Bryan Easton Grimshaw & Co www.grimshaw.co.nz

A recent case from the Court of Appeal (Brouwers v Street [2010] NZCA 463) has reaffirmed a property owner's right to lateral support from adjoining properties. This decision will be of particular interest to rural property owners.

On 28 February 2004, during heavy rainfall, a large slope collapsed into a gully in rural Taranaki.

This landslip encroached on a neighbouring property where a dwelling was in the final stages of construction. As a result, the owners were unable to obtain a code of compliance certificate for the dwelling, until a retaining wall was built to the Council's satisfaction.The owners could not afford to do this, and later sold their property at a loss. They then sued their former neighbor alleging a breach of the common law right to lateral support relating to the neighbour's actions in constructing a drainage system on his land.

Central to this case was the allegation that the drainage system, comprising a drainage channel, and steel culvert and flume, had failed during the heavy rainfall and sluiced away the Brouwers' lateral support.

The High Court decided the plaintiff had failed to prove the landslip was caused by a failure of the drainage system. The Court of Appeal, after trawling through much expert evidence, came to a contrary conclusion. In doing so, it clarified that "there is no reason in principle to limit…liability to the act of deliberate excavation. The tort of removal of support is committed… when one property owner uses his or her land in a way that adversely affects the right of another to enjoy his or her own land." This overcame the argument that because there was no mechanical excavation, the defendant ought not be found liable.

This decision is a timely reminder that landowners ought to consider what effect, if any, the use of their own property may have on adjoining land owners.

Bryan Easton is an associate at law firm Grimshaw & Co where he specialises in building defect disputes including leaky building claims.

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Website: www.grimshaw.co.nz