New Zealand Law Society - Courts roundup 2 February - 8 February 2023

Courts roundup 2 February - 8 February 2023

Decisions, proceedings and news from the courts in some common law jurisdictions in the past week.

Coat of arms

New Zealand High Court

Negligence, breach of statutory duty, negligent misstatement

Buchanan and ors v Tasman District Council [2023] NZHC 53 (1 February 2023) Palmer J

Successful negligence and negligent misstatement claims – Tasman District Council liable in negligence and negligent misstatement for pool inspection – Negligent inspection deprived pool owners, B, of opportunity to sue Council for negligently issuing code compliance certificate, because that claim became time barred – Breach of statutory duty claim dismissed – Claim based on another pool inspection time barred – B awarded damages of some $270,000 including $25,000 general damages, plus interest and costs – Also, declaration regarding Council negligence.

Sentencing, murder, sexual abduction, breaching release conditions

R v Brider [2023] NZHC 56 (1 February 2023) Eaton J

Sentencing – B pleaded guilty to charges of murder, sexual abduction, and breaching release conditions – Victim B’s neighbour – B broke into victim's house in early morning while she was sleeping – Bound and assaulted victim before stabbing her to death – B sentenced to life imprisonment – Section 104(1) Sentencing Act 2002 engaged – Aggravating factors premeditation, in course of committing another serious offence, high brutality level, cruelty, depravity or callousness, unlawful entry into abode, victim vulnerability, loss caused, previous offending – Starting MPI 23 years' imprisonment – Uplift 18 months for previous convictions – 18 months’ reduction reflecting delayed guilty plea in face of overwhelming evidence – Preventive detention on charge of abduction for purpose of sexual connection – B high risk of causing serious harm to community – Twelve months' imprisonment for breach of release conditions – All sentences concurrent.

Orders following submissions

Ngāti Whātua Orākei Trust v Attorney-General [2023] NZHC 74 (3 February 2023) Palmer J

Substantive judgment issued April 2022 – This judgment considered submissions on possible declarations – The Court made declarations:

(a) Ngāti Whātua Ōrākei currently have ahi kā and mana whenua in relation to the area identified in Map 1 of the substantive judgment of 28 April 2022 in central Tāmaki Makaurau, with all the obligations at tikanga that go with that, according to the tikanga and historical tribal narrative and tradition of Ngāti Whātua Ōrākei.

(b) The tikanga and historical tribal narratives and traditions of Marutūāhu Rōpū (other than Ngāti Pāoa), Ngāi Tai ki Tāmaki, and Te Ākitai Waiohua do not currently recognise that Ngāti Whātua Ōrākei have ahi kā and mana whenua, as those concepts are conceived of by Ngāti Whātua Ōrākei, in relation to the area identified in Map 1 of the judgment of 28 April 2022 in central Tāmaki Makaurau.

No declarations about legal obligations of Crown and iwi and hapū regarding tikanga in context of Treaty of Waitangi settlements – Substantive judgment speaks for itself in that regard.

United Kingdom Supreme Court

Nuisance, viewing platform, Tate Modern

Fearn and others v Board of Trustees of the Tate Gallery [2023] UKSC 4 (1 February 2023)

Successful appeal from CA – Tate Modern (Tate), London art gallery, opened extension in 2016 called Blavatnik Building – Building ten stories high – On top floor, had viewing platform which offered panoramic views of London –

Claimants owned flats in block neighbouring Tate at similar height above ground as viewing platform with mainly glass walls – On viewing platform south side visitors could see directly into claimants' flats –

At trial time, viewing platform open every day of the week and visited by estimated 500,000-600,000 people each year – Trial judge found very significant number of visitors displayed interest in interiors of claimants' flats – Some looked, some peered, some photographed, some waved – Occasionally binoculars used – Many photographs posted online –

Claimants sought injunction requiring Tate to prevent visitors from viewing their flats from viewing platform, or alternatively, damages – Their claim is based on common law nuisance –

HC dismissed claims and, for different reasons, CA also dismissed – Claimants appealed to SC –

SC majority allowed appeal – Said nuisance use of land which wrongfully interfered with ordinary use and enjoyment of neighbouring land – Interference had to be substantial, judged by ordinary person standards – Even where substantial interference, defendant not be liable if doing no more than making common and ordinary use of its own land – What constituted ordinary land use judged having regard to locality character e.g. whether residential or industrial area –

No answer to nuisance claim that defendant using land reasonably or in way that is beneficial to public – When deciding whether one person's use of land has infringed another's rights, public utility of conflicting uses not relevant – Benefit of land use to wider community might be considered in deciding what remedy to grant and might justify awarding damages rather than injunction, but did not justify denying victim any remedy at all –

Applying law here, SC said trial judge found claimants' flats under near constant observation by viewing platform visitors – Hundreds of thousands of spectators each year and many took photographs and posted them on social media – Ordinary person would consider this level of intrusion to be substantial interference with ordinary use and enjoyment of their home –

By contrast, public to admire view from viewing platform not common and ordinary use of Tate's land, even in context of operating art museum in built-up area of south London – Tate liable to claimants in nuisance – Court heard no argument on appropriate remedy and remitted case to HC to decide this question –

SC said trial judge reached wrong conclusion through three errors of law:

  1. Judge applied wrong test asking whether, in operating viewing platform, Tate made 'unreasonable' use of its land, instead of asking whether common and ordinary use –
  2. Judge considered claimants exposed themselves to visual intrusion into their homes by choosing to live in flats with glass walls – Was correct that, if Tate making ordinary use of its land, claimants could not have complained about any visual intrusion resulting from flat design of their flats – But where, as here, defendant using land in abnormal and unexpected way, no answer to nuisance claim to say claimant would not have suffered nuisance if their property had been of different design or construction –
  3. Judge also said reasonable to expect claimants to take measures to avoid being seen from viewing platform, such as putting up blinds or net curtains – Wrongly placed responsibility on victim to avoid consequences of defendant's abnormal use of their land –

SC said CA recognised that judge had made these errors but decided that claim nevertheless failed because "mere overlooking" could not give rise to liability for nuisance – SC said true that person could not complain of nuisance because their flat overlooked by another building or because people on top floor of that building could look into their homes and see inside – However, not complaint here – Claimants' complaint that Tate invited public to look out from viewing platform from which they could, and many did, peer into claimants' flats and allowed activity to continue without interruption for most of the day every day of the week – SC said no reason why constant visual intrusion of this kind could not give rise to nuisance liability and, on facts trial judge found, did here – Appeal allowed.

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