nuisance is occurring.

(b) There is no substantial and unreasonable interference with Woodgate’s rights to the use or enjoyment of the land.

(c) The doctrine of natural servitude applies.

(d) In the event there is a nuisance it has several arguable defences to the claim, namely:

(i) that relief should be withheld from Woodgate due to the principle of ex turpi causa non oritur actio;

(ii) Woodgate gave its implied consent to the nuisance; and

(iii) the allegation of nuisance has arisen only because Woodgate wishes to change the use of its land.

A preliminary issue

• [5] Both parties challenged the admissibility of the other’s evidence in several respects. Counsel did not require me to issue rulings on these challenges but were content that they were noted and dealt with as I considered appropriate in my deliberations. Many of the objections were of a technical nature, do not affect my conclusions and I have not found it necessary to express a view on them. An issue of some significance, however, concerns what is advanced by Woodgate as expert opinion evidence to which I shall refer later in this judgment.

Background

• [6] What follows is necessarily only a summary of the complex and lengthy history that has led to this litigation.

• [7] The Woodgate land is in an area characterised by undulating land cut by gully networks. The gullies include the Johnstone Drive Gully, the head of which was originally situated on the PNIRD land. This was a natural intermittent watercourse crossing into the Woodgate land and conveying stormwater northwards ultimately, I understand, to the Manawatū River.

• [8] As part of the PNIRD development, infrastructure was installed which collected and then discharged stormwater onto Monaco Grove near the boundary with the Woodgate land. It was completed in about mid-2007 and the infrastructure vested

in the Council. The Council says the infrastructure was compliant with its engineering standards for land development at the time and was legally established. It has been held by the Environment Court that the stormwater discharge was a permitted activity under relevant regional rules not requiring resource consent.¹

• [9] On 1 November 2007, the Council granted a subdivision and land use consent to Pacific Farms Development Ltd (PFL) in respect of the Woodgate land. Mr Fugle was a director and shareholder of PFL. The owner of the land at the time was Aokautere Land Company Ltd (ALC), which later changed its name to Farm Holdings

(4) Ltd (FH4). Mr Fugle had an involvement with this company also, but the exact nature of the relationship at material times is unclear.

• [10] Amongst other things, PFL’s resource consent authorised the filling of gullies on the Woodgate land. Unsurprisingly, the resource consent contained conditions in relation to existing stormwater discharges onto the Woodgate land. These included a requirement that PFL demonstrate how the stormwater would be captured and catered for as follows:

(3) That prior to any filling, drainage works or other physical works within the gullies, the MIPENZ (Geotechnical Specialist) CPEng acceptable to Council must provide and have approved by Council a design and full engineering plans which include details of the proposed filling, drainage and monitoring of these physical works. The design and plans must include, although are not limited to, the following:

1. Demonstration of how the existing upstream stormwater runoff and existing overland flow is captured and how this is catered for.

...

• [11] PFL made related applications to the Regional Council for water diversion consents which were granted on 24 October 2007. The consents included the condition that “the installation of subsoil drainage and diversion of water ... shall be undertaken in general accordance with the application ...”. PFL’s application said it would construct a main stormwater reticulation system to carry all the stormwater from the head of the Johnstone Drive Gully down to the foot of that gully.

¹ Re Manawatū-Wanganui Regional Council [2013] NZEnvC 213 at [63].

• [12] There were delays before PFL commenced earthworks, but eventually significant quantities of fill were deposited upon the Woodgate land. It appears that at some stage a stormwater detention pond was constructed immediately beneath the Monaco Grove discharge. I understand Mr Fugle does not accept that any stormwater detention pond was created. Regardless, there is clear evidence of a stormwater detention pond on the Woodgate land that captures the stormwater discharge. It is, for instance, shown in photographs attached to, and referred to in, the Land Development & Engineering Ltd (LDE) reports relied upon by Woodgate as well as other documents. The Council says this created a lake which backed up across the boundary with the PNIRD land, flooding it and creating a ‘sideways’ overflow of stormwater from the pond onto what is called Pacific Drive.

• [13] Around this time both the Council and Regional Council sought, and were granted, declarations from the Environment Court that the Monaco Grove stormwater discharge did not require resource consents and was therefore lawfully established. From the Council’s perspective this was relevant because PFL had said in its application for resource consent that “[a]ll existing legally established concentrated discharges that presently discharge into the gullies are to be connected to and piped to the new stormwater system” (emphasis added).

• [14] In September 2011, ALC and PFL commenced High Court proceedings against the Council and PNIRD. They pleaded several causes of action, including in nuisance and trespass relating to the stormwater discharge.

• [15] PFL’s earthworks were not completed by 1 November 2012, the date its resource consent was due to lapse. It appears the reasons for this included that Mr Fugle had interim enforcement orders issued against him by the Environment Court and was ordered to cease all earthworks due to non-compliance with PFL’s consent conditions. There were subsequent interim orders and amendments made by the Environment Court to the enforcement orders, ultimately determining that Mr Fugle was responsible for the works undertaken on the site.² The Council subsequently granted a five-year extension of the consent until 1 November 2017.

² See, for example, Manawatū-Wanganui Regional Council v Fugle [2013] NZEnvC 212 at [21].

• [16] The High Court proceedings brought by ALC and PFL went to trial but were discontinued after a settlement was reached on 4 September 2014.³ Mr Fugle signed the settlement agreement as agent for ALC. He says he felt pressured to do so and there was not time for him to obtain independent advice. As he was not a party, this evidence raises questions as to his personal interest in the proceeding.

• [17] The terms of the settlement agreement included:

(a) The parties agreed to implement an “engineering solution”, which provided for PNIRD to convey stormwater through a 450 mm pipe on its land to a new discharge location, where it would be collected by ALC and conveyed by a 450 mm stormwater pipe to a contoured overflow path and then onto Johnstone Drive.

(b) ALC acknowledged its obligation to submit an engineering design plan demonstrating how the existing upstream stormwater runoff and existing overland flow would be captured and catered for.

(c) Mr Fugle and ALC were to apply to change the terms of Environment Court enforcement orders (which prevented further works on the Woodgate land) to enable implementation of ALC’s obligations under the settlement agreement.

(d) The settlement agreement bound the parties to that proceeding and their successors in title.

(e) That all claims in the proceeding were settled and at an end.

• [18] PNIRD subsequently completed its work under the settlement agreement, which included re-routing the Monaco Grove discharge from its original location to where it is currently situated. However, ALC did not complete its work and the settlement agreement was therefore not fully implemented. Mr Fugle provides several

³ HC Palmerston North CIV-2011-454-620.

reasons for this, and it is clear he must have been closely involved in ACL’s decision not to perform its obligations.

• [19] There followed more proceedings relating to the Woodgate land, which resulted in the Environment Court making several enforcement orders on 22 March 2016 against FH4.⁴ FH4 was ordered to:

(a) cease all earthworks on the land;

(b) prepare and lodge an erosion and sediment control plan meeting various technical requirements;

(c) complete applications for resource consents to undertake land disturbance and vegetation clearance, incorporating the erosion and sediment control plans; and

(d) implement the resource consent upon its grant and in accordance with an approved erosion and sediment control plan.

• [20] On 25 May 2016, FH4 entered voluntary liquidation. It was removed from the Register of Companies in September 2017.

• [21] In October 2016, on a joint application by the Council and PNIRD, the Environment Court made four further enforcement orders, ordering FH4 to:⁵

(a) comply with the consent condition by providing a design and full engineering plans which included details of the proposed filling, drainage and monitoring of physical works authorised by the consent, and a demonstration of how the existing upstream stormwater runoff and existing overland flow was captured and catered for by FH4;

4. Manawatū-Wanganui Regional Council v Farm Holdings (4) Ltd [2016] NZEnvC 54. ALC had changed its name to FH4 on 25 September 2013.

⁵ Palmerston North City Council v Farm Holdings (4) Ltd [2016] NZEnvC 192.

(b) remove the stormwater detention pond and replace it with the engineering solution as set out in the settlement agreement; and

(c) obtain a resource consent or a certificate of compliance in respect of the implementation of the engineering solution.

• [22] Neither FH4 nor its liquidators complied with the Environment Court orders.

• [23] FH4’s primary asset in its liquidation was the Woodgate land, which was subject to a mortgage in favour of CTS Investments LLC (CTS). The liquidators were unable to sell the land and CTS did not realise its security. The liquidators disclaimed the land as onerous property and, on 17 November 2017, the High Court granted CTS an order vesting the Woodgate land in its ownership.

• [24] On 5 December 2017, Woodgate was incorporated. On around 29 January 2018 it entered a conditional sale and purchase agreement with CTS to purchase the Woodgate land.

• [25] Woodgate has not settled its purchase of the land. It has plans to develop the land to establish a retirement facility but has not yet obtained resource consent for that development.

• [26] On 31 January 2022, CTS filed proceedings against the Council, again relating to the Monaco Grove discharge. In those proceedings CTS made similar allegations against the Council as are made by Woodgate here. CTS discontinued the proceedings with costs awarded to the Council.

• [27] CTS also made a complaint to the Regional Council (now known as Horizons Regional Council) about the Monaco Grove discharge. The Council engaged Ridely Dunphy Environmental (RDE) to provide an expert assessment of the erosion on the Woodgate land. RDE’s findings included:

• This erosion is primarily below the dam feature and its primarily due to the nature of the unconsolidated and unstabilised nature of these soils from 2011 onwards;
• The discharge of stormwater from upstream will be contributing water volume to the downstream area of concern and as such will also contribute to some erosion activity.

• [28] In a memorandum of 30 September 2022 addressing the complaint, the Regional Council investigators found that the Council’s stormwater discharge required minor maintenance but that the cause of erosion on the Woodgate land was “historic illegal earthworks” which were never remediated.

• [29] The Regional Council also identified a ‘cut’ made into the wall of the stormwater detention pond which it appeared was made within 12 months of the investigation. This was leading to some scouring. The Regional Council concluded:

Erosion of the recent cut in the PFL dam wall and the balance of the CTS site are not directly attributable to the [Council] stormwater discharge. Rather this is due to recent and poorly executed earthworks (the PFL dam outlet) undertaken by persons unknown or ground conditions and in situ stormwater control related to historic illegal earthworks activities that occurred on the CTS site, prior to any influence from the [Council] stormwater discharge, and were never remediated.

• [30] Mr Fugle does not accept the content of the RDE or Regional Council reports.

• [31] In August 2022 Woodgate applied for consent to ‘retrospectively’ authorise the previous earthworks undertaken on the Woodgate land and to prospectively authorise their completion. The application included:

Currently stormwater discharges onto the southern corner of the site from the adjacent Monaco Grove stormwater system which drains an area of approximately 60 dwellings. This water is detained at this point in such a way that the water level is raised above the pipe level. This enables overflow from the detention area to informally drains [sic] across land to a gully trap in Pacific Drive. This matter is the subject of further legal action between the landowner and the Council. When the retirement village is constructed it is proposed to integrate the stormwater for the development and connect to the Monaco Grove discharge pipe providing conveyance to the head of Johnson Gully [sic]. This will be addressed through a separate resource consent and a Development Agreement.

• [32] The Council sought further information on the application and Woodgate responded:

Existing Stormwater Discharge Point: The application states that this area area [sic] where stormwater is discharged from the upstream urban catchment at Monaco Grove

will be excluded from the earthworks and will be addressed once a solution is agreed with the Council. However, on further consideration, a better approach for neighbouring properties is to cease the ponding and overflow drain to Pacific Drive as soon as practical and replace it with a temporary diversion drain through the site. This will be routed to divert stormwater away from the active stage of earthworks and will be detailed in the Earthworks Management Plan.

• [33] The Council granted the application, noting that:

[Woodgate] proposes to manage [stormwater discharge] through the site during earthworks via a temporary diversion of this water around the working areas with it being discharged to the gully below with a constructed outfall.

• [34] The Council also imposed conditions requiring Woodgate to submit to the Council an Earthworks Management Plan (EMP) for certification including “[d]etails of how stormwater from the upstream residential catchment will be managed within the site during earthworks” and requiring Woodgate to “undertake all earthworks authorised by this consent in accordance with the certified EMP at all times until the completion of the activity”.

• [35] Woodgate provided the Council with an EMP that has since been certified. This states:

All stormwater that enters the site at the southern boundary is to be diverted around the earthworks by a Clean Water Diversion (CWD) as detailed in the approved ESCP. This CWD directs all water through the completed earthworks on the western side of the fill area and discharges it to the remnants of the gully approximately 100m downstream (to the north) of the earthworks area. The stormwater is to flow to the CWD by either gravity or being pumped. The CWD has been constructed in accordance with the ESCP.

...

The CWD is to remain in place and continue to function as a stormwater drain during and upon completion of the earthworks until a new reticulated system is constructed as part of the next stage of the development. The size and location of the reticulated stormwater system is dependent upon the future development.

• [36] The clean water diversion (CWD) is functional and diverts stormwater that enters the Woodgate land around the active earthworks. However, Mr Fugle emphasises the CWD is a temporary measure only and that its presence is obstructive to the development of the land.
• [37] In addition to this proceeding, Woodgate has also commenced proceedings in the Environment Court seeking declarations and enforcement orders requiring the Regional Council to act against the Council in respect of the Monaco Grove discharge.

Summary judgment principles

• [38] The relevant rule is r 12.2 of the High Court Rules 2016 which reads as follows:

12.2 Judgment when there is no defence or when no cause of action can succeed

(1) The court may give judgment against a defendant if the plaintiff satisfies the court that the defendant has no defence to a cause of action in the statement of claim or to a particular part of any such cause of action.

(2) The court may give judgment against a plaintiff if the defendant satisfies the court that none of the causes of action in the plaintiff’s statement of claim can succeed.

• [39] The principles that apply to a plaintiff’s summary judgment application were summarised by Associate Judge Osborne in Mount Grey Downs Ltd v Pinot Properties Ltd as follows:⁶

(a) Commonsense, flexibility and a sense of justice are required.

(b) The onus is on the plaintiff seeking summary judgment to show that there is no arguable defence. The Court must be left without any real doubt or uncertainty on the matter.

(c) The Court will not hesitate to decide questions of law where appropriate.

(d) The Court will not attempt to resolve genuine conflicts of evidence or to assess the credibility of statements in affidavits.

(e) In determining whether there is a genuine and relevant conflict of facts, the Court is entitled to examine and reject spurious defences or plainly contrived factual conflicts. It is not required to accept uncritically every statement put before it, however equivocal, imprecise, inconsistent with undisputed contemporary documents or other statements, or inherently improbable.

(f) In assessing a defence the Court will look for appropriate particulars and a reasonable level of detailed substantiation – the defendant is under an obligation to lay a proper foundation for the defence in the affidavits filed in support of the Notice of Opposition.

⁶ Mount Grey Downs Ltd v Pinot Properties Ltd [2018] NZHC 3094 at [12].

(g) In weighing these matters, the Court will take a robust approach and enter judgment even where there may be differences on certain factual matters if the lack of a tenable defence is plain on the material before the Court.

(h) The need for judicial caution in summary judgment applications has to be balanced with the appropriateness of a robust and realistic judicial attitude when that is called for by the particular facts of the case. Where a last-minute, unsubstantiated defence is raised and an adjournment would be required, a robust approach may be required for the protection of the integrity of the summary judgment process.

(i) Once the Court is satisfied that there is no defence, the Court retains a discretion to refuse summary judgment but does so in the context of the general purpose of the High Court Rules which provide for the just, speedy and inexpensive determination of proceedings.

(footnotes omitted)

Woodgate’s submissions

• [40] Woodgate says its claim is straightforward. It does not accept any responsibility to deal with stormwater entering its land from the Monaco Grove pipe. It says the Monaco Grove pipe concentrates and ejects stormwater onto its land in a manner that occasions or exacerbates ponding and which has caused actual damage by way of erosion, sedimentation and scour. It contends the damage is significant, undoubtedly an unreasonable interference with its use and enjoyment of the land and therefore a nuisance at law. It says this is the case whether or not the stormwater discharge was lawfully established, despite the development history of the land, and regardless of how long the discharge has been ongoing.⁷

• [41] Woodgate argues that natural servitude does not assist the Council, because it is the urbanisation (including hard surfacing/roading) of the PNIRD land and the ejectment of the water generated and caught via the Monaco Grove pipe that is a significant causative component of the ponding, erosion and scour that is preventing use, development and reasonable enjoyment of the land. It also contends that the reinstatement of the pipe at its new location on Monaco Grove significantly increased the volume and velocity of the flow of the stormwater discharge.

⁷ Bank of New Zealand v Greenwood [1983] NZHC 150; [1984] 1 NZLR 525 (HC).

• [42] Woodgate rejects all of the Council’s positive defences. It argues the principle of ex turpi causa can have no application when Woodgate has not played any part in illegal or immoral conduct, and the defence does not apply to claims based on interference with ownership rights to property.⁸

• [43] Woodgate says the resource consent requiring it to control the stormwater discharge, and the commitment to implement the CWD during the currency of its earthworks cannot be taken as implied consent to an ongoing nuisance.

• [44] Finally, it says the change of use exception relied upon by the Council does not apply as the stormwater discharge has always constituted a nuisance, irrespective of any change of use of the Woodgate land.⁹

The Council’s submissions

• [45] The Council submits that Woodgate has not provided sufficient evidence of its claim and that a full hearing is required to show that the stormwater discharge creates a nuisance. It notes that none of the authorities Woodgate relies upon were decided by way of summary judgment.

• [46] The Council submits that any discharge of stormwater onto the Woodgate land is reasonable. It relies on the Environment Court’s decision that the discharge was established in accordance with regional rules and did not cause erosion or sedimentation beyond the property boundary.¹⁰ It also relies upon the compliance investigations by the Regional Council, which concluded that the discharge generally complies with the regional rules and that the issues faced by Woodgate are largely due to the poor development history on its land.

• [47] The Council says Woodgate’s evidence also fails to acknowledge that stormwater from the Monaco Grove pipe is properly discharging a natural stormwater flow, even if there are (unquantified) increases in volume and velocity attributable to past development. It says Woodgate is wrong that it has no obligation to handle natural

⁸ Leason v Attorney General [2013] NZCA 509, [2014] 2 NZLR 224.

⁹ Barron v Louw [2018] NZHC 2275, [2018] NZAR 1668.

¹⁰ Re Manawatū-Wanganui Regional Council, above n 1.

stormwater, and when it acquired the land Mr Fugle knew the discharge had been lawfully established and occurring for many years prior. The Council also argues that where a district or regional plan specifically addresses an issue, such as the discharge of stormwater, a court should be careful not to complicate the law for ordinary landowners by adding an additional layer of obligations.¹¹

• [48] The Council says in the context of the escape of water from property the law recognises the principle of natural servitude, being the duty of a lower property to accept the natural flow of water from a higher property. It accepts the principle is subject to limitations, but says Woodgate’s evidence falls short of the detailed assessment necessary for summary judgment to prove that such limitations apply here.

• [49] Importantly, the Council submits there is no evidence from a stormwater engineer identifying the natural flow of stormwater or quantifying increases in volume or velocity due to development of the PNIRD land, nor any geotechnical analysis addressing the effects of any increase in stormwater discharge as distinct from the natural flow. The Council also says there is inadequate evidence to establish it caused any damage to occur on Woodgate’s land.

• [50] Further, the Council submits that Woodgate cannot sue for interference with unlawful uses, which it submits Woodgate’s earthworks are as they were unconsented between November 2017 and January 2022. It contends that post January 2022 development of the Woodgate land is only lawful if carried out in accordance with the conditions of Woodgate’s consent, which requires it to collect stormwater at its southern boundary and manage it through a CWD.

• [51] The Council also contends that Woodgate cannot allege nuisance in relation to the interruption of future development plans for a retirement village, as it does not have a resource consent to carry out the development. Therefore, the Council cannot interfere with a right that does not yet exist.

11. See Cambridge Water Co v Eastern Counties Leather plc [1993] UKHL 12, [1994] 2 AC 264 at 307.

• [52] In relation to ex turpi causa, the Council notes the law is in a state of development and that there are aspects of the factual background which are impossible to ignore, particularly concerning Mr Fugle and his involvement in the failure of PFL to take the steps required of it to control the stormwater discharge and to implement other erosion and sediment controls. It says it would be wrong and unreasonable that Woodgate succeed on its claim.

• [53] In relation to the defence of implied consent, the Council argues that Woodgate obtained resource consent on the condition it would collect and manage the stormwater discharge via the CWD. It says Woodgate cannot therefore now claim to have never accepted the stormwater discharge.

• [54] In relation to the change of use defence, the Council submits if it is only because a claimant has changed the use of land that a pre-existing activity is said to have become a nuisance then no action will lie. Here, it says the stormwater discharge was lawfully established when the Johnstone Drive Gully was in its natural state, and it is only now an issue because of a history of broken promises by developers (with which Mr Fugle was associated) while changing the use to which the land is to be put.

Nuisance

• [55] A private nuisance is an unreasonable interference with a person’s right to the use or enjoyment of an interest in land. The legal standard of unreasonableness is intended to strike a fair balance between the interests of neighbouring occupiers of land.

• [56] In Smith v Fonterra Co-operative Group Ltd, the Court of Appeal said:¹²

• [40] There are two types of nuisance actions: private nuisance and public nuisance, and although the same conduct can amount to both a public nuisance and private nuisance, they are distinct. The key distinction between the two is the rights they are designed to protect. Private nuisance is concerned with protecting the right of an occupier or owner of land to the quiet use and enjoyment of their land free from unreasonable interference. In contrast, public nuisance is primarily concerned with the protection of public rights, that is to say with rights enjoyed by all members of the public, not specific individuals.

¹² Smith v Fonterra Co-operative Group Ltd [2021] NZCA 552.

• [41] In both private and public nuisance however, the interference with the right must be both substantial and unreasonable before it will be actionable. That is to say the rights and obligations created by nuisance are not framed in absolute terms. Not every interference is actionable. An interference is unreasonable if in all the circumstances “an ordinary person could not reasonably be expected to put up with it”. There has to be an element of give and take, live and let live.

(footnotes omitted)

• [57] In an action for nuisance the focus is upon the unreasonable effects of the defendant’s conduct on the plaintiff’s land, not the defendant’s use of land and whether it is reasonable. In Bank of New Zealand v Greenwood, Hardie Boys J concluded:¹³

It is therefore not enough for the defendants to say that it is a normal and reasonable thing to build a glass verandah. For that is not the point. The point is that the glass verandah was so built as to reflect the sun’s diffused light across the street into the south-facing windows opposite. To build it in that way, so as to produce, albeit unwittingly, that result, is not in my opinion the kind of activity which the reasonable man should be expected to accept as part of the reciprocity of urban neighbourliness.

• [58] Proof of physical damage to land that is material or substantial is normally sufficient to establish that an interference is unreasonable and thus a nuisance.¹⁴ That the defendant’s activities are authorised by planning permission/resource consent¹⁵ or provide some public benefit will generally not provide a defence to an action in nuisance, although that may be relevant to the remedy that the Court will provide.¹⁶

• [59] The escape of water from one property to another that causes damage may constitute a nuisance. The law, however, recognises that in some instances a landowner must accept the natural flow of water from higher land. This is known as the natural servitude doctrine. It has been said that the extent and limits of the doctrine have not been explored definitively and that:¹⁷

Furthermore, the relationship between planning considerations both under the Resource Management Act 1991 and through the requirements of territorial authorities on the one hand and the right of natural servitude on the other do not appear to have been fully considered by the courts.

¹³ Bank of New Zealand v Greenwood, above n 7, at 534-535.

¹⁴ St Helen’s Smelting Co v Tipping (1865) 11 HLC 642, 11 ER 1483 (HL) at 650, 1486.

¹⁵ Lawrence v Fen Tigers Ltd [2014] UKSC 13, [2014] 1 AC 822.

¹⁶ Miller v Jackson [1977] EWCA Civ 6; [1977] QB 966 (CA).

¹⁷ Body Corporate 335089 v Vero Insurance New Zealand Ltd [2020] NZHC 2353 at [422], citing G W Hinde and others Principles of Real Property Law (2nd ed, LexisNexis, Wellington, 2014) at 128.

• [60] In Barron v Louw, the appellant had brought a claim in private nuisance alleging that excess water was discharging from the respondent’s property. The claim was dismissed in the District Court primarily on the doctrine of natural servitude. On appeal to the High Court, Fitzgerald J explained the doctrine as follows:¹⁸
  • [27] A precursor issue is, however, the doctrine of natural servitude. If that doctrine applies, and none of the exceptions to it are triggered, then there will not be a nuisance in the first place ...

• [28] The doctrine of natural servitude is examined and summarised in

Hinde McMorland and Sim Land Law in New Zealand as follows:

Before the commencement of the Resource Management Act it was clearly established that the natural servitude as expressed in Gibbons v Lenfestey applied in New Zealand allowing the higher owner, in the natural use of the higher land, to concentrate and discharge on to the lower land water that would otherwise naturally flow there. Three principal limitations were placed upon this right. First, the higher owner could not, by means of an ‘artificial structure’ such as a building or a raising of soil level, alter the flow on to the lower land causing injury to that land. Secondly, he or she could not so concentrate the water as to increase appreciably the burden on the lower land by altering the volume and velocity with which the water flowed on to the lower land, thus causing damage to the lower land which would not have been caused by the natural flow. Thirdly, he or she could not introduce ‘foreign water’, that is, water which would not be part of the natural surface water on the higher land, and insist that it be received by the lower landowner. Though there is some authority for the proposition that the natural servitude applies only to rural land, and not to urban or suburban land, the better view is probably that it applies to all land and that any problems in its application to non-rural land are met by the limitations upon the right.

• [61] The Judge considered that, on the basis of the authorities, the central issue for her to decide was whether structures or any actions taken by the respondents on their land had increased the amount of water naturally flowing to the appellant’s property or had directed the water in a new or harmful way causing damage as follows:¹⁹

[52] ... For the reasons outlined above, and recognising the doctrine of natural servitude, a defendant will not liable in nuisance provided that artificial structures or other actions taken by the defendant have not caused natural surface waters (or new “foreign” waters) to pass onto the plaintiff’s land in a different or increased way (from that which otherwise have been the case with natural water flow) that causes damage.

¹⁸ Barron v Louw, above n 9.

¹⁹ Citing Bailey v Vile [1930] NZGazLawRp 93; [1930] NZLR 829 (CA) at 839–840; Wilsher v Corban [1955] NZLR 478 (SC) at 490; Dijkmans v Howick Borough [1970] NZHC 18; [1971] NZLR 400 (SC) at 406–408; and Davis v Lethbridge [1976] 1 NZLR 689 (SC) at 698–699.

• [62] Fitzgerald J gave several reasons for reaching her conclusion that the respondents’ actions had not caused natural surface waters to pass onto the land in a different or increased way creating a nuisance. Most important was the evidence of the respondents’ expert who had addressed the question: have any alterations or actions by the respondents unreasonably increased the flow of water from the respondents’ property to the appellant’s property than would have otherwise been the case with the natural flow of water? The expert found that the actions taken by the respondents and others had likely decreased the natural flow of water that would otherwise have passed onto the appellant’s land.

Is there a nuisance?

• [63] I understand the Council accepts for present purposes that Woodgate has standing to bring an action in private nuisance against it to protect unreasonable interference with its use and enjoyment of the Woodgate land, despite not being the legal owner of the land.

• [64] There is otherwise little common ground between these parties on factual matters. Fundamentally the Council says Woodgate’s application for summary judgment cannot succeed as it is plainly arguable both that the stormwater discharge does not unreasonably interfere with Woodgate’s use and enjoyment of its land and that it is not the cause of the ponding, flooding, erosion, scour and sediment outflow of which Woodgate complains.

• [65] As noted, the Environment Court has held that the Monaco Grove discharge did not require resource consent and was lawfully established. I accept that does not of itself mean that the discharge does not constitute a nuisance. However, before the Court could find the stormwater discharge was unreasonable Woodgate would need to produce evidence concerning the volumes and rates at which stormwater is being discharged onto its land. Related to this, in light of Woodgate’s assertion that urbanisation has increased both the volume and velocity of the stormwater and amplified its adverse effects on the Woodgate land, one would also expect there would be evidence to support that assertion. Such evidence would be expected to be given

by experts in such matters but, for reasons I shall now come to, there is no admissible expert evidence in relation to them.

• [66] Woodgate’s case substantially relies on the evidence of David Dravitzki. Mr Dravitzki is a Chartered Professional Engineering Geologist with 25 years’ experience. His evidence is tendered as an expert assessment establishing that the Woodgate land was not unduly susceptible to erosion, scour or sediment outflow, and that it was the urbanisation of the PNIRD land and concentration of water so generated that has caused significant flooding and other damage to it.

• [67] Mr Dravitzki’s affidavit is very brief but has attached to it two reports on the letterhead of LDE dated 14 September 2023 and 17 May 2024. Mr Dravitzki says he completed the reports attached to his affidavit and:

• [4] In preparing these reports, and in affirming this affidavit, I am mindful of the requirements to act impartially, fairly, and independently, and to express only views and opinions which are informed by professional metrics, observations, and experience when providing evidence as an expert before this court.

• [5] I refer to, and confirm my understanding of the Code of Conduct for Expert Witnesses as it applies in this respect.

• [68] The Council objects to Mr Dravitzki’s evidence and argues it should not be considered.

• [69] The Evidence Act 2006 provides:

25. Admissibility of expert opinion evidence

(1) An opinion by an expert that is part of expert evidence offered in a proceeding is admissible if the fact-finder is likely to obtain substantial help from the opinion in understanding other evidence in the proceeding or in ascertaining any fact that is of consequence to the determination of the proceeding.

(2) An opinion by an expert is not inadmissible simply because it is about—

(a) an ultimate issue to be determined in a proceeding; or

(b) a matter of common knowledge.

(3) If an opinion by an expert is based on a fact that is outside the general body of knowledge that makes up the expertise of the expert, the opinion may be relied on by the fact-finder only if that fact is or will be proved or judicially noticed in the proceeding.

(4) If expert evidence about the sanity of a person is based in whole or in part on a statement that the person made to the expert about the person’s state of mind, then—

(a) the statement of the person is admissible to establish the facts on which the expert’s opinion is based; and

(b) neither the hearsay rule nor the previous consistent statements rule applies to evidence of the statement made by the person.

(5) Subsection (3) is subject to subsection (4).

• [70] Section 26 of the Act provides:

26. Conduct of experts in civil proceedings

(1) In a civil proceeding, experts are to conduct themselves in preparing and giving expert evidence in accordance with the applicable rules of court relating to the conduct of experts.

(2) The expert evidence of an expert who has not complied with rules of court of the kind specified in subsection (1) may be given only with the permission of the Judge.

• [71] The relevant rule is r 9.43 of the High Court Rules, which provides:

9.43 Expert witness to comply with code of conduct

(1) A party to a proceeding who engages an expert witness must give the expert witness a copy of the code of conduct set out in Schedule 4.

(2) An expert witness must—

(a) state in any written statement of the proposed evidence of the witness served under rule 9.2 or 9.3, or at the time of giving any oral evidence, or in any affidavit containing the evidence of the expert witness, that the expert witness has read the code of conduct and agrees to comply with it:

(b) comply with the code of conduct in preparing any written statement of the proposed evidence of the witness to be served under rule 9.2 or 9.3 or in giving any oral or affidavit evidence in any proceeding.

(3) The evidence of an expert witness who has not complied with subclause (2)(a) may be offered only with the leave of the court.

• [72] The Code of Conduct in sch 4 of the High Court Rules (the Code) begins by noting that an expert’s duty is to assist the court impartially within the expert’s area of expertise. It then goes on to set out several other requirements with which the expert must comply.

• [73] In Prattley Enterprises v Vero Insurance New Zealand Ltd, the Court of Appeal noted that in deciding whether to admit expert opinion evidence the court must be satisfied that it is likely to obtain substantial help from the opinion in understanding other evidence in the proceeding or in ascertaining any fact that is of consequence to the determination of the proceeding.²⁰ Substantial helpfulness is an amalgam of relevance, reliability and probative value.²¹

• [74] The Court also held that ss 25 and 26 anticipate that evidence may be excluded for want of reliability, impartiality or compliance with the Code.²² A Judge performs a gatekeeper function in deciding whether to admit such evidence, and need not accept the opinion of an expert even if uncontradicted.²³ The gatekeeper function is necessary because “of the discipline it brings to the admission and evaluation of expert evidence”.²⁴

• [75] In relation to the Code and its requirements, the Court noted:

• [101] The Code further requires that an expert witness comply with certain requirements, the objective of which is to make transparent the witness’s qualifications, the facts and assumptions on which the witness has relied, the reasons for the witness’s opinion, and any literature or other material relied upon. These requirements allow the opposing party and the Court to evaluate the expert’s expertise and opinion, initially for admissibility and ultimately for weight:

3. In any evidence given by an expert witness, the expert witness must—

(a) acknowledge that the expert witness has read this code of conduct and agrees to comply with it:

(b) state the expert witness’ qualifications as an expert:

²⁰ Prattley Enterprises Ltd v Vero Insurance New Zealand Ltd [2016] NZCA 67 at [93].

²¹ At [94].

²² At [98].

²³ At [94].

²⁴ At [94].

(c) state the issues the evidence of the expert witness addresses and that the evidence is within the expert’s area of expertise:

(d) state the facts and assumptions on which the opinions of the expert witness are based:

(e) state the reasons for the opinions given by the expert witness:

(f) specify any literature or other material used or relied on in support of the opinions expressed by the expert witness:

(g) describe any examinations, tests, or other investigations on which the expert witness has relied and identify, and give details of the qualifications of, any person who carried them out.

• [102] The sixth of these requirements anticipates that an expert will establish the reliability of his or her methodology by demonstrating that it is orthodox or otherwise accepted within a relevant community of experts. The Code refers to “any” literature or other material, so recognising that it will not be possible to reference such material in every case; some experts qualify by experience rather than training, and allowances must be made for innovation. In such cases reliability of methodology must be established by means appropriate to the circumstances. The important point for present purposes is that the Code should not be taken to mean that citing such material is optional. On the contrary, a court may think it essential where methodology is in issue and the material ought to exist.

• [76] The evidence of Mr Dravitzki does not comply with the Code, nor do I find it is substantially helpful. I consider this the case for all the following reasons.

• [77] First, Mr Dravitzki does not say he has read the Code and agrees to comply with it. He says he is “mindful” of certain requirements and “I refer to and confirm my understanding” of the Code. That falls short of what is required by the Code, which is an acknowledgment that the Code has been read and the evidence is given in compliance with it. While it might be argued this is an unduly pedantic approach, I disagree in circumstances where Mr Dravitzki’s evidence does not comply with the Code in obvious respects.

• [78] Second, one of several “limitations” contained in the reports is that they are prepared exclusively for Mr Fugle in accordance with a brief given to LDE or an “agreed scope”. The reports also state that the “[i]nformation, opinions, and recommendations contained within this report can only be used for the purposes with which it was intended”. Neither the brief nor the agreed scope referred to is disclosed.

The existence of such limitations has no place in an expert’s evidence. An expert’s evidence is not given “exclusively” for the person who engages them but to assist the Court.

• [79] Third, while Mr Dravitzki confirms he completed/prepared the reports, that does not appear to be correct. Both reports are signed by and stated to be prepared by a Michael Davidson. The first report was originally an exhibit to Mr Fugle’s first affidavit and he said both Mr Davidson and Mr Dravitzki would confirm its accuracy. Mr Davidson has never done so.

• [80] As Mr Davidson, and not Mr Dravitzki, appears to have been the writer of the reports that brings Mr Davidson’s compliance with the Code and his qualifications, expertise and experience in issue. There is no evidence about any of those matters, apart from the statement under his signature that he is an engineering geologist. That would be insufficient to qualify him as an expert for the purposes of the Code even if he had sworn an affidavit.

• [81] Mr Dravitzki does not acknowledge Mr Davidson’s role in preparing the reports. There is also no evidence of what his review of the reports entailed or of the standards applying to such reviews. The reports refer to them having been prepared in accordance with “current standards, codes and best practice” without identifying what they are.

• [82] Fourth, the first report states that LDE was asked by Mr Fugle to “assess the existing engineered fill placed on site and potential stormwater damage to the fill material from excess stormwater run-off”. That LDE report refers to “[o]ur previous detailed testing and assessment of the existing fill” and “[o]ur observations at the site and detailed assessment” without providing those assessments and observations, or an explanation of what methods or standards were applied or how the assessments and observations supported the reports’ conclusions. The conclusions themselves are merely bullet points. There is therefore insufficient information to establish the reliability of the findings in the reports.
• [83] Fifth, while Mr Dravitzki says he is familiar and experienced “in these areas of analysis and research”, it is not clear what areas he is referring to. Certain observations and conclusions contained in the reports do not appear to fall within the expertise of a geologist but would, to my mind, require expertise in civil engineering or groundwater hydrology. I include in this the statements that an increase of concentrated run-off was likely to have occurred from impervious areas of the neighbouring subdivision and that scour damage is the result of stormwater being discharged onto the Woodgate land. Not only is it not clear to me that Mr Dravitzki (or Mr Davidson) is qualified to make such assessments, there is also nothing in the reports identifying on what those or other conclusions are based.

• [84] Sixth, I note the highly conditional nature of the conclusions in the reports. There are conclusions such as “[a]n increase of concentrated stormwater run-off is likely to have occurred due to the collection of the stormwater from all the impervious areas of the neighbouring subdivision” and that “[i]t is probable that the scour damage has been predominantly caused from the stormwater being discharged into the site” (emphasis added). These statements beg responses “how likely?” and “how probable?”. There is no way to answer these questions given the lack of analysis in the reports.

• [85] The language used may reflect LDE’s lack of knowledge of the site and the circumstances and events that have given rise to this litigation. LDE had not been involved in previous work on the site and “[s]pecific dates of chronological events are unknown or limited”. The first report notes also that it does not constitute a full review of the sequence of events or capacity of the stormwater systems in play for which special civil engineering reviews would be required.

• [86] The fact the reports make no reference to the Code, the lack of any analysis, and the nature of the disclaimers reflecting the commercial relationship between LDE and Mr Fugle suggests they were prepared for Mr Fugle’s purposes alone, not intending that they would be produced as evidence in a court proceeding. The practice of attaching such documents to an affidavit and advancing that as expert opinion evidence is unsatisfactory. The standards required of an expert witness are exacting

and the approach taken here does not have the degree of rigour or discipline required to meet those standards.

• [87] The only other evidence upon which Woodgate relies is given by Mr Fugle. Mr Fugle refers to ponding on the land, particularly during late 2023/early 2024 when attempts were made to evacuate the stormwater detention pond. There is a dispute as to if and when the stormwater detention pond was established, by whom and what effect that it has played in causing ponding and other damage to the Woodgate land. It is far from clear to me that the Council could be said to have caused ponding on the Woodgate land if it would not have occurred but for the construction on the Woodgate land of what is effectively a dam.

• [88] In relation to the erosion, scour and sediment outflow, Mr Fugle says that after Woodgate obtained resource consent to undertake preparatory earthworks, gorse and overgrowth was removed which revealed significantly concealed ruts and erosion, the extent of which he cannot quantify. He believes this damage was the result of the Monaco Grove stormwater infrastructure. He goes on to describe the work that has been done to remediate the land and costs associated with that.

• [89] While Mr Fugle appears to believe that the Council will be responsible for the costs of this work, it is difficult to see how this could be the case. There is no evidence as to when this damage is said to have occurred. It would appear most likely that it occurred in the lengthy period that the land stood idle under ACL/FH4’s ownership, during which period it settled its claim with PNIRD and the Council in respect to the stormwater discharge. In light of the terms of that settlement, FH4 could not say the continued stormwater discharge was a nuisance and Woodgate cannot claim for damage that occurred to the land prior to its ownership.

• [90] It has not been shown, in my view, that erosion and scour damage has occurred due to stormwater discharge or from other causes. The Council says, and there appears reason to believe, that the damage has occurred as a result of the poor development history of the site, reflected in the enforcement proceedings taken by the Council against Mr Fugle and the companies with which he was associated. There is also evidence that to the extent there has been any recent damage that may have been

caused by a cut being made in the stormwater detention pond. On the evidence it is unclear how or by whom that cut was made.

• [91] Further, it is arguable in my view that the doctrine of natural servitude applies. The Woodgate land and the land upon which the Council’s stormwater infrastructure is contained are contiguous, with the Woodgate land being the lower land. The Johnstone Drive Gully was one of several deep gullies that provided drainage for stormwater flowing south to north over the PNIRD land and then the Woodgate land. With the development of the PNIRD land the stormwater was collected and discharged from the Monaco Grove pipe into pre-existing natural watercourses in the Johnstone Drive Gully.²⁵

• [92] Woodgate argues that natural servitude does not apply because urbanisation and hard sealing have resulted in different or increased flow of water causing damage. As I have noted, the difficulty with that submission is the absence of admissible evidence to support it. Similarly, Woodgate submits that the relocation of the Monaco Grove pipe means there is a new pathing/outflow which can be in no way commensurate with the natural water collection and flow previously occurring. To advance that submission I would again expect Woodgate to have provided some expert evidence to support it but it has not.

• [93] In short, the Council is correct that whether the discharge of stormwater onto the Woodgate land is a nuisance is essentially a factual enquiry, requiring findings by the Court on matters that are genuinely disputed and, with the very limited evidence before me, are not amenable to resolution on this summary judgment application.

Defences

• [94] Given my conclusion it is unnecessary to deal with the positive defences the Council says it will rely upon should Woodgate otherwise establish the stormwater discharge is a nuisance, but for completeness I will say something about them.

²⁵ See Re Manawatū-Wanganui Regional Council, above n 1, at [28].

Implied consent

• [95] Consent is available as a defence to nuisance. The Council says that Woodgate consented to the nuisance because, as part of its application for resource consent to complete the earthworks, it offered a condition to collect stormwater on the southern boundary and manage it via the CWD.

• [96] The Council relies upon Lyttelton Times Co Ltd v Warners Ltd, where the parties had entered into an agreement whereby the appellant’s printing premises were to be rebuilt and the respondent was to lease the upper floors for use as extra bedrooms for their hotel.²⁶ The respondent sued for nuisance due to vibrations from the printing press which caused discomfort to hotel guests. The claim was dismissed as both parties had contemplated that the appellant would continue its normal printing operations, and the respondent had therefore impliedly consented to any interference that might be created by that activity.

• [97] Lyttelton Times Co Ltd v Warners Ltd is a very different case from this one. Here the Council and Woodgate have not entered into an agreement from which a common intention can be implied. It appears that Woodgate understood that the Council would require as a condition of granting it consent for earthworks that it manage the stormwater, and its offer to do so cannot be taken as an intention to forgo its rights to complain about what it considers is a nuisance. This must be particularly so when Woodgate’s application noted that the matter was the subject of legal action between Woodgate and the Council, and the CWD was not a permanent solution and would be addressed in a subsequent application for resource consent for the retirement village.

Ex turpi causa

• [98] The Council relies on the ex turpi causa principle and intends to argue that remedies in nuisance should not be available to Woodgate because of the breach by PFL of the terms of its resource consent requiring it to collect the stormwater discharge, the failure of ACL to perform the settlement agreement, the various

²⁶ Lyttelton Times Co Ltd v Warners Ltd (1907) NZPCC 470, [1907] AC 476 (PC).

enforcement orders in respect to the development that were ignored, that the earthworks on the Woodgate land were abandoned, and that the latest consent issued to Woodgate requires it to manage the stormwater.

• [99] The Council relies upon Brown v Dunsmuir, where Penlington J dismissed an appeal from the District Court on the basis that it would be an affront to the public conscience if a landowner or developer who ignored bylaws and illegally excavated and encroached on a neighbour’s land could obtain judgment for trespass to land against a neighbour placing soil on the developer’s land as a protective measure.²⁷ The Judge considered that to grant the plaintiff a remedy for nuisance would make a mockery of a local authority’s right to control excavation work within its territory.²⁸

• [100] The common element in all of the matters relied upon by the Council is Mr Fugle. It is undoubtedly the case that the stormwater discharge would not be in issue had companies which Mr Fugle owned, controlled or was closely associated with in respect to the development of the Woodgate land complied with the terms of resource consent conditions or the settlement agreement. It may also be the case that if damage is presently occurring to the Woodgate land that it has been caused, or at least substantially contributed to, by those companies and Mr Fugle through the construction of the stormwater detention pond and the failure to undertake earthworks in accordance with the terms of consent and/or to comply with enforcement orders. It is easy to see why the Council says it would be unconscionable in those circumstances for Woodgate, a company wholly owned by Mr Fugle, to be successful on its claim.

• [101] The limits of the ex turpi causa principle are unclear and the law is in a state of development in this country. It was considered in Leason v Attorney General,²⁹ where the Court of Appeal referred to Euro-Diam Ltd v Bathurst wherein Kerr LJ in the English Court of Appeal said:³⁰

The ex turpi causa defence ultimately rests on a principle of public policy that the courts will not assist a plaintiff who has been guilty of illegal (or immoral) conduct of which the courts should take notice. It applies if in all the circumstances it would be an affront to the public conscience to grant the

²⁷ Brown v Dunsmuir [1994] NZHC 2033; [1994] 3 NZLR 485 (HC).

²⁸ At 492.

²⁹ Leason v Attorney General [2013] NZCA 509, [2014] 2 NZLR 224.

³⁰ Euro-Diam Ltd v Bathurst [1990] 1 QB 1 (CA) at 35.

plaintiff the relief which he seeks because the court would thereby appear to assist or encourage the plaintiff in his illegal conduct or to encourage others in similar acts ...

• [102] The Court of Appeal in Leason noted that no single formulation of the correct test to apply had emerged, and identified three different expressions of the principle referred to as the reliance test, the conscience approach and a causation approach.³¹ It also noted that the courts will not, on the basis of the ex turpi causa defence, refuse to enforce the rights of an owner of property where the claim rests solely on ownership.³²

• [103] There have, however, been several recent decisions of the Supreme Court of the United Kingdom on the matter.³³ Drawing on those authorities, the authors of Todd on Torts suggest that the ex turpi causa principle is founded in the need for decisions in civil proceedings to be consistent with those in criminal proceedings.³⁴ The authors considered the principle a rule of law and not simply a matter for the exercise of judicial discretion, and suggested it requires the court to consider two key questions. Those were, first, whether the civil claim being advanced was inconsistent with the criminal law in such a way that allowing the claim would undermine the integrity of the legal system and, second, even if not inconsistent, is the turpitude involved in the plaintiff’s conduct such that the grant of relief by a court would be contrary to the public interest as opposed to the private interests of the parties.³⁵

• [104] It has been held that where a summary judgment application concerns a developing area of the law that may be a reason to send the case to trial.³⁶ That said, the Council faces considerable hurdles in advancing this defence. It relies on conduct of persons/entities that occurred prior to Woodgate being incorporated and acquiring the land. Counsel did not explain the legal basis for attributing that conduct to Woodgate. Further, Woodgate does not rely on any illegal conduct of its own to establish its claim, nor could it be said that any illegal act by it was an effective cause of its loss. Woodgate’s argument that the principle cannot be raised to defeat its claim

³¹ Leason v Attorney-General, above n 29, at [115].

³² At [125].

³³ Hounga v Allen [2014] UKSC 47, [2014] 1 WLR 2889; Les Laboratoires Servier v Apotex Inc

[2014] UKSC 55, [2015] 1 AC 430; Patel v Mirza [2016] UKSC 42, [2017] AC 467.
³⁴ Stephen Todd and others Todd on Torts (9^th ed, Thomson Reuters, Wellington) at [20.7.8].

³⁵ At [20.7.8].

36. Westpac Banking Corp v MM Kembla New Zealand Ltd [2000] NZCA 319; [2001] 2 NZLR 298, (2000) 14 PRNZ 631 (CA).

when it seeks to enforce rights of ownership of property appears consistent with the view of the Court of Appeal in Leason.³⁷ Had it been necessary for me to decide the matter, I would have found Leason was binding upon me and that this was not an arguable defence to the claim.

The change of use defence

• [105] This defence is based on an assertion that the alleged nuisance arises only because of Woodgate’s intention to change the use of the land to construct a retirement village. I do not see that Woodgate’s claim is dependent upon it establishing any particular use of the land. It says that the fact the stormwater discharge is causing material physical damage is sufficient, irrespective of what use it may in the future wish to put the land.³⁸

Result

• [106] The application for summary judgment is dismissed.

• [107] It is usual, but not inevitable, in such cases for costs to be reserved. I will reserve costs, but should either party consider that costs should be awarded and paid at this juncture then they may file a memorandum seeking a ruling within 21 days with 14 days for any reply. All memoranda should be limited to six pages.

• [108] The case is to be allocated a telephone case management conference with an Associate Judge within the next four weeks. Counsel shall confer and are to file a preferably joint memorandum of timetable directions that are sought to take the case to trial.

O G Paulsen Associate Judge

Solicitors:

Dewhirst Law, Palmerston North

Cooper Rapley Lawyers, Palmerston North

³⁷ Leason v Attorney-General, above n 29.

³⁸ Lawrence v Fen Tigers Ltd, above n 15, at [55]–[56].