North Shore homeowner vs Auckland Council: $18m+ claim over flooding, stormwater issues

The homeowner brought his claims against the council in the High Court at Auckland.

A North Shore homeowner sued Auckland Council for more than $18 million over stormwater issues, claiming it had trespassed on his land by building an open watercourse, causing water to flow through his property when it would not do so naturally.

Brent Tiller, who owns a Montana Ave property in Murrays Bay, went to the High Court at Auckland over the water issues, initially asking $18m-plus but then reducing that to $10.3m plus interest and costs in closing submissions.

In a decision last Thursday, Justice Christine Gordon ruled he had claimed a “substantial sum” but had failed in two causes of action: a trespass claim and a breach of undertakings against the council.

“But that does not mean he is without a remedy,” the judge said of the property, which valuers said was worth $1.57m to $1.8m: $1.05m for the land and $750,000 in improvements at the highest amount.

Separate from the court proceedings is the buyout scheme the council is administering on behalf of the Crown and the council, after the floods last January, the judge said.

Tiller could accept a voluntary buyout from the council, she noted.

Even though he had confirmed he would not engage with the council, he “may wish to reflect on that position”, the judge noted.

The decision said the property was in a flood-prone area.

“There are notations on the Auckland Council GeoMaps, the Auckland Unitary Plan - the relevant framework under the Resource Management Act 1991 - and a Linz [Land Information New Zealand] aerial map, all of which indicate that the property is flood prone,” the decision said.

Tiller bought the property in 1994 but his home flooded during the storms of last year’s Auckland Anniversary weekend.

The lower habitable floor of his home and the garage flooded. Then again last May, the land, but not the dwelling, was flooded.

His property was yellow-stickered by the council last January, preventing occupation and Tiller only got $341,000 from his insurer.

He could only return after 11 or 12 months.

He claimed that last century the council had built a watercourse. The council’s use of the watercourse for stormwater runoff goes beyond the ordinary flow of stormwater runoff, he said.

In response, the council said there was a natural flow of stormwater in the watercourse, which did not constitute a trespass.

Tiller said that by not upsizing a culvert 80m downstream from his place, the council had deliberately diverted water via another culvert on to his property.

In response, the council said he had not provided any evidence that the culvert was responsible for his place flooding.

Tiller’s lawyer, Andrew Gilchrist, said the council had directly interfered with private land by constructing a drain through the property, which he alleged was trespass.

But Justice Gordon said there was no proof of that.

“There is no evidence as to who established the watercourse on the property or when that occurred. There is evidence that at one time the property was largely a seasonal swamp,” the judge said.

The watercourse was classified as open, which meant a natural or manmade open channel where water collects and flows.

From the evidence, it appeared the watercourse was built sometime between the 1940s and the late 1950s or the early 1960s. But importantly, there is no evidence about who established it or exactly when, the judge noted.

Tiller’s position in his evidence and under cross-examination was that the council must have built the watercourse because it had historical available powers that would have enabled it to do so.

“But the court cannot infer, in the absence of any supporting evidence, simply because there were statutory powers available, that the council must have constructed the watercourse,” the judge wrote.

The judge dismissed his claims, said the council was entitled to costs in the case and referred to the buyout provisions for flood-affected homeowners.

Anne Gibson has been the Herald’s property editor for 24 years, written books and covered property extensively here and overseas.