Our German Desk
Persistent heavy rainfall across the country often results in damage to property due to flooding caused by overland flow paths and defective drainage. But who is responsible for the cost of the damage? This article outlines the key considerations of liability when flooding occurs.
Overland flow paths
An overland flow path is the route that water flows over land where there is insufficient drainage to deal with the increased rainwater. In heavy rainfall events these paths often turn into rapidly flowing streams and rivers. When there is nowhere for the water to drain, due to damaged or insufficient drainage infrastructure, floods occur which can cause damage to property and buildings.
Liability for flowing water
When water flows from one property onto another causing damage, questions are raised as to who is liable for the costs of those damages. The general legal rule for assessing liability in circumstances such as this is ‘natural servitude’. This means that a property that is located on lower ground must accept the water that naturally flows onto their land from higher ground, as this is the natural flow of the water.
However, there are limitations. If the landowner of the property on the higher ground makes alterations to their property that increases the flow of water to the property on lower ground, then the higher landowner may be responsible for damages. For example, a retaining wall that obstructs a flow path could increase the flow of water onto a lower property. This situation is not likely to be considered natural servitude, and the higher landowner would be liable for any damage.
There is also a limitation for water that has been brought onto land, or “foreign water”. Foreign water is not permitted to be discharged onto a lower landowner’s land. For example, a water tank or dam may be considered foreign water as this is permitting water to be retained on the land that was not there before. If the water escapes onto another property, then this is unlikely to be considered natural servitude.
Avoiding damage
To avoid damage to your property or someone else’s, it is important to know if there are overland flow paths within or near your property. District and Regional Councils often have online maps which can be used to find where overland flow paths are, in respect of your property (the Auckland Council map can be found here).
If you are intending to develop then it is best to avoid building on or near an overland flow path. A failure to assess the implications of any work you carry out on your property could lead to your liability in the event a neighbouring property is damaged by flooding.
If an existing dwelling or structure on your property is built on an overland flow path, then it is worth considering if this has an impact on the flow of water. If so, you may wish to alter the current infrastructure to assist with drainage to avoid a potential claim. We suggest you engage expert advice when doing so to avoid unnaturally increasing the flow of water.
Drainage easements
Damage can also occur when properties flood due to poor maintenance of easement facilities. With drainage facilities being blocked, damaged or overflowing, questions are raised as to who is responsible for the repair costs due to a failure to maintain these drainage facilities. The answer varies as every easement is different, but the following is an overview of easements generally.
What is an easement?
An easement grants a right to an adjoining landowner or in gross to a party who does not own the adjoining land (for example, a council drainage right), to use another landowner’s property for a specific purpose. These rights can either benefit a property (allowing you to use another property) or burden a property (allowing another to use your property). For example, an easement that conveys the benefit of a ‘right to drain stormwater’ allows a party to drain stormwater across another party’s land. Usually, these rights cannot be interfered with and allow the benefited party to go on to the burdened land as is reasonably necessary to establish, maintain, and repair the easement facility.
Maintenance
Each easement is different and the obligations to maintain and repair will vary. However, many easements imply the rights and powers contained within the Land Transfer Regulations 2018 (LTR). The responsibility to maintain and repair an easement facility under the LTR is shared equally by those who use the easement. For example, if two parties share the use of a stormwater drain then the costs would be in equal half shares. It is important to note that this is not the case for all easements, and liability for costs can change from easement to easement. If one party causes damage to the easement facility due to a willful or negligent act, then that party is often solely responsible for the costs of repair. Therefore, it is important to understand where any drains are within your land to avoid any damage when undertaking work.
The LTR also provides that if a party were to fail to meet their repair and maintenance obligations, then notice can be served to that party requiring them to undertake the necessary repairs within 10 working days. If, after 10 working days, the work has not been completed, the party who served the notice can enter the land, undertake the work and claim the costs for the repairs. In the event of a dispute, each party must try to resolve the dispute through mutual negotiation. If there is no resolution within 14 working days, then the matter can proceed to arbitration.
Conclusion
With numerous flooding events and constant heavy rain warnings, flooding appears to be an issue that is going to continue to plague all of New Zealand. Therefore, it is important to know where you stand when flooding damage occurs on your property. If you find yourself facing a claim, or want to claim against someone else, it is best to seek legal advice to assess your liability/claim.
If you have any questions about the damage due to flooding, please get in touch with our Property Team or your usual contact at Hesketh Henry.
Disclaimer: The information contained in this article is current at the date of publishing and is of a general nature. It should be used as a guide only and not as a substitute for obtaining legal advice. Specific legal advice should be sought where required.
