James Parlane v Waipa District Council

IN THE SUPREME COURT OF NEW ZEALAND
SC 53/2006
[2006] NZSC 73

BETWEENJAMES CHARLES MORRIS PARLANE

Appellant

ANDWAIPA DISTRICT COUNCIL

Respondent

Court:Blanchard, Tipping and McGrath JJ
Counsel:Appellant in Person

C T Gudsell for Respondent

Judgment:19 September 2006

JUDGMENT FOR THE COURT

The application for leave to appeal is dismissed with costs of $1,000 to the respondent.
REASONS

[1]       The proposed appeal concerns the validity of a bylaw made by the respondent Council prohibiting the lighting of open-air fires. There are certain exceptions, one of them being for such fires “contained within an incinerator constructed and maintained to New Zealand Standard (NZS) 5202”. It appears that before the bylaw was promulgated that standard had been withdrawn by Standards New Zealand. The District Court Judge found that this circumstance did not make the bylaw invalid. The High Court took a different view but upheld Mr Parlane’s convictions for breach of the bylaw on a different ground after severing the part of the bylaw which referred to the standard.
[2]       The Court of Appeal did not find it necessary to consider the question of severance. Like the District Court it held that the bylaw was not rendered invalid merely because it was framed by reference to a withdrawn standard. It recorded that there was no challenge to the bylaw in the present proceeding on the ground of unreasonableness.
[3]       The Court of Appeal’s conclusion that in principle the local authority was not under any legislative restriction preventing the use of any standard which had been issued by Standards New Zealand and then withdrawn is so plainly correct that the proposed appeal to this Court has no chance of success. Like the Court of Appeal, we express no view on whether the use of the particular standard may have resulted in a bylaw which is unreasonable or is invalid for any other reason.
Solicitors:
James Parlane, Te Awamutu for Appellant
Gallie Miles, Te Awamutu for Respondent

CaseChat Overview and Summary

The case of James Charles Morris Parlane v Waipa District Council involved the appellant, James Parlane, challenging the validity of a bylaw made by the respondent, Waipa District Council, prohibiting the lighting of open-air fires. The bylaw included an exception for fires contained within an incinerator constructed and maintained to the New Zealand Standard (NZS) 5202. Prior to the promulgation of the bylaw, the standard had been withdrawn by Standards New Zealand. Parlane argued that this made the bylaw invalid, but the District Court Judge disagreed. The High Court later upheld Parlane’s convictions for breach of the bylaw on a different ground after severing the part of the bylaw that referred to the withdrawn standard.

The legal issues before the court were whether the withdrawal of a standard by Standards New Zealand rendered the bylaw invalid, and if so, whether the bylaw could be severed to exclude the reference to the withdrawn standard. The Court of Appeal held that in principle, the local authority was not under any legislative restriction preventing the use of a withdrawn standard, and that the bylaw was not rendered invalid merely because it was framed by reference to a withdrawn standard. The Court of Appeal also noted that there was no challenge to the bylaw in the proceeding on the ground of unreasonableness.

The Supreme Court of New Zealand found that the Court of Appeal’s conclusion was correct, and that the proposed appeal had no chance of success. The Supreme Court expressed no view on whether the use of the particular standard may have resulted in a bylaw which is unreasonable or is invalid for any other reason. The Supreme Court dismissed the application for leave to appeal with costs of $1,000 to the respondent.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established