Mount Maunganui Presentation 28th June 2022

Hi everyone

It’s a pleasure to be here today, it’s certainly an incredibly exciting time for the club. As Mike mentioned, my name is Hana-Rae, I am currently the legal counsel at Golf New Zealand, previously at SG and IMG in London before that.

I am very aware having the lawyer talk is not the most exciting part of anything ever so I won’t take up too much for your time however, there is some important information I would like to share with you tonight.

I feel very privileged to be able to work in golf and the legal space and through that, I am often asked what the key areas of concerns I have in the industry. Currently there are two key concerns that keep me up at night:

1. Being Council’s trying to steal golf land which fortunately this club doesn’t need to worry about

2. Secondly, there is boundary issues that golf courses are having across the country. I am frequently talking to clubs around the responsibility and corresponding liability that golf clubs and facilities may have when it comes to golf balls crossing boundaries into properties or roads and how best to manage that risk.

This issue is extremely serious and increasingly prevalent. We are aware of over 50 clubs currently dealing with boundary issues. But we are also aware there are many more that are either dealing with it internally or have neighbours who have not yet made claims or complaints. This is incredibly serious; a big risk for golf clubs and the issues are only growing. We are seeing significant volumes of litigation out of Australia and the UK, and the pattern is following into New Zealand.

These clubs that are having issues and I will talk about some further examples shortly but they are having serious consequences for the club such as having to move or re build tee boxes, reshape fairways, change the planting or close certain holes or sections of the golf club. I can’t stress enough the increasing seriousness of this issue. There has been New Zealand case law where the courts have granted injunctions requiring golf clubs to cease operating permanently.

So, just to provide some further context around this by way of potential sources of liability.

There are three primary sources; private nuisance, negligence and the RMA. We are not going to go into the Resource Management Act (RMA) tonight.

Private nuisance is an unreasonable interference with somebody else’s use or enjoyment of their land. Physical damage is not necessary for a nuisance claim, it doesn’t have to break windows, or hit garages – it would be enough that there might be an inability to sit or use a garden for fear of being struck by a ball.

Nuisance is most likely to arise when there is frequent, intense, and repeated interference. Once a club becomes aware, or ought to be aware and fails to stop it continuing or reoccurring, then it becomes liable for it if a complaint is made. I am sure there are many of us here tonight that have hit an errant golf ball or two from the driving range or the 7th, 8th, 10th or 15th at the Mount. This golf club knows this is an issue and it now has a duty to stop it reoccurring.
It is worth noting that an isolated errant golf ball is unlikely to be an actionable nuisance however, in hot spots of the golf courses where buckets of balls are collected monthly – this is a major risk to the club.

The most common remedy is an injunction stopping the activity causing the interference and we have live examples in New Zealand where courses or holes have been shut due to golf balls leaving the property. Chamberlain Park in Auckland currently has three holes shut due to golf balls leaving the property. Remuera Golf Course is having to play one of their par 3s from an artificial practice matt over a small distance to stop golf balls entering neighbouring property.

The other source of liability is Negligence. This results from a breach of a club’s duty of care to the complainant. It is harder to establish than nuisance and more likely to be claimed as a one-off incident.

Again, injunctions are common as are awards of damages.

Now just to briefly look at defences for the golf club.

Certainly, the largest argument is that any interference is not unreasonable so anything that the club can do to reduce frequency, duration and severity of the damage or interference is incredibly important.

A potentially unpopular statement but the legal reality is that it is not a defense to nuisance that a claimant has knowingly moved near to a golf course. It is not a defense that someone knew that there was inherent risk in living close to a course. This is not an argument that the club could use against a claim.

Nor is it a defense that a club has tried to limit or mitigate the nuisance if the steps taken have not been sufficiently effective. For example, building a boundary fence will not assist a club if the fence does not materially reduce the number of balls landing in someone else’s property. Clubs need to make bold and effective decisions when it comes to defending nuisance or negligence claims.

Now for negligence: the main defense is either that a duty of care does not exist in the first place or that it has not been breached. So relevant factors as to the existence of a duty include whether the incident causing damage and the damage itself were foreseeable to the club. Given the large number of hot spots around the Mount in particular, the club would be extremely hard pressed to argue that damage is not foreseeable. What becomes important is the extent to which a club took measures to avoid the incident or damage will be relevant to breach.

On that note and finally – looking Mitigation and Elimination

Nuisance and negligence: If a risk is identified, depending on the extent of the risk, clubs should take steps to eliminate it.

Now I’ve briefly touched on some examples of what this could include erecting fences, planting on boundaries, installing nets, re- designing or re-situating holes. Other clubs such as Manawatu, North Shore, Remuera, and Titirangi are all in the process of changing and adapting holes to reduce their risk of legal claim. The extent to which such measures will reduce potential liability depends on how effective they are.

Redesigning High risk parts of the course is an extremely positive pro-active option to divert balls away from the direction of neighbouring properties.

A worst-case scenario but very real possibility is that a course is required to close until the problem is rectified or that certain holes must close. Taking a proactive approach instead of being forced into remedial measures is something that Golf New Zealand could not support more strongly to ultimately benefit everyone here and all the other members so you can continue enjoying playing your golf