Chamberlain v Scott
[2012] NZHC 2596
•5 October 2012
IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY
CIV-2011-412-000842 [2012] NZHC 2596
BETWEEN FATHER MARK CHAMBERLAIN AS TRUSTEE OF THE TRINITY TRUST Appellant
ANDTRUSTEES EXECUTORS LIMITED AND NAYLOR LOVE CONSTRUCTION LIMITED
Second Parties
ANDSUSAN HONOR SCOTT Respondent
Hearing: 3 October 2012
By way of Telephone Conference
Counsel: P Cavanagh QC for Appellant
T Shiels for Respondent
Judgment: 5 October 2012
RESERVED JUDGMENT OF FOGARTY J
Introduction
[1] This is a dispute essentially as to whether or not an Italian altar installed in the chapel of Teschmakers School for Girls, in 1926, is a fixture or a chattel. The school closed over 30 years ago.
[2] The property was sold to Dr Hiromoto Ochi, who has since died. The deed of sale specifically excluded the altar from the sale agreement. The Dominican Sisters, who sold the property to Dr Ochi, want to donate the altar to the Holy Name
Catholic Parish in Dunedin.
CHAMBERLAIN V SCOTT HC DUN CIV-2011-412-000842 [5 October 2012]
[3] Ms S H Scott is a descendant of the original donor of the land, Mr McCarthy. She is arguing that the removal of the altar and the stained glass windows constitutes an alteration to the building that requires resource consent. She applied under the RMA for an enforcement order to prevent their removal. In opposition to that application, Father Chamberlain, the parish priest of the Holy Name Parish argues that because the altar is not a fixture or part of the chapel its removal is not an alteration which requires resource consent.
[4] In [9] of the judgment, the Environment Court identified as an essential fact to be determined: “(1) is the altar a chattel or a fixture?” It’s conclusion appears at the end of [34] as follows:
... Taking the structural evidence together with the evidence of the alterations of the alteration of the 1960s, we are of the view that overall the degree of annexation favours the proposition that the altar is part and parcel of the building.
[5] That appears to be a finding that it was not a chattel, as the same paragraph cites the decision of Holland v Hodgson,[1] which is a leading case for the rules as to whether an item is a fixture or chattel.
[1] Holland v Hodgson [1872] LR 328, at 335.
[6] The Court came to this decision after hearing evidence. The Court heard from three witnesses who were treated as experts qualified to give evidence and opinion on the structural attachment of the altar to the chapel. Two of them were stonemasons; Mr Wainwright, called by Ms Scott, and Mr Blucher, called by Father Chamberlain. Ms Scott also called a structural engineer, Mr Macknight.
[7] Mr Wainwright and Mr Blucher made some investigations identifying that the altar stood on a concrete base. Mr Wainwright drew a diagram showing the concrete base extending into the table and reredos, approximately one metre above floor level.
[8] I pause here to explain the expanded definition for the altar, distinguishing between the table and reredos. As a result of Vatican II, the table part of the altar was moved forward, leaving the tabernacle and associated elevated portions of the
altar behind. These have been considered to fit within the definition of reredos –
being a decorative screen or facing on the wall at the back of an altar. Mr Wainwright’s diagram is annexed to the judgment and Mr Blucher made a small modification, which appears to confirm that essentially he was of the same view. Mr Blucher, however, was arguing that apart from a skim of plaster essentially the altar was standing on the concrete rather than being affixed to it. Leading to the Court’s finding of fact in the first part of [34]:
On the evidence of the witnesses there is a foundation going below the floor and ground level to which at least some elements of what is proposed to remove are fixed by adhesive.
The appeal
[9] The appeal argues the following errors of law were made by the Environment
Court:
The grounds of appeal are:
(a) The Environment Court failed to have regard to the clear reservation of property in the altar made by the vendor in each case in two Agreements for Sale and Purchase providing for the sale of the chapel, but not the altar.
(b) The Environment Court failed to properly interpret Item 152 within
Appendix B of the Waitaki District Plan.
(c) The Environment Court misinterpreted the case law which determined when specific items of a building such as in this case may remain as a chattel and would not lose their inherent character as chattels.
(d) Contrary to findings made by the Environment Court regarding the degree of annexation of the altar to the building involved findings that could not be sustained.
[10] In support of the appeal, the appellant now wishes to adduce expert evidence from a retired civil/structural engineer, Mr B J Chamberlain, and from an electrical engineer, Mr M L King.
[11] Mr King undertook 25 scans using state-of-the-art digital radar to establish that there is a void under the front and back faces of the reredos. The table has been filled in with concrete blocks or similar. Mr Chamberlain has then followed up on the results of these scans with some exploratory drilling, and goes on then to
critically examine the evidence that was before the Environment Court and concludes:
37.From a review of the background set out above, my three inspection visits to the site, and the results of the radar scan, I have concluded the following:
(a) There exists a mass concrete foundation beneath the Altar that is founded on a “solid” substrate and has a flat upper surface approximately level with the top side of the timber floorboards that surround the Altar.
(b) That the Altar (as defined by me in Paragraph 26 hereof) has been built on top of that foundation.
(c) That the Reredos, and the “boxlike” stabilising structure, and the columns, within it have been built on top of the mass concrete foundation.
(d) That the material used to infill the plinth was not in fact “rubble concrete” as promoted to the Environment Court but limestone chips within a fine limestone sand matrix. From this observation I do not consider, as advised to the Environment Court, that any part of the plinth is “stuck” to the foundation but instead is connected to it only by a light skim of levelling mortar. In particular statements in the Environment Court Decision (Paragraph 30 pp10) that accepted that the vertical tiles of the plinth are “stuck” to pre-boxed (rubble) concrete in my opinion is factually incorrect. The crushed limestone material that supports the marble floor tiles is so friable that it could not possibly act in this manner.
(e) I was unable in my inspection to determine whether the new Altar Table is founded on the top of the mass concrete foundation or on top of the marble tiles that form the top of the plinth.
38.In conclusion it is my considered opinion, based on all of the above, that the Altar, as defined by me, rests on a mass concrete foundation the top surface of which is approximately level with the floorboards that surround the Altar and that any connection between the Altar and the concrete foundation is by way of a thin layer of a mortar levelling and bedding course.
39.While it cannot be absolutely factually dismissed I consider that it is unlikely in the extreme that there is any mechanical connection between any of the components of the Altar and the foundation or any intrusion of the foundation into the components of the Altar as indicated in the Environment Court’s decision.
The test for adducing expert evidence in appeals confined to questions of law
[12] It is common ground that High Court Rule 20.16 has deliberately eliminated a prior distinction between appeals on fact and law and appeals on law. Second, that sub-rule 3 is deliberately open textured, granting a broad discretion to the Court to allow evidence to be adduced provided only that there are special reasons for doing so.
20.16 Further evidence
...
(3) The court may grant leave only if there are special reasons for hearing the evidence. An example of a special reason is that the evidence relates to matters that have arisen after the date of the decision appealed against and that are or may be relevant to the determination of the appeal.
[13] I have previously analysed this rule in Oceanside Developments Ltd and Anor v Cutler[2] and in CH and DL Properties Ltd[3]. I do not propose to go over that analysis again. In CH and DL Properties, at [11], I infer that the present form of the rule likely follows upon the decision of the Court of Appeal in Schier v Removal Review Authority.[4]
[2] Oceanside Developments Ltd and Anor v Cutler (HC Christchurch, CIV 2009-409-000835, 21
August 2009).
[3] CH and DL Properties Ltd v Christchurch District Licensing Agency (HC Christchurch, CIV-
2009-409-002906, 30 April 2010).
[4] Schier v Removal Review Authority [1999] 1 NZLR 703
[14] In both decisions, I consider the authorities nonetheless maintain the need for sparing use of the power and therefore that the words “special reasons” were carefully chosen to reflect the case law to this effect.
[15] This must be particularly so in cases where appeals are limited by Parliament to issues of law. Plainly, Parliament is taking the view that there will be one hearing or trial on the facts and thereafter review is confined to issues of law, akin to judicial review. This is particularly the case with the Environment Court. There is a consistent pattern that all decisions of the Environment Court are either only
reviewable by judicial review or appealed subject to limitations of questions of law.
[16] Mr Cavanagh QC’s argument ultimately depends on the pleading in paragraph 1(d) of the appeal:
(d) ...The Court was therefore in error because there was no evidence available to confirm that the altar had lost its character as a chapel (para 34).
[17] I note, however, that his written argument did also invite me to give weight to the “relevance and possible effect of the evidence on the result” being part of a dictum of Gallen J in Comalco New Zealand Ltd v TVNZ.[5] Gallen J was adopting
[5] Comalco New Zealand Ltd v TVNZ 10 PRNZ 563, at page 579, line 22
the comments of Wylie J in New Zealand Co-op Dairy v Commerce Commission.[6]
[6] New Zealand Co-op Dairy v Commerce Commission [1991] 3 PRNZ 262.
Both cases were appeals on the record on both law and fact. Gallen J in that dictum also said:
It is also important the evidence should not have been available at the earlier hearing by the exercise of reasonable diligence.
The no evidence point
[18] The no evidence test falls out of the exercise of the inherent jurisdiction of judicial review. That is the jurisdiction exercise by the High Court over governing bodies including statutory Courts. Judicial review has its core of holding government to the rule of law. The no evidence rule is an aspect of the wider proposition that it is reviewable error of Court if findings are irrational. The no evidence test requires there to be sufficient evidence to justify a finding of fact. It has a relatively low threshold, captured in its title “No evidence”. It works best when there is no evidence at all supporting the finding. If there is some evidence it is very hard to convert a finding of fact into an error of law. See Cooke P in NZ
Fishing Industry Association Inc v Minister of Agriculture and Fisheries.[7]
[7] NZ Fishing Industry Association Inc v Minister of Agriculture and Fisheries [1988] 1 NZLR
544, 552.
[19] In this case there was sufficient evidence upon which the Environment Court could make a decision as to whether or not the reredos and/or table were or not
chattels or a fixture.
[20] Arguing that the new evidence totally undermines the weight that should be given to the existing evidence is not a sufficient basis upon which to invoke the no evidence rule.
The new evidence shows the decision was plainly wrong
[21] This is a different point. The basic appeal of the application for new evidence is that the advanced technology of scanning coupled with the exploratory drilling has rendered irrelevant the opinions expressed against a smaller set of primary facts than is now available. The argument appeals to the proposition that the Court of Appeal, even on questions of law, should admit evidence which shows that the conclusions of the Court under appeal are plainly wrong because of factual error.
[22] This is an attractive argument. But it does not reflect the statutory scheme. It is relatively commonplace for specialist tribunals to be subject to an appeal on fact and law to the High Court. See for example the Commerce Commission. It follows that Parliament has made a deliberate decision to make the Environment Court the final adjudicator on questions of fact. Normally, of course, the Environment Court is itself an appellate Court. Making the Environment Court a final adjudicator on questions of fact is consistent with the normal principles that there should not be more than two layers of adjudication. In this case there is only one layer of adjudication. However, Parliament has not distinguished between whether the issue originated in the Environment Court or came to the Environment Court via a consent authority.
[23] There is no doubt that the new evidence being proposed is highly relevant. It may well have made a difference had it been before the Environment Court. There may well be a sense of injustice on the part of the Holy Name Parish and Catholic Church.
[24] The question is whether or not the sophistication of the new evidence and its
high relevance to the issue is a “special reason” under r 20.16 to admit the evidence.
[25] Special reason is a general criteria which needs to be always applied in the statutory context of the tribunal under appeal. That statutory context embeds policy/purpose in the scheme and provisions of the subject statute. In enacting the RMA and limiting rights of appeal from the Environment Court, Parliament decided deliberately to run the risk of factual error on the part of the Environment Court. Obviously, Parliament judged that the incidence of occasional factual error was outweighed by the efficiency of constraining appeals from the Environment Court. This Court cannot disturb that policy decision embedded in the RMA statute.
[26] For these reasons, I do not think there is a special reason for admitting this new evidence. The only way it can be admitted is if the High Court finds an error of law in the Environment Court’s decision and remits the case back to be reheard. There is an arguable error of law in [34], pleaded in paragraph (c) of the grounds of appeal, supported by paragraphs (a) and (b).
[27] The application to adduce new evidence is dismissed.
[28] This is the second hearing I have had in this case. I am now quite familiar with the issues. My estimate of time for hearing the appeal proper is half a day, to be heard by myself.
[29] I invite counsel to confer with each other and with the Registry to obtain a hearing date.
Solicitors:
Farry & Co, Dunedin – [email protected]
Trustees Executors, Dunedin – [email protected]
Gallaway Cook Allan, Dunedin – [email protected]
Hope & Associates, Oamaru – [email protected]
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