Frustrated after two decades fruitless discussions with Auckland Council over stormwater management surrounding his Murrays Bay home, Brett Tiller sued for trespass after he was flooded out by the city’s January 2023 storm deluge.
The tort of trespass does not just require proof a person physically intruded on your land, it includes circumstances when a person causes some other person or thing to intrude.
Mr Tiller argued Council’s actions had caused extensive flooding which inundated the basement and ground floor of his home. Repairs covered by insurance cost $341,000. It was nearly a year before he could return to live at his Montana Avenue property.
He sued Auckland Council, claiming $10.3 million damages. This figure included a claim for mesne rental: legal jargon for rentals due following unlawful occupation of land.
High Court argument centred on Auckland Council responsibility for local storm water management.
The court was told Mr Tiller’s property included what was historically a ‘seasonal swamp,’ holding run-off during wet periods. As the surrounding area was progressively subdivided, this area continued as a natural watercourse carrying away water from higher ground.
Mr Tiller argued Council had exacerbated the amount of water flowing through this watercourse; both by redirecting upstream stormwater water flows towards his property and by construction of an inadequate culvert downstream, causing water to back-up onto his property during heavy rain.
The general rule is that property owners have to accept surface water which drains naturally from higher ground; lower land is described as subject to ‘natural servitude.’
But natural servitude does not include so-called ‘foreign water;’ water that has been accumulated or diverted by owners of higher ground.
Justice Gordon ruled there was no evidence before the court that Council’s stormwater network had caused more water to flood the natural watercourse on Mr Tiller’s property than would have occurred in any event.
The claim for trespass was dismissed.
Mr Tiller told the court he had no intention of joining the buy-out scheme currently on offer to at-risk flood damaged properties in Auckland. Justice Gordon suggested he reconsider.
The Montana Avenue property is eligible.
Tiller v. Auckland Council – High Court (18.07.24)
24.176