Basic rules about landslips

Landslips aren’t a new phenomenon in New Zealand. But there have been catastrophic numbers of landslides in the past few weeks and they may become more common in the future.

Here are some basic legal rules concerning landslips:

1. No one is necessarily liable for natural disasters. There is no automatic presumption that the owner of the upslope land is liable to the owner of the downslope land.
2. If the upslope owner has caused/contributed to the slip, though, they could be liable in negligence, or negligent escape (“Rylands v Fletcher” liability). Earthworks, drainage ditches, clogged stormwater drains, removal of trees/stabilising plants etc could all potentially have caused a slip.
3. The surface run-off of rainwater after a landslip often leads to flooding downslope. Water flowing over slipped land often does so faster than pre-slip. Liability for downslope flooding follows the same rules as in points 1 and 2 above. There could be liability in the tort of nuisance if the problem is ongoing.
4. There is no general duty for owners of upslope land to act for the benefit of downslope land. Especially when identifying a risk of future landslips. However, liability has arisen where a landowner knew of a hazard to its neighbours but did not act. When a hazard to neighbours is known to a landowner, they have to act as is reasonable in their individual circumstances: Goldman v Hargrave [1967] 1 AC 645 (PC) at [48].
5. Councils are entitled to take cost and public benefit into account when assessing landslip prevention or response. J L Tindall v Far North District Council HC Auckland CIV-2003-488-135, 20 October 2006 at [226]-[227].
6. Toka Tū Ake/EQC insures residential houses and some land against landslips. It also covers imminent landslips (i.e. where they have not yet occurred but will do soon). Lodging a claim early is often a good idea.

As with most legal topics, these basic rules all have exceptions and limits and much will depend on individual circumstances. Get legal advice before acting if you’re unsure what to do, or if you’re in a dispute with a neighbour over a landslip.