Bailey v Christchurch City Council

[2013] NZHC 1486

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CIV-2013-409-001178 [2013] NZHC 1486

BETWEEN  ANDREW JOHN BAILEY Applicant

ANDCHRISTCHURCH CITY COUNCIL Respondent

Hearing:                   19 June 2013

Appearances:           R W Maze for the Applicant

J Shackleton for the Respondent

Judgment:                19 June 2013

ORAL JUDGMENT OF FOGARTY J

[1]      This is an application for judicial review in respect of a new sewerage system being built by the Christchurch City Council.  The applicant is in an area known as PS8 within the area of the rebuild of the sewer works that is going on.   The new sewer works is replacing an existing gravity waste system with a new pressurised main wastewater system.

[2]      Under the new design some of the works are constructed on a residential property, and it is essentially a pumping unit.  Waste from the property collects in the pumping unit.  Then, at certain times, powered by electricity, it is pumped out to the sewer main.

[3]      The statement of claim alleges that the Council did not consult or confer with the applicant or any other affected property owners before making the decision to undertake this work.   In the vicinity of the applicant these works are largely completed, at least on the streets.  The Council has obtained consents from all but

about 25 of the 130 property owners in the PS8 zone.

BAILEY v CHRISTCHURCH CITY COUNCIL [2013] NZHC 1486 [19 June 2013]

[4]      The applicant, as I have said, is in that zone.   In Court today are other ratepayers, some of whom may be in the PS8 zone, but are certainly following this case with interest.  It is possible it may have implications for other constructions of pressurised sewerage systems in other parts of the city in the future.

[5]      Prior to the hearing, counsel have agreed some interim orders.  I have been examining counsel as to the nature of this case, and to what effective orders this Court could make at this stage, were an error of law in the process approved, given that in large measure the new system has been built.

[6]      There is a possibility that, rather than building pumping units on the private property, they could be built out on the street, and there is some other prospect of changing the system from a pressurised one that is pumping towards a station to a vacuum system.

[7]      I am left in considerable doubt as to whether or not there is any efficacious relief that could be granted to the applicant.  I am, however, satisfied on balance that an order should be made under s 8.

[8]      The following interim orders are made:

(a)      That the Council not carry out further work in connection with the installation of the pressurised sewer system on the private land of owners who serve or have served an objection, and continue to object, to  the  installation  in  PS8  pursuant  to  Schedule 12  of  the  Local Government  Act  2002,  until  Mr  Bailey’s  application  for  judicial review has been determined in the High Court.

(b)That the Council not take steps to prevent use of the existing gravity waste system connected to Mr Bailey’s property until Mr Bailey’s application for judicial review has been determined in the High Court.

(c)       That the costs of the application for interim relief are reserved.

(d)That either party may apply on five days notice for leave to vary these orders.

[9]      I note these orders are part of an agreement with a collateral undertaking by the respondent in relation to its conduct at the objection hearings under s 181 of the Local Government Act 2002.

[10]     Secondly, this case will remain under active case management by myself.

[11]     Parties are to agree outstanding issues as to discovery, pleadings and any other matters, with leave to apply to me for a telephone conference at any time.  My intention is that this case be given a hearing as soon as possible.  I have identified a prospect of this case being heard in five or six weeks time before Whata J.  I will continue case managing the case until a firm fixture date is obtained, from which time the trial Judge so identified will take over the case management.

Solicitors:

Richard Maze, Christchurch

Simpson Grierson, Wellington