Gibbs v First Gas Limited - [2022] NZCA 627

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA29/2022
[2022] NZCA 627

BETWEEN	RUSSELL VICTOR GIBBS, PARANI JOSEPHINE GIBBS AND TE AHURU TRUSTEE COMPANY LIMITED AS TRUSTEES OF THE RV AND PJ GIBBS FAMILY TRUST Appellants
AND	FIRST GAS LIMITED Respondent

Hearing:	25 October 2022
Court:	Collins, Thomas and Muir JJ
Counsel:	Appellants in person L P Wallace and H A Froude for Respondent
Judgment:	15 December 2022 at 9.30 am

JUDGMENT OF THE COURT

AThe appeal is dismissed.
BThe appellants must pay costs to the respondent for a standard appeal on a Band A basis and usual disbursements.

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REASONS OF THE COURT

(Given by Muir J)

Introduction

The trustees of the RV & PJ Gibbs Family Trust (the Trustees) appeal a decision of Grice J, dated 3 December 2021,[1] in which her Honour made declarations that First Gas Ltd (First Gas) be authorised to enter onto the Trustees’ land with machinery as required for the purposes of inspecting and repairing the Maui Gas Pipeline (Maui Pipeline) and to store and deposit such machinery adjacent to the pipeline while such works were occurring. Her Honour also issued a permanent injunction prohibiting the Trustees from restricting First Gas in the exercise of its rights.[2]
[1]First Gas Ltd v Gibbs [2021] NZHC 3309 [Judgment of Grice J].
[2]At [278].
Broadly, the Trustees say that these rights are restricted to a 12 metre wide strip, six metres either side of the pipe’s centreline and, since vehicular access along the length of the strip is not possible, any access across their land for maintenance purposes must be the subject of negotiation and agreement.
The respondents say that Grice J correctly interpreted the relevant easements and applied the relevant statutory framework with the result that the appeal should be dismissed with costs.

Background

First Gas owns and operates the Maui Pipeline. It was formerly known as Vector Gas Ltd and formerly still as Natural Gas Corporation of New Zealand Ltd (NGC). NGC was one of the companies employed by the Minister of Works and Development to operate the Maui Pipeline which was developed and originally owned by Maui Development Ltd (MDL). First Gas purchased MDL in June 2016. It is therefore now both the owner and operator of the pipeline.
The pipeline itself was completed in 1979 and supplies over 90 per cent of the natural gas used in the upper North Island. It runs 299 kilometres northward from New Plymouth to South Auckland, mostly underground at a depth of 1.2 to 1.5 metres. The Trustees’ picturesque coastal property, owned by them and their predecessors for over 100 years, is one of those through which it passes. The relevant legal authority derives from a pipeline authorisation under the Petroleum Act 1937 (the Act),[3] dated 31 July 1975, and two pipeline easement certificates (PECs) issued under it.[4]
[3]The Petroleum Act 1937 has been repealed but the saving provisions in the Crown Minerals Act 1991 preserve the former’s…

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 Gibbs v First Gas Limited

Details

AGLC: Gibbs v First Gas Limited [2022] NZCA 627
Case: [2022] NZCA 627
Decision Date: 15 December 2022 at 9.30 am

CaseChat Overview and Summary

The appeal was dismissed by the Court of Appeal of New Zealand. The appellants, Russell Victor Gibbs, Parani Josephine Gibbs, and the Te Ahuru Trustee Company Limited as trustees of the RV and PJ Gibbs Family Trust, appealed a decision of the High Court that allowed First Gas Limited to inspect, repair, and maintain the Maui Gas Pipeline on the appellants' property. The appellants argued that First Gas's rights were limited to a 12-metre wide strip and that any access outside this strip required negotiation and agreement. The respondents argued that the High Court correctly interpreted the relevant easements and applied the statutory framework, and the appeal should be dismissed with costs.

The Court of Appeal found that First Gas's rights were not limited to the 12-metre wide easement strip, as the pipeline easement certificates and the statutory framework provided for entry on and access across the land to which the certificate relates for the purpose of exercising the rights conferred on the holder of the authorisation. The Court also found that First Gas's rights were not subject to any binding arrangement or agreement, as the Maui Pipeline Agreement was not applicable to First Gas and had been superseded by the pipeline easement certificates. The Court agreed with the High Court that the permanent injunction was necessary to ensure that First Gas's lawful rights were not effectively defeated or derogated from, and that the declarations made by the High Court were a sufficient remedy.

The appeal was dismissed, and the appellants were ordered to pay costs to the respondent for a standard appeal on a Band A basis and usual disbursements.

Orders