While the recently released decision does not name the neighbours or city in which they lived, it said it was undisputed that their area suffered severe weather events last year.
“The events led to widespread flooding with drains unable to cope with the volume of water, and the ground being saturated.
“The question for the tribunal therefore is whether the flooding experienced by [Sarah] was a result of scoria and debris escaping from [Mark’s] property, or ‘an act of god’ following the extreme weather events.”
The tribunal’s decision noted Sarah provided photos to support her claim and a report from the drainlaying company.
Concerning the January flood, none of the evidence suggested the drains were blocked by debris from Mark’s property or that it was the result of his “unnatural use of his land”.
But the drainlayer reported that following the June flood, they observed a large amount of hardened concrete slurry, which they believed came from Mark’s property and the works being undertaken there.
Mark accepted the pile of scoria on his property may have contributed to the problem as it had not been contained.
According to the decision, a person may be liable for losses incurred by a neighbour if that person has caused or allowed something harmful to escape their property which causes damage to their neighbour’s property, and interferes with enjoyment of their land.
“It is not a defence that precautions were taken, merely that harm was foreseeable and damage caused. The neighbour must however accept the natural flow of water from a higher landowner.”
The tribunal stated in its decision that given Sarah’s property was subject to flooding on three occasions, her drains may not be capable of coping with the volume of water such weather events produce, particularly when the ground is saturated.
“The evidence however indicates scoria and debris from [Mark’s] property was likely to be a factor in the June flood.”
But the tribunal found other factors may have also contributed.
Mark pointed out a dip in which Sarah’s house sat, thereby getting runoff from other directions, and a shared driveway with gardens containing scoria.
The tribunal found that given other factors may have also been at play, it was unreasonable to find Mark wholly liable for the losses claimed.
It ruled the cost of the drainlayer should be paid by Mark but not the loss of Sarah’s income.
However, Mark offered to pay her for one day of lost pay.
Accordingly, the tribunal ordered he pay $493.22 to cover the drainlayer’s costs and half the amount claimed for lost income.
*Names given for copy-flow purposes
Tara Shaskey joined NZME in 2022 as a news director and Open Justice reporter. She has been a reporter since 2014 and previously worked at Stuff covering crime and justice, arts and entertainment, and Māori issues.
