First Gas Ltd v Gibbs
[2021] NZHC 1722
•9 July 2021
IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY
I TE KŌTI MATUA O AOTEAROA NGĀMOTU ROHE
CIV-2021-443-16
[2021] NZHC 1722
BETWEEN FIRST GAS LIMITED
Plaintiff
AND
RUSSELL VICTOR GIBBS, PARANI JOSEPHINE GIBBS AND LEIGH JOSEPH HORTON
Defendants
Hearing: 2 July 2021 (via AVL) Appearances:
L P Wallace for Plaintiff M Gibbs and R Gibbs
Judgment:
9 July 2021
JUDGMENT OF ISAC J
[On application for interim injunction]
The issue
[1] First Gas owns and operates the Maui pipeline, which carries pressurised natural gas from Taranaki to users throughout the North Island. It has statutory easements under the Petroleum Act 1937 over the defendants’ land, through which the pipeline passes.
[2] First Gas says it requires urgent access to the pipeline to undertake a repair. It says the defendants have denied it access and have sought to impose conditions on access which are inconsistent with First Gas’ easement rights.
[3] First Gas has brought proceedings against the defendants in nuisance. A trial date has not been set. Given further delay might create a risk to gas supply in the North
FIRST GAS LIMITED v GIBBS, GIBBS AND HORTON [2021] NZHC 1722 [9 July 2021]
Island, First Gas has applied for an interim injunction prohibiting the defendants from obstructing or otherwise interfering with First Gas’ easement interests.
[4] Underlying the dispute is a disagreement about the extent of, and legal basis for, the defendants’ involvement in the planning and execution of works on their land concerning the Maui pipeline.
[5] Following the hearing on 2 July 2021, I received unsolicited supplementary submissions and additional materials from the defendants on 5 July 2021. Much of what they contain are an amplification of points made in written and oral submissions at the hearing of 2 July.1 As those additional materials do not alter the outcome, I record that I did not call on First Gas to respond to them.
[6]I have concluded an interim injunction should issue. My reasons follow.
Background
[7] The Maui pipeline was completed in 1979 and supplies over 90 per cent of the natural gas used in the upper North Island. In 2015, the pipeline carried 143 petajoules of gas from seven production stations connected to it. More than half of that gas goes to large industrial users, including the Huntly Power Station and two methanol plants operated by Methanex.
[8] The pipeline is operated pursuant to an authorisation issued on 31 July 1975 under the Petroleum Act 1937. First Gas is the current holder of the pipeline authorisation, and the current owner and operator of the pipeline.
[9] There is a stringent regulatory framework governing maintenance and operation of the Maui pipeline. Certification under an applicable industry standard is required, a process which involves inspection by an independent certifier and the issue of a pipeline certificate of fitness.
1 In an appendix to this judgment I have set out a procedural history of the matter in response to suggestions by the defendants that they have been prejudiced by First Gas’ provision of submissions the day before the hearing, and related claims of unfairness.
[10] As the original pipeline’s design life was less than 40 years, safe operation requires continuous replacement and renewal of components.
The Pariroa project
[11] The Maui pipeline passes through an area known as Pariroa, approximately 45 kms north of New Plymouth. The area has a high level of geotechnical hazard risk. Unsurprisingly, buried gas pipelines are susceptible to accumulated strain, bending and possible rupture as a result of soil movement. Common geohazards include landslides, land movement, erosion, and earthquake movement.
[12] Due to landslide and coastal erosion risk affecting the Pariroa section of the Maui pipeline, “in-line” inspections are carried out every five years. This entails a sensor package being inserted into the pipeline in order to inspect its structural integrity without interrupting gas flow. During an in-line inspection at Pariroa in 2018, a defect, known as a crease or buckle, was identified in a five-metre section of the pipeline. The defect was most likely caused by a nearby landslip which in turn subjected the pipeline to forces exceeding its design capacity. Further investigation revealed that the buckle presented a severe risk to pipeline integrity. As the damaged section was close to failure, an “extraordinary repair project” was undertaken under compressed timeframes. The first phase of the Pariroa project, as it became known, involved building and installing an 800m above-ground bypass alongside the existing underground pipeline to ensure uninterrupted gas supply. This work included the first planned shutdown of the Maui pipeline for 20 years. The bypass was completed successfully in 2018.
[13] As the bypass does not lie within First Gas’ existing easement, completion of phase 1 required First Gas and the Gibbs Family Trust to reach an accommodation concerning injurious affection to their land. Currently, First Gas makes annual payments to the Gibbs Family Trust. In addition, First Gas claims it has paid for all of the time invoiced to it by representatives of the Gibbs Family Trust, as well as further compensation for disruption to the wider farming operation as a result of construction works, for the entire duration of the bypass operation, rather than the actual period of construction.
[14] On 27 June 2019, First Gas’ pipeline authorisation was amended to permit the use of the above ground bypass at Pariroa until 30 April 2023.
[15] The second phase of the Pariroa project is to repair the damaged section of the underground pipeline and to undertake other stabilisation or remediation work in the area to avoid future issues with ground water or land movement. Importantly, First Gas is only authorised to use the above ground bypass until 30 April 2023, so once the Maui underground pipeline is repaired (assuming it can be), the gas supply will be rediverted back into the pipeline and the bypass can be decommissioned.
[16] An initial geotechnical report was completed in late 2018, and in March 2019, First Gas commissioned a Land Feature Remedial Options Report (the remediation report) based on the initial geotechnical investigations. Following consultation with stakeholders, including the Gibbs Family Trust, detailed site investigation and monitoring, the remediation report was issued in July 2020. Amongst its findings were confirmation of landslide movement. The recorded movement rates appear to be related to rainfall and groundwater levels, during a time when data indicated below- average rainfall.
[17] A critical step which First Gas wishes to undertake involves preliminary excavation of the damaged area to determine the repair methodology and allow a design solution to be prepared. Once that is completed, a wider excavation and re- burial to remove the landslip pressure from the Maui pipeline is intended, together with any necessary drainage to assist with land stabilisation. It is at this point in the remediation process that First Gas proposes, subject to the findings of the exploratory excavation, that the damaged section will be replaced.
[18] The ultimate objective of phase 2 of the Pariroa project is to repair the pipeline. But as the remediation report acknowledges, repair of the pipeline is dependent on the ground conditions revealed by the initial excavation. One outcome of the investigations might be that undergrounding in the current easement is not viable. If that occurs, it may be necessary to find a new route for the pipeline, or to maintain the bypass indefinitely.
[19] Finally, in a recent development it seems that First Gas will need to complete an archaeological authority application before it can complete the buckle repair. First Gas has engaged a consultant to undertake that work and has advised the defendants that it proposes to have the consultant undertake a site inspection limited to the easement area on 5 or 8 July 2021.
First Gas’ petroleum easements
[20] As noted, First Gas holds a pipeline authorisation issued under the (now repealed) Petroleum Act 1937 (the Act), which allows the construction and operation of the Maui pipeline.
[21] Under s 68 of the Act, a pipeline authorisation confers on the owner of a pipeline “an absolute right” to “alter, remove, repair, operate, inspect, renew, and maintain any pipeline”. And, importantly, under s 68(d), the holder of a pipeline authorisation is empowered to “do such other things as are necessarily incidental to the exercise of the powers…of the owner under this Part of the Act.”
[22]Under s 73 of the Act, the holder of a pipeline authorisation:
…may enter upon such land as may be necessary for the exercise of any such right [conferred under the authorisation or the relevant part of the Act] with right of access to and egress from any such land with his servants, workmen, and agents, from time to time and at all times, with or without any suitable or available means of conveyance, and with all such equipment, articles and materials as may be necessary for the carrying out of any works authorised by the authorisation or authorised by this Part of this Act…and may also deposit and store from time to time upon any land adjoining any such works all such machinery and material of any kind as may be used in carrying out any such works.
[23]These powers are obviously broad and intrusive.
[24] In addition to its rights under the pipeline authorisation, First Gas also holds two pipeline easement certificates issued by the then Minister of Energy under s 70 of the Act.2 Clause four of the easement certificates record that the easement holder has the:
2 The two pipeline easement certificates relate to the two parcels of the defendants’ land through which the Maui pipeline passes.
…right of entry on the said land pursuant to subsection (6) of section 70 of the Act for the purpose of exercising the rights conferred on them by the Act and any regulations made thereunder and by the pipeline authorisation.
[25] Under s 70(6) of the Act, every pipeline easement certificate gives the owner of the pipeline a right of entry “on the land to which the certificate relates for the purposes of exercising the rights conferred on [them] by this Part…and by [the] authorisation.”
[26] So, between the petroleum authorisation, the pipeline easement certificates, and the provisions of the Act, First Gas says it has an absolute right of entry to carry out the initial investigation works and repairs to the Maui pipeline.
[27] Finally, it is relevant to note that the Petroleum Act 1937 was repealed by the Crown Minerals Act 1991 on 1 October 1991, and by s 62(1) of the Health and Safety in Employment Act 1993, on 1 April 1993. Despite the repeal of the Act, First Gas’ rights under the pipeline authorisation and easement certificates are preserved by the Crown Minerals Act.3
The land in issue and its people
[28] The defendants are the trustees of the Gibbs Family Trust. The trust owns a 227-hectare sheep and beef farm located on the North Taranaki coast immediately south of the coastal village of Tongapōrutu. Both the Kapuni and the Maui piplines run through the Trust’s property.
[29] In an affidavit of 28 June 2021, Mr Russell Gibbs explains both his family’s strong connection to their land and its significance for the Te Ahuru hapu of Ngā Hapū o Poutama. The Te Ahuru wharenui is situated on the land, along with urupa and the pito of all the Gibbs family’s children and mokopuna. In addition to fishing grounds, puna and mahinga kai are other wāhi tapu. He says the Gibbs Family Trust “are returning the land back into Māori title, including Māori reservation and Māori
3 Schedule 1, Subpart 2 of the Crown Minerals Act (in particular, see cl 12). Section 2 of the that Act, and in particular the definition of existing privilege, includes any authorisation granted under Part 2 of the Petroleum Act.
freehold.” Finally, he says “Te Ahuru exercise kaitiakitanga at Tongaporutu, including at Te Ruataniwha and Pariroa, in conjunction with Poutama.”
[30] The strong connection of the Gibbs family to their ancestral land was recognised by the Court in Gibbs v Vector Gas Ltd.4
First Gas’ attempts to gain access to the Maui pipeline and events of 25 January
[31] It is clear from the evidence of both parties that since at least 2020 there has been ongoing disagreement on two important matters: first, the extent of First Gas’ rights of entry onto the defendants’ property for the purpose of repairing and maintaining the Maui pipeline and second, the defendants’ right to be involved in the planning and execution of all works on their property by First Gas. The two issues are interconnected for the Gibbs whānau, but not for First Gas.
[32] Central to First Gas’ application for an interim injunction is what it suggests was an attempt to gain access to its easement area on 25 January 2021. It says that having endeavoured to obtain the Gibbs whānau’s cooperation, when it arrived with its contractors on that day they were not permitted entry to the property. First Gas says that was an unlawful interference in its rights of access and maintenance and repair.
[33] I will deal with the evidence relating to events of 25 January in more detail later in this judgment.
Principles applicable to grant of interim injunctions
[34] The approach to consideration of interim injunctions has been settled for at least thirty-five years.5 Such applications should be determined by assessing:6
(a)whether there is a serious question to be tried;
(b)the balance of convenience; and
4 Gibbs v Vector Gas Ltd HC New Plymouth CIV-2008-043-000545, 27 April 2009, at [1] (Vector Gas).
5 Intellihub Ltd v Genesis Energy Ltd [2020] NZCA 344, [2020] NZCCLR 29 at [24].
6 Klissers Farmhouse Bakeries Ltd v Harvest Bakeries Ltd [1985] 2 NZLR 129 (CA) at 142, as cited in Intellihub v Genesis Energy, above n 5, at [23].
(c)where the overall justice lies.
[35] I now turn to consider the issues as they arose at the hearing against this framework.
Is there a serious question to be tried?
[36] The written and oral submissions of the parties identified the following issues for consideration:
(a)whether there has in fact been any interference in First Gas’ access to the easement and pipeline;
(b)whether a “collaborative process” with the Gibbs Family Trust is a pre- condition of the exercise of First Gas’ easement rights; and
(c)whether the pipeline authorisation and pipeline easement certificates permit preliminary subsoil investigations?
Interference with First Gas’ access to the pipeline and the easement and pipeline?
[37] The defendants submit that access continues to be available to First Gas for phase two of the Pariroa project, “subject to the longstanding collaborative relationship between the Gibbs whānau, Te Ahuru, Ngā Hapū o Poutama and First Gas.”
[38] While I will turn to the question of a collaborative process shortly, I have had the benefit of the evidence for both parties, which includes two video clips taken by the defendants of the encounter on 25 January 2021 with First Gas staff and contractors.
[39] As Ms Gibbs submitted, the interaction that occurred at a farm gate entrance to the Gibbs Family Trust property was polite and respectful. But from the evidence the following sequence emerges: First Gas sought to engage with the Gibbs whānau for a considerable period to arrange access to the easement area in the vicinity of the buckle. On 9 December 2020, First Gas wrote to the defendants giving notice of its
intention to enter the property to carry out the preliminary excavation and investigation works. The letter indicated First Gas proposed to commence the works on 18 January 2021, with an expected duration of 5 to 10 working days. The letter also provided an outline of the work and invited the Gibbs Family Trust to respond within 15 working days “with reasonable conditions relating to access or use of the land”. A satellite image attached to the letter identified the area where the excavation would occur, as well as two nearby locations at which First Gas was proposing to temporarily store spoil.
[40] First Gas did not receive a substantive reply for some time. It is unnecessary to comment in detail on the communications that followed, other than to record that they reveal increasing unhappiness by Mr Gibbs with the planned entry onto the property, and with what was considered to be First Gas’ refusal to engage in a collaborative process in relation to planning and execution of the buckle repair.
[41] By mid-January 2021, First Gas was proposing to enter the Gibbs Family Trust’s property on 25 January 2021 to carry out the preliminary excavation. This prompted an email of 17 January from Mr Gibbs to the Chief Executive of First Gas in these terms:
We received a flurry of communications from First Gas before Christmas and over the holiday period, which were the latest in a string of contradictory, inconsistent, and inaccurate emails by a range of First Gas personnel, particularly over the past two years. This includes the entry notice dated 9 December 2020, and the letter emailed on 11 January 2021 (dated 23 December 2020). It is clear some First Gas personnel do not have a basic understanding of their rights and responsibilities, including the easements.
First Gas have been seeking to renege on existing undertakings, representations, and agreements, and have been attempting to leverage payments to achieve this. Poutama and Te Ahuru do not accept or consent to First Gas doing away with our collaborative process, withdrawing existing agreements, representations, and undertakings, both in our wider relationship, and the Pariroa Project.
First Gas hold records of all agreements, undertakings, offers, and history of remuneration. We recommend that you review these records.
…
This agreed process is how everyone successfully participates in keeping with the Gibbs v Vector decision and conditions.
…
The proposed excavation planned for 25 January 2021 will need to be put on hold to allow time for First Gas to provide all project documentation, and for project team meetings to occur, inclusive of our participation.
…
[42] First Gas responded by advising Mr Gibbs that it was comfortable with the approach it had taken and that it intended to continue with the excavation works on 25 January. Subsequently, a First Gas employee, Mr Kevin Walden, sent a text to Mr Gibbs advising him that First Gas representatives and its contractors would meet Mr Gibbs at the cattle yards near an entrance to the defendant’s property at 7.30 am on 25 January, prior to entry in order to carry out the excavation work within the easement area.
[43] There is no dispute that on the morning of 25 January 2021, First Gas employees and contractors were met by Mr Gibbs and five other people at the entrance to the Trust’s property.
[44] Having read the affidavit evidence, and seen the video clips, I am satisfied that it is seriously arguable that First Gas was denied access by the Gibbs Family Trust to its easement and were prevented from undertaking the preliminary excavation work on that day. While it will be a matter for the trial judge, the video tends to support First Gas’ claim that it sought entry onto the defendants’ property on 25 January for the purpose of undertaking preliminary excavations, but entry was impeded or prevented.
[45] It also appears seriously arguable that the reason First Gas was denied access to the easement area and pipeline is because the Gibbs Family Trust consider that First Gas is legally required to follow a collaborative approach to the proposed works, based on the High Court’s decision in Vector Gas,7 to which I now turn.
7 Above, n 4.
Is a “collaborative process” as envisaged in Vector Gas a requirement of the exercise of First Gas’ easement rights?
[46] The Gibbs Family Trust argue that First Gas’ rights of access to their land and to carry out repairs and maintenance to the Maui pipeline is conditional on engagement in a collaborative process which they say was established as a legal requirement by this Court’s decision in Vector Gas. In variations of the same point they argue that First Gas’ approach to completion of phase 1 of the Pariroa project involved a collaborative approach, which is an on-going obligation limiting First Gas’ statutory and registered interests in relation to phase 2. They also say that “representations, undertakings, actions and conduct” of First Gas amounts to a contract to the same effect.
[47] Ultimately it is not for me to determine at this preliminary stage whether these arguments are correct. Having considered the decision in Vector Gas and the other supporting evidence and submissions advanced by the Gibbs Family Trust, I have concluded that there is a serious question to be tried as to whether the defendants’ asserted limitations on First Gas’ pipeline authorisation and pipeline easement certificates is sustainable.
[48] In Vector Gas,8 Hugh Williams J dealt with an appeal by Mr Gibbs from a decision of the District Court permitting Vector entry into the defendants’ property for the purposes of undertaking surveys and inspections under s 111A of the Public Works Act 1981. The reason Vector had sought a right of entry was because the Kapuni gas pipeline, which also runs through the defendants’ property, was at significant risk due to coastal erosion. A new alignment of the pipeline was therefore needed, and Vector sought to undertake surveys in order to ascertain an appropriate alternative route outside of its existing easement.
[49] The key issue on appeal was whether Vector had discharged an obligation to take all reasonable steps to negotiate an agreement for entry before applying to the court for access. In determining that question, the Court concluded that there was no dispute the parties had reached an impasse in relation to access.9 The Court therefore upheld the District Court’s decision and dismissed Mr Gibbs’ appeal from it. What
8 Vector Gas, above n 4.
9 At [48].
then followed, however, was an opportunity for the parties to negotiate an agreement for entry, because the District Court order granting access failed to specify the conditions of entry as required under s 111A(4) of the Act.
[50] It then seems from the evidence that following further negotiation, the terms of access were agreed, and Vector was able to carry out its survey. Those agreed terms were then noted in consent orders of the Court.
[51] While it may be understandable that the Gibbs whānau consider the agreement it reached with Vector in 2009 forms the basis of its relationship with First Gas in relation to all works and maintenance concerning the Maui pipeline, again I have concluded there is a serious question to be tried as to whether that is the case in relation to the repair of the buckle. Without in any way expressing a final view, I do note the following matters appear to arise from the Vector Gas decision:
(a)First, the pipeline in issue was the Kapuni pipeline, not the Maui pipeline, or the pipeline authorisation or easement certificates in issue in the present case. Instead, the case concerned a quite different issue, being an access order under s 111A of the Public Works Act. At first blush it is therefore difficult to see the immediate relevance of the access agreement that the decision ultimately led to on First Gas’ rights under the pipeline authorisation and easement certificates in this case.
(b)Second, in Vector Gas access was not sought to carry out repairs or maintenance to the Kapuni pipeline. Rather, Vector was seeking to carry out a survey so that the pipeline could be moved to a new location, outside of its existing easement.
(c)Third, it also seems clear that the “collaborative arrangement” which was negotiated as part of the conditions of entry ordered under s 111A were just that; negotiated terms. They do not appear to extend beyond the matters dealt with in that proceeding. This reinforces the conclusion that there is a serious question to be tried as to whether those conditions have any wider application.
[52] And, insofar as much the same argument is advanced by the Gibbs Family Trust on the basis of an alleged contract, or as a result of obligations arising from the process followed for phase one of the Pariroa project, once again I conclude there is a serious issue to be tried. It will be for the trial judge to determine whether First Gas’ rights of entry and access have been qualified in the way alleged by the defendants.
Do the pipeline authorisation and easement certificates permit preliminary geotechnical investigations?
[53] The Gibbs Family Trust argue that what First Gas is in fact seeking to do is to carry out a survey for the possible re-alignment of the Maui pipeline. The defendant points to the remediation report, which acknowledges that one possible outcome of the initial investigation works could be the need to move the alignment of the pipe to a new location, or permanent use of the bypass.
[54] As a result, the Gibbs Family Trust argues that the appropriate jurisdiction controlling access is not the pipeline authorisation and easement certificates but s 111A of the Public Works Act. The defendants also contend that the works proposed reach beyond the easement corridor, and such use of their land falls outside the rights conferred on First Gas by the pipeline authorisation and easement certificates.
[55] At the hearing, Ms Gibbs also accepted that an alternative way of framing her submission is to say that preliminary investigations of the nature proposed, which, depending on what is discovered, may not lead to any repair or maintenance of the Maui pipeline, is outside the rights conferred by the statutory instruments.
[56] Regardless of how the issue is framed, I consider there is a serious question to be determined regarding the scope of First Gas’ rights, including the temporary use of part of the defendants’ land beyond the easement corridor. That conclusion is inevitable given the extent of powers of entry and use conferred under ss 68(d) and 73 of the Petroleum Act, noted at [21]–[22] above. Those provisions appear to confer broad powers of entry onto land, not just an easement corridor, and use of that land to the extent necessary in order to carry out repairs and maintenance to a pipeline.
[57] And, to the extent the defendants contend that access to their land is limited to passage through the easement corridor itself, which they say is practically impossible, a serious issue to be tried arises in relation to the scope of cl 4 of the pipeline easement certificates, which grants a right of entry on “land” for the purpose of exercising the rights conferred by the Act and the pipeline authorisation. First Gas contends that “land” is not limited to the easement corridor, but the land through which the easement runs. Once again, that is a question for trial.
Balance of convenience
[58] It is necessary to consider the effect of the grant of an interim injunction on the defendants, and to balance that against the effect of refusing to do so on the plaintiff.
[59] The Gibbs whānau urge upon the Court the cultural heritage and importance of their land not only to the Trust but to Te Ahuru and Ngā Hapū o Poutama. They stress the existence of urupa, wāhi tapu and other taonga, which may be irreparably damaged as a result of First Gas’ works given the Trust’s exclusion from the planning and decision-making process. They rightly question the value of an undertaking as a means to compensate the loss of cultural heritage.
[60] Against these factors, First Gas points to the significance of the Maui pipeline and its continuing operation. The pipeline is a piece of nationally significant infrastructure. At present, repair of the buckle is required to be completed by April 2023. While that is some time away, First Gas’s evidence is that commencement of the site investigations are now urgent. The ground conditions need to be ascertained before a design for repair and stabilisation can be commenced. There are then construction and related consenting processes which will follow. And, significantly, the buckle needs to be repaired before the next scheduled “in-line” survey of the pipe, due to be undertaken in May 2023. Given lengthy periods of the year when the buckle cannot be repaired, commencement of the investigation is now urgent if First Gas is to ensure completion in time. Damages will not be an adequate remedy in light of the nature of the right at stake. And if the pipeline is not repaired in time, there is a threat to the maintenance of natural gas supply in the North Island, with significant knock- on effects for communities and business. In short, in addition to irreparable harm to
First Gas is the potential for profound harm to third parties who rely on the continuing operation of the pipeline.
[61] Overall, I have concluded that the balance of convenience clearly favours the grant of an interim injunction until trial on the terms set out later in this judgment. While the potential impact on the Gibbs Family Trust’s farming operations or on cultural heritage and protection should not be understated, I find the following factors dispositive of the issue:
(a)First, First Gas is undertaking an archaeological investigation of the site as a first step. They have also sought the defendants’ input into that process. In short, the plaintiff is aware of the need to understand issues of cultural significance before it completes the repair and will obtain any necessary authority from Heritage New Zealand if required.
(b)Second, the overall impact of a failure to repair or replace the buckled section of pipe in time in my view clearly outweighs the risk, if any, of harm to the defendants and their property pending trial.
(c)Third, on the basis of the material before me I consider the merits of the rival arguments clearly favour First Gas rather than those raised by the defendants.
(d)Finally, while the Gibbs Family Trust might not consider the undertaking as to damages is adequate to address its concerns, I consider it does provide significant comfort and protection in relation to its position, should First Gas’ claims not succeed at trial.
[62] There were three more issues raised by the defendants which in my view are best considered under the balance of convenience.
Do the petroleum easements permit works and use of land outside the easement corridor?
[63] Much of the Gibbs Family Trust’s submissions at hearing concerned the scope of the proposed excavation and use of land beyond the easement corridor for the temporary storage of spoil. The Trust argues First Gas does not have any right to use its land in this way, and must reach an agreement with the Trust about it first.
[64] At the hearing, Ms Wallace confirmed that without prejudice to its claimed rights, First Gas will ensure that its exploratory works will be confined to the easement area, such that no further use of the defendants’ farm will be required.
[65] That being the case, I am satisfied that limiting the scope of works and activity to the easement corridor supports my conclusion that the balance of convenience favours the grant of the injunction.
Is there urgency given the need for an archaeological investigation and report?
[66] The Gibbs whānau contended that the claimed urgency, and I take it necessity, for an interim injunction did not exist. In addition to noting that access is available (provided a collaborative process is followed), they also highlighted a recent email from First Gas indicating that before any excavation can proceed, an archaeological report and archaeological authority from Heritage New Zealand is needed. That process may take, it is said, up to forty-five working days. That counts against the claim that the works need to occur without delay.
[67] As noted above at [60], the evidence indicates that while April 2023 is some time away, given the significant lead-in times to complete phase two of the Pariroa project, and the limits on when physical works can be undertaken, commencement has already been significantly delayed and is urgent. And, First Gas’ evidence is that the archaeological investigations do not relate to the initial excavation of the site; rather, it relates to the repair works planned for late 2021. Regardless, I consider any added delay caused by the need for archaeological investigations exacerbates the urgency that exists.
[68] If anything, I consider the added delay occasioned by archaeological investigations heighten the impact of delay, and the necessity for the order sought.
Does the s 70A Petroleum Act proclamation restrict access and work to the 12m wide easement corridor?
[69] In supplementary submissions received after the hearing, the Gibbs Family Trust also relies on s 70A of the Petroleum Act to argue that the easement certificates are derived from, and limited by, the proclamation process laid out in s 70A. They go on to argue that the pipeline easement certificates were issued under s 70A of the Act, and that after construction of the pipeline, the total width of the easement was limited to 12m.
[70] As a result, the defendants submit that “there is no scope or [possibility] for easement rights to extend beyond the 12 metre wide easements. Otherwise, what would be the purpose of the easement?”
[71] Whether the defendants are correct in their argument that s 70A limits First Gas’ right of entry and land use beyond the easement itself is a matter for trial. Relevant to the determination of that question will be the statutory rights which appear to attach to the pipeline authorisation and easement certificates under ss 68(d) and 73 of the Act.
[72] I do not consider the additional supplementary submissions and materials advanced by the defendants — both in relation to s 70A or otherwise — alter the conclusion that First Gas has established a serious question to be tried, and that the balance of convenience is clearly in favour of an interim injunction. I am reinforced in that conclusion by the defendants’ failure to address the effect of s 73 in their supplementary submissions, although it formed a key plank of First Gas’ application and submissions.
[73] Finally, I note First Gas’ undertaking to confine its physical works, including temporary spoil, to the 12m easement corridor. It follows that apart from necessary access to the buckle and the easement corridor, the interim works will not trigger the wider concern about non-easement land use the Gibbs Family Trust has sought to raise.
Overall assessment of the interests of justice
[74] Finally, an assessment of the overall justice of the position is required as a check.10
[75] Standing back, I am satisfied that the overall justice requires the grant of an interim injunction.
[76] In my view, an injunction limited to an order requiring the defendants to permit First Gas to exercise the rights apparent on the face of the pipeline authorisation and easement certificates (and, therefore, the Act), is not an unwarranted intrusion into their claimed interests as landowners. The extent of preliminary works envisaged are at this stage limited to an excavation intended to provide information needed to determine how and whether the buckle can be repaired, and land stability improved. That will occur over a limited period of time following archaeological investigations. And, to the extent access and use of part of the defendants’ land is ultimately found to be unlawful, I consider damages are an adequate remedy.
[77] In addition, I am satisfied that the overall justice and wider interests, including those of third party energy consumers, require interim preservation of unimpeded access to the Maui pipeline under the relevant instruments and Act, not only to repair the buckle, but also in relation to the Maui pipeline’s safe operation, maintenance and repair. The alternative contended for by the defendants would involve significant risk to nationally important infrastructure and energy supply to the greater North Island, given the defendants consider they have the right to exclude First Gas from practical access to the Maui pipeline.
Conclusion and orders
[78] I grant an interim injunction, until further order of the Court, prohibiting the defendants or any other party from restricting, obstructing or otherwise interfering with First Gas’ rights under the pipeline authorisation or easement certificates, including rights to enter the defendants’ land for the purpose of performing any action
10 NZ Tax Refunds Ltd v Brooks Homes Ltd [2013] NZCA 90, (2013) TCLR 531 at [12].
or operation necessary for the purpose of inspecting, maintaining or operating the Maui pipeline.
[79] All such activities are to be carried out in accordance with the authorisation and easement certificates, and the applicable provisions of the Act. And physical works are to be confined to the easement corridor, including the temporary deposition of spoil and storage of equipment and machinery, until further order. I also consider the draft conditions attached to the plaintiff’s submissions dated 1 July should apply.
[80]Leave is reserved to the parties to apply for further directions if required.
Costs
[81] Costs would normally follow the event. Should First Gas seek costs I direct a memorandum, no longer than three pages in length, to be filed within fifteen working days. Any memorandum from the defendants in reply shall also be limited to three pages and is to be filed fifteen working days thereafter.
Isac J
Solicitors:
Govett Quilliam, New Plymouth for Plaintiff
Appendix – procedural history
[1] It is helpful to record events leading up to the hearing of the application and those following shortly thereafter, in response to a submission by the defendants that First Gas’ provision of a synopsis of submissions in support of its application on 1 July gave rise to a breach of natural justice and other unfairness to the defendants.
[2] First Gas filed its proceedings on 16 April 2021. Service of the proceedings on the defendants proved problematic. The papers were served personally on two of the defendants, Ms Gibbs and Mr Horton, on 4 May 2021.
[3] Service on Mr Russell Gibbs proved to be impossible despite efforts to do so on five separate occasions. Ultimately, Cooke J in a minute of 31 May directed that service on Ms Parani Gibbs was sufficient service on Mr Gibbs under the Rules. His Honour also directed that the notice of hearing and a copy of his minute should be served on the defendants by sending the documents to Mr and Ms Gibbs’ usual email address.
[4] On 15 June, some six weeks after proceedings were served on Ms Gibbs personally, Mr Russell Gibbs filed a notice of opposition. At the same time he filed a memorandum seeking an extension of time to file evidence to 23 June. That request was made because it seems Mr Gibbs appreciated that r 7.25 of the Rules requires any evidence in support of an opposition to an interlocutory application to be filed with the notice of opposition.
[5]The defendants did not file any evidence on 23 June.
[6] Instead, on 23 June they filed a memorandum seeking to adjourn the hearing on 2 July. The reasons for the adjournment did not include any suggestion that the defendants were unable to prepare or file evidence in opposition. The request for an adjournment was opposed by First Gas.
[7] In a minute of 28 June, I dismissed the defendants’ request for an adjournment and noted that the defendants had not, at that time, filed any evidence in opposition. I indicated that if they intended to file evidence they should do so promptly and no later
than 1 pm on 30 June. I also directed that if late evidence was filed by the defendants, the plaintiff had leave to file any evidence in reply by 5 pm on 1 July, being the day before the hearing.
[8] An unsworn electronic copy of a seventeen-page affidavit by Mr Gibbs was then emailed to the Registrar by the defendants in the early afternoon of 28 June. Thereafter, a bundle of documents said to be exhibits to Mr Gibbs’ affidavit were sent to the registrar during the evening of Wednesday 30 June.11
[9] Given the lateness of Mr Gibbs’ evidence and exhibits, and First Gas’ reply evidence, I made no further directions on 28 June in relation to the exchange of written submissions before the hearing. Despite that, Ms Wallace for First Gas was able to file and serve on the defendants a synopsis of submissions at 3.29 pm the day before the hearing, 1 July 2021.
[10] At the commencement of the hearing Ms Gibbs began with a criticism about what she submitted was the late filing of First Gas’ submissions. But as she then went on to develop careful and well thought-out submissions going to the merits of the application itself — which occupied most of the hearing time — it became evident she was addressing the Court from written submissions which the defendants had prepared but not filed. Helpfully, Ms Gibbs agreed to provide the Court with the defendants’ fourteen and a half pages of written submissions during the luncheon adjournment, albeit, as she said, as a draft.
[11] During the hearing, Ms Gibbs wished to refer the Court to two video clips of the encounter of 25 January taken by the defendants. I confirmed I had not been able to view the clips before the hearing, but assured the defendants I would do so after the hearing.
[12] On checking the material filed with the Court, it became apparent that while the clips were included in an index of documents relied on by the defendants, they had
11 An earlier effort to provide a cloud-based electronic folder of documents was declined by the Registrar.
not in fact been provided to the Court. That led the Registrar to seek a copy of the videos from Ms Gibbs on 5 July 2021.
[13] In response, Ms Gibbs provided an additional synopsis of written submission running to thirteen pages, as well as a number of other attachments.
[14] The supplementary synopsis should not have been filed given that I indicated to Ms Gibbs at the hearing that I preferred to receive all submissions at the hearing. The synopsis once again alleged First Gas’ failure to provide its synopsis on 29 June deprived the defendants of the ability to prepare for the hearing and effectively amounted to a trial by ambush. A breach of natural justice is said to have followed.
[15] I do not accept that submission given, as the chronology above records, the defendants’ unexplained failure to provide evidence prior to 28 June, and most of the exhibits sometime after that.
[16] In those circumstances, it is not surprising that First Gas was unable to file and serve its written submissions, and evidence in reply, any earlier than it did. And I am left with significant unease about the claimed prejudice to the defendants as a result of all this given that before the hearing commenced they had prepared fourteen and a half pages of written submissions setting out their arguments, and were able to advance their case in careful oral submissions which occupied the majority of the hearing.
[17] Finally, there are two further inaccuracies in the defendants’ submissions that require clarification. First is the claim in the supplementary submissions that:
It became apparent at the hearing that Judge Isac had not viewed the film clips
in evidence…
To assist the Court to view these four film clips, we provide the following links to view the film clips in evidence…Attached to the affidavit of Russell Gibbs dated 28 June 2021, para 9, 11, & 68
(emphasis added)
[18] This submission is no correct. The relevant video clips had not been provided to the Court prior to the hearing, and were not “in evidence”. They were only provided
as a link to YouTube on 5 July, together with thirteen further pages of supplementary submissions.
[19] Second, in the written and oral submissions made at the hearing, Ms Gibbs submitted that my minute of 28 June:
…assumed that [that the defendants] had not yet filed supporting affidavit/evidence. It appears that Isac J was unaware that we had requested a further extension [to file evidence], and that we had already filed the supporting affidavit/evidence. On 23 June 2021, we had requested a further extension until 8am, 28 June 2021. We filed this affidavit at 12.06am on 28 June 2021.
[20] This submission is inaccurate in two respects. First, my minute of 28 June was emailed to the defendants at 10.43 am on 28 June. The text of Mr Gibbs’ affidavit was then emailed to the registrar, presumably in response, at 12.07 pm the same day. Second, no request was made by the defendants on 23 June 2021 for a further extension of time to file evidence. In fact, Mr Gibbs’ memorandum of that date made no mention of the overdue evidence and instead sought an adjournment of the hearing not on the basis that the defendants had inadequate time to prepare, but on the basis that the application itself lacked merit and could not succeed.
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