In 1998 a severe storm hit the Kapiti Coast and there was widespread flooding in the township of Paraparaumu. A number of commercial property owners sued the Kapiti Coast District Council alleging that the direct cause of flooding to their land was an undersized culvert that the Council had built many years before. The claim was brought under the separate (but often hard to distinguish) heads of 'nuisance' and 'negligence'. The High Court held that the Council was not liable, Atlas Properties & Others v Kapiti Coast District Council. Though the Council had known that the culvert was undersized and presented a risk, it had programmed a replacement (which unfortunately had not been constructed before the flood) and that is all, in the circumstances, that it was reasonably required to do.

The decision is interesting in a number of respects, including a discussion of the relationships between and common elements of 'nuisance' and 'negligence' actions, the dismissal of a number of statutory defences raised by the Council, and the search for a standard of 'reasonableness' to apply to a local authority in these situations.

The High Court's decision has been appealed, and if it is upheld on appeal, may well represent New Zealand taking a different path from the more traditional English approach identified in a number of recent decisions of the English Court of Appeal (including Wandsworth LBC v Railtrack, and Marcic v Thames Water).

This is a general summary only and should not be taken as a substitute for specific advice.

For further information please contact Chris Mitchell, partner
chris.mitchell@phillipsfox.com

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