Weak retaining walls no defence to subsidence claim

In the recent High Court decision of Cattell v Auckland Council [2017] NZHC 2140, the High Court applied the principles of the tort of nuisance to a case where Council excavations on a reserve caused significant cracks to the driveway of a neighbouring property.

The case concerned earthworks carried out in 1996 by the North Shore District Council (now Auckland Council) on the Downing Street Reserve. The Council excavated soil on the boundary to the property owned by Mr and Mrs Cattell, which resulted in a steeper slope up to their property.

After noticing movements on their land and cracks in both the turning area of their driveway and in their garage, the Cattells issued proceedings claiming that, among other things, the Council is liable in nuisance for removing the support from their land. The Cattells sought damages and a court order to compel the Council to restore support to their property.

Clement Cattell says the crack first appeared in 2006 and has been growing.

A number of interesting issues were explored in the case, including:

  • the impact of ground creep and natural causes;
  • limitation periods in subsidence claims; and
  • duties of care to exercise reasonable care and skill and duties to abate hazards in subsidence claims

The Court relied on evidence from geotechnical experts, who were all of the view that the risk of instability increases as the slope becomes steeper. By increasing the angle of the slope, the Council had contributed in a material way to the movement of the land and the cracking on the driveway. The Court concluded that the land would not have moved to nearly the same extent if the Council works had not been carried out.The Council sought to reduce their liability by claiming that the Cattells’ retaining wall was inadequate. The Court found that even though it was, it did not affect the Council’s liability as the legal threshold for a nuisance claim is strict; a landowner who removes support from a neighbour’s land cannot rely on shortcomings in the structures erected on that land.

Landowners carrying out works on their property must be careful to ensure that their works do not remove the support from neighbouring properties. If the neighbouring land subsides, the landowner who removed the support will need to front the costs of restoring the integrity of the neighbouring land, even if the neighbour’s retaining wall is not fit for purpose.


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