Dickson v Wairoa District Council HC Napier CRI 2005-441-49

[2005] NZHC 478

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IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

CRI 2005-441-49

JOHN DICKSON

Appellant

v

WAIROA DISTRICT COUNCIL

Respondent

Hearing:         29 November 2005

Appearances: M E J MacFarlane for Appellant

M J Wenley for Respondent

Judgment:      23 December 2005

JUDGMENT OF KEANE J

Solicitors

Sainsbury Logan & Williams, Napier for Appellant

Willis Toomey Robinson, Napier for Respondent

J DICKSON V WAIROA DC HC NAP CRI 2005-441-49  23 December 2005

[1]      On 19 August 2005 James Dickson, who lives at Mahia and is a commercial fisherman, was convicted under s 94(2)(b) of the Reserves Act 1977 of failing to remove from the Pohutukawa Reserve his fishing boat, Orana 4453, when requested by an officer of the Wairoa District Council. On 3 October he was fined $270, and as well as paying Court costs, required to pay a solicitor’s fee of $500.

[2]      Mr Dickson had, as had been his practice for many years, left his fishing boat on a trailer, parked partly on esplanade and partly on road reserve, conveniently close to the sea. He did not accept that the Council had any authority to bring that to a halt, at least by the means it had chosen,  and on this appeal as it relates  to conviction he takes one point only. It is that his fishing boat was not, as is indispensable to the offence, parked on the esplanade reserve illegally. The Council had to do more to achieve that, he contends, than to pass a resolution. It needed to prohibit parking in its management plan and by bylaw.

[3]      That apart, Mr Dickson contends, his conviction and the sentence imposed were manifestly excessive. He had parked on the reserve for many years. The Council’s  resolution  marked  a  radical  departure.  This  was  a  test  case  and  a conviction, let alone any fine, was disproportionate to the offence.

[4]      These issues were decided by the Judge on an agreed set of facts, and I am invited to decide this appeal on an equally confined basis.

Agreed facts

[5]       There was and is no issue that the Orana is a commercial fishing vessel, that it belonged to Mr Dickson, that it was parked partly on an esplanade reserve under the  control  of  the  Council,  and  partly  on  road  reserve,  that  a  Council  officer requested Mr Dickson remove it and that he refused; or that the officer’s request rested  on  a  resolution  of  the  Council,  dated  30  November  2004,  of  which  Mr Dickson was aware.

[6]      The resolution, which was passed at a special meeting of the Council relating to all the reserves within its control, was as follows:

1.Council prohibit the parking of all vessels overnight and commercial fishing vessels at all times on reserves.

2.The  Officer  of  the  Council,  who  should  have  a  warrant  issued pursuant to s 93, be briefed to enforce the Council’s resolution.

3.The Officer should then identify and then approach the person in charge of the boat and require that person to remove it from the reserve. The Officer should take notes recording the time of the request and the failure to remove the boat. Photographs would be desirable as a supplement to the evidence of the officer.

4.         An information should then be prepared and laid for each offence.

[7]      On 2 December 2004 the Chief Executive Officer, it is agreed, wrote to

Mr Dickson setting out the resolution and stating:

In terms of this resolution I now require you to move your vessel and tractor unit from the area of the Mokotahi Reserve immediately.

Failure to do so will result in informations being laid with the Court for a prosecution under the Reserves Act 1977, which could result in three months imprisonment or a fine not exceeding $2,500.

[8]      Mr Dickson, it is agreed, refused to accept the letter from the Chief Executive Officer. Also, coincidentally it appears, his own solicitors wrote to the Council that day protesting that on 30 November he had been denied the opportunity to speak at the meeting before the resolution was passed. The solicitors continued to say:

We now understand the Council will follow a process recommended by its lawyers  …  That  is,  an  officer  will  be  given  a  warrant  to  enable  the demanding of removal of vessels from the reserve, refusal as to which will then see a prosecution follow.

In the event that our clients are the subject of this process and a prosecution follows in their case take notice that the Council’s decision/s made on 30th November will be treated as invalid.

[9]       To this the Council’s solicitors replied on 10 December denying that Mr

Dickson had been denied any opportunity to speak and enclosing a copy of the 2

December letter that Mr Dickson had refused to accept. They concluded:

Mr Dickson is on notice that he is required to remove his vessel and tractor unit from the Mokotahi Reserve immediately and failure to do so will result in informations being laid under the Reserves Act 1977.

[10]     The reserve, it is agreed finally, was not the Mokotahi Reserve as the Council assumed. It was the Pohutukawa Reserve. The charge was amended to make that clear.

Decision under appeal

[11]     In the District Court the Judge was satisfied that Mr Dickson had committed the offence constituted by s 94(2)(b), that:

being … the person in charge of any boat … that is illegally on a reserve, fails or refuses to remove it from the reserve when so requested by any officer as defined in s 93(5) of this Act.

[12]     As to that offence, there was only one element in issue on the agreed facts, he said, and that was whether the boat was ‘illegally’ on the reserve; and he accepted the Council’s contention that to achieve that result its resolution, dated 30 November

2004, was a proper and sufficient exercise of its powers under s 40(1) and s 61 of the

1977 Act.

[13]     Section 40(1), which defines the functions of the administering body of a reserve, as it is accepted the Council was and is, says this:

The administering body shall be charged with the duty of administering, managing, and controlling the reserve under its control and management in accordance with the appropriate provisions of this Act and in terms of its appointment  and  the  means  at  its  disposal,  so  as  to  ensure  the  use, enjoyment, development, maintenance, protection, and preservation, as the case may require, of the reserve for the purpose for which it is classified.

[14]     Section 61 empowers an administering body, here the Council:

In the exercise of its functions under s 40 of this Act, to do such things as it may from time to time consider necessary or desirable for the proper and beneficial management, administration and control of the reserve and for the use of the reserve for the purpose specified in its classification.

[15]     The resolution the Council passed in exercise of those powers, the Judge held, enabled it to prohibit the parking of commercial fishing vessels on the reserve, with the consequence that any parked there would be there ‘illegally’. In that lay the

foundation for the offence the Judge concluded, which crystallised on Mr Dickson’s refusal.

[16]     The Judge’s reasoning is clearly set out in the passage from his decision, which follows:

On 30 November 2004 Council passed a resolution prohibiting the parking of commercial fishing vessels on the reserve at all times.

The effect of a resolution is to prohibit that use of the reserve but not to create an offence of the same activity.

The present prosecution relies on s 94(2)(b) which creates an offence of the person in charge of any boat illegally on a reserve, failing to remove it when so requested.

Counsel for the informant emphasises that the offence is not in bringing the boat on to a reserve but in refusing to comply with the direction.

Counsel for the defendant amounts [sic] an argument that the boat must first be ‘illegally’ on a reserve before a valid request with penal consequences for refusal can arise. Much then turns on the meaning attributed to the word

‘illegally’ in this context.

In my view the informant need only show that the boat is prohibited from the reserve. It  is not necessary to show that bringing or leaving the vessel on the reserve  is a  punishable  offence. The  offence  occurs  upon  the  failure  to comply with the request to bring a prohibited state of affairs to an end.

Provided that the resolution is an effective prohibition on the act in question (which is not disputed) by a body empowered to enforce such prohibitions, then a purposive interpretation of the word ‘illegally’ is appropriate. It need not be established that the presence of the vehicle on the reserve is a punishable offence. If it is (effectively) a validly prohibited act then failure or refusal by an individual in charge constitutes an offence by virtue of s

94(2)(b).

Issue

[17]     There is no issue on this appeal that, in the discharge of its function under s 40(1), and the exercise of its power under s 61, the Council could decide, in a plenary sense, who should have access to the reserve and for what purpose; and that it could prohibit parking. Nor is there any issue that the Council could prosecute under s 94(2)(b) as long, as the Judge said in his decision, the means the Council chose to create the state of illegality relied on, a resolution, constituted an effective prohibition.

[18]     Nor is there any issue that Mr Dickson is entitled to put in issue in his defence the legitimacy of the resolution, even though that is a collateral attack on the validity of the Council’s administrative action: Harwood v Thames Coromandel District Council (HC Hamilton, A 52/02, 10 March 2003, Randerson J). The defence was taken on notice and is not objected to.

[19]     The Council is content to contend that s 61 supplies it with as wide a power as it needs to discharge its functions under s 40(1). Section 61 gives it, it contends, the ability by resolution not merely to decide who should have access to a reserve and whether parking should be permitted, but the ability to set in place the regime by which that is to be achieved.

[20]     The Council, it is contended for Mr Dickson, must do more. If the Act itself created the state of illegality on which the Council relies, the resulting offence would lie under s 94(1)(l), not s 94(2)(b). If instead the Council wishes to prohibit parking itself, and to rely on the sanction that s 94(2)(b) creates, it is contended, it must first lay a foundation in its management plan under s 41, and must impose the prohibition itself by bylaw under s 106.

Conclusions

[21]     Section 61 is expressed widely and may appear plenary. It gives the Council the power ‘to do such things as it may from time to time consider necessary or desirable’ - and for two purposes, ‘the proper and beneficial management, administration and control of the reserve’, and ‘for the use of the reserve for the purpose specified in its classification’. The power is conferred on the Council, however, for ‘the exercise of its functions under s 40,’ and s 40 determines its extent.

[22]     Section 40(1) charges the Council with the duty of ‘administering, managing, and controlling the reserve’ and that too may seem plenary. Section 40(1), however, sets  two  boundaries.  Consistent  with  the  purpose  for  which  the  Council  was appointed an administering body under s 28(1), it is to ‘ensure the use, enjoyment, development, maintenance, protection and preservation as the case may require of the reserve for the purpose for which it is classified’. The Pohutukawa Reserve I am

told, is an esplanade reserve, presumably created by or recognised under s 229 of the Resource Management Act 1991. Under the Reserves Act such reserves are deemed local purpose reserves: s 16(11)(b)(iv), s 23(2)(a).

[23]     More tangibly, s 40(1) requires an administering body to act ‘in accordance with the appropriate provisions of this Act and in terms of its appointment and the means at its disposal’. The terms on which the Council was appointed, by Gazette notice under s 28, could have been restrictive (s 28(2)) but that was not put in issue on this appeal. The larger and more significant question, which was, is whether the Act itself required of the Council more than it recognised.

[24]     Reserves  are  created  to  serve  the  public  good  and  amongst  the  general purposes for which they may be created under s 3(1) the following might be thought fully consistent, in principle, with the Council’s decision to prohibit parking:

(a)Providing, for the preservation and management for the benefit and enjoyment of the public, areas of New Zealand possessing—

(i)       Recreational use or potential, whether active or passive; or

…

(iv)     Environmental and landscape amenity or interest; or

…

(c)       Ensuring, as far as possible, the preservation of access for the public to and along the sea coast … and fostering and promoting the preservation of the natural character of the coastal environment.

[25]     There is, however, a complementary feature of the Act, which is no less important. In the creation and management of reserves, public values can be in tension one with another and public values can be in tension with private values; and the Act seeks by two means to ensure that the public joins in the fullest sense in the process by which these tensions are reconciled or ordered.

[26]     Thus, whenever reserves are created under the 1977 Act, whether they come into existence at all and for what purpose, results from a public process (s 16(4), (8)), in which interested members of the public have standing (s 120). And once a reserve

comes into existence the administering body must promulgate a plan for its management, which under s 41(3):

shall provide for and ensure the use, enjoyment, maintenance, protection, and preservation, as the case may require, and, to the extent that the administering body’s resources permit, the development, as appropriate, of the reserve, for the purposes for which it is classified …

The plan must also comply with the Act as a whole (s 41(3)), and be approved by the Minister  (s  41(2));  and  be  settled  by  a  public  process  (s 41(5),  (6)),  in  which interested members of the public have standing (s 120).

[27]     There is a third feature of the Act, implicit not explicit, which seems to me no less essentially complementary.  In it relations with the public, at least where it seeks to govern public conduct by rules and sanctions, the Act contemplates, I consider, that an administering body will act not on the basis, or the sole basis, of its s 61 plenary power. It will act by powers conferred specifically by the Act itself, or by the medium of bylaws approved by the Minister.

[28]     The  specific  powers  given  to  administering  bodies  by  the  Act  are  an aggregation without coherence.  But a number relate to relations with the public and some are especially in point.  They go to such issues as public access to reserves, and parking of vehicles and boats. Abandoned vehicles are governed by s 110(1), for example; and s 110(2) enables vehicles, parked where prohibited, to be moved and charges  exacted  if  set  by  bylaw.    Section  53(h)(2),  which  relates  to  recreation reserves (which esplanade reserves are not), permits the setting aside of reserve for parking and for reasonable charges to be imposed, subject to the prior consent of the Minister.

[29]     Bodies, like the Council, administering local purpose reserves are given one power only.  Section 23(3) enables the administering body to:

by public notice, (to) prohibit access to the whole or any specified part of the reserve, and in that case no person shall enter the reserve or, as the case may be, that part, except under the authority of a permit issued by the local authority.

[30]     This power was not invoked by the Council in this case, nor does it seem to me in point.  The Act consistently distinguishes between persons and vehicles.   It seems to me related rather to the public’s right to pass and repass over such reserves on foot, unless prohibited by the administering body to preserve the stability of the land or the biological values of the reserve (s 23(2)(a)).

[31]     The very fact, however, that such powers as these are conferred specifically, unevenly piecemeal though they undoubtedly are, it seems to me, is powerful reason to conclude that the s 61 plenary power needs, at least in such generic instances as those which I have referred, to be supplemented by a more specific power.  And if not a power conferred by the Act, then one conferred by bylaw.

[32]     The Minister is able under s 106(1) to prescribe model bylaws, and whether or not that happens, an administering body may under s 106(2) make bylaws, subject to the Minister’s approval under s 108, for the same purposes.  Four of the purposes under s 106(1) are highly relevant to the issue of illegality in this case. They are:

(c)       Prescribing  the  conditions  on  which  persons  shall  have access to or be excluded from any reserve or any part of a reserve, or on which persons may use any facility (including any building) in a reserve, and fixing charges for the admission of persons to any part of a reserve and for the use of any such facility.

(d)Regulating the times of admission thereto and exclusion therefrom of persons, horses, dogs, or other animals, and vehicles or boats or aircraft or hovercraft of any description:

(e)       The control of all persons, horses, dogs, and other animals, and vehicles or boats or aircraft or hovercraft of any description using or frequenting a reserve:

…

(i)       Prescribing conditions upon which operators and pilots in command of aircraft and persons in charge of hovercraft may set down or pick up or recover within the reserve any person, livestock, carcass, or article of any description.

[33]     The Minister has issued model bylaws under s 106(1) and these are set out in the  Reserves  (Model  Bylaws)  Notice  2004.    Two  relate  to  vehicle  access  and parking.  One, R.15(1), prohibits driving on a reserve, except where that is allowed. A second, R.16(1), in that qualified way also prohibits parking.  It would then have

been open to the Council in this case, instead of prohibiting parking by resolution, to have promulgated these model bylaws.  Or to promulgate bylaws of its own devising under s 106(2), subject to the approval of the Minister under s 108.

[34]     In either case the Council would under s 107(a) have had to comply with the Bylaws Act 1910 and any other disciplines imposed on the making of bylaws elsewhere.  That seems to me an essential discipline where, as here, an administering body creates a regime to be enforced by the sanctions of conviction and under s

103(c) of maximum penalties of imprisonment for one month or a fine of $500.

[35]     For these reasons I conclude, contrary to the judgment under appeal, that the Council’s resolution was insufficient to make it illegal for Mr Dickson to park his fishing boat on the Mokotahi Reserve, or to entitle a Council officer to require him to remove it, or to make Mr Dickson culpable of an offence against s 94(2)(b) when he

refused.  The appeal will be allowed and the conviction and sentence quashed.

P.J. Keane  J