First Gas Ltd v Gibbs - [2021] NZHC 3309

IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY

I TE KŌTI MATUA O AOTEAROA NGĀMOTU ROHE

CIV-2021-443-016

[2021] NZHC 3309

BETWEEN
FIRST GAS LIMITED

Plaintiff

AND

RUSSELL VICTOR GIBBS PARANI JOSEPHINE GIBBS LEIGH JOSEPH HORTON

Defendants

Hearing: 22-27 September 2021

Appearances:

L P Wallace and J Atkin for the Plaintiff S J Grey for the Defendants

R V Gibbs in person (28 September 2021)

Judgment:

3 December 2021

JUDGMENT OF GRICE J

Introduction

Contents

3

Interim injunction

6

Site visit

9

The pleadings

9

Issues

11

Legal framework

12

Pipeline authorisation  12
Pipeline easement certificates (PECs)  15
Rights of entry and work on the land  19
Interpretation  22
Conclusion on issue (a): use of land or strip of land?  26
FIRST GAS LTD v GIBBS [2021] NZHC 3309 [3 December 2021]

Issue (b): agreement or arrangements binding First Gas to a collaborative process or to other conditions of entry 27

The Pariroa Project Phase 1 34

Events leading to interim injunction 44

Entry following the issue of the interim injunction 48

The Gibbs’ and the land 51

Involvement by the Gibbs’ in plans and meetings 54

Entry by First Gas in 2021 for the Pariroa Project Phase 2 59

Nuisance 60

Urgency 63

Unlawful interference 68

Declaration 68

Permanent injunction 69

Conditions of order 71

Orders 71

A.The following declarations: 71
B. A permanent injunction prohibiting the Defendants, together with their successors. administrators, assigns and agents, from: 72

Costs 72

Further proposed conditions: variation of interim injunction and further evidence 73

Attachment 1 – Draft Conditions 75

Introduction

[1] First Gas, previously known as Vector Gas,1 owns and operates the Maui gas pipeline, also known as the 400 pipeline. The high-pressure natural gas pipeline was completed in 1979 and supplies over 90 per cent of the natural gas used in the upper North Island. The supply is predominantly to substantial large industrial consumers including two methanol plants and the Huntly Power Plant, but also smaller commercial and domestic consumers. The pipeline runs for 299 kilometres roughly north from New Plymouth.

[2] The pipeline operates under statutory authorisations and two relevant Petroleum Easement Certificates (PECs) issued under the Petroleum Act 1937 (the Act). These authorisations and easements permit the pipeline to run through part of the defendants’ farm.

[3] The defendants hold the land on trust.2 The exact terms of the trust are not before the Court but the beneficiaries include the Gibbs family. The Gibbs family has farmed this property for over 100 years. Mr Victor Gibbs farmed the land when the pipeline was constructed. He was the father of Mr Russell and Ms Marie Gibbs, both of whom gave evidence for the Gibbs Trust in this matter. They are the fifth generation to live on the land and three generations follow them.

[4] During an inspection in 2018, a “buckle” was discovered in a five-metre portion of the pipeline on the Gibbs’ farm. The buckle indicated that five kilometres of the pipeline was close to failure.…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading First Gas Ltd v Gibbs

Details

AGLC: First Gas Ltd v Gibbs [2021] NZHC 3309
Case: [2021] NZHC 3309
Decision Date: 3 December 2021

CaseChat Overview and Summary

First Gas Limited, the operator of the Maui gas pipeline, sued the Gibbs family, who hold the land on trust, over access to their farm for the purpose of repairing a buckle in the pipeline. The parties had previously co-operated on the emergency bypass in 2018/2019, but the relationship had broken down. First Gas sought declarations and a permanent injunction to allow it access to the land. The issues were whether the pipeline operator could access the land outside the 12-metre strip, whether a collaborative process was required, and whether other considerations such as kaitiakitanga affected the pipeline operator's rights. Grice J held the statutory authorisations and Petroleum Easement Certificates allowed First Gas to access the land as necessary for the repair of the pipeline. The Court found there was no agreement or arrangement requiring a collaborative process. Grice J found that while First Gas must comply with other legislation, it did not affect First Gas's rights under the Petroleum Act. Grice J found that the Gibbs' had interfered with the pipeline operator's statutory rights, and the interference was unreasonable. Grice J found there was urgency to the repairs and that damages would not be an adequate remedy. The Court granted the declarations and permanent injunction sought by First Gas.

Orders