Golden Bay Agricultural and Pastoral Association Incorporated v Tasman District Council
[2018] NZHC 1637
•4 July 2018
IN THE HIGH COURT OF NEW ZEALAND NELSON REGISTRY
I TE KŌTI MATUA O AOTEAROA WHAKATŪ ROHE
CIV 2018-442-35
[2018] NZHC 1637
BETWEEN GOLDEN BAY GRAND STAND
COMMUNITY TRUST INCORPORATED
GOLDEN BAY AGRICULTURAL AND PASTORAL ASSOCIATION
INCORPORATED
ApplicantsAND
TASMAN DISTRICT COUNCIL
Respondent
Hearing: 27 June 2018 Counsel:
C Linkhorn for Applicants
J Winchester for Respondent
Judgment:
4 July 2018
JUDGMENT OF ELLIS J
[1] On 27 June 2018, I made interim orders under the Judicial Review Procedure Act 2016 prohibiting the Tasman District Council (the TDC) from taking further action consequential on its decisions between 9 June 2016 and 24 May 2018 to authorise demolition of the Grandstand at the Takaka Recreation Reserve. These are my reasons for making those orders.
GOLDEN BAY GRAND STAND COMMUNITY TRUST INC v TASMAN DISTRICT COUNCIL [2018] NZHC 1637 [4 July 2018]
Background
[2] Both the Grandstand and the land on which it sits was once owned by the second applicant, the Golden Bay Agricultural and Pastoral Association Incorporated (the Association). The Association was established in 1893 and is an incorporated society under the Agricultural and Pastoral Societies Act 1908 (the 1908 Act). That Act provides (inter alia) for the ownership and leasing of land by societies and restrictions on the disposal of such land, in certain circumstances. Section 10 provides that the objects of every society shall be:
… 1 or more, either wholly or in part, of those hereinafter set forth:
(a)to collect such information contained in agricultural publications and in other works as has been proved by practical experience to be useful to the cultivator of the soil:
(b)to correspond with agricultural and other societies, and to select from such correspondence all information that is, in the opinion of the society, likely to be of practical benefit to the cultivator of the soil:
(c)to pay to any occupier of land or other person who undertakes, at the request of the society, to ascertain by experiment how far such information leads to useful results in practice, compensation for any loss he incurs in doing so:
(d)to encourage men of science in their attention to the improvement of agricultural implements, the application of chemistry to the general purposes of agriculture, the destruction of insects injurious to vegetable life, and the eradication of weeds:
(e)to promote the discovery of new varieties of grain and other vegetables useful to man or as food for domestic animals:
(f)to collect information with regard to the management of woods, plantations, and fences, and on every other subject connected with rural improvement:
(g)to take measures for improving the veterinary art as applied to horses, cattle, sheep, and pigs:
(h)to encourage by the distribution of prizes at the meetings of the society, and by other means, the best mode of farm cultivation and the improvement of livestock of all or any of the kinds defined in this Act:
(i)to encourage enterprise and industry by the holding of meetings for the exhibition of implements and produce, the granting of prizes thereat for the best exhibits, and by competitions for prizes for inventions or improvements, or for skill or excellence in agricultural or pastoral arts.
[3] Parts of the Grandstand date back to 1899 and it has distinctive architectural features; principally its barrel-vaulted roof, which dates from 1911. But it is presently in disrepair and has, over the years, had a number of architecturally anomalous additions to it.1
[4] It seems that in the late 1950s a decision was made that the Association no longer needed to own the Grandstand or the surrounding land and that it should be vested in the local Council (then called a Corporation). The transfer of ownership was effected by s 18 the Reserves and Other Lands Disposal Act 1959, which provided:
18 Special provisions relating to certain land at Takaka
Whereas the Golden Bay Agricultural and Pastoral Association (in this section referred to as the Association) is registered as proprietor of an estate in fee simple in the land firstly described in subsection (7) of this section: And whereas the Association and the Takaka Athletic and Cycling Club Incorporated (in this section referred to as the Club) are registered as proprietors as tenants in common in equal shares of an estate in fee simple in the land secondly described in subsection (7) of this section: And whereas the land described in subsection (7) of this section is not required by its registered proprietors for their exclusive use: And whereas it has been agreed that the said land be vested in the Corporation of the County of Golden Bay (in this section referred to as the Corporation) as a recreation reserve subject to the provisions of Reserves and Domains Act 1953: And whereas there is no authority for the said land to be so vested, and whereas it is desirable that provision be made accordingly: Be it therefore enacted as follows:
(1)Notwithstanding anything to the contrary in the Agricultural and Pastoral Societies Act 1908 or in any other Act or rule of law, the land described in subsection (7) of this section, together with all buildings and other improvements thereon is hereby vested in the Corporation as and for a recreation reserve subject to the provisions of the Reserves and Domains Act 1953, and subject also to the provisions hereinafter set out, but otherwise freed and discharged from all trusts, restrictions, and reservations heretofore affecting the same.
(2)The District Land Registrar for the Land Registration District of Nelson is hereby authorised and directed to make such entries in the register books and to do all such other things as may be necessary to give effect to the provisions of this section.
1 Later additions to the Grandstand or immediately adjacent to it were the refurbishment of the ground floor into rugby football clubrooms in 1967, rear lean-tos over a period of years, a front extension in 1992, and an abutting two storey squash court building erected in 1975.
(3)The Association shall be entitled to use free of charge the buildings on the said land for the purpose of holding meetings and for storage of fittings and equipment to the same extent as immediately prior to the coming into force of this Act.
(4)The Golden Bay County Council shall appoint a standing committee under section 71 of the Counties Act 1956, to be known as the Showgrounds Management Committee, which shall have the management of the said land, and which shall consist of:
(a)2 members to be appointed in that behalf by the Golden Bay County Council:
(b)1 person to be appointed by the Golden Bay County Council on the recommendation of the Association:
(c)1 person to be appointed by the Golden Bay County Council on the recommendation of the Club:
(d)Such other persons not exceeding three in number as the Golden Bay County Council may from time to time appoint as nominees of other sporting bodies in the Takaka District.
(5)Notwithstanding anything to the contrary in any Act or rule of law or in the terms or trusts under which the Golden Bay Agricultural and Pastoral Society holds the sum of 750 pounds now deposited with the Permanent Building Society of Nelson on fixed deposit under Number D 2350, the said sum shall, on the coming into force of this Act, be and be deemed to be owned by the Corporation to be held by it and administered pursuant to section fourteen of the Land Subdivision in Counties Act 1946 in respect of the land described in subsection (7) of this section and the Permanent Building Society of Nelson is hereby authorised and directed to transfer the ownership of the aforesaid amount on fixed deposit to the Corporation.
(6)Commencing from the year ending on 31 March 1960, the Corporation shall and is hereby authorised and directed to pay from its general funds the sum of 30 pounds each year to the Association for the general purposes of the Association.
(7)The land to which this section relates is particularly described as follows:
Firstly, all that area in the Nelson Land District, being part Lot 1A DP 2371, being part of Part 1 of Section 22 District of Takaka, situated in Block X, Waitapu Survey District, containing 4 acres 3roods 2 perches and six-tenths of a perch, more or less, and being the balance of the land comprised and described in certificate of title, Volume 75, folio 221, Nelson Registry.
Secondly, all that area in the Nelson Land District, being part of Part 1 of Section 22, District of Takaka, situated in Block X, Waitapu Survey District, containing 9 acres 1 rood 38 perches and seven-tenths of a perch, more or less, and being the balance of the land comprised and described in certificate of title, Volume 62, folio 224 (limited as to parcels), Nelson Registry.
As the same are shown on the plan marked L and S 22/3420A, deposited in the Head Office, Department of Lands and Survey, at Wellington, and thereon edged red.
[5] At this interim stage, the complete background to these provisions remain hazy. It is not, for example, all together clear:
(a)why 750 pounds were transferred from the Association to the Council under subs (5); or
(b)why the Council was required to pay 30 pounds annually to the Association under subs (6).2
[6] I therefore merely record that Mr Linkhorn’s suggestion that the former payment was made for the purposes of maintaining the grounds and buildings and the latter represented interest on that sum does not seem beyond the realms of possibility.3
[7] For present purposes, however, the critical provision is s 18(3) and the right it confers on the Association to:
… use free of charge the buildings on the said land for the purpose of holding meetings and for storage of fittings and equipment to the same extent as immediately prior to the coming into force of this Act.
[8] And it is, I think, now accepted by all the parties that the reference to “meetings” in s 18(3) includes meetings of the kind referred to in s 10(i) of 1908 Act and, accordingly, the A&P show that has taken place on the land annually, on the third weekend in January, since 1896. Historically the Grandstand provided a covered, raised seating platform from which spectators could watch that show. A “Produce
2 I was advised that this payment (decimalised to $60 per annum) is still made.
3 He advised that the latter payments are referred to as “interest” in the Association’s bank account.
Hall” was built nearby and was also used by the Association for the purposes of its annual show.
[9] As I have said, the Grandstand has, over the years been modified and unsympathetically added onto. It is in a delipidated state. Whether or not it also now poses an earthquake risk is the subject of divided expert opinion.
The Grandstand’s future: chronology of consultation and decision making
[10] Much of what follows is taken from the applicants’ statement of claim and evidence. Some aspects of the narrative are disputed and there may be material omissions from it.4 But at this interim stage, I must deal with the issues as best I am able; I am unable to resolve factual contests. That is a point I return to later.
[11] In August 2010, a public meeting discussed a proposal included in the TDC’s ten-year plan involving a new shared community recreation complex for Golden Bay.
[12] In October 2011, the Golden Bay Shared Recreational Facility (the SRF) was incorporated by members of the Golden Bay community. The objects of the SRF included promoting a new building at the showgrounds for sporting and community groups. The SRF consulted with the Association in 2011 and 2012.
[13] The SRF finalised its proposal for a new building and sought the TDC’s support for its construction. This proposal:
(a)located the new building where the Association’s Produce Booth was
located and therefore required demolition of the Produce Booth;
(b)did not involve covered Grandstand (raised) seating; and
(c)also involved the demolition of the Grandstand and the use of the space thereby created for car parking adjacent to the new building.
4 Although the Council filed evidence in support of its opposition, no statement of defence has yet been filed.
[14] On 9 June 2016, the TDC resolved to demolish the Grandstand and the Produce Booth and to approve the construction of the new building as proposed by the SRF. In making those decisions the Council did not specifically consult with the Association or seek its agreement to the proposal.
[15] By June 2016 the TDC had become aware that the Grandstand was an “archaeological site” (because parts of the building date back to pre-1900), which meant that consent from Heritage New Zealand Pouhere Taonga (HPT) would be required for any modifications. An issue had also been raised as to whether the Council should (regardless of whether the buildings were an archaeological site) include them in its heritage register as part of the District Plan.
[16] In January 2016, workers approved by the TDC demolished the Produce Booth. The Association did not oppose and, indeed, assisted in this endeavour.
[17] Between February and May 2016, contractors engaged by the TDC removed the two staircases at either end of the Grandstand rendering it unusable.
[18] In July 2016 the first applicant, the Golden Bay Grand Stand Community Trust Incorporated (the Trust), was established and incorporated as a charitable trust. Its purpose is to “promote and assist in the preservation and restoration of the heritage Grandstand at the Takaka Recreation Park” and “raise funds and provide funding” for the same.
[19] Around October or November 2016, the TDC applied to HPT for approval to demolish the Grandstand. On 21 November 2016 that approval was given.
[20] In December 2016, the Trust commenced proceedings in the Environment Court (the EC) seeking a review of the HPT decision to approve demolition of the Grandstand and enforcement orders preventing demolition and requiring that the stairs be reinstated.
[21] On 29 June 2017, the EC declined both the Trust’s applications.5 In a careful and thorough judgment the Court considered the historic and heritage values of the Grandstand at length. In relation to heritage value, it distinguished between national heritage values (which were HPT’s concern) and local ones (which were not). More specifically, it said:
[66] With regard to the heritage value of the Grandstand, matters agreed by the experts in conference included:
·In the building’s current state and with the historic information to hand Mr Blackburne, Ms Craig and Ms Coats agreed that the building does not attain a Category 1 or Category 2 threshold in terms of HNZ listing criteria but all acknowledged (to various degrees) that the building exhibits heritage values which are specific to the Golden Bay region (and to the Nelson/Tasman region in Mr Bowman’s case);
·In the absence of any unified national heritage criteria the experts adopted the framework written by Mr Bowman in his statement of evidence at Appendix 1 which contained a series of values to be given a high, moderate or low score. …
·The re-assessments using Mr Bowman's 'Framework" were recorded in Table 1 as follows:
a.events value was rated ‘high’ by all experts;
b.architecture, Technology, Rarity and Education values were all rated ‘high’ by every witness other than Ms Coats who recorded each as having ‘low’ value;
c.patterns was rated ‘high’ by all experts save Mr Bowman who rated it ‘moderate’;
d.context or Group values were rated ‘moderate’ by all but Mr Bowman who rated them as ‘high’;
e.representativeness, Identity, People, Commemorative and Public Esteem values were rated ‘moderate’ by all experts;
f.scientific and Integrity values were rated ‘low’ by all experts.
·Messrs Blackburne and Bowman noted the possible ‘Rarity Value’ of the Grandstand and suggested that these points would be subject to detailed investigation should a Conservation Plan be commissioned;
5 Golden Bay Grandstand Community Trust Inc v Heritage New Zealand Pouhere Taonga [2017] NZEnvC 92, [2018] NZRMA 133 as corrected by [2017] NZEnvC 93.
·In Messrs Bowman’s and Blackburne’s and Ms Craig’s view the 1967-68, 1975, 1977 and 1992 elements reduce heritage value by obscuring the original form and character and remove some original fabric of the 1899/1911 portion of the building. In Ms Coats' view the authenticity of the remaining parts of that portion and its value are affected and diminished due to the other parts. She agreed that the removal of significant parts of the building to recapture its 1899/1911 form could be used as a tool to re establish and increase value through a process of reconstruction and restoration.
[22]Then, the Court went on:6
[67] It is unfortunate that the process of development of the Facility was undertaken in the way that it was, without a detailed appraisal of the heritage values of the Grandstand and the feasibility of its retention. It was apparent from the responses which Mr L McKenzie gave to questions from members of the Court that the Council's approach to these considerations was driven by non inclusion of the Grandstand in the Schedule and a lack of knowledge as to its history. He acknowledged that had the Council become aware earlier of the heritage issues which have been raised it would have taken a more detailed appraisal. It is apparent that all the experts agree that such an appraisal should have included preparation of a Conservation Plan for the Grandstand.
[68] Mr Bowman and Ms Craig agreed “that a Conservation Plan proportionate to the heritage significance of the building shall include the following:
(a)Preparation of accurate measured drawings of the existing building
(b)a historical record of the building
(c)a heritage inventory of all fabric and an assessment of authenticity
(d)an assessment of heritage values and summary of significance
(e)consideration of risks associated with the building
(f)policies that will ensure the heritage values of the building are maintained accepting appropriate adaptation; and
(g)means of implementation of the policies”
[23]In the end, however, the Court concluded that:
(a)the historic heritage factors, and the Grandstand’s historic heritage significance have been substantially diminished by the various unsympathetic additions over the years;
6 At [67]–[68] (footnotes omitted).
(b)the structural integrity of the building and what might be required to preserve (or reconstruct) it was problematic;
(c)the purpose of the proceedings appeared to be to permit further, more detailed, analysis to be done of what might be necessary to enable retention, reconstruction and possibly relocation;
(d)reconstruction on its present site would preserve the amenity and historic heritage values identified; but
(e)the Court had no power to order the TDC to undertake reconstruction or relocation, even if that were to prove feasible; and
(f)the replacement development was well advanced and no resource consent was required to demolish the Grandstand.7
[24] Although the Court referred in passing to s 18, the Association was not a party to the litigation and the Court made no determination as to the nature and extent of the rights preserved by that section.
[25] In July 2017, the TDC reaffirmed its decision of June 2016 to demolish the squash court, rear lean to, and the front extension if possible. It also provided the Trust a three-month opportunity to submit a refined proposal for preservation of the Grandstand.
[26] In October 2017, the Trust submitted its refined proposal for preservation of the Grandstand. The TDC rejected this proposal and reaffirmed its earlier decision the following month.
[27] In December 2017, a further proposal to save the Grandstand from demolition was put to the TDC by others in the community. This group went on to form the Golden Bay Grandstand Restoration Society (the Restoration Society) in January 2018.
7 Because not included in Schedule to District Plan.
[28] On 24 May 2018, the TDC rejected the Restoration Society's proposals and again resolved, by majority (8-6), to demolish the Grandstand.
[29] On 31 May 2018, the TDC’s Chief Executive rejected an approach seeking further discussion about the respondent's decision to demolish the Grandstand.
The application for judicial review
[30]The statement of claim pleads two causes of action:
(a)breach of the Association’s s 18 rights, by:
(i)demolition of the Produce Booth;
(ii)removal or the staircases;
(iii)the proposed demolition of the Grandstand; and
(b)unlawful decision-making by the TDC involving:
(i)failure to engage with the Association of to consider its rights under s 18;
(ii)failure to consider putting the Grandstand and Produce Booth on its heritage register;
(iii)demolition of the Produce Booth without the consent of HPT; and
(iv)removal of the staircases without the consent of HPT.
[31]I refer to more specific aspects of the pleadings as necessary below.
Should the interim orders be granted?
[32] It is uncontroversial that, in order to grant the orders sought, the Court must be satisfied that the order is “reasonably necessary” to preserve the position of the applicants.8 Nor is it disputed that the following factors are relevant to that inquiry:9
(a)the strengths and weaknesses of the applicants’ case;
(b)the advantages and detriments to the parties;
(c)the status quo;
(d)the balance of convenience;
(e)public and private repercussions; and
(f)overall justice.
Discussion
[33] It is necessary accepted that the applicants have a position to preserve in the sense that if the orders are not granted there will be no impediment to the demolition of the Grandstand and the amenity and heritage values that they seek to retain will be lost. And while there is undoubtedly inconvenience to the TDC (and, perhaps, local residents) arising from any further delay in progressing a development that is already partly completed, I would not be inclined to place much weight on that, given that (as I made clear to counsel) the substantive application for review could be given an urgent hearing.10
8 Carlton & United Breweries Ltd v Minister of Customs [1986] 1 NZLR 423 (HC); [1986] 1 NZLR 429 (CA).
9 ENZA Ltd v Apple & Pear Export Permits Committee HC Wellington CP266/00, 18 December 2000.
10 Hearing dates of only a fortnight or so away were available.
[34] No doubt for those reasons, the focus of the TDC’s opposition to the grant of interim relief was its contention that the position that the applicants undoubtedly had to preserve and any interest in maintaining the status quo (even on a short term and temporary basis) was outweighed by the fact that the applicants’ substantive position
– that the TDC’s decision(s) to demolish the Grandstand are unlawful – was demonstrably without merit. It was therefore that issue that was the focus of the hearing before me and the discussion that follows.
[35] At the outset, I record that an assessment of the merit of the applicants’ claims is difficult. Were the issue simply one about the scope and application s 18 and any underlying arrangements, I would have little hesitation in finding in their favour (at this interim stage). On the face of the section, it seems to me to be reasonably arguable that the Association was entitled to expect that:
(a)whatever rights of access and use it had in 1959 would continue on an equivalent basis;
(b)those rights would include access to and use of buildings of a similar kind to those which existed in 1959;
(c)such similarity should extend to access and use of a building suitable to the Association’s specific purposes and needs, and thus a to a building containing a raised and covered viewing platform, such as the Grandstand; and
(d)it would be specifically consulted about any proposals that might alter or diminish these historic rights.
[36] While Mr Winchester submitted that any right of user conferred by s 18 could be no more than a licence, I would not be prepared to express a concluded view about that absent more detail as to the circumstances in which the land and buildings were (effectively) gifted to the Council in 1959. I do no more than record my provisional view that the position may well be subtler, and the right conferred more substantive.
[37] In any event, the material before the Court makes it tolerably clear that the existence of s 18, and any rights conferred on the Association by that section, have not been considered by the TDC until very recently. Moreover, the evidence presently suggests that the advice received by the Council as to the legal effect of s 18 may be wrong. I do not, however, need to say more about that here.
[38] The strength of the Association’s position under s 18 has, however, arguably been diminished by certain other matters, including that:
(a)the SRF’s proposal for the replacement of the Grandstand did not include raised and covered seating;11
(b)notwithstanding the absence of specific, targeted consultation, members of the Association saw, and did not object to that proposal or to the demolition of the Grandstand, which was implicit in it;
(c)the Association reaffirmed that position in 2016 when it signed an MOU confirming its proposal that the land on which the Grandstand stands be used for carparks and that more of its own land would be available for netball courts (which had previously been proposed to be put on the Grandstand land); and
(d)did not, until 2018, expressly and publicly refer to, or stand on, its rights under s 18.12
[39] Mr Winchester said, and I accept, that these matters give rise to real questions of waiver.
[40] The extent to which heritage issues might form part of any rights conferred by s 18 is not clear. But they are certainly the concern of the first applicant and they arguably have wider reach. The relevant pleadings are that:
11 This is specifically pleaded in the statement of claim, although the principal deponent for the Association, Mr D McKenzie, said that the Association was not aware of this until later.
12 By “publicly”, I mean in its interactions with the TDC.
At no stage has the respondent considered and determined whether or not the grandstand … should be included in its heritage register.
…
The applicants legitimately expected that the respondent would consider whether to include the grandstand and produce booth on its heritage register.
The respondent failed to consider whether or not to include the grandstand and produce booth on its heritage register.
[41] During the hearing, however, it became apparent that a decision had (recently) been made by the TDC that the Grandstand not be placed on the heritage register. An amendment to the claim may therefore be in prospect. I have already noted the criticisms made of this aspect of the Council’s decision-making by the EC.
[42] Standing back, I am unable to agree with Mr Winchester that the claims as drafted (and as possibly amended) have no reasonable chance of success. The merits are not clear-cut and depend both on the interpretation and application of an unusual statutory provision, and on factual findings which cannot properly be made at this interim stage. I also record that it seems to me quite possible that, even if the applicants ultimately succeed in establishing any of their grounds for review, the matters which ultimately militated against making the orders sought in the EC may also militate against the granting of relief here.
[43] Against all of that are the other matters relevant to the grant of interim relief. I have referred to them already. But in short, they favour the applicants. It is, in my view, appropriate to be cautious in a case such as this. Although I accept that further delay is frustrating, the Court can, as I have said, accommodate an urgent substantive hearing. In my view that is where the interests of justice lie.
[44]The interim orders were granted accordingly.
Rebecca Ellis J
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